The Queen (on the application of Pitt and Tyas) v General Pharmaceutical Council [2017] EWHC 809 (Admin)

Posted by Catharine Donnelly on

Commentary

This decision reinforces the notion that the privilege of being a member of a registered profession comes with the quid pro quo that proper standards of personal behaviour will be maintained at all times. Registrants may take heed of this decision and remember that just because they may consider themselves to be "off the clock" regulators can still apply scrutiny to areas of their lives beyond the day job.  

Summary

In March 2017 the Claimants, members of the Pharmacists' Defence Association ("PDA"), sought permission in the Administrative Court to challenge the introduction of the Standards for Pharmacy Professionals ("the Standards"). The application was brought in advance of the Standards being adopted by the General Pharmaceutical Council ("GPhC") and coming into full effect in May 2017.

The Honourable Mr Justice Singh presided over the application and was also asked to consider the Claimants' two grounds of challenge in a 'rolled up' hearing. The two grounds of challenge were, firstly, that the decision of the GPhC to adopt the new Standards was ultra vires on the basis that their content includes a requirement for the standards to be met at all times. Secondly, it was said that the decision of the GPhC to agree the new Standards would amount to a breach of the Human Rights Act 1998 ("the HRA").

The judge distilled the proposed elements of the challenge into four separate questions and considered each in turn. In refusing the application, it was held that the adoption of the new Standards was lawful and did not breach the European Convention on Human Rights ("the Convention").

Background

Mr Pitt and Mr Tyas, two pharmacists, as well as members and officials of the PDA, sought permission in the Administrative Court to challenge the Standards for Pharmacy Professionals ("the Standards") prior to them coming into effect on 1 May 2017.

Mr Justice Singh paid due regard to s.60 of the Health Act 1999 ("the 1999 Act") which governs a Council to modify their regulation where it is 'necessary or expedient' to secure or improve the regulation of that profession.

The provisions of the Pharmacy Order 2010 (SI 2010 No. 231) ("the 2010 Order") were also considered with particular attention being paid to Part 6 of the 2010 Order concerning Standards of Conduct and Performance. It was noted that Part 6(a) provides that the GPhC must "set standards relating to the conduct, ethics and performance expected of registrants".

The new Standards were considered and Mr Justice Singh noted that there are nine standards that every pharmacy professional is accountable to meeting, which apply to all pharmacists and pharmacy technicians. Paragraph 6 of the Introduction provides that the standards "need to be met at all times, not only during working hours". Standard 6 relates to pharmacy professionals behaving in a professional manner, including be "polite and considerate", "show empathy and compassion" and "treat people with respect and safeguard their dignity".

The Challenge

The PDA, in bringing a claim for judicial review, sought an order quashing:

a) Those parts of the new Standards that require that they need to be at met at all times and not only during working hours;

b) The parts of Standard 6 about communication, empathy, compassion, respect, dignity and personal boundaries insofar as they apply to non-work related matters.

The grounds of challenge were two-fold:

a) The decision of the GPhC to agree the new Standards (and the new Standards themselves) were ultra vires/unlawful given that their content includes the requirement for standards to be met at all times.

b) The decision of the GPHC to agree the new Standards was, for the same reason, unlawful as being contract to Articles 8, 10 and 11 of the Convention, as set out in Schedule 1 of the HRA.

The Defendant argued that the new Standards were not ultra vires or unlawful and that the Claimants could not rely on the Convention because they were not "victims" for the purposes of section 7 of the HRA.

The issues

The learned judge distilled the issues into four key questions as outlined below. In answering each question in the negative, the application for permission was refused.

  1. Are the new Standards ultra vires?
  2. Are the Standards unlawful on the ground of uncertainty?
  3. Are the Claimants entitled to rely on the Convention rights?
  4. Is there a breach of the Claimants' Convention Rights?

1. Are the new Standards ultra vires?

The Claimants submitted that the new Standards go beyond the remit of the powers conferred upon the GPhC by the 2010 Order and go too far in intruding on private matters by requiring compliance "at all times". It was said that this went beyond what Parliament had envisaged and, as such, a requirement of "at all times" ought to be spelled out clearly in statute if that was the true intention.

Mr Justice Singh disagreed. He held that the Claimants' interpretation was "simply wrong" and not rooted in "real life and common sense". The judge drew the distinction between impoliteness over a board game which is not going to trouble the GPhC, compared to a racist Twitter tirade, which would be more likely to invoke scrutiny. 

The judge held that the new Standards do not seek to extend the definition of "misconduct" and that the GPhC had not exceeded its broad discretionary powers.

2. Are the Standards unlawful on the ground of uncertainty?

It was acknowledged by the Claimants that "this is not an area in which absolute precision can be looked for", however it was argued that the new Standards introduced an unacceptable degree of uncertainty.

Mr Justice Singh was not persuaded and held that "absolute precision" would be undesirable given the context in which the Standards would be applied. He was of the view that the Standards provided sufficient flexibility to ensure the public could be protected as new factual situations arise.

3. Are the Claimants entitled to rely on the Convention rights?

Mr Justice Singh considered the meaning of "victim" with regard to section 7 of the HRA and was provided with case law to support the Claimants' assertion that they fell within that meaning.

The judge concluded that "it cannot be said that the new Standards are in themselves inherently and necessarily incompatible with the Claimants' rights in Articles 8 and 10". He acknowledged that there could be circumstances where an argument may be advanced of the Standards being applied disproportionately to amount to an interference with the rights in Articles 8 and 10 of the Convention.  Such an assessment, he held, could not be undertaken in advance or in the abstract and would require an "intensely fact-sensitive assessment".

It was held that the Claimants' position was not analogous with those who had previously successfully argued that they fell within the definition of "victim" and thus permission was also refused on this ground.

4. Is there a breach of the Claimants' Convention Rights?

Although this issue did not arise in light of the answer to Question 3 above, the judge addressed it in short.

Mr Justice Singh noted that the new Standards do not have the force of law and any application of those standards would be superseded by both primary and secondary legislation. In reassuring the Claimants, the judge said that there should be no concern that Convention rights "could or would be breached by the implementation of the new Standards".

This decision is a reminder to those who bring fitness to practise proceedings of the importance of ensuring that standards of conduct are not being given an unrealistic interpretation and are applied fairly and proportionately. In the words of Mr Justice Singh, the interpretation of such standards ought to be "rooted in real life and common sense". 

About the Author

Catharine is an Associate (Solicitor - Advocate) in our Professional Regulatory team at Blake Morgan.

Catharine Donnelly
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