Rasool v General Pharmaceutical Council [2015] EWHC 217 (Admin)

Posted on
The Appellant appealed against a decision of a Fitness to Practise ["FtP"] Committee to remove his name from the Register of Pharmacists. He argued that there was bias shown by the Chairman of the FtP Committee; that there was an abuse of process concerning how the evidence against him had been gathered; and that the sanction of erasure was disproportionate. The Court found that there was no bias and that an erasure was proportionate. The appeal was dismissed.

The Facts

The Appellant worked as the superintendent pharmacist at Al Farabi Pharmacy ["the Pharmacy"] in London. On four occasions between August and November 2012, the Pharmacy was visited by a team of BBC undercover reporters. On each occasion, the Appellant was the responsible pharmacist on duty. On each occasion, the Appellant supplied the undercover reporters with a prescription only medicine in exchange for money, without a prescription being provided. The Appellant was accordingly referred to a FtP Committee ["the Committee"].

Immediately prior to the hearing, the Chairman of the Committee disclosed that he had also chaired interim order proceedings against another pharmacist who worked at the Pharmacy. These proceedings had also arisen from the BBC investigation although they related to different occasions than those allegations brought against the Appellant. The Appellant sought the transcript from these proceedings. The Chairman initially provided the decision only although, upon review, later provided an extract of the transcript. This extract showed that the pharmacist in these proceedings alleged that the Appellant had agreed to provide a statement in her favour but had subsequently refused on the grounds that this might make things worse for the Appellant. The Appellant applied for the Chairman to recuse himself on the basis that, at the interim suspension order hearing, the Chairman had heard information pertaining to the Appellant's credibility and that it would be very difficult for the Chairman to put that out of his mind.

The Chairman dismissed this application, stating "I do not think that any objective observer, having regard to my position and training, would ever think that any bias would arise by reason of being read this document at a review hearing". The hearing proceeded. The Appellant admitted providing the prescription only medicines Amoxicillin, Augmentin and Diazepam otherwise than in accordance with a prescription. He was further found to have supplied the prescription only medicine Oramorph otherwise in accordance with a prescription.

The Appellant defended himself on the grounds that he was entitled to provide the medicines as all the supplies were emergency supplies or sales as permitted under the Human Medicines Regulations 2012 ["the Regulations"]. The Committee considered that the Appellant had not met the conditions required for emergency supply under the Regulations and that the supplies were therefore unlawful and the Appellant knew them to be unlawful.

The Committee imposed the sanction of erasure on the Appellant. They considered the 'Fitness to Practise Criteria' at Rule 5 in the Pharmacy Order 2010. They found that the Appellant: presented an actual potential risk to patients or the public; had brought, or might bring, the profession of pharmacy into disrepute; had breached one of the fundamental principles of the professional of pharmacy; and showed that the integrity of the registrant could no longer be relied upon.

The Appellant appealed the decision on the grounds that: there was apparent bias on the part of the Chairman of the Committee; that there was abuse of process by reason of the BBC's failure to disclose certain material; and that the sanction of erasure was disproportionate. In the event, the appeal on the grounds of abuse of process was not pursued.

Judgement

Handed down by Mrs Justice Carr DBE

Carr J stated that "an appeal will be allowed where the decision of the court or tribunal was wrong or unjust because of a serious procedural or other irregularity", in line with CPR 52.11(3). The Appellant alleged that the Chairman had erred in law and that there was material procedural irregularity leading to injustice.

Carr J referred to the cases of Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Limited [2003] ICR 856 (HL) in stating that the test for bias is: "would a fairminded observer, having considered the relevant facts, conclude that there was a real possibility that the tribunal was (consciously or subconsciously) biased". She acknowledged that both the Appellant and the Respondent had referred her to the decision in Castillo Algar v Spain [1988] 30 EHRR 827, which stated that any judge in respect of whom there was a legitimate reason to fear a lack of impartiality must withdraw. In this decision, the standpoint of the accused was an important factor but was not decisive; the test was an objective one. Carr J further referred to Datta v General Medical Council (Privy Council Appeal No 34 of 1985), Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 (HL) (Sc) and El Faragy v El Faragy and others [2007] EWCA Civ 1149, concluding "ultimately, each case will turn on its own facts".

Carr J considered the relevant circumstances in this case. Amongst others, she found that the assertion made by the pharmacist at the interim suspension order hearing related to a different incident to the ones which concerned the Appellant; this assertion was not relied on in any way in relation to the Appellant; the Chairman could not remember what this assertion said; and that the Chairman was "an experienced QC and chairman who regularly presided over disciplinary hearings". As such, he was aware of his duties and capable of discounting this assertion. She found that there was no procedural irregularity. Furthermore, she considered that no material error of law had been identified, stating that "what [the Appellant] really complains of is the outcome of the application of the correct test to the facts of his case". She therefore dismissed this ground of appeal.

The Appellant secondly submitted that an erasure was a disproportionate sanction, in that: this case was not one of dishonesty; no third party was affected; the Appellant was remorseful and showed insight; and the Appellant had cooperated with the police. He submitted that suspension with conditions would have been appropriate.

Carr J stated "this court will only interfere with a determination on sanction if it is wrong". She referred to Raschid v General Medical Council [207] 1 WLR 1460, which held that the principal purpose of the FtP Panel was "the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice". She stated that there was no identifiable error of law which would permit her to interfere with the decision.

Carr J said "the Committee was fully aware that there was no allegation of dishonesty". However, there was "a blatant and deliberate flouting of the law" which affected the Appellant's trustworthiness. Although the Committee heard from the Appellant as to his mitigating circumstances, they found his conduct to be "shocking" and they were "entitled to reject the submission of genuine insight", given that he did not make any admissions of misconduct.

As such, Carr J considered that the Committee was "entitled to take the view that a "stronger and more emphatic message that would arise from suspension" was required". She dismissed this ground of appeal.

Appeal dismissed.

Sophie Cisler
Trainee Solicitor