Burrows v General Pharmaceutical Council [2016] EWHC 1050 (Admin)

Background

Ms Burrows is a pharmacist who, in the Summer of 2013, purchased two John Rocha dresses, totalling £75. Several weeks later, on two separate occasions, she returned different dresses on which she had switched the labels in order to claim that they were the John Rocha dresses, and received a full refund. The dresses she returned were a different brand and less valuable.

Ms Burrows was subsequently arrested and during interview admitted switching the labels. She stated that she had not intended to make a financial gain; instead she claimed she did so because the dresses she returned were too small. There was however an anomaly in the subsequent police report which stated that the offence of false representation had not been admitted. Regardless, in November 2013 Ms Burrows, having received legal advice, signed a Simple Caution admitting the offences.

The General Pharmaceutical Council’s (GPhC) rules require Registrants to notify the GPhC of cautions within 7 days of receipt. Ms Burrows did not do so, however the GPhC was notified by the police and disciplinary proceedings ensued.

GPhC investigation

During the GPhC investigation Ms Burrows advised the GPhC that she had not realised that the “warning” she had been given by the police was in the form of a Simple Caution, and that she should have declared it. She advised that this was an error and was not a true reflection of her character.

Ms Burrows’ solicitor initially prepared a skeleton argument seeking suspension rather than removal from the GPhC register. Somewhat confusingly, Ms Burrows subsequently requested voluntary erasure. In contrast to the earlier request for voluntary erasure, prior to the hearing on 21 July 2015, Ms Burrows advised that she could not attend the hearing due to her ill-health and queried whether she had in fact received a Simple Caution as the police did not have a copy of this. She also advised that a suspension would be disastrous as she would lose her job and would be unable to support herself financially.

Ms Burrows did not attend the hearing on 21 July 2015, nor did her solicitor; however Counsel appeared on her behalf. A print out of the Simple Caution was obtained in time for hearing, however Ms Burrows’ Counsel did not accept the print out as proof. The GPhC sought an adjournment to seek further enquiries from the police. Ms Burrows’ Counsel agreed to the hearing being rescheduled for 16 – 17 September 2015 without seeking her availability.

Prior to the reconvened hearing, Ms Burrows’ solicitor conceded that Ms Burrows had in fact received a Simple Caution and accepted that no witnesses need be called. The length of the hearing was reduced to 1 day and the GPhC was advised that Counsel would attend, but Ms Burrows and her solicitor would not. It was confirmed that Ms Burrows would accept the allegations.

At the hearing Ms Burrows’ Counsel submitted that her fitness to practise could not be impaired because she did not intend to cause anyone any loss or make a financial gain for herself. He asserted that she lacked the necessary mens rea, therefore the offer and acceptance of the Simple Caution was fatally flawed. He further advised that Ms Burrows has not declared the Simple Caution because it was misconceived, and described this as a “technical flaw”.

Ms Burrows was on holiday at the time of the hearing and therefore could not be questioned. In addition, she had not provided a statement to the Fitness to Practise Committee (the Committee). Ms Burrows’ Counsel confirmed that no attempt had been made to change the date of the hearing.

The Committee found that the consent to the Simple Caution had been validly given to avoid prosecution and probable conviction. Ms Burrows’ suggestion that she did not intend to financially gain was untenable as she had admitted she knew she would gain financially from her actions. The Committee noted that Ms Burrows had not attended the hearing and had made no attempt to change the hearing date. They acknowledged Ms Burrows’ unblemished record, but noted that it was not clear whether her character referees were aware of the allegation. The Committee found that her conduct was dishonest and her integrity could not be relied upon, and accordingly made a finding that her fitness to practise was impaired.

In relation to sanction, the Committee considered the premeditated nature of Ms Burrows’ actions as well as her lack of insight. They also took account of her prior clean record, the fact that her conduct did not pose a danger to patients and the impact of loss of employment. The Committee, however, noted the changes in Ms Burrows’ position and the fact that she had failed to engage in a process of acceptance or expression of regret. They found that, without insight, it was not appropriate to impose a suspension, and therefore removal from the register was a proportionate and reasonable sanction.

Appeal

Ms Burrows appealed the Committee’s decision on the following grounds:-

Assessment of insight

Her first ground of appeal was that the Committee was wrong and unreasonable in its approach to the assessment of insight. Her Counsel asserted that insufficient credit had been given for her cooperation with police, her apology and her formal admissions. He argued that Ms Burrows’ uncertainty regarding the Simple Caution was not the same as denying that it had been given. He suggested that the Committee had erred in assuming that Ms Burrows had known that she had received a Simple Caution and that they had equated a legal argument with a lack of insight.

In response to this ground, Mr Justice Kerr noted that Ms Burrows had not attended the hearing and was therefore not available to answer questions about her state of mind. He highlighted that her pre- booked holiday did not explain why Ms Burrows did not ask for the hearing to be rescheduled and there was no other reason given for her non-attendance. It was held that her absence deprived the Committee of the opportunity to test the level of her insight.

Mr Justice Kerr noted that Ms Burrows’ challenge to the validity of the Simple Caution was not accompanied by an expression of remorse or contrition about switching the labels on the dresses. Her conduct obviously amounted to serious dishonesty regardless of whether or not the Simple Caution was valid. Mr Justice Kerr had regard to the fact that Ms Burrows did not at any stage openly acknowledge that switching labels on dresses was seriously wrong.

Mr Justice Kerr highlighted the importance of allowing a committee an opportunity to question the Registrant in order to assess their insight. He commented “In cases of obvious dishonesty, not attending the hearing amounts virtually to courting removal” and suggested that disciplinary bodies should forewarn Registrants that a hearing may proceed in their absence and that the consequences of non-attendance are likely to be severely prejudicial.

Severity of sanction

The second ground of appeal was that the sanction was too severe and that a suspension was sufficient. Mr Justice Kerr agreed that the sanction was severe and that the Committee could have shown more leniency than it did. However, he was unable to say that the Committee was wrong to erase Ms Burrows from the register. He noted that dishonest conduct is always liable to lead to removal and the fact that removal is not inevitable does not mean that it is too harsh for a first disciplinary offence. He recognised that the consideration of the aggravating and mitigating factors was primarily a matter for the Committee and only a secondary matter for the court. Mr Justice Kerr did not accept that the weight placed on the aggravating features was so great that the Committee was wrong to decide on removal.

Legal advice by the Chair

Ms Burrows also appealed on the basis that the Chair, who was legally qualified, had given legal advice without allowing the parties an opportunity to comment on the advice given. Mr Justice Kerr was satisfied that the Chairman had not given a ruling on a point of law and found that the proceedings had been procedurally fair.

Ms Burrows’ appeal was denied and costs of £11,000 were awarded against her.

Conclusion

Defence lawyers will recognise the challenges faced in disciplinary proceedings in trying to contest an allegation while seeking to establish that the Registrant demonstrates appropriate remorse and insight. While this can be a difficult balance to strike, this case emphasises the importance the Committee will place on the Registrant attending the hearing to allow them a proper opportunity to assess their insight, remorse and integrity.

Mr Justice Kerr also suggests that Regulators have a role to play in ensuring that Registrants understand that an allegation can be determined in their absence and that non-attendance is likely to have an adverse impact on the outcome, even though it will not be taken as an admission of the allegation.