Zahra Hussain v General Pharmaceutical Council

A recent decision of the High Court in England and Wales provides useful guidance in respect of the onus on Committees of Inquiry to ensure that unrepresented registrants are fully cognisant of relevant procedures and that all relevant legal concepts are explained clearly and carefully to the registrant in such circumstances.

It was held in Zahra Hussain v General Pharmaceutical Council that Fitness to Practise panels are entitled to exercise their independent judgement in respect of a sanction to be imposed where cogent reasons are provided in respect of the imposed sanction.

Facts

The applicant in this matter, Ms Hussain was Superintendent Pharmacist in the Safeer Pharmacy. As part of an undercover investigation which was later broadcast on television, a BBC reporter covertly filmed Ms Hussain’s daughter, who was employed as a counter assistant in the Pharmacy, dispensing a prescription-only medication in the absence of a prescription.

After the footage was aired, the matter was investigated by the Investigating Committee of the General Pharmaceutical Council (“GPC”) and was ultimately referred to the Fitness to Practice Panel (the “Panel”) of the GPC for hearing in 2015.

At the outset of the disciplinary process, Ms Hussain had engaged legal representation. However, she later dismissed her legal team upon discovering correspondence between them and the legal team instructed by the GPC, which she found to be insulting and inappropriate in nature. Following the dismissal of her representation, Ms Hussain made an application for an adjournment. This application was in fact Ms Hussain’s third adjournment application prior to the hearing.

As part of Ms Hussain’s application she sought to produce the correspondence between both sets of legal teams before the Panel, who advised her that such correspondence was privileged and that by showing it to the Panel she was opting to waive that privilege. Ms Hussain proceeded to disclose the correspondence to the Panel in any event. The Panel refused her request for an adjournment.

Following the hearing, the GPC made submissions that the appropriate sanction in this case was suspension. Notwithstanding these submissions, the Panel held that the appropriate sanction was erasure from the Register.

Appeal

Ms Hussain appealed the decision to the High Court on the grounds that the hearing was not conducted in a fair manner and the penalty imposed was disproportionate.

At the outset of the appeal, Justice Laing noted “The principal purpose of the FPP are to protect patients and the public, and to maintain public confidence in the profession, rather than to punish… On appeals against sanction the High Court will correct material errors of fact and law, but should otherwise exercise a distinctly and firmly secondary judgment”.

  1. Fairness of Hearing

In relation to the first limb of the appeal, Ms Hussain argued that having seen privileged correspondence, the Panel was likely to have been prejudiced as a result and thus should have recused themselves from adjudicating on sanction. Ms Hussain also submitted that the Panel infringed her right to legal representation by refusing her application for an adjournment.

Justice Laing held that the Panel had clearly outlined the implications of disclosing privileged communications to Ms Hussain, in addition to setting out the procedure and any relevant legal concepts. It was also noted by the Court that Ms Hussain had previously instructed legal representatives at the outset of proceedings and following their dismissal, she was free to instruct new representation if she wished, and she had ample time to do so. Justice Laing found that it is permissible for a registrant to represent themselves in circumstances where the panel provides appropriate guidance. She said that a registrant does not have ‘an unfettered right’ to insist on instructing new legal representatives, ‘regardless of the consequences for the public interest and for the regulator’.

  1. Proportionality of Sanction

In respect of sanction, Ms Hussain argued that the sanction imposed was draconian, disproportionate, and failed to take into consideration the sanction recommended by the GPC. In addition she claimed that the sanction was disproportionate in comparison to the sanctions imposed in other cases which came about as a result of the BBC undercover programme.

The Court found that each case before a Fitness to Practise Committee should be judged on its own merits and all relevant factors should be considered when deciding on sanction, to include the level of insight demonstrated by the registrant and whether there is a risk that the registrant will repeat the conduct complained of. The Court noted that in other cases, there were various mitigating factors taken into consideration, to include admissions of guilt and a failure to supervise, as opposed to direct knowledge of supply. In respect of one registrant, their youth and relative inexperience were taken into account.

Further, it was held that the FTP is entitled to differ from from the GPC’s submissions on sanction. Accordingly, Justice Laing dismissed this argument on the basis that the Panel was not bound by the GPC’s recommendations. Justice Laing underlined the importance of providing the registrant with clearly set out reasons for the findings made by the Fitness to Practise Panel.

The appeal also highlights the general reluctance of the appellate Courts to overturn findings of Fitness to Practise committees. In this regard, Justice Laing in sttaing that a decision will only be overturned where it is ‘plainly wrong’, referred to Shaw and Turnbull v Logue [2014] EWHC 5 (Admin).

Although decisions of the High Court of England and Wales are only of persuasive authority here, this case is instructive in terms of obligations to the unrepresented registrant, together with the circumstances in which a recommended sanction may be departed from.

Full details of the case can be found here.