Abdul-Razzak v General Pharmaceutical Council

[2016] EWHC 1204 (Admin)

Background

On 15 August 2012 Mr El-Hadi Abdul-Razzak (the Appellant) became a registered pharmacist. The Appellant was the ‘responsible pharmacist’ at a pharmacy in Edgware (the Pharmacy) from 17 September 2012. To clarify, in the United Kingdom (UK) in order to lawfully conduct a retail pharmacy business, a pharmacist registered with the General Pharmaceutical Council (the Council) must be in charge of the registered pharmacy as the ‘responsible pharmacist’ in accordance with section 72A (1) of the Medicines Act 1968. Specifically, each registered pharmacy must have a ‘responsible pharmacist’ as it is their duty to ‘secure the safe and effective running of the pharmacy business at the premises in question so far as concerns (a) the retail sale of medicinal product’.

The concerns levelled against the Appellant related to the supply of prescription only medicines from the Pharmacy by counter assistants in September and October 2012, without a prescription being presented on any occasion.

A Committee of the Council found that the Appellant failed to adequately supervise, and in so doing caused or permitted an unlawful supply of prescription only medicine from the Pharmacy and that he ought to have known that the supply would be, or was, unlawful. The Committee found the Appellant's fitness to practise to be impaired by reason of his misconduct, and directed that he be suspended from the Register of Pharmacists for a period six months pursuant to Article 54 of the Pharmacy Order 2010 (the 2010 Order).

The Appellant appealed the Committee’s determination.

The facts

In September and October 2012, the BBC carried out an undercover investigation into whether certain pharmacies in London were unlawfully selling prescription only medicines to patients or to the public without prescriptions. The investigation involved sending covert reporters into pharmacies to request medicines which could only normally be supplied with a prescription. The reporters did not have prescriptions for the medicines they requested. The results of the investigation were shown in a later television programme.

The Pharmacy was visited on a number of occasions by a BBC reporter posing as a patient or a customer seeking to buy prescription only medicines without a prescription. During this period the Appellant was the ‘responsible pharmacist’. The Appellant did not personally supply the prescription only medicines, the allegation against him related to his failure to adequately supervise the counter assistants who supplied the reporter with the prescription only medicines. The specific occasions were as follows:

  • On 27 September 2012, a supply of Amoxicillin 500mg;
  • On 27 September (later than the supply above), a supply of Diazepam 5mg and Viagra 100mg; and
  • On 5 October 2012, a supply of Diazepam 5mg.

The Council principally relied upon the covert video footage produced by the BBC. The video evidence showed the events leading up to each of the three supplies by the relevant counter assistants. The Appellant was only seen on one of videos and that related to the second supply. In relation to this second supply, the Committee concluded that the sales occurred because of the Appellant's failure to adequately supervise the counter assistants and that he ought to have known that the supplies would be or was unlawful. In relation to the first and third supplies, the Committee concluded that in the light of the way in which the counter assistant immediately and without enquiry made the supplies and what had been seen in relation to the second supply, that they should make the same findings against the Appellant as they did in relation to the second supply.

The Appeal

Article 58 of the 2010 Order provides a right of appeal against a decision of the Committee to the High Court and CPR rule 52.11 provides:

The appeal court will allow an appeal where the decision of the lower court was (a) wrong...

In an appeal based on CPR 52.11(3) (a), the Court should only intervene if satisfied that the Committee’s decision was "wrong", which means, "plainly wrong" - Shaw and Turnbull v. Logue [2014] EWHC 5 (Admin) at [62] per Jay J.

The grounds of appeal can be summarised as follows:

  • The Committee's findings of fact in relation to sub-paragraphs 6(ii) and 6(iii) of the allegation were contrary to the weight of the evidence and were wrong in relation to each of the three supplies;
  • The finding of current impairment was unsustainable for a number of reasons, including that the Committee failed to take account of the Appellant's impeccable record in the period since the concerns; and
  • The Committee ought to have taken into account the period when the Appellant’s registration had previously been suspended by way of an interim order, but in any event, the period of six months was, in itself, excessive and unjustified.

Ground 1

Counsel for the Appellant contended that the Committee erred in its findings not only in relation to the second supply but also in respect of the other two supplies. He submitted that the Appellant was unable to recall any of the occasions of the three supplies, and in addition that the Appellant had no reason to suspect that the counter assistants were not adhering to proper procedures. As such, the Appellant's case was that the counter assistants had supplied prescription only medicines improperly, and in so doing, concealed their actions from him.

In relation to the second supply, which is the only one upon which the video footage showed the Appellant, the video evidence showed conversations between the reporter and the counter assistant with the Appellant in the vicinity. It was apparent that the counter assistant went to the dispensary to obtain one of the medicines requested by the reporter.

Notwithstanding this, the Committee found that it was apparent that the Appellant did not speak with the counter assistant, and second that the Appellant did not take any real notice of what the counter assistant was doing. The Committee stated as follows:

"in our view tellingly, the assistant displayed no concern at the proximity of [the Appellant] and no endeavour to obscure and conceal from him what he was doing". The Committee noted that the assistant "conversed quite openly with the customer (reporter) in the presence and hearing of [the Appellant]"……..

"No observer of the scene would ever have thought that [the Appellant] was supervising or trying to supervise or exercise any authority over the assistant. It is perhaps not surprising that [the Appellant] has sought to suggest that the provision of Viagra and the diazepam on that occasion was covered by prescription - as we have already stated, in our view a well-nigh hopeless proposition- as the lack of supervision is so closely apparent. We find the allegation in Paragraph 6 (ii)3 proved in relation to [the second supply]".

Counsel for the Appellant contended that the Committee failed to take account of evidence of supervision by the Appellant as he was seen talking very briefly with a counter assistant to a third party on the video footage. This submission had been rejected by the Committee in light of the Appellant’s evidence that he had no recollection of any of the supplies. The Court also rejected this submission on the basis that there was no evidence as to whether the person to whom the Appellant was speaking was a customer or otherwise, especially as the words recorded did not give any clue as to what was said other than the use general pleasantries.

The Appellant’s second criticism of the findings of fact of the Committee related to the second supply, in that the Committee failed to take account of the fact that when the counter assistant was in the dispensary at the same time as the Appellant, neither the name of the drug nor the word medicine was used. The Committee’s finding that the Appellant "must have been aware the counter assistant was talking to a customer about a medicine" should therefore not stand. In this regard, the Court noted that the transcript showed that the reporter specifically asked for Viagra twice and that the counter assistant also referred to the drug twice. There was also a discussion about the strength required and the cost. In respect of the supply of Diazepam, the reporter first asked for Valium, which was mentioned on two occasions. Equally, the counter assistant used the name Valium six or seven times in conversations with the reporter and explained that Valium is called Diazepam in the UK. As such, the Committee’s findings based on the video footage were not wrong, let alone plainly wrong.

The Appellant also contended that the Committee set the standards too high as it failed to reflect the reasonable presumption of the integrity of properly trained counter assistants. The Court rejected this submission, agreeing with Counsel for the Respondent, that such a contention fails to show appreciation of the significance of the policing duty of the ‘responsible pharmacist’ to ensure patient safety by supervising the supply and sale of prescription-only drugs. Further, it would not have been permissible for the Committee to set a lower standard.

In respect of the first and third supplies, the conclusion of the Committee was that the Appellant was on duty at the time even though he did not appear on the video footage and that the counter assistant immediately made these supplies with minimum enquiry. It concluded that having regard to the film footage relating to the second supply, that the Appellant had by lack of proper supervision caused or permitted the practice within the Pharmacy of selling without prescription prescription-only medicines. The Appellant contended that the Committee's findings in this regard could not be supported when the video footage did not show him and/or any communication between him and the respective counter assistant/reporter.

In rejecting this submission, the Court highlighted the following:

  • No prescription was produced for either supply despite one being required by law;
  • There were no labels on the packaging on the first and third supplies, as there should have been;
  • The Committee concluded "on the basis of [the Appellant's] evidence, we are far from convinced that [the Appellant] was ever sufficiently informed or instructed about the procedures at the pharmacy to enable him effectively to supervise the safe running of the pharmacy; or that he took any or any sufficient measures to ensure he could exercise authority and control over, and therefore supervise, the activities of counter assistants";
  • There was no evidence in the video to show that the Appellant supervised the first or third supplies in any way;
  • The Appellant did not provide any explanation as to why he did not supervise the first or third supplies; and
  • The word prescription did not appear in relation to the supply of Diazepam.

At paragraphs 47 and 50 of the judgement Sir Stephen Silber stated as follows:

“I am quite satisfied that the decision of the Committee to find proved the breaches alleged in relation to the first and third supplies cannot be challenged. If I had been in any doubt on this conclusion, I would have reached the same conclusion after taking account of two additional factors”.

“The Decision of the Committee that the Appellant acted in the manner set out in Paragraph 6 of the Particulars of Allegations is not wrong and certainly not plainly wrong. In reaching that conclusion, I have not overlooked the contentions of Mr. Bartfeld that the Appellant had taken steps to ensure that the sales staff were properly trained and that they knew the standard procedures, but the basic and essential duties of the Appellant, as the responsible pharmacist, was not merely to take those steps, but also to ensure that the sales staff did not supply prescription-only medicines without a prescription. This was an essential and vital policing duty with which the Appellant failed to comply”.

Ground 2

In accordance with Rule 5 of the Fitness to Practise and Disqualification Rules 2010, specifically Rule 5(1) states that the Committee must have regard to the criteria specified in Rule 5(2), when deciding in the case of any registrant whether or not the requirements as to fitness to practise are met. Rule 5 (2) states:

"(2) In relation to evidence about the conduct or behaviour of the registrant which might cast doubt on whether the requirements as to fitness to practise are met in relation to the registrant, the Committee must have regard to whether or not that conduct or behaviour--

(a) presents an actual or potential risk to patients or to the public;

(b) has brought, or might bring, the profession of pharmacy into disrepute;

(c) has breached one of the fundamental principles of the profession of pharmacy; or

(d) shows that the integrity of the registrant can no longer be relied upon."

In determining the current case, the Committee considered that sub-paragraph (d) did not apply, and therefore focussed on sub-paragraphs (a) to (c) which in their view were "all clearly engaged and must lead to the conclusion that the requirements as to fitness to practise have not been met by [the Appellant] in the circumstances of this case".

The Appellant contended that the Committee did not give proper regard to Article 54 of the 2010 Order in that it did not properly consider whether his fitness to practise was currently impaired, rather than it being impaired at some time in the past. The Appellant stated that his fitness to practise was not currently impaired bearing in mind first, that the incidents forming the basis of the disciplinary hearings had occurred three years before the hearing, second, the matters of concern occurred in his first job after qualifying, third, that since the events in late 2012, his subsequent conduct had been without fault, and fourth, that, as was the case, he had produced supporting references.

As part of its reasoning, the Committee noted that the Appellant continued to refuse to admit that any unlawful supplies of prescription only medicines were made while he was the ‘responsible pharmacist’ and that this stance showed "on the very best interpretation [the Appellant] has shown total lack of insight". Referring to Cohen v GMC [2008] EWHC 581(Admin) at paragraph 65 the Committee considered whether the acts of concern were easily remediable, had been remedied and were unlikely to be repeated. In relation to whether the concerns had been remedied the Committee found no evidence stating:

"how can you remedy a deficiency of malpractice which you do not recognise ever existed?"

After circulating his draft judgment, Sir Stephen Silber received submissions from Counsel for the Appellant, asking him to reconsider some of his conclusions as he had erroneously stated that the Appellant had made no alterations to his practice as a result of the allegations, and that this failing would be a powerful indicator of lack of insight and impairment of fitness to practice. Sir Stephen Silber recognised that he had failed to appreciate that the Appellant had said in evidence that his experience of the proceedings had "made me a bit OCD in my procedures now, double checking", second that he "would say [the experience of the disciplinary proceedings] has probably put more focus into checking" and third, that he was "a lot more diligent". He had also said in an interview in May 2014 that he would be "a lot more careful" than prior to the matters which led to the disciplinary proceedings.

Despite recognising the above, Sir Stephen Silber stated that he was convinced that he would have reached the same conclusions as had been expressed in the draft judgment. Namely because the Committee having considered all the evidence still clearly and fairly explained that the Appellant's fitness to practise was impaired at the date of the hearing and that a period of suspension for 6 months was the appropriate sanction. These were conclusions that could not be challenged.

Sir Stephen Silber rejected a contention that the Committee’s finding on current impairment had been made due to an unfair criticism of the Appellant for failing to admit the particulars of the allegation, therefore leading to an implication that he would behave in the same way in the future. Specifically, Sir Stephen Silber stated as follows in paragraph 66 of the judgement:

“The stark fact is that the Appellant could have said to the Committee first, that although he believed that he had acted properly and in accordance with his duties as the responsible pharmacist when the three supplies were made, but second, that nevertheless, in future he would act differently and explaining precisely how he would have behaved if the counter assistants were or might be supplying prescription-only medicines. The Committee concluded that he had not put forward that type of evidence and in their words, "on the very best interpretation [the Appellant] has shown lack of insight" apart from making the crucial findings that I have set out in paragraphs 57 and 59 above. These show that the Committee did not consider that the Appellant would carry out his duties as a responsible pharmacist in proper manner irrespective of what he said that he would do”.

This ground of appeal was equally rejected.

Ground 3

In directing that the Appellant’s registration be suspended for a period of 6 months, the Committee explained that it had had regard to the purposes of sanctions; first, the protection of the public, second, the maintenance of public confidence in the profession and third, the maintenance of public standards of behaviour within the profession. It also observed that the purpose of sanctions is not to be punitive. The Committee also noted that it had carefully taken into account the interests of the Appellant which include the principles of fairness, proportionality and reasonableness.

Nonetheless, the Committee found that the aggravating factors in this case were that the Appellant had maintained that if the medicines were unlawfully supplied to the reporter, then it was not his fault, and further that he did not accept that the medicines were unlawfully supplied. In relation to mitigating factors, the Committee took account of the fact that this was the first time the Appellant had worked as a pharmacist since being registered and so he had no experience of acting as a ‘responsible pharmacist’ and further that the Pharmacy could be said to be one where there had been an endemic practice for prescription only medicines being sold without a prescription. The Committee also accepted that there was a three year time lapse between the matters of concern and the hearing and that the Appellant was a competent pharmacist.

Nevertheless, the principal concern of the Committee at the sanction stage was the Appellant’s "complete lack of insight", which raised "unanswered questions as how [the Appellant] would react if confronted with similar situations in the future". In imposing the suspension order the Committee stated as follows:

"Miss Davies, on behalf of the Council, has submitted that a period of suspension is the appropriate sanction. We have come to the same conclusion. Our reasons are that a notable feature of the Registrant's conduct is his lack of insight and further that the sanction must serve the purpose of restoring public confidence in the profession, and maintaining standards of practise which it should do by conveying the message to the public and the profession that the conduct of the Registrant in failing to supervise or control properly or at all the activities of assistants supplying the pharmacy's customers with medicines cannot be tolerated and is unbefitting of a person registered with the Council".

Counsel for the Appellant submitted that the Council’s submissions on sanction, specifically that suspension order was appropriate and proportionate was "a wholesale diversion from their own submission to the Investigating Committee that the appropriate sanction was a letter of advice (where the evidence had not significantly changed in the interim period)". This submission originated from the Registrar and was based on the fact that the Appellant had stated in a police interview that he had changed his practice. This was some two years before the hearing before the Committee. In rejecting this submission, Sir Stephen Silber noted that in referring the case for a hearing before the Committee, the Investigating Committee (IC) stated that the reasons for the referral included that the Appellant in his own statements had professed to be unaware of what was happening in the Pharmacy and was not in a position to intervene. The IC considered that if the allegations against the Appellant were proved, there was a "significant failure in the safe running of the pharmacy for which the responsible pharmacist has overall responsibility and accountability, and a failure to supervise his staff adequately ...as he admitted that he was not aware of the transactions". In short, the IC’s decision amounted to a rejection of the Registrar's recommendation. Additionally, the Committee had the benefit of considering much more evidence than the IC or the Registrar, who produced the recommendation on the Appellant relied.

In respect of the Committee’s failure to take in account the time that the Appellant had been subject to an interim suspension order, Sir Stephen Silber noted the decision of Eady J in Ujam v. General Medical Council [2012] EWHC 683 (Admin), that when considering the period of suspension which should be imposed on a doctor, the fact that the appellant's registration had been suspended between July 2009 and February 2010 by the GMC's Interim Orders Panel "was part of the background circumstances, but it would be inappropriate to regard it as analogous to a period of imprisonment served while on remand (which would normally be deducted from any custodial term imposed by a sentencing court)", and therefore rejected the Appellant’s submission that the Committee had erred in this regard.

In respect of the Appellant’s submission that the Committee’s finding of lack of insight was wrong and unreasonable, specifically that the Committee confused the concept of insight with that of confession, Sir Stephen Silber stated as follows at paragraph 91:

“I cannot accept the contention of Mr. Bartfeld that the Committee has confused the concept of insight with confession. The issue for the Committee was whether it was safe for the Appellant to act as a responsible pharmacist in and after the hearing in October 2015 and that required them to assess how the Appellant would perform his duties immediately after that hearing. It decided, as it was entitled to, that it would not be safe as he had not shown that he would have acted differently than previously as is shown, for example, by the Committee's conclusion which I have set out in paragraph 79 above. This was a decision reached after considering all the Appellant's evidence including what he had said about how he would act in future. In essence, the Committee rejected that evidence. That conclusion and the decision that the appropriate sanction was an Order suspending the registration of the Appellant is not wrong and in any event, deference is due to the Committee as I have explained”.

This ground was equally dismissed.

This case highlights the importance of regulated professionals ensuring that not only is their practice of the standard to be required, but that they also adequately supervise the tasks of those that they are responsible for. The Committee and the Court appeared to be unimpressed by the Appellant’s submission that he did not recall any of the supplies, and that he should be able to rely on the integrity of the trained counter assistants in circumstances where he had the ultimate responsibility for ensuring that safe and proper practices were adopted in the Pharmacy. Additionally, the Court entirely rejected any suggestion that the length of the suspension order should have taken account of the time that the Appellant was subject to an interim suspension order in the same way that those convicted of a criminal offence are given time to count for time spent on remand.