R (on the application of) Rycroft and the Royal Pharmaceutical Society of Great Britain

[2010] EWHC 2832 Admin

These judicial review proceedings were commenced in July 2009. By the time of the substantive hearing before Wyn Williams J in November 2010, the regulatory functions of the Royal Pharmaceutical Society of Great Britain (RPSGB) had been transferred to the General Pharmaceutical Council (GPhC). The hearing in November 2010 which resulted in the claimant’s challenge against the GPhC failing, was the first appearance of the GPhC in the High Court. Penningtons acted for the RPSGB/GPhC throughout.

The decision (which was challenged) was the decision by the Registrar of the RPSGB to refer to the Investigating Committee the conduct of a pharmacist, part of which took place more than five years prior to the Registrar’s decision. Central to the claimant’s challenge was the fact that there had been 'inordinate and unjustified delay' (in excess of two and a half years) between receipt by the RPSGB of the complaint and the Registrar’s decision to refer the complaint to the Investigating Committee.

The relevant provisions of the Pharmacists and Pharmacy Technicians Order 2007 required the Registrar (save in prescribed circumstances) to refer to the Investigating Committee an allegation that the fitness to practise of a registrant was impaired. The relevant rules made under the order provided that the Registrar should not refer a case where more than five years had elapsed 'unless the Registrar considers that it is necessary for the protection of the public, or otherwise in the public interest, for the allegation to be referred'.

The first ground of challenge had been that the decision to refer had been wrong as the Registrar had failed in what was contended to be a statutory duty to refer within a reasonable period. In support, the claimant had relied on the decision of Sullivan J in Gwynn v the General Medical Council [2007] EWHC 3145 Admin.

Wyn Williams J held that Gwynn was not authority for the proposition that delay of itself and without more could constitute a reason why a disciplinary body should be prevented from pursuing an allegation of misconduct. It would be necessary to establish prejudice of such a nature that no fair disciplinary process was possible.

The other grounds also failed. The decision of the Registrar which was challenged by the claimant had in fact been the second decision he had made. (Prior to issuing the proceedings, the claimant had invited the Registrar to reconsider his original referral. Although the Registrar had agreed to do so, the claimant had nevertheless issued proceedings before reconsideration had taken place and the proceedings had been stayed by consent pending reconsideration).

The second ground of challenge to the Registrar’s decision was that he had failed to give sufficient reasons, principally (it was alleged) because in his written decision he failed to deal with the question of delay. Wyn Williams J was not satisfied that the Registrar’s decision had omitted to have regard to a material allegation.

The third ground of challenge was that the Registrar had not had the power to reconsider his original decision, notwithstanding that he had been requested to do so by the claimant. Wyn Williams J noted that the reconsideration had in any event been pursuant to a lawful order of the court and was, accordingly, lawful.

Wyn Williams J concluded that, although the first decision of the Registrar had been unlawful due to insufficiency of reasons, the second decision (which was the decision challenged in these proceedings) had been lawful.