Burrows v General Pharmaceutical Council [2016] EWHC 1050 (Admin) (16 May 2016)

In its judgment rejecting an appeal by a pharmacist against a striking off order, the Administrative Court has suggested that professional conduct / fitness to practise committees should consider warning respondents that a failure to attend hearings is likely to be "severely prejudicial".

Police caution and Fitness to Practise Hearing

B, a pharmacist, bought four dresses from a department store. She then switched the labels from the two more expensive dresses to the two cheaper ones and returned the cheaper dresses to the store on two separate visits, thereby receiving refunds for the value of the more expensive dresses. The scheme was discovered and B admitted in interview with the police that she had switched the labels, although she claimed that she had had no intention of benefitting financially and said that she had returned the less expensive dresses because they were too small.

B later accepted a police caution (which involved signing a form acknowledging that she understood the consequences of accepting such a caution). The offences were recorded as follows: "on two separate occasions false receipt had been presented in order to obtain goods from Debenhams to the value of £75…"

B subsequently failed to report the caution to the General Pharmaceutical Council (GPhC) within seven days (or at all) as she was required to do by Rule 4 of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc. Rules) Order of Council 2010.

A GPhC investigation commenced after the police notified the matter to the GPhC. B told the GPhC that she was not aware that she had been cautioned rather than simply warned and, accordingly, she had not been aware that she was required to have reported the matter to the GPhC. Later in the course of the GPhC proceedings, B challenged whether she had in fact been cautioned, in view of the police's failure to produce a copy of the caution. However, she later conceded the point (i.e. accepted that she had been cautioned).

The GPhC's allegations against B were that she had received a police caution for fraud by false representation and failed to declare that caution. A hearing before a GPhC Fitness to Practise Committee (“the committee”) in July 2015, which B did not attend, was adjourned and re-listed without reference to B's availability. Shortly before the resumed hearing, B's solicitor reported that, although B accepted the allegations, she would not be present at the hearing due to a pre-booked holiday. B was, however, represented at the hearing by counsel.

At the hearing, B's counsel attempted to argue that the police caution had been misconceived as B lacked the necessarymens rea in respect of the matters admitted, and because she was not in fact guilty of fraud, her fitness to practise was not impaired and it was not open to the committee to make a finding of misconduct. There was no suggestion of an apology or any contrition on B's part in her counsel's submissions. When asked by the committee about B's absence, her counsel admitted that no attempt had been made by B to change the date of the hearing so that she could attend.

The committee decided that B's conduct in relation to the dresses had been dishonest and, when considering sanction, they had particular regard to B's apparent lack of insight, as evidenced by the fact that she had (i) changed her position as to whether she had in fact been cautioned (eventually saying that although she had been cautioned, the caution had not been properly administered), (ii) continued to deny that she had been dishonest, and (iii) failed to engage in a process which involved acceptance or expression of regret.

The committee decided that the lack of insight or expression of remorse on B's part was of particular concern and, accordingly, a suspension was not appropriate. It, therefore, ordered that B should be struck off.

Appeal – Ground 1

B appealed to the High Court (Administrative Court). It was submitted on her behalf that the committee had been wrong and unreasonable in its assessment of insight, and that it had given B insufficient credit for her co-operation with the police, the absence of a criminal prosecution or conviction, her apology and her formal admissions. It was also submitted on B’s behalf that her genuine confusion about the status of the caution should have been taken at face value and not as a denial that she had, in fact, been cautioned.

The learned judge observed that the difficulty with these arguments was that B had not attended the committee hearing to answer questions about her state of mind, and it was not clear why she had not asked for the hearing to be re-listed on a date which did not clash with her holiday. The judge went on: "No doubt [B] found the process stressful and preferred to leave the talking to her lawyers, but that carried with it the high risk that she would lose the prospect of a benign interpretation of her conduct and a lenient sanction, having deprived the Committee, by her absence, of the opportunity to test the level of her insight".

The learned judge said that the difficulty that B had placed herself in was that her challenge to the validity of the caution was not supported by any expression of remorse or contrition about having switched the labels on the dresses, "which was obviously serious dishonesty whether or not the caution was valid". She had not openly acknowledged that switching the labels was "a seriously wrong thing to do" and had sought instead, unrealistically, to downplay her wrongdoing.

By continuing to deny the sting of the wrongdoing at the hearing, she had placed herself in a perilous position because this meant forgoing the opportunity to show insight and contrition, and she then made things even more difficult by failing to attend the hearing.

The judge stated: "In a case of obvious dishonesty, not attending the hearing amounts virtually to courting removal", and went on to suggest that, in view of the "disturbingly high" number of appeals against erasures following fitness to practise / professional conduct hearings which registrants had not attended, "I think it would be a good idea for the disciplinary bodies to forewarn the defendant that… the consequences of non-attendance are likely to be severely prejudicial".

Appeal - Ground 2

It was submitted on B's behalf that the sanction of erasure was too severe and that a suspension would have been sufficient. The judge agreed that the sanction was severe and that the committee could have shown more mercy than it had but he was unable to say that the committee's decision was wrong. The primary judgement on the issue was that of the committee and it was not possible for the court to fault their reasoning.

Appeal – Ground 3

B submitted that the legally qualified chairman of the committee should have revealed to the parties the content of any legal advice he was intending to give to the other committee members, and should have given the parties the opportunity to comment on that advice. It was submitted that the chairman's statement that B: "cannot say that she did not intend to have that financial benefit unless there are circumstances which would act so as to vitiate her capacity to form the necessary intent" was legal advice and the chair should therefore have sought submissions from the parties before finalising that advice.

The judge held that there was no merit in this argument and that the chair was not giving a ruling on a point of law. Rather he was expressing the view of the committee that B's acceptance of the caution should be taken at face value because there was nothing to suggest that it should not do so. The key question was whether the proceedings had been fair, and it was clear that they had been.

Accordingly, the appeal failed.