Decision date: 29 July 2011

High Court of Justice Queen’s Bench Division the Administrative Court [2011] EWHC 3433 (Admin)

Court upholds finding of misconduct for pharmacist who pursued public campaign against health professionals who had treated her infant niece.

This was an appeal by a registered pharmacist (the appellant) against the findings of the Disciplinary Committee (the Committee) of the Royal Pharmaceutical Society, predecessor to the General Pharmaceutical Council. The substantive hearing was held over three days in February 2009 with formal notice of their decision given by letter in October 2009. The result was findings of fact and misconduct resulting in the removal of the appellant from the Register.

The Notice of Inquiry rehearsed charges arising out of the appellant’s conduct within her private life. The appellant, with her family, pursued a public campaign of extreme allegations against those involved with the care of her infant niece, prior to the baby’s death. Misconduct was found at the substantive hearing by reason of breaches of Key Responsibility 3 of the Code of Ethics and Standards, namely that;

‘Pharmacists must ensure that they behave with integrity and probity, adhere to accepted standards of personal and professional conduct and do not engage in any behaviour or activity likely to bring the profession into disrepute or undermine public confidence in the profession’.

Background facts

The sad facts underlying the case may be very briefly summarised as follows. The appellant’s sister gave birth to a daughter, in May 2000. The baby was born with serious congenital abnormalities, including Edwards Syndrome, giving rise to a life expectancy of only a year. On 1 October 2000, the baby was admitted to King George Hospital (the Hospital), part of Barking, Havering and Redbridge Hospitals NHS Trust (the Trust). Relations between the Hospital medical staff responsible for care of the baby and the baby’s family (including the appellant) broke down irretrievably, resulting in the Hospital successfully applying for an ex-parte Emergency Protection Order (EPO) on 20 October 2000 against the mother and baby’s wider family (including the appellant) by reason of their alleged frustration of the administration of effective care to the baby.

Whilst an appeal against the EPO was being heard on 26 October 2000, the baby died. A pathologist gave the cause of death as one of natural causes arising from multiple abnormalities pursuant to Edwards Syndrome.

The position of the family, including the appellant, was that there had been a conspiracy by the Hospital to kill the baby via poisoning with overdoses of drugs, possibly in order to harvest body parts during autopsy. The family believed that there had been a cover up, in which the medical team that cared for the baby as well as the pathologist and five consultant paediatricians from Great Ormond Street Hospital (GOSH), who had provided their medical opinion on the baby’s condition, had all been involved. The appellant and her family held fast to this belief in spite of overwhelming evidence to the contrary, including a second post mortem, inquest verdict and police investigation.

This campaign had been waged through the dissemination of material on the internet and by way of distribution of leaflets and banners and participation in protesting on Hospital and Trust premises, GOSH and in the vicinity of the GOSH paediatricians’ home addresses. The behaviour was found to be harassing by reference to the Protection from Harassment Act. The appellant had been the subject of various and repeated court orders and injunctions to restrain her behaviour. She had also given undertakings not only to desist in her behaviour but to take steps to remedy the harm already caused. These undertakings, given by way of Consent Order, had been breached.

Misconduct

Mr Justice King considered the Committee’s findings on misconduct and endorsed their reasoning as “unimpeachable” by reference to settled case law. Although the activity had not taken place as part of the appellant’s professional life, her conduct had seriously and detrimentally affected fellow health care workers and was therefore conduct likely to bring the profession into disrepute or undermine public confidence in the profession.

Evidential value of findings in civil proceedings

Also considered and reviewed was the status of evidence relied upon by the Society, which consisted entirely of extracts from court records. At paragraph 71, the principle from the House of Lords in Spackman v GMC [1943] AC 627 was quoted:

‘A finding in civil proceedings is not conclusive evidence in subsequent disciplinary proceedings but does provide prima facie evidence of the facts found; that the practitioner should be given a fair chance to explain himself, but a disciplinary tribunal is not required to conduct itself as a court of law rehearing all of the evidence underlying those findings.’

Where Mr Justice King disagreed with the Committee was in its findings of a breach of Key Responsibility 3 in relation to the facts found at paragraph 3 of the Notice of Inquiry. This referred to the grant of an EPO ex parte against the appellant and her sister in favour of the Hospital. Misconduct had been found not on the basis of any finding of a court but upon the contents of a police report of May 2008. The Spackman principle did not apply and there was insufficient evidence to find that Key Responsibility 3 had been breached in this instance. This however did not affect the overall finding of serious misconduct in relation to other breaches Key Responsibility 3.

Whilst this appeal judgment may not develop any new principles, it is a useful review of misconduct where it occurs in a registrant’s private life and the evidential status of previous civil proceedings as discussed above. It also reminds practitioners of the legitimate scrutiny of medical certificates/evidence where an application for adjournment on the grounds of ill health has been made.