Hussain v General Pharmaceutical Council [2018] EWCA Civ 22

Background

Mrs Hussain (the Registrant) was the “responsible pharmacist” at a pharmacy in London, and subject to regulation by the Medicines Act 1968. As the responsible pharmacist, it was her duty to ensure the safe and effective running of the pharmacy business.

In December 2012, and while the Registrant was the responsible pharmacist on duty, an undercover reporter for a BBC television programme had been able to buy Amoxicillin, a prescription-only medication, over the counter and without a prescription.

This resulted in fitness to practise proceedings being brought against the Registrant by her regulator, the General Pharmaceutical Council (GPhC). On 18 September 2015, the Fitness to Practise Committee (the Committee) of the GPhC concluded that the Registrant had been knowingly involved in the unlawful supply of Amoxicillin, that her fitness to practise as a pharmacist was impaired by reason of that misconduct, and that her name should be removed from the Register of Pharmacists.

The Registrant’s appeal was dismissed in the High Court by Elisabeth Laing J. Our blog on the appeal in the High Court can be accessed here. Thereafter she renewed her appeal in an application to the Court of Appeal (CoA).

The Registrant’s appeal was based on two key arguments: firstly, that the way that the Committee had conducted her original fitness to practise hearing was unfair, and secondly that the sanction of removal was disproportionate and wrong.

Procedural Irregularities

The Registrant relied on fourteen apparent procedural irregularities in support of her argument that the hearing had been unfair, each arising from procedural decisions which would be very familiar to those who work in healthcare regulation.

The issues included the amount of help and guidance a Committee should give to an unrepresented Registrant; the circumstances in which an adjournment should be considered; how much warning should be given where removal is being seriously considered; how to make the best use of hearing time without expecting the parties to sit to an unreasonable hour; what to do with a Registrant who has health problems and/or is caused distress by being involved in regulatory proceedings and should a Committee consider sanctions imposed on other practitioners accused of similar acts?

The CoA rejected the Registrant’s arguments: there had been no procedural irregularity, let alone one which was serious enough to render the Committee’s decision unjust. The Registrant had been given plenty of warning about how events would unfold on 18 September and that removal from the register was a potential outcome. Although she had not been legally represented, she had been represented earlier in the process, and plenty of help was given by the Chair, including repeated indications of topics which it might help the Registrant to address. Although the day ended late on 18 September, submissions on sanction were completed by 4.05 pm, which was clearly not an unreasonably late hour of the day. As for an adjournment, this had not been requested by the Registrant, and even if she had, an adjournment was “not for the asking”: the Committee would have needed to consider fairness to the GPhC as well as to the Registrant.

Perhaps the most novel point arose in response to the Registrant’s complaint that the Committee retired with a copy of an authority which the Registrant had not had an opportunity to comment on. The CoA referred to the recent case of Dill v Secretary of State for Communities and Local Government [2017] EWHC 2378 (Admin) and said that there could be a procedural irregularity where the decision-maker carried out their own research after the proceedings have concluded and before giving their decision, provided that this related to an issue which the parties had not considered to be the principal issue and so had not addressed it much or at all in their submissions. The question will be whether the Registrant was deprived of a reasonable opportunity to comment on the facts and circumstances of the case in light of the relevant legal framework. In this case, the Court’s answer was no, she had not.

Nevertheless, the judgment is a useful reminder that just because a Committee is not obliged to take a course of action, it has both discretion and a responsibility for how the case is managed. As a result, a Committee may choose to take a more cautious approach. As Lord Justice Peter Jackson wrote in his judgment, although he was not persuaded by any of the Registrant’s procedural arguments and considered that the appeal should be dismissed:

“the Committee might have done better to consider adjourning after announcing its decision on impairment […] this was an occasion on which it could have offered an unrepresented registrant in distress the opportunity to ask for time”.

and

it would have been better if the Committee had explicitly warned Mrs Hussain that it was considering imposing the ultimate penalty” (Emphasis added).

He also remarked that “The fact that she did not ask for an adjournment herself does not relieve the Committee of its own obligation to assess the matter”.

Disproportionate sanction

The CoA then turned to the question of whether the sanction of removal was disproportionate and therefore wrong; unanimously, the three Lord Justices concluded that it was not wrong and the appeal against sanction was dismissed.

The appellate courts have frequently explored the extent to which they can interfere with the decision of a regulatory tribunal. The main principles were recently summarised in General Medical Council v Jagjivan [2017] EWHC 1247 (Admin) (click here), and are repeated in this case by Lord Justice Singh from paragraph 66. In brief summary, a court will allow an appeal if it is “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”. It will correct any material errors of fact and of law, although it will be cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of witnesses. It will approach a Committee’s conclusions on whether conduct is serious misconduct or impairs a person’s fitness to practise with diffidence; a body such as the Committee must be afforded a “margin of judgment”.

The CoA determined that the Registrant’s case is a straightforward application of these principles. The Committee was entitled to take the view that her conduct involved a flagrant and extremely serious breach of the law that went to the heart of the profession’s standard of conduct, ethics and performance. The Court would not be justified in rejecting the Committee’s conclusions on the Registrant’s insight, as they had seen and heard from her over a number of days; it must also “exercise caution” when reviewing a decision of the Committee on sanction as the Committee is better placed to judge what is required to maintain professional standards and public confidence.

Lord Justice Singh and Lord Justice Jackson both expressed concern at the sanction imposed, and Lord Justice Jackson explicitly disagreed with the Committee’s description of the misconduct as “‘extremely serious" and "on the face of it, fundamentally incompatible with continued registration’”. Lord Justice Jackson also made the point that although the Registrant lacked insight, she had shown herself able to practise safely in the three years since the incident in question. Nevertheless, both agreed with Lord Justice Newey that the outcome was not “wrong”.

It appears that the level of the Registrant’s insight was key both to the Committee and to the CoA not to overturn the sanction. As Lord Justice Jackson wrote, “Even 18 months later at the hearing before us, there was no sign of acknowledgment of her misconduct or of insight. Had Mrs Hussain acted differently at a very early stage, the Committee would no doubt have taken a different view. Had she done so in the immediate aftermath of the disciplinary hearing, I might have been persuaded that the Committee’s approach had been shown to have been wrong.”

Commentary

This judgment is a useful and interesting illustration of the wide latitude given to first instance decisions, and the difference between “wrong” in the everyday sense and “wrong” in the legal sense.

It is also an illustration of the appellate court’s approach to the procedural questions with which committees and legal assessors grapple every day, and how a pragmatic, fair and common sense approach will almost always be correct. A committee may not be obliged to take a course of action, but it should consider whether it nevertheless should do so out of a more general sense of fairness, particularly where the Registrant is unrepresented.

However, another lesson from the judgment is that it is very important that these matters are dealt with properly at the time. Committees should consider their decisions carefully, explain what they are doing, and invite submissions from the parties; they must then record their decision and give reasons for it. Registrants, in turn, must not be afraid to ask questions and ask for time, rather than waiting for an issue to be fixed later or at appeal; unless a Committee has gone badly astray, an appeal is very unlikely to overturn the Committee’s decisions.

Notwithstanding the assistance that will be given to unrepresented Registrants, Registrants should ensure they are in the best position to defend themselves. They should read all communications from their regulators very carefully, and should listen to what the Committee is saying about their intentions and concerns; Chairs and Legal Assessors will often point an unrepresented registrant towards a topic which they feel is important but which has not been adequately covered.