High Court holds that suspension of registrant convicted for child cruelty was unduly lenient, and substitutes with erasure

Judgement date: 23 July 2014

Background

The appellant authority (PSA) appealed against a decision of the General Pharmaceutical Council’s (GPhC’s) Fitness to Practise Committee (the Panel) to impose a 12 month suspension on Lynne Onwughalu’s (the Registrant’s) registration for a period of 12 months following a finding that her fitness to practise was impaired by reason of two convictions for cruelty to a child under the age of 16.

The Registrant was found guilty of wilfully neglecting her four month old daughter (Child 1) between 31 October and 20 December 2011 and 17 and 20 December 2011 in that she failed to obtain prompt medical assistance and treatment for injuries the child had suffered.

On 19 December 2011, Child 1 was admitted to hospital with a large number of serious injuries. Signs of healing indicated that only one injury was a recent occurrence with the others being historic in nature.

The Registrant pleaded guilty to the charges laid against her. The Crown’s case during sentencing, supported by expert testimony and accepted by the Court before which allegations of cruelty to a child under the age of 16 were heard, was that Child 1’s injuries would have been obvious to the Registrant and that her failure to seek prompt medical treatment was motivated by fear as to the questions that would inevitably be asked as to how these injuries had been inflicted.

The circumstances of Child 1’s injuries remained unexplained at the criminal hearing and the Registrant gave a number of inconsistent and contradictory accounts as to how these injuries had arisen during the course of the investigation.

At the conclusion of the criminal proceedings the Registrant was sentenced to a 14 month custodial sentence.

The matter came before the Panel and despite ostensibly admitting the fact of her conviction and sentence the Registrant went on to assert facts ‘wholly inconsistent with her guilt [15]’, such that, upon reading the transcripts, the Court in the immediate case commented that it was ‘clear … that [the Registrant] regarded her conduct as involving an error of professional judgement, rather than any deliberate concealment and criminal culpability [17]’.

The Panel found the Registrant’s fitness to practise to be impaired by reason of the convictions and noted that, ‘public protection [was] engaged … [the Registrant’s] conduct [had] bought the profession in to disrepute … her conduct clearly demonstrates a lack of integrity … [and] that nothing [had] changed since the events in question to show the [the Registrant] [had] developed insight’. Having found the Registrant’s fitness to practice to be impaired the Panel next considered sanction and imposed a 12 month suspension, finding in so doing that removal from the register would be ‘disproportionate’.

Appeal

The PSA appealed on the basis that the Panel’s decision had been unduly lenient in the context of s.29 of the National Health Service Reform and Healthcare Professions Act 2002. The Court considered the case of Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356 [2005] 1WLR 717 which determined that whether a penalty was unduly lenient in the context of s.29 was to be considered by asking whether it was one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed.

The PSA advanced five grounds of appeal, these being:

  1. the Panel erred in its approach to the question of insight;
  2. the Registrant’s criminal conduct, continuing lack of insight and failure to cooperate with the investigations following her arrest were incompatible with her continued registration;
  3. the Panel failed to consider and apply any of the factors, other than conduct which is fundamentally incompatible with continued registration, identified in the Indicative Sanctions Guidance as relevant to removal from the register;
  4.  in all the circumstances the Panel could have found removal was the only sanction which adequately marked the seriousness of this particular case;
  5. the Panel provided no adequate reasons for explaining its decision.

Decision

The Court accepted all the submissions advanced in support of the PSA’s case that the sanction imposed by the Panel was unduly lenient.
In so doing the Court held in respect of the first ground that, ‘what was needed was for [the Registrant] to demonstrate unambiguously that she accepted the facts of the offences, on the basis which she had pleaded guilty; that she fully understood the seriousness of her actions; and that she had properly reflected upon them and upon her future conduct [37]’ as opposed to denying any deliberate failure on her part to obtain medical treatment for Child 1. The Court noted that ‘the Registrant’s lack of recognition that what she had done was wrong and that it amounted to serious misconduct on her part [was] a striking feature of this case [38]’.

In respect of the second ground the Court held that, ‘the offence of wilful neglect of her young and vulnerable child … [related] directly to the Registrant’s clinical practice and to standards of professionalism [40]’ and further held that ‘the Panel erred in failing adequately to consider … how the lack of integrity they found to be demonstrated on the evidence at impairment stage impacted upon [the Registrant’s fitness to practise and upon trust and confidence in the pharmacy profession [41]’.

Having found that the Registrant’s conduct was fundamentally incompatible with continued registration the Court moved to consider the third ground (failure to consider and apply any of the factors, other than conduct which is fundamentally incompatible with continued registration, identified in the Indicative Sanctions Guidance as relevant to removal from the register) and held that the following were engaged in the immediate case: ‘continuing risk to patients or members of the public; serious potential harm; dishonesty; lack of insight; serious departure from standards of conduct, ethics and performance published by the Council; and circumstances where public confidence in the profession demands no lesser sanction [43]’ and held that ‘all of these factors were present to a greater or lesser degree [44]’.

On the basis of the above the Court also accepted the PSA’s fourth and fifth grounds of appeal.

In consequence of its acceptance of the submissions advanced on behalf of the PSA, the Court allowed the appeal, quashed the decision of the Panel to suspend the Registrant for a period of 12 months and substituted an order for removal from the register.

A case which makes clear the importance of a fulsome consideration of insight and due regard to any published guidance when determining appropriate sanction.