Alleged procedural unfairness on the part of a Fitness to Practice Committee of the General Pharmaceutical Council (‘the GPhC’) was rejected by the Court of Appeal in the case of Zahra Ali-Ashgar Hussain v GPhC [2018] EWCA Civ 22.  The appellant pharmacist appealed against her removal from the Register of Pharmacists by the GPhC.  She had been one of several pharmacists at a pharmacy in Edgeware Road which featured in a BBC television programme broadcast in December 2012.  The programme had an undercover reporter buy Amoxicillin, a prescription-only medicine, over the counter without a valid prescription.  Mrs Hussain was the ‘Responsible Pharmacist’, pursuant to s72A of the Medicines Act 1968, at the time.  The GPhC referred a single incident of such conduct by the appellant to a Fitness to Practise Committee.

The pharmacist originally had legal advice but lost confidence in her team when an application for an adjournment was refused.  She changed representatives but they were unable to continue to the hearings process.  Mrs Hussain therefore was left to represent herself at the hearing.  Her case was that the timing and conduct of the hearing had been unfair, the Committee should have considered the sanctions imposed on the other pharmacists featured in the programme, and it had retired to consider sanction with a case authority on which she had been given no opportunity to comment.  During the hearing, the Committee advised her that it would give a judgment on the facts, then consider whether those findings led to a conclusion that her fitness to practice had been impaired, and if so consider the appropriate sanction.  In the space of approximately six and a half hours, the Committee adjudged that the allegation had been proved, heard submissions on impairment and then determined that her conduct had been serious, she lacked insight into her conduct and that her fitness to practice was impaired.  The GPhC proposed that suspension would be the proportionate sanction in the case and the Committee retired to consider the position.  Upon return, the Committee decided that the appellant’s misconduct was fundamentally incompatible with continued registration and so she should be removed, not suspended, from the Register of Pharmacists.

The Court of Appeal held that the appellant pharmacist had sufficient notice that the Committee would be considering impairment and sanction if the facts were found against her.  In addition it was held that she had time to consider her thoughts after the factual determination.  There was an hour gap between the declaration that the allegation had been proved and the Committee hearing submissions on impairment and representations on sanction were completed by 4:05pm and despite her ability to fully participate in the hearing there had been no request to adjourn the issue of sanction.  Reference was made in the appeal to the other pharmacists featured in the television programme but the Court of Appeal stated that there was no obligation for the GPhC, in its submissions, to refer the Committee to the decisions in relation to the other pharmacists and neither was the Committee obliged to ask for them.  The sanction imposed upon each would depend on the individual facts.  With regard to the case authority where the appellant had been given no opportunity to comment, it was held that whilst the Committee had retired with that case to remind itself of the principles, it had not referred to the case in the decision and in any event the facts of that case were too removed from the present case to be of any assistance.  Interestingly the Court of Appeal commented that reference by a decision-maker to an authority on which a party had not been given an opportunity to comment need not involve a breach of natural justice.

With regard to the appellant’s removal from the Register of Pharmacists, the Court of Appeal stated that its jurisdiction was appellate rather than supervisory and whilst it is necessary to have access to an impartial and independent Court, the regulator’s special expertise needed to be considered and as such the Committee had to be afforded a margin of judgement.  The Court of Appeal however went on to say that the view stated did not mean that the Courts would never determine that a sanction was wrong.  The Court of Appeal found that the Committee had been entitled to conclude that the appellant's conduct involved a flagrant and extremely serious breach of the law that went to the heart of the profession's standards of conduct, ethics and performance. There would be no justification in rejecting the Committee's conclusion that she lacked insight and it was not open to the Court of Appeal to conclude that the sanction that the Committee thought right to impose was disproportionate and therefore wrong, having regard to the margin of judgment that had to be afforded to it.

Fitness to Practice proceedings can be complex and stressful matters to deal with.  The bundles provided by the GPhC however are detailed and always contain guidance on the proceedings and what sanctions may be considered. Apart from trying to fight the allegations on a balance of probabilities basis, if the Committee finds them proved the issues of impairment and sanction require considerable thought and reflection.  The unwary or unrepresented for example may not have had the confidence or knowledge to seek an adjournment upon which to gather thoughts and make considered submissions which may or may not save your career.  The Committee found that Mrs Hussain’s account of her actions “was rehearsed and manipulative” and that she had a tendency to avoid answering questions.  The Committee did not put this down to her being unrepresented but considered that she was not a credible or reliable witness.  Self-representation can be destructive and it went disastrously for Mrs Hussain.  So much was her unguided conduct at the hearing a problem, it actually counted against her when the panel was looking at the issue of insight.  The matters which Ms Hussain alleged went “beyond a robust denial” and cast aspersions upon the character of others.  From a defence lawyer’s perspective there is nothing worse than seeing a client defendant or even a defence witness effectively bring about a conviction.  Perhaps this was a ‘perfect storm’ where every effort to defend oneself backfired horrendously.

There is no substitute for obtaining and following specialist advice.  Perhaps the circumstances of the withdrawal of the previously acting lawyers was simplified in the Judgement but in any event, finding oneself unrepresented is unattractive in the extreme.   In giving Mrs Hussain the benefit of the doubt, was a pharmacist attempting to perform an advocate’s role.  By the same token one would not expect an advocate to dispense medicines.  In the pressure cooker environment of a hearing a skilled advocate can advise and take you through the process where the negative effects demonstrated here could have been mitigated.