Case update: High Court reaffirms Fitness to Practise Panels have a duty to support unrepresented registrants and are not bound by determinations on sanction by differently constituted panels

12 April 2016

Zahra Hussain v General Pharmaceutical Council
[2016] EWHC 656 (Admin)

This was an appeal to the High Court against the decision of a Fitness to Practice Panel (the Panel) of the General Pharmaceutical Council (the Council) in respect of a number of factual findings which had resulted in a direction for Zahra Hussain (Ms H) to be erased from the Council’s register.

Ms H was the superintendent and responsible pharmacist in the Safeer Pharmacy (the Pharmacy).  In August 2012 the BBC filmed under cover footage which appeared to show a counter assistant at the Pharmacy, Ms H’s daughter, supplying a prescription-only medicine (Amoxicillin) to a customer without a prescription. The Council investigated this matter and brought it before the Panel.

Throughout the course of proceedings, Ms H had unsuccessfully applied for an adjournment on the following three occasions:

  1. 23 July 2015 through her legal representative; 
  2. 17 August 2015, again, through her legal representative; and
  3. On the first day of the hearing, 18 August 2015, herself.

The third application for appeal followed Ms H’s discovery of communications between her legal representatives and the Council’s representative, which she found offensive and insulting.  Ms H sought to show the correspondence to the chair of the Panel (the Chair).  The Chair warned Ms H to be cautious about waiving privilege, but Ms H disclosed the correspondence in any event.  Ms H explained the relationship with her legal representatives had broken down and requested an adjournment to obtain legal representation.  The application was unsuccessful.

Ms H represented herself at the hearing on 18 August 2015, and was supported by her husband, a Dr Auda. 

Ms H did not accept that the BBC’s footage was genuine. The Panel heard evidence from Dr Auda questioning the authenticity of the footage. 

The Panel heard evidence from Guy Lynn, the reporter who made the BBC programme and from Detective Sergeant (DS) Dancy who had led a police investigation into this matter.  DS Dancy criticised the evidence trail.  He considered that the evidence had not been stored by the BBC in an appropriately tamper proof manner and considered that cover stories had been used by the reporters to invoke sympathy and encourage the supply of the drugs. 

The Panel accepted that data on video footage can be changed, but considered it was ‘most unlikely’ that the footage had been edited and concluded that there was reliable evidence to support the conclusion that the video evidence was accurate.

Ms H argued there was a strong possibility that the footage related to a purchase on 12 October 2011 rather than any in August 2012.  The Panel considered that this was not the subject of an allegation before them.  A test purchase had been made by the reporters in October 2011 and Ms H produced a prescription for Amoxicillin dated 12 October 2011. 

The Panel adjourned on 20 August 2015 and reconvened on 18 September.  The representative for the Council submitted that erasure would be disproportionate and that suspension was appropriate.  The Panel decided that the proportionate sanction was erasure from the Council’s register.

The appeal
Ms H appealed to the High Court pursuant to Article 58 of the Pharmacy Order 2010.  The appeal was heard by Mrs Justice Laing.

The appeal was made on the following grounds:

  1. The hearing was conducted unfairly; 
  2. The evidence was not “cogent” enough to support the Panel’s actual findings; and
  3. The penalty of erasure was disproportionate.

Mrs Justice Laing set out the relevant test, from the Civil Procedure Rules (CPR), namely whether the decision under challenge was wrong or unjust because of serious procedural or other irregularities in the proceedings CPR rule 52.11. She went on to say:
‘Wrong’ means in reality, ‘plainly wrong’; see Shaw and Turnbull v Logue [2014] EWHC 5 (Admin) at [62].

Unfair conduct of the hearing
Counsel on behalf of Ms H submitted the following:

  1. The Panel should have recused itself from dealing with sanction as it had seen privileged correspondence which was likely to have created a prejudicial impression of Ms H’s case; 
  2. The Panel deprived Ms H of the opportunity to be represented;
  3. The decision on sanction had been unfair, draconian and not in line with submissions on sanction made by the Council or with similar cases.

In respect of the correspondence, Mrs Justice Laing noted that it had clearly set out Ms H’s denial of the allegations and that the Panel had clearly and carefully warned Ms H of the risks of disclosing privileged material. Mrs Justice Laing did not consider it necessary for the Panel to recuse itself from dealing with sanction. Additionally, Ms H had been free to instruct legal advisers and had done so on previous occasions throughout the proceedings.  Ms H had signed a statement prepared by her legal advisers on 4 August 2014 which was considered by the Panel. Mrs Justice Laing concluded that a registrant does not have an ‘unfettered right, to insist on instructing a new legal team, regardless of the consequences for the public interest and for the regulator’.  Mrs Justice Laing then went onto say that the Panel is entitled to take a view that, with ‘appropriate help and guidance from it…a registrant will be able to represent him or herself’. She concluded that it was clear from the transcript that the Panel had discharged its duty by explaining the procedure and relevant legal concepts to Ms H, and therefore there was no injustice to Ms H contrary to CPR 52.11.

Cogency of evidence
Counsel on behalf of Ms H submitted the following:

  1. The original video footage was unavailable;
  2. The names of the undercover reporters were not disclosed;
  3. The Panel gave no, or insufficient weight, to the evidence of DS Dancy; and
  4. There was a factual inconsistency in the Panel’s findings regarding the dates of the footage and the test purchase in October 2011.

Mrs Justice Laing was satisfied that there was evidence on which the Panel concluded that the video footage had not been edited and that the conclusion that the Panel came to in relation to DS Dancy’s evidence and the reliability of the video footage was open to the Panel. She considered the Panel had been ‘scrupulously’ fair in the approach it had taken to the expert evidence of Dr Auda.  The Panel had also taken account of the supportive factors of Ms H’s case, her good character and the lack of representation. 

Disproportionate sanction
In respect of sanction, Counsel on behalf of Ms H stated as follows:

  1. The  sanction was not in line with submissions made by the Council or with other cases involving the BBC programme; and
  2. The sanction imposed was draconian.

Mrs Justice Laing considered that the Panel was entitled, in principle, to differ from the submission in relation to sanction made on behalf of the Council. She had sight of decisions of differently constituted panels involving the same programme in which the pharmacists had at worse, been suspended. Mrs Justice Laing stated that each case should be decided on its own facts and that insight and risk of repetition should be also considered.

Mrs Justice Laing pressed that the Panel gave Ms H the opportunity to read the Indicative Sanctions Guidance. Further, she accepted the submissions made on behalf of the Council to the effect that Ms H could have sought representation between 20 August and 18 September 2015 for the reconvened hearing, but that she had decided not to do so.

Mrs Justice Laing considered that the Panel was entitled to reach the conclusion it did that Ms H’s conduct was fundamentally incompatible with continued registration and therefore dismissed the appeal.

The case highlights two key factors: firstly, the importance of a fitness to practise panel discharging its duty to unrepresented registrants by explaining the procedure and any relevant legal concepts. If fitness to practise panels fail to discharge this burden, it may be considered that the registrant in question did not have receive a fair hearing, and that had they been represented, the outcome may have been more favourable. The second factor is the requirement for a fitness to practise panel to exercise its independent judgement and to consider a case on its merits. Whilst there must be some parity in respect of sanction between cases decided on similar facts, fitness to practise panels must consider each case individually, providing cogent reasons for the sanction imposed such that an informed member of the public, and the registrant alike, can understand the reasons why the sanction in question was imposed.

For further information, please contact Rebecca Ryan, or visit our Regulatory & Professional Discipline pages.


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