Lasting Powers of Attorney: recent key developments
R (on the application of Pitt and another) v General Pharmaceutical Council ( EWHC 809 (Admin))
Two pharmacists, who were also members and officials of the Pharmacists’ Defence Association, sought to challenge the new Standards for Pharmacy Professionals (“the Standards”) adopted by the General Pharmaceutical Council (the “Council”), due to come into effect on 1 May 2017, on the basis that they go too far in seeking to regulate conduct in professionals’ private lives, unconnected from their work.
The new Standards contain nine standards that every pharmacy professional must meet and the introduction states that these should be met “at all times, not only during working hours”.
Particular attention was drawn to Standard 6, which states:
“Pharmacy professionals must behave in a professional manner
Applying the standard
People expect pharmacy professionals to behave professionally. This is essential to maintaining trust and confidence in pharmacy. Behaving professionally is not limited to the working day, or face-to-face interactions. The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions call for appropriate behaviour at all times. There are a number of ways to meet this standard and below are examples of attitudes and behaviours expected.
People receive safe and effective care when pharmacy professionals:
-Are polite and considerate
-Are trustworthy and act with honesty and integrity
-Show empathy and compassion
-Treat people with respect and safeguard their dignity
-Maintain appropriate personal and professional boundaries with the people they provide care to and with others.”
The Claimants contended that the requirement for the Standards be met “at all times” was in excess of the Council’s powers (i.e. ultra vires), unlawful for uncertainty and contrary to Articles 8 (private life) and 10 (freedom of expression) of the European Convention on Human Rights, as set out in Schedule 1 to the Human Rights Act 1998 (the “HRA”).
The Council’s power to set professional standards is derived from the Pharmacy Order 2010 (SI 2010 No. 231) (the “2010 Order”), made under the Health Act 1999.
1)Are the new Standards ultra vires?
2)Are the Standards unlawful on the grounds of uncertainty?
3)Are the Claimants entitled to rely on the Convention rights?
4)Is there a breach of the Claimants’ Convention rights?
The Claimants submitted that the 2010 Order does not permit the Council to intrude so far into private matters and, more specifically, that the new Standards go beyond the definition of “misconduct” contemplated by Article 51 of the 2010 Order. This would mean that trivial matters that could have no bearing on a pharmacist’s fitness to practise could constitute misconduct.
The Court held that the Claimant’s interpretation of the Standard was “simply wrong”. They need to be interpreted “fairly and as a whole” and in a way which is rooted in real life and common sense. The Standards are “intended to guide the conduct of pharmacy professionals in a practical way; they are not addressed primarily to lawyers”. As such, the examples of acceptable attitudes and behaviours listed in the Standards should be treated as examples, merely illustrating what may or may not be unacceptable conduct. They do not mean that a pharmacist will breach the Standards every time he is impolite.
However, it is accepted that there is conduct occurring outside working hours which is relevant to the ability of a pharmacist to provide safe and effective care to patients and Article 51(4) of the 2010 Order expressly states that fitness to practise may be impaired as a result of matters arising “at any time”.
The Council has a broad discretionary power to set standards which are appropriate “relating to the conduct, ethics and performance expected of registrants” (Article 48 of the 2010 Order).
It was held that the Council had not exceeded it powers.
The Court did not consider the new Standards to be void for uncertainty.
It is proper that pharmacists should know what standards they have to adhere to, but in the context of regulating a profession in the public interest, absolute precision is not achievable or desirable. There needs to be sufficient flexibility in the rules to be able to protect the public as new factual situations arise.
As such, professionals typically accept the inclusion of a general standard to not bring their profession “into disrepute”, even though this could involve conduct outside the workplace. Such a standard was included in the previous version of the Council’s standards.
The concept of legal certainty does not require absolute precision; it is enough that laws (and by analogy professional standards) are sufficiently certain that a person can reasonably know, if necessary after taking advice, what they must do in regulating their affairs so as to comply with them (Sunday Times v United Kingdom (1979-80) 2 EHRR 245) .
The Council argued that the Claimants could not rely on Convention rights as, under section 7 of the HRA, claims can only be brought by “victims” of the unlawful act.
Section 7(7) of the HRA makes it clear that a person can only be regarded as a “victim” if they would be a victim for the purposes of Article 34 of the Convention, requiring the court to have regard to jurisprudence of the European Court of Human Rights.
It was held that the Claimants did not satisfy the general principle that a victim must be a person “directly and personally” affected by an alleged violation of Convention rights (i.e. they were not being disciplined under them) and it was not appropriate to apply the recognised exceptions.
In particular, it could not be determined that the new Standards themselves were inherently incompatible with Articles 8 and 10, as it is accepted that there is some conduct outside of work which is relevant to a pharmacist’s fitness to practice (distinguishing Norris v Ireland (1991) 13 EHRR 186).
As such, the Claimants were not entitled to rely on the Convention rights.
Despite the finding on the third issue, this was briefly considered by the Court.
It was determined that the provisions of the HRA mean that the new Standards cannot be applied in a way that would breach the Claimant’s Convention rights.
Section 6 of the HRA obliges the Council, as a public authority, to act in a way which is compatible with the Convention rights.
Section 3 of the HRA requires any primary and secondary legislation to, as far as possible, be read and given effect to in a way which is compatible with the Convention rights and, in any event, there is nothing in the Health Act 1999 or 2010 Order to prevent such an interpretation.
As such, the application for permission for judicial review was refused.
This is an important case, and one to which regulated professionals should take heed. The Court has made clear that Standards of practice apply not only in the traditional workplace environment and during working hours, but also beyond. Clearly, there are some matters which take place outside of work which will be too trivial to be considered a breach of Standards of practice, but this case serves as a reminder to regulated professionals to maintain proper standards of conduct and behaviour at all times such that public confidence is not diminished.
The Courts will not accept arguments advanced by regulated professionals to the effect that serious misconduct which occurs outside of the workplace should not be considered as part of fitness to practise proceedings as in impinges upon their Article 8 rights.
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