09 OCT 2014
Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Anor  EWHC 2521 (Admin); (2014) PLLR 083
Queen’s Bench Division, Administrative Court, Cox J
23 July 2014
A fitness to practice panel erred in failing to remove a pharmacist from the register after her conviction for cruelty to a child, where the registrant showed no insight into her conduct and mitigating factors were absent.
(1) The Professional Standards Authority appealed against a decision of the Fitness to Practise Committee of the General Pharmaceutical Council (‘the panel’) that the Authority argued was unduly lenient. The registrant was invited to participate but declined to do so, though she remained a party to the case.
(2) The registrant, a pharmacist, pleaded guilty to two counts of cruelty to a child under 16 and was sentenced to 14 months’ imprisonment in February 2013. The registrant and her husband wilfully neglected their four-month-old daughter in 2011, failing to obtain medical assistance for her many serious injuries, which physicians established were the result of trauma. The registrant gave various explanations for how her daughter obtained these injuries, but they were not consistent with the nature of the injuries sustained. Judges in the Family Court rejected the registrant’s submissions that she had cooperated with authorities.
(3) In January 2014, the panel found that the registrant’s fitness to practice was impaired by reason of these convictions. The panel suspended her from the register for twelve months, but did not order her removal from the register. The registrant admitted the facts of her conviction and sentence, but tried to minimise the incident. She offered the panel no explanation for how her daughter was injured when given an opportunity to do so, and argued that she had merely made a mistake.
(4) The panel found that the registrant failed to engage with the issue, and that public protection was engaged as she could no longer be trusted to act appropriately when things go wrong. The panel also found her to lack integrity and insight. There was little mitigation present, though she did acknowledge how her conduct had jeopardized the good name of the profession. The panel credited the registrant with having some insight into her actions, and stated that the suspension would give her the opportunity to develop her insight further.
(5) The claimant appeals the decision as being unduly lenient and submits that the only reasonable sanction was removal from the register. The defendant does not resist the appeal.
(6) The claimant made five criticisms of the panel’s decision:
(1) the panel erred in its approach to the question of the registrant’s insight into her conduct;
(2) the registrant’s criminal conduct, failure to cooperate with investigations and continuing lack of insight were incompatible with continued registration;
(3) the panel failed to consider and apply any of the individual factors identified in the Indicative Sanctions Guidance as relevant to removal from the register;
(4) the panel should have found that removal was the only sanction which adequately marked the seriousness of this case; and
(5) the panel provided no reasons for explaining what was plainly an aberrant decision.
(7) HELD: The appeal was allowed and the decision quashed; the court substituted an order removing the registrant from the register.
(8) On ground (1), the court accepted the submission, noting the differences in the registrant’s representations at sentencing and before the panel. Granting the registrant the additional time to develop insight into her wrongdoing was plainly wrong, as over two years had already elapsed since the incident. The panel’s finding that the registrant had developed ‘some insight’ was at odds with its earlier written findings; this disparity is not adequately explained. The court found it could allow the appeal on this ground alone.
(9) On ground (2), the court agreed with all of the claimant’s submissions, agreeing that the registrant’s course of conduct related directly to her clinical practice and standards of professionalism. Had the panel considered the evidence correctly, it could have only found as the court did here.
(10) On ground (3), the court agreed that all the guidance factors indicating removal were present, and proper consideration would have led the panel to see removal from registration as the only appropriate course of action.
(11) The court considered (4) and (5) together, and accepted the submissions for reasons stated in grounds (1) – (3).
(12) The court also assessed the question of costs. The court ordered the respondents to pay the claimant’s costs, divided between the respondents equally, despite the fact that the first respondent brought the matter to the claimant’s attention. It was the regulator’s failings that caused the error, and the costs should reflect that fact. It was also acceptable for the claimant to instruct leading counsel in a case of this nature.
 – Fitness to be registered
 – Insight
 – Additional time to develop insight
- – Insight
 – Guidance on removal from registration
 – Fitness to practice and adequacy of reasons
 – Conclusion
 – Costs
 – Regulator’s role
 – Costs conclusion