APPEAL BY H.K. AGAINST GENERAL PHARMACEUTICAL COUNCIL
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| | [2014] CSIH 61 |
Lord Eassie Lord Drummond Young Lord Wheatley | XA84/13 OPINION OF THE COURT delivered by LORDDRUMMONDYOUNG in the appeal by H K Appellant; against GENERAL PHARMACEUTICAL COUNCIL Respondents: _______________ |
Appellant: Party
Respondents: Dunlop QC; Anderson Strathern LLP
10 July 2014
[1] The appellant is a registered pharmacist. On 27 June 2013 the Fitness to Practise Committee of the General Pharmaceutical Council made a finding that his fitness to practise as a pharmacist was impaired, and directed that his name should be removed from the Register of Pharmacists in accordance with article 54(2)(c) of the Pharmacy Order 2010. The appellant has appealed against that decision by means of a statutory appeal under article 58(1)(a) of the Pharmacy Order 2010. He does so on two grounds. First, he contends that the decision of the Fitness to Practise Committee to remove his name from the Register was manifestly wrong. Secondly, he contends that the sanction was one that no reasonable Committee should have imposed in the circumstances of the case.
[2] The circumstances that gave rise to the proceedings are as follows. The General Pharmaceutical Council alleged that the appellant’s fitness to practise as a pharmacist was impaired by reason of misconduct and by reason of a conviction. The particulars of the allegation were as follows:
“That being first registered as pharmacist on 22 July 2002:
1. On 21 March 2011 you received a conviction at Glasgow Sheriff Court for assault to cause injury.
2. On 13 May 2011 you were sentenced at Glasgow Sheriff Court to:
(i) a penalty fine;
(ii) compensation.
3. You failed to notify the Registrar of the conviction specified at 1 within the required 7 days.
4. On 08 May 2012 you received a conviction at Glasgow Sheriff Court for:
- 2 counts of behaving in a threatening [or] abusive manner;
(ii) wilfully or [recklessly] damaging property belonging to another.
5. On 08 June 2012 you were sentenced at Glasgow Sheriff Court to:
(i) 180 hours unpaid work;
(ii) Supervision order 18 months.
6. Your actions described at 3 above were:
(i) Inappropriate and/or;
(ii) Contrary to Rule 4 of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc Rules) Order of Council 2010.
By reason of the matters set out above, [individually or cumulatively] your fitness to practise is impaired by reason of:
(i) Conviction, and/or;
(ii) Misconduct”.
[3] As is apparent from the terms of the complaint, the charges against the appellant arose out of convictions at Glasgow Sheriff Court for assault to injury, behaving in a threatening or abusive manner and wilful or reckless damage to property. The offences were all of a domestic nature. The first offence, that committed on 20 July 2010, occurred at a time when the appellant was living with his wife in their matrimonial home. In the course of an argument, he kicked his wife when she was lying in bed, grabbed her by the hair and pulled her up the bed, and then held her and repeatedly punched her face. He then dragged her off the bed and struck her again on the face, with the intention of causing her injury. When interviewed by police, he denied kicking or punching his wife, but admitted that he might have slapped her. He initially pled not guilty, but subsequently changed his plea. He was sentenced to a fine of £400 and was ordered to pay compensation of £500. The appellant’s conviction for this offence only came to the respondents’ attention in December 2011, when he submitted an information form referring to the offence. In the form he noted that his marriage had since been dissolved.
[4] The second conviction related to offences committed on 9 and 30 March 2012. On the first of those dates the appellant went to his wife’s home and demanded entry, repeatedly banged on a door and shouted and swore in such a way as to put his wife in a state of fear and distress. On the second date he went to his wife’s home, the former matrimonial home, with one of his relations when his wife was not present. They tricked their way in and shouted, swore and threatened violence. The appellant kicked a hole in the wall and then left, taking with him his two children, aged two and nine, who had been in the house with his wife’s mother and sister. The police took the children back from the appellant’s home. The appellant pled guilty to those offences, and was sentenced to a community payback order involving 18 months’ supervision and 180 hours of unpaid work. The complaint against the appellant further alleged that his fitness to practise was impaired by misconduct consisting of a failure to report the first of these convictions to the Registrar of the respondents within seven days, as required by rule 4 of the 2010 Rules.
[5] The appellant gave evidence to the Fitness to Practise Committee. He conceded that his fitness to practise must be impaired because of the impact of his conduct on public confidence in the profession. He admitted his conduct, and regretted and apologized for it. He stated that he committed the offences at a time when his marriage was breaking up. He acknowledged that his behaviour was wholly inappropriate, but referred to a course that he had completed as a condition of his community payback order. This was a “CHANGE” Domestic Violence Programme, which he attended between October 2012 and April 2013. He stated that he had subsequently been able to negotiate amicably with his former wife, using the cognitive behavioural therapy techniques that he had learned at the course. He was in a new stable relationship, and believed that he communicated well with his present partner. He further produced a report from the social worker who had supervised his community payback order and a testimonial from a professional colleague.
[6] In deciding whether fitness to practise has been impaired, the Fitness to Practise Committee is required to have regard to the criteria set out in rule 5(2) of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc Rules) Order 2010. Rule 5(2) is in the following terms:
“In relation to evidence about the conduct or behaviour of the registrant which might cast doubt on whether the requirements as to fitness to practise are met in relation to the registrant, the Committee must have regard to whether or not that conduct or behaviour –
(a) presents an actual or potential risk to patients or to the public;
(b) has brought, or might bring, the profession of pharmacy into disrepute;
(c) has breached one of the fundamental principles of the profession of pharmacy; or
(d) shows that the integrity of the registrant can no longer be relied upon”.
The Committee determined that the appellant’s fitness to practise was currently impaired by reason of his convictions; they indicated that either of the convictions would itself have been sufficient for such a conclusion. They stated:
“The Committee notes with concern that the convictions involve violence and were serious and repeated. Conduct of this kind by any professional person must bring his profession into disrepute, and undermine public confidence in the profession. It is a principle of the profession that a pharmacist must be a caring person, and [the appellant’s] behaviour towards his wife and children was violent and uncaring. He committed further offences after his first conviction, and after telling the Council in his declaration in December 2011 that it was ‘a single incident of domestic assault’. He admitted in evidence that there was some minimizing of the seriousness of his offending. He is still the subject of a supervision order which was imposed in June 2012. Although he has successfully completed a Domestic Violence Programme, and has been assessed as being at low risk of re-offending, it is impossible to say that he has remedied the impairment which led to his convictions. Public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances, where there are convictions for serious, repeated domestic abuse”.
[7] By way of sanction, the respondents sought either suspension of the appellant from the Register of Pharmacists or his removal from the Register. They submitted that public confidence in the profession demanded no lesser sanction. It was accepted that there was no criticism of the appellant’s clinical skills, and that suspension or removal from the Register might have an effect on the appellant’s ability to practise his profession. It was further accepted that there was no risk to patients or members of the public, even though there had been violent misconduct.
[8] The Committee’s determination was that the appellant should be removed from the Register of Pharmacists. They indicated that the purpose of a sanction in such a case is not to punish the registrant but to protect the public as patients, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct. They recognized the effect that this section might have on the appellant’s ability to practise his profession and on his reputation, earning capacity and future career. The appellant’s interests nevertheless had to be balanced against the interests of the public. The Committee further accepted that there was no evidence of any continuing risk to patients, but they determined that it was not sufficient to issue a warning to the appellant in order to maintain public confidence in the profession and proper standards of behaviour among pharmacists. Criminal convictions for domestic violence were wholly unacceptable for a pharmacist, and must be visited with serious consequences. The Committee further considered that there were no conditions that could be devised to address the misbehaviour in the present case; it did not involve clinical failings that could be rectified by training.
[9] The Committee considered whether a period of suspension would be appropriate and sufficient to restore or maintain public confidence in the profession. They considered that repeated domestic violence was a crime striking at the core of professional health care; pharmacists and other health care professionals had to be understanding, sympathetic to all patients, and publicly and privately trustworthy. The limit of the Committee’s power of suspension was a period of 12 months. They considered that suspension for that period would be insufficient to mark the degree of seriousness of the appellant’s conduct. His conduct was fundamentally incompatible with continued registration as a pharmacist. Thus the appellant must be removed from the Register. The result was that the appellant would not be able to apply for restoration to the Register for five years. The Committee acknowledged that that might mean that the appellant had to leave the profession permanently; that would be unfortunate, because there was no evidence that the appellant was not a good pharmacist, but the Committee was not satisfied that the appellant would not be able to return at some time to the Register. They stated:
“An order of removal may appear harsh. However, the public interest outweighs [the appellant’s] personal interest, and a harsh order may, in part, be a consequence of the limited choice of sanction available to the Committee…”
[10] The Committee noted that they were entirely convinced, on the basis of the appellant’s evidence, that he had diligently completed the unpaid work requirement and the domestic violence programme requirements of the community payback order to which he was subjected. They were further convinced that he had genuinely learned the error of his past behaviour, and had acquired good skills as a result of cognitive behavioural therapy. The behaviour that led to the convictions was comparatively recent, however, and the supervision order had not terminated at the time of the Committee’s decision. Thus the conclusion was that no sanction short of removal from the Register was proportionate or sufficient to protect the public interest, including public confidence in the profession.
The appeal
[11] The appellant has now appealed against the Fitness to Practise Committee’s determination. The appeal is limited to the question of the sanction imposed; the appellant accepted before the Committee, and continues to accept, that his fitness to practise was impaired by his criminal convictions. At the outset, we should note the first ground of appeal argued before us, which related to the procedure before the Committee. It is said that, after deciding that the appellant’s fitness to practise was impaired, it should not have proceeded at once to determine sanction, and should have adjourned to allow the appellant to take legal advice. It was submitted that at that point the Committee should have realized that the appellant was “wholly out of his depth” in dealing with sanction; he had taken advice from a solicitor before the hearing and had understood that he could expect merely to receive a warning, as his misconduct did not impinge directly on his practice. It appears, however, that no motion was made to adjourn, and the Committee raised the question of legal representation. In our opinion this ground of appeal should be rejected; the appellant did not request representation, and in any event, for reasons discussed subsequently, we consider that the Committee’s decision on sanction cannot stand and must be reconsidered. Consequently no prejudice will be suffered by the appellant.
[12] The remaining grounds of appeal relate to the Committee’s decision to remove the appellant from the Register rather than to impose some form of lesser sanction. The general principles that apply to such an appeal are well established. First, the primary purpose of a sanction is not punishment but the maintenance of professional discipline: Bolton v Law Society, [1994] 1 WLR 512, at 518-519; approved in Dad v General Dental Council, [2010] CSIH 75, at paragraph [13]. On some occasions punishment may be relevant, but that will normally only occur where the conduct is reprehensible and has not been the subject of a criminal penalty; where, as in the present case, the member of the professional body has been the subject of a criminal prosecution that has resulted in a significant penalty, punishment will rarely if ever be a function of the professional tribunal’s sanctions: ibid. The Committee accepted this; their determination on sanction began:
“In considering sanction, the Committee has borne in mind that the purpose of a sanction is not to punish the registrant but to protect the public as patients, to maintain public confidence in the profession and to declare and uphold proper standards of conduct”.
[13] Secondly, the Fitness to Practise Committee is a specialist tribunal, and in general the court should be slow to interfere with its decisions, especially in relation to decisions as to what is necessary to protect the reputation and standing of the profession: Dad, supra, at paragraph [13]. At one time the court was reluctant to interfere with any sentence imposed by a professional tribunal on the basis that the tribunal was best placed to assess the seriousness of conduct and to determine the appropriate sanction, but that attitude changed following the decision of the Privy Council in Ghosh v General Medical Council, [2001] 1WLR 1915: McMahon v Council of the Law Society of Scotland, 2002 SC 475, at paragraphs [13]-[16]; Dad, supra, at paragraph [13]. Nevertheless, before interfering with a sanction imposed by a professional disciplinary tribunal, the court should be satisfied that the decision was “plainly wrong”: Dad, supra, at paragraph [15]. Thirdly, if the court does reach the conclusion that it may interfere with the sanction imposed, it has an unfettered ability to reconsider the question of sanction, remitting to the tribunal where appropriate: McMahon, supra, at paragraphs [13]-[16]. In the present case, the court acts under the specific statutory power found in article 58 of the Pharmacy Order 2010. Article 58 authorizes an appeal in a case such as the present where a Fitness to Practise Committee has given a direction to remove an entry from the Register. Paragraph (5) states that the court may
“(a) dismiss the appeal;
(b) allow the appeal and quash the direction in respect of which the appeal is made;
(c) substitute for the direction in respect of which the appeal is made any other direction that the Fitness to Practise Committee could have given; or
(d) remit or refer the case to the… Fitness to Practise Committee for disposal of the matter in accordance with the relevant court’s directions”.
[14] The sanctions available to the respondents’ Fitness to Practise Committee are set out in article 54 of the Pharmacy Order 2010 (2010 SI/231). The primary sanctions that are available are set out in paragraph (2):
“If the Fitness to Practise Committee determines that the fitness to practise of the person concerned is impaired, it may –
(a) give a warning to the person concerned in connection with any matter arising out of, or related to, the allegation and give a direction that details of the warning be recorded in the Register;
…
(c) give a direction that the entry in the Register of the person concerned be removed;
(d) give a direction that the entry in the Register of the person concerned be suspended, for such period not exceeding 12 months as may be specified in the direction; or
(e) give a direction that the entry in the Register of the person concerned be conditional upon that person complying, during such period not exceeding 3 years as may be specified in the direction, with such requirements specified in the direction as the Committee thinks fit to impose for the protection of the public or otherwise in the public interest or in the interests of the person concerned”.
Paragraph (3), so far as material, provides as follows:
“Where the fitness to Practise Committee has given a direction under this article, other than a direction that the entry in the Register of the person concerned be removed, it may, if it thinks fit, following a review-
(a) where the entry in the Register of the person concerned is suspended, give a direction that-
…
(ii) the suspension of the entry be extended for such further period not exceeding 12 months as may be specified in the direction, starting from the time when the period of suspension would otherwise expire…”.
It is thus apparent that a period of suspension imposed under article 54(2)(d) is initially restricted to 12 months, but that period of 12 months may subsequently be extended by further periods of 12 months in terms of article 54(3)(a)(ii). In our opinion the Fitness to Practise Committee failed to have proper regard to this feature of the sanction of suspension. We add that in our view such extensions may be imposed successively on more than one occasion, if that is considered appropriate.
[15] The Committee considered the sanctions available under article 54(2) in succession. First, it considered a warning, but concluded that that was not sufficient; the maintenance of public confidence in the profession and the maintenance of standards required to signal to the profession and the public that criminal convictions for domestic violence are wholly unacceptable for a pharmacist and will be visited with serious consequences. This finding is not challenged. Secondly, the Committee considered the imposition of conditions, but concluded that no conditions could be devised that were sufficient and appropriate to address the misbehaviour in the present case. The case was not one involving clinical failings which could be rectified by training. In our opinion the imposition of conditions is a sanction designed primarily to address professional failings. While there may be cases where other forms of misconduct can be so addressed, we cannot conclude that the Committee was plainly wrong in deciding that this was not such a case. In this connection, we note that the appellant’s conduct had been addressed, it appears successfully, by the “CHANGE” Domestic Violence Programme, which he attended between October 2012 and April 2013.
[16] Thirdly, the Committee considered whether a period of suspension would be appropriate and sufficient to restore or maintain public confidence in the profession. It noted that repeated domestic violence struck at the core of professional health care; pharmacists were expected to be understanding, sympathetic to all patients and publicly and privately trustworthy. The Committee then stated:
“The limit of the Committee’s power of suspension is a period of 12 months. [The appellant] is a partner in a pharmacy practice operating four pharmacies, and has explained that if he is suspended for 12 months it will have a detrimental financial effect upon the business. The Committee is not concerned to punish him, but considers that suspension for that period would be insufficient to mark the degree of seriousness of his conduct. The Committee considers that his conduct is fundamentally incompatible with continued registration as a pharmacist, and that public confidence in the profession demands no lesser sanction than removal from the Register”.
Thus suspension for 12 months, the limit imposed on a period of suspension by article 54(2)(a), was considered an insufficient sanction to mark the gravity of the appellant’s behaviour. No reference is made to the further power in article 54(3)(a)(ii) to extend a period of suspension for a further period of up to 12 months, starting from the time when the period of suspension would otherwise expire. The Committee appears to have regarded the choice facing them as between suspension for 12 months, which they considered inadequate, and removal from the Register, which they acknowledged might appear harsh. That was a false dichotomy, however; a middle way was open, in the form of suspension for 12 months with an extension thereafter for a further 12 months, and possibly a further suspension for 12 months beyond that. Such suspension would be a significantly lesser sanction than removal from the Register, which prohibits any application for re-registration for a period of 5 years.
[17] In such a case we are of opinion that it would be competent for the Committee, when imposing the sanction of 12 months’ suspension, to indicate that it considered that the suspension should be extended thereafter, for a further 12 months or longer as the case might be. The power to give such an indication appears to us to be reasonably incidental to the powers conferred by article 54(2)(d) and (3)(a)(ii); without it the Committee is faced with a stark dichotomy between one year’s suspension and removal from the Register, which is effective for at least 5 years. That is clearly undesirable as in many cases, of which the present appears to us to be an example, some middle course is the correct sanction. Counsel for the respondent submitted that the problem with the power of suspension was that only 12 months can be imposed, and the Committee cannot tie the hands of a later Committee when it comes to consider an extension. Nevertheless, we are of opinion that it must be assumed that the later Committee will act in a reasonable manner and will respect the decision and findings of the earlier Committee that heard the complaint against the appellant. If an indication as given by the earlier Committee that the suspension should be extended beyond the initial 12 months, for say an additional 12 or 24 months, that will not bind the later Committee, but the later Committee will be obliged to respect the indication and if it departs from it will be expected to give reasons for doing so. In our view this provides an intermediate sanction but at the same time respects the freedom of the later Committee to deal with changing circumstances, if that is appropriate.
[18] The problem with the decision of the Committee that heard the complaint against the appellant is that on the face of the decision there is no consideration of the possibility of a renewal of suspension after 12 months. Consequently it seems likely that the Committee did not consider the possibility of suspension for 12 months with an indication that that should be extended for a longer period. On this basis we consider that the Committee’s decision as to sanction is flawed, and we will accordingly quash the part of the decision that relates to sanction and remit the appellant’s case to the Fitness to Practise Committee for reconsideration. We further propose to direct that in reconsidering sanction the Committee should have regard to the matters discussed in paragraph [17], as also to the following factors. First, the appellant has made serious efforts to rehabilitate himself. Following his second conviction the appellant was sentenced to a community payback order. This included 18 months’ supervision and 180 hours’ unpaid work. It also involved the appellant’s undergoing a “CHANGE” Domestic Violence Programme, between October 2012 and April 2013. In his statement to the Committee the appellant stated that he was now able to negotiate amicably with his former wife, using cognitive behavioural therapy techniques learnt during the programme. This was supported by a social work report. Secondly, the Committee expressly stated that they were convinced by the appellant’s evidence that he had genuinely learned the error of his past behaviour and had acquired good skills as a result of cognitive behavioural therapy. They also noted that it would be unfortunate if the appellant were to leave the profession permanently, because there was no evidence that the appellant was not a good pharmacist. These are considerations that are clearly important in deciding what would be an appropriate sanction. We would emphasize, however, that we are not directing that the sanction should necessarily involve suspension for a period beyond one year; that is a matter for the Committee to decide.
[19] In conclusion, we should note three further matters. First, it was submitted on behalf of the appellant that the Committee had wrongly adopted a punitive approach, contrary to the guidance given in cases such as Bolton v Law Society, supra, and Dad v General Dental Council, supra. We do not accept this argument; it seems to us that the Committee was concerned to assert proper professional discipline, but misdirected itself by failing to recognize that a middle way existed between suspension for a single year and removal from the Register. Secondly, reference is made to a number of cases before professional disciplinary tribunals where, it was said, the sanctions imposed indicated that the sanction in the present case was excessive. In Obukofe, a decision of a Fitness to Practise Panel of the Medical Practitioners Tribunal Service dated 20 June 2013, the appellant was convicted of three counts of sexual assault and sentenced to 6 months’ imprisonment, suspended for 12 months. The Panel concluded that a period of suspension would allow the practitioner time to reflect upon the seriousness of his actions and gain the necessary insight to return to professional life. At a review hearing, it was decided to impose suspension for a further period of 12 months; the sanction of erasure was rejected at that stage. In Morris, another decision of a Fitness to Practise Panel of the Medical Practitioners Tribunal Service dated 31 July 2013, the practitioner was convicted of two charges of assault by beating, the persons concerned being his friends. The sanction imposed was suspension for a period of two months. In Hussain, a decision of a Fitness to Practise Committee relating to pharmacists and pharmacy technicians dated 14 September 2011, the practitioner assaulted his wife on one occasion, the assault clearly being relatively serious, and was fined £810. The sanction imposed was suspension for 2 months. It can be said that all of these cases illustrate sanctions that are relatively less than the sanction imposed in the present case, and point to the conclusion that removal from the Register was excessive.
[20] Thirdly, we were referred to the Indicative Sanctions Guidance issued by the respondents. These provide useful guidance at a very general level, including lists of aggravating and mitigating features. It is noted that insight and early admission of guilt are mitigating features, and correspondingly lack of insight is an aggravating feature. Cases are listed where suspension or removal from the Register might be appropriate. It is clear from these that removal from the Register is envisaged in very serious cases where, for example, there is a continuing risk to patients or the public, or there is a lack of insight on the part of the registrant. One of the categories where removal might be appropriate is stated as violent misconduct; nevertheless, violence covers a wide range of wrongdoing and the appellant’s behaviour, while clearly reprehensible, was not of the kind apparently contemplated by the Guidance.
[21] In all the circumstances we will proceed as indicated in paragraph [18] by quashing the decision of the Fitness to Practise Committee in relation to sanction and remitting the case to the Committee for reconsideration and disposal in accordance with the directions given in paragraph [18]. It may also be appropriate to have regard to the matters mentioned in paragraphs [19] and [20], although that does not form part of the direction.