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Insight

Court of Appeal highlights the difference between professional and personal misconduct

23/04/2018
Hussain v GPhC [2018] EWCA Civ 22 The Court of Appeal has highlighted the difference that misconduct in a professional or personal situation will have on sanction when there is no evidence of insight, and has provided important guidance on best practice when faced with an unrepresented registrant. The Committee's determination on insight was central both to the removal of the appellants name from the register and the decision of the Court of Appeal to dismiss the appeal.

Written by Rheanne Laybourn, paralegal

Hussain v GPhC [2018] EWCA Civ 22

The Court of Appeal has highlighted the difference that misconduct in a professional or personal situation will have on sanction when there is no evidence of insight, and has provided important guidance on best practice when faced with an unrepresented registrant.  The Committee's determination on insight was central both to the removal of the appellants name from the register and the decision of the Court of Appeal to dismiss the appeal.

Background

In December 2012 the BBC aired a documentary which exposed the sales of prescription only medicines without prescriptions. The appellant was the superintendent pharmacist at one of the pharmacies that had unlawfully supplied antibiotics to an undercover reporter. 

H continued to deny the factual allegations throughout the Committee hearing, instead claiming that the BBC had maliciously conspired to edit the film footage to present a false picture.  The Committee's decision on the factual allegations included that her account was 'rehearsed and manipulative' and that 'she was not a credible or reliable witness.'  It found that her misconduct was serious and that her fitness to practise was impaired.  The GPhC registrar had recommended suspension, however the Committee instead found that the Registrant's lack of genuine insight, risk of recurrence, denial of the allegations, lack of integrity and the importance of maintaining public confidence in the profession required no less than removal.

Insight

The Court of Appeal distinguished this case from Khan v GPhC [2016] UKSC 64, where the Supreme Court overturned a sanction of erasure after a conviction for domestic abuse. While both registrants demonstrated little of no insight, here the misconduct related to professional performance and practice that went to the heart of the margin of judgement afforded to specialist regulatory panels in determining appropriate sanctions.  H's lack of insight was so profound that the Committee had questioned whether the Registrant even understood the basic reasons for the Human Medicines Regulations 2012 or the role of pharmacists in acting as a gateway to the public for the use of safe and lawful medicines. 

The Court of Appeal emphasised the Committee's right to consider each case on its own merits, without being bound by decisions in similar cases. It was irrelevant whether a differently constituted panel would have opted for suspension rather than removal and, whilst there was sympathy towards the Registrant, the Committee was best placed to decide that the Registrant's lack of insight was irremediable. 

Learning points

The case serves as an important reminder that Court of Appeal will not intervene except in circumstances of a serious procedural failing or irregularity. The judgment also gave some useful comments on procedural best practice when faced with an unrepresented Registrant. Committees should consider carefully their obligations to ensure Registrants understand the procedure at the hearing and the possible sanctions. The Court, however, unanimously concluded that the appeal grounds relating to procedural unfairness should be dismissed as the Committee had discretion as to case management.  That being said, it is not inconceivable that similar procedural difficulties in future might not be viewed as favourably.

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