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High Court guidance on sanctions in cases of lack of insight

Professional Standards Authority v General Pharmaceutical Council and Onwughalu [2014] EWHC 2521In this case the High Court quashed a 12 month suspension and replaced it with an order for erasure Professional Standards Authority v General Pharmaceutical Council and Onwughalu [2014] EWHC 2521

In this case the High Court quashed a 12 month suspension and replaced it with an order for erasure after the registrant showed no insight into two convictions for child cruelty. The High Court roundly dismissed the Panel's suspension to allow time to demonstrate insight.

A Fitness to Practise Committee (the "Panel") found O's fitness to practise impaired by reason of two convictions for child cruelty. O originally gave inconsistent accounts of injuries to her child, but eventually pleaded guilty and was given a custodial sentence. However, before the Panel, O attempted to minimise the seriousness of the charges, made assertions that did not correspond with her guilty pleas and treated her previous conduct as an error in professional judgment rather than deliberate concealment of her child's injuries. The Panel found that her fitness to practise was impaired, that she had shown a lack of integrity and that she lacked insight. Despite this the Panel decided not to erase her from the register on the basis that 12 months' suspension would allow her time to understand and demonstrate the concept of insight.

Mrs Justice Cox noted that the test for the High Court to consider was that used in Cheatle v GMC [2009] EWHC 645 (Admin): whether the original fitness to practise decision was wrong on the basis that the appeal was by way of rehearing, although "the focus must be calibrated to the matters under consideration."

The Court found in favour of the PSA on each of the grounds submitted. Mrs Justice Cox agreed that the Panel had erred in its approach to the question of insight, which had been crucial in this case, and O had sought to go back on her guilty plea. The Panel's finding at the sanction stage, that O had taken some steps towards insight and that more time would allow her to take further steps, was inconsistent with the finding of impairment on the basis that she lacked insight. Furthermore, the Panel was misconceived in referring to O's lack of legal representation when considering insight, as her evidence had suggested she simply did not have insight, rather than that she did not understand the concept.

Mrs Justice Cox stated that this ground alone was sufficient to allow the appeal, but also noted that the Panel had not considered at the sanction stage the impact of the lack of integrity it had found at the impairment stage. The Panel further failed to consider the factors indicated in the Indicative Sanctions Guidance for removal from the register, and Mrs Justice Cox found that no reasonable Panel could impose any sanction other than removal. As such the appeal was allowed and the suspension order was quashed in favour of one for removal.

This case is a robust rejection of the Panel's sanction. In cases where the original conviction is this serious, insight into the offences will be crucial to avoid a registrant being struck off. Recent High Court cases have not referred to the Cheatle test which allows the Court to consider far more critically the decision of the original Panel than may be the case using other tests. However, the case does show that the degree of deference to the original Panel will be fact sensitive and that in cases as clear as this, the High Court will be less inclined to respect a specialist Tribunal's findings and decisions than in, for example, cases of poor practice (see also PSA v HCPC and Ghaffar in which the High Court indicated that it will be more swift to interfere with a Tribunal's findings in matters where dishonesty is alleged). In addition, while K v GPhC [2014] CSIH 61 suggests that in some serious cases suspension with the possibility of further periods of suspension following review may be appropriate, the case is a timely reminder that some matters are so serious that only erasure can be justified.

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