Hussain Jamal Rasool v General Pharmaceutical Society, [2015] EWHC 217 (Admin) QBDIn this case the High Court considered whether and the extent to which a Tribunal chair's prior knowledge of a
Hussain Jamal Rasool v General Pharmaceutical Society, [2015] EWHC 217 (Admin) QBD
In this case the High Court considered whether and the extent to which a Tribunal chair's prior knowledge of a disciplinary case may have led to bias, whether the sanction was proportionate, and the extent to which behaviour that indicated a lack of trustworthiness (but which did not amount to dishonesty) was incompatible with continued registration.
The Appellant ("HJR") was a superintendent pharmacist who had been subject to Fitness to Practise proceedings in August 2014. The GPhC's fitness to practise committee decided to remove his name from the register following a five day hearing. The decision was appealed pursuant to Article 58(1)(a) of the Pharmacy Order 2010.
The disciplinary proceedings were based on an undercover investigation conducted by the BBC in relation to the unlawful supply of prescription only medication. This investigation concerned a number of pharmacies, including the one where HJR was the superintendent. The Committee had found HJR's fitness to practise to be impaired by reason of misconduct. The decision was based on evidence presented in relation to the supply of prescription medicines including, Amoxicillin, Augmentin, Diazepam and Oramorph in the absence of a prescription from an approved practitioner, in exchange for money. HJR had tried to argue that the medicines were supplied lawfully as they were emergency supplies and were permitted sales.
The Committee provided detailed reasoning in respect of their findings on impairment and sanction. It found HJR's attitude and behaviour shocking, and stated that he had demonstrated a fundamental misunderstanding of the function and role of a pharmacist. The Committee also highlighted that this was not an isolated incident. HJR's behaviour was found to be fundamentally incompatible with registration.
HJR challenged the decision on three grounds:
The second ground was not pursued but the points relating to bias and sanction were considered by the High Court Judge.
In consideration of the first issue regarding the Chairman's failure to recuse himself the Judge referred to the test for bias which was set out as follows: would a fair minded observer, having considered the relevant facts, conclude that there was a real possibility that the tribunal was (consciously or subconsciously) biased. Reference was also made to Datta v GMC where it was stated that "…those entrusted with judicial or quasi-judicial functions must and can be trusted to try the case on the evidence before them and to put out of their minds knowledge arising out of any earlier appearance before them by the same accused person". The material relating to the other case was not being relied upon in the matter concerning HJR. The Judge found that the Chairman had the correct test in mind and that the outcome was not wrong in law. It was not considered to be a procedural irregularity that the Chairman ruled on the recusal application himself. The Chairman was said to have properly made the disclosure giving the parties an opportunity to consider their positions, heard submissions and then ruled that he could continue as chairman.
In relation to sanction, it was argued on behalf of HJR that the case did not allege dishonesty, no third party was affected, that HJR was remorseful and had insight, that HJR had co-operated fully with police and therefore a suspension with conditions would have been a more appropriate sanction. The judge made clear that the court would only interfere with a determination on sanction if it was wrong or if there had been injustice through serious procedural or other irregularity. The judge found no identifiable error of law. Despite there being no allegation of dishonesty the Judge found that there had been a blatant and deliberate flouting of the law by HJR which went towards his trustworthiness. In conclusion, the Judge saw no basis for interfering with the sanction of erasure from the register.
The appeal was dismissed.
In this case the High Court considered whether and the extent to which a Tribunal chair's prior knowledge of a disciplinary case may have led to bias, whether the sanction was proportionate, and the extent to which behaviour that indicated a lack of trustworthiness (but which did not amount to dishonesty) was incompatible with continued registration.
The Appellant ("HJR") was a superintendent pharmacist who had been subject to Fitness to Practise proceedings in August 2014. The GPhC's fitness to practise committee decided to remove his name from the register following a five day hearing. The decision was appealed pursuant to Article 58(1)(a) of the Pharmacy Order 2010.
The disciplinary proceedings were based on an undercover investigation conducted by the BBC in relation to the unlawful supply of prescription only medication. This investigation concerned a number of pharmacies, including the one where HJR was the superintendent. The Committee had found HJR's fitness to practise to be impaired by reason of misconduct. The decision was based on evidence presented in relation to the supply of prescription medicines including, Amoxicillin, Augmentin, Diazepam and Oramorph in the absence of a prescription from an approved practitioner, in exchange for money. HJR had tried to argue that the medicines were supplied lawfully as they were emergency supplies and were permitted sales.
The Committee provided detailed reasoning in respect of their findings on impairment and sanction. It found HJR's attitude and behaviour shocking, and stated that he had demonstrated a fundamental misunderstanding of the function and role of a pharmacist. The Committee also highlighted that this was not an isolated incident. HJR's behaviour was found to be fundamentally incompatible with registration.
HJR challenged the decision on three grounds:
- That there was an apparent bias on the part of the Chairman of the Committee and he ought to have recused himself. HJR argued that the Chairman had heard about his involvement in this matter when dealing with a case concerning another pharmacist and employee at the same pharmacy
- That there had been an abuse of process because the BBC had failed to disclose certain material to the GPhC.
- That the sanction of erasure was disproportionate and a lesser sanction should be imposed.
The second ground was not pursued but the points relating to bias and sanction were considered by the High Court Judge.
In consideration of the first issue regarding the Chairman's failure to recuse himself the Judge referred to the test for bias which was set out as follows: would a fair minded observer, having considered the relevant facts, conclude that there was a real possibility that the tribunal was (consciously or subconsciously) biased. Reference was also made to Datta v GMC where it was stated that "…those entrusted with judicial or quasi-judicial functions must and can be trusted to try the case on the evidence before them and to put out of their minds knowledge arising out of any earlier appearance before them by the same accused person". The material relating to the other case was not being relied upon in the matter concerning HJR. The Judge found that the Chairman had the correct test in mind and that the outcome was not wrong in law. It was not considered to be a procedural irregularity that the Chairman ruled on the recusal application himself. The Chairman was said to have properly made the disclosure giving the parties an opportunity to consider their positions, heard submissions and then ruled that he could continue as chairman.
In relation to sanction, it was argued on behalf of HJR that the case did not allege dishonesty, no third party was affected, that HJR was remorseful and had insight, that HJR had co-operated fully with police and therefore a suspension with conditions would have been a more appropriate sanction. The judge made clear that the court would only interfere with a determination on sanction if it was wrong or if there had been injustice through serious procedural or other irregularity. The judge found no identifiable error of law. Despite there being no allegation of dishonesty the Judge found that there had been a blatant and deliberate flouting of the law by HJR which went towards his trustworthiness. In conclusion, the Judge saw no basis for interfering with the sanction of erasure from the register.
The appeal was dismissed.