Burrows v General Pharmaceutical Council [2016] EWHC 1050 (Admin)
In this recent case in which a registered pharmacist appealed against the GPhC Panel's decision to remove her from the register, Mr Justice Kerr warned that 'it would be a good idea for the disciplinary bodies to forewarn the defendant not just that a hearing may proceed in his or her absence, but also that the consequences of non-attendance are likely to be severely prejudicial'.
The Appellant, B, received a police caution in November 2013 following her admission of two offences of fraud. B had purchased two dresses from a high street store to the value of £76.50. She affixed the labels of those dresses to two cheaper dresses, and returned the cheaper dresses to the store in order to obtain a refund for the higher value garments. B signed the simple caution form in which she admitted fraud by false representation and declared that she understood the consequences of the caution.
The Police notified the GPhC that B had received a caution, under the Notifiable Occupations Scheme. When the GPhC contacted B to inform her that it was investigating a case of misconduct, B said that she had received a 'warning' but that she now accepted that it was a caution and she should have declared the matter to the GPhC. In explaining the circumstances of the incident, B said that she had used the wrong receipt 'in error' to obtain a refund, but that it was a mistake and not a true reflection of her character.
In the weeks before the fitness to practise panel hearing which was set for July 2015, the GPhC informed B that it would invite the panel to suspend B from the register. B took advice from a solicitor and then sought an adjournment of the hearing, advising that if this was not granted she would not attend due to ill health. B submitted mitigation by way of representations, referencing her 21 years unblemished record and the consequences for her should she be suspended from the register.
B did not attend the Panel hearing, but Counsel appeared on her behalf. He disputed the police national computer evidence relied upon by the GPhC as evidence of the caution accepted by B, and the matter was adjourned. A new hearing date was set without reference to B's availability and it appears there were no enquiries made as to whether she might attend the resumed hearing.
When the hearing resumed in September, B did not attend as she was on a pre-booked holiday. Counsel attended on her behalf, submitting that although she had accepted a caution, she was not guilty of the fraud to which she had confessed as she had not admitted to intending to cause loss to another or make a gain for herself. Her failure to declare the caution to the regulator was a 'technical error'.
The Panel determined that the conduct for which B was cautioned was dishonest and that this amounted to a fundamental breach of acceptable standards of conduct and brought the profession into disrepute. Finding that her fitness to practise was impaired, the Panel went on to say that B's lack of insight and remorse was of great concern, and that the Panel had no confidence that a period of suspension would lead to complete rehabilitation. On that basis, only removal was sufficient to protect the public interest.
B appealed against the sanction, arguing that the Panel had been wrong and unreasonable in its approach to insight, and that the simple fact that she challenged the validity of the caution did not amount to a denial that it had been given. B argued that she ought to have been given more credit for co-operating with the Police and the absence of a prosecution and conviction. The act of not reporting the matter to the GPhC was not dishonest as she was unaware of her obligation to do so, and unaware as to whether it was a caution at all. B argued that the Panel had wrongly equated a valid legal argument with a lack of insight.
Mr Justice Kerr noted that B was in some difficulty in seeking to persuade the Panel that she did not possess the requisite state of mind for the dishonesty allegations when she did not make herself available to the Panel for this to be explored. He commented that her non-attendance 'carried with it the high risk that she would lose the prospect of a benign interpretation of her conduct and a lenient sanction'. He went further to say that 'in a case of obvious dishonesty, not attending the hearing amounts virtually to courting removal' and suggested as above, that registrants, particularly those that are not represented, should be given in a warning in such terms.
Before regulatory bodies rush to amend their standard letters however, care should be taken to ensure that there is no suggestion by the regulator that non-attendance at a hearing will automatically lead the Panel to find that all the facts are proven, or that it will be an aggravating factor taken into account in determining sanction. Registrants need to understand the potential consequences of exercising their right to voluntarily absent themselves, but it is still for the regulator to prove the case and any sanction applied must be the least restrictive sanction possible that would allow for adequate protection of the public interest.