Black v Royal Pharmaceutical Society of Great Britain

An appeal under the Pharmacy Act 1954 is a true rehearing, but the court will ordinarily rely on the tribunal’s record and should not interfere unless satisfied that the decision was plainly wrong. The tribunal’s professional expertise must be respected, with its weight depending on the issue. Procedural unfairness in admitting untested evidence will not justify intervention where the remaining admitted facts make the misconduct sufficiently serious to require removal. A pharmacist’s deliberate submission of claims for medicines not dispensed may constitute misconduct rendering the pharmacist unfit for registration, even without dishonesty. The court may recognise mitigation when assessing the appropriate period before restoration, but cannot create a suspension power absent statutory authority.

The appellant, a registered pharmacist and superintendent pharmacist, accepted responsibility for claims submitted to the Prescription Pricing Authority for Genotropin cartridges which had not been dispensed. The resulting overpayment was approximately £52,000. He denied dishonesty, and the company which received the payment was repaying it.

The Statutory Committee of the Royal Pharmaceutical Society found that the misconduct rendered him unfit to remain on the Register and directed removal of his name. The appellant challenged the Committee’s handling of evidence from a witness who did not attend for cross-examination, the admission of interview material referring to allegations of fraud, and the severity of the sanction. The central issues were whether the procedural unfairness affected the result and whether removal from the Register was justified.

1. The appeal was dismissed. The court treated an appeal under section 10 of the Pharmacy Act 1954 as a true rehearing, following Panjawani v Royal Pharmaceutical Society of Great Britain (2002) EWHC 1127 (Admin). The court could substitute its own reasoning or conclusions where the Committee had gone wrong, but would ordinarily rely on the hearing transcript and would not reverse or vary the decision unless satisfied that it was plainly wrong.

2. The Committee’s professional expertise required respect, particularly in assessing breaches of professional standards. The court might be equally well placed to assess the seriousness of criminal conduct, but the weight given to the Committee’s view depended on the subject matter.

3. The Committee had erred in its approach to the absent witness’s statement. Rule 21, referred to in the judgment also as Regulation 21, permitted the Committee to decline to admit a written statement where its maker was absent. In light of Panjawani, an application to exclude material evidence where the witness was required for questioning should generally be granted. Fairness required an opportunity, where possible, to challenge material factual evidence.

4. That procedural unfairness did not affect the outcome. Even assuming in the appellant’s favour that he had not initiated the repeat prescriptions, he had deliberately claimed payment for medicines not dispensed. The scale of the overclaim, his failure to maintain proper records and his failure to alert the doctor made the misconduct too serious for a reprimand, notwithstanding the absence of dishonesty, his good reputation and the repayment of the money.

5. The Committee had no power to suspend registration. Removal was therefore lawful, although the court considered three years unduly severe and recommended favourable consideration of restoration after 12 months. No direction was made on restoration.

• Statutory Committee of the Royal Pharmaceutical Society of Great Britain — found misconduct rendering the appellant unfit to remain on the Register and directed removal of his name on 24 February 2005.
• High Court (Administrative Court) — dismissed the appeal. The court found procedural unfairness in the treatment of the absent witness’s evidence but held that it could not have affected the result.