Rycroft, R (on the application of) v The Royal Pharmaceutical Society of Great Britain

A professional regulator’s registrar is subject to an implied obligation to decide whether to refer a fitness-to-practise allegation within a reasonable time. Unjustified delay alone does not invalidate a referral. Relief requires prejudice so serious that a fair disciplinary process is impossible or that it would be unfair for the process to continue.

Where the relevant events are more than five years old, the registrar must consider the prescribed public-protection or public-interest criteria and give sufficient reasons for referring the allegation. A bare assertion that allegations are serious or that referral is needed to maintain public confidence is inadequate.

The claimant, a pharmacist, challenged two decisions by the defendant’s registrar to refer fitness-to-practise allegations to the Investigating Committee. The allegations concerned pharmaceutical waste, patient-returned medication, and storage conditions at a pharmacy warehouse.

The first referral followed an investigation lasting almost three years and gave inadequate reasons for referring allegations partly arising more than five years earlier. Following pre-action correspondence and a consent order staying the claim, the registrar reconsidered the matter and made a second referral with reasons.

The central issues were whether delay alone invalidated the referral, whether the first decision was inadequately reasoned, and whether the registrar had power to reconsider the referral.

1. First decision. The registrar’s decision of 30 April 2009 was unlawful because it contained insufficient reasons for concluding that referral of allegations more than five years old was necessary for public protection or otherwise in the public interest. The pro forma statements that the allegations were serious and that referral was needed to maintain public confidence did not explain the conclusions adequately.
2. Delay. The Rules imposed an implicit obligation to make a referral within a reasonable time. The delay was inordinate and unjustified. Nevertheless, delay by itself did not require the referral to be quashed or the disciplinary process stayed. The claimant had to establish prejudice so serious that no fair hearing was possible, or that it would be unfair for the process to continue. That threshold was not met.
3. Second decision. The registrar had considered the issue of delay, notwithstanding that it was not expressly mentioned in the reasons. The second decision was therefore not unlawful for failure to take account of a material consideration. Although the Rules did not themselves permit the registrar to reconsider a referral, the court had jurisdiction, pursuant to the parties’ consent order, to direct reconsideration. The reconsideration was consequently lawful.
4. The allegation concerning vermin arose within five years of referral and therefore had to be referred under the Rules. The Investigating Committee remained responsible for deciding whether it ought to be referred onwards, and the history of delay might bear on any application for a stay.
5. The challenge failed overall. The first decision was unlawful, but the second decision was lawful and the referral to the Investigating Committee stood.

First instance judicial review. No prior appellate decision is stated in the judgment.