Monji v The General Pharmaceutical Council

On an appeal from a professional disciplinary decision, the High Court must decide whether the decision was wrong or unjust because of a serious procedural irregularity. It must give appropriate weight to the specialist tribunal’s expertise and its fact-finding advantage where witnesses were seen and heard. An appeal against sanction is not a rehearing or resentencing exercise.

Professional discipline is directed principally to public protection, professional standards and public confidence, rather than punishment. A panel may consider a practitioner’s continued denial, lack of remorse and conduct during proceedings when assessing sanction. Removal from the register may be proportionate for serious dishonesty even without a patient-safety risk or prior disciplinary history.

The appellant, a registered pharmacist, appealed under article 58 of the Pharmacy Order 2010 against the Fitness to Practise Committee’s decision under article 54 to remove him from the Register of Pharmacists. The Committee found that he had dishonestly removed fragrance testers from his employer’s store and arranged their return, found his fitness to practise impaired, and concluded that removal was the only adequate sanction.

The appellant challenged the factual findings, alleged procedural unfairness including refusal of a site visit, relied on the effect of the sanction on himself and his family, and invoked article 8 of the ECHR. The central issues were whether the Committee’s decision was wrong or unjust under CPR 52.11(3), and whether removal was a disproportionate sanction.

1. Appeal dismissed. The appellant did not establish that the Fitness to Practise Committee’s decision was wrong or unjust because of a serious procedural or other irregularity. Article 58(5) permitted dismissal, quashing, substitution or remission, but did not authorise the court to substitute its own view merely because another conclusion was possible.
2. The court adopted the approach in Luthra v General Medical Council [2013] EWHC 240 (Admin), read with Raschid v General Medical Council [2007] 1 WLR 1460 and General Medical Council v Meadow [2007] QB 462. The Committee’s specialist expertise, its opportunity to hear and see the witnesses, and its jury-like evaluation of the evidence required substantial appellate restraint. The court nevertheless retained responsibility to consider the evidence and correct material errors.
3. The Committee was entitled to accept the respondent’s witnesses, reject the appellant’s account, and treat inconsistencies as matters for assessment rather than as determinative defects. The DVD, photographs and expert report did not make the Committee’s findings untenable. Refusal of a site visit caused no unfairness because the documentary and visual material enabled the issues to be determined fairly.
4. In assessing sanction, the Committee properly applied the Indicative Sanctions Guidance. The purpose of sanction was protection of the public, maintenance of professional standards and preservation of public confidence, not punishment. Dishonesty did not create an automatic presumption of removal, but the gravity of the misconduct, abuse of trust, premeditation, concealment, lack of insight and continued denial were aggravating considerations. Previous good character, the single incident, absence of patient harm and subsequent employment were mitigating matters but did not make removal wrong.
5. The court distinguished Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin). The appellant’s continued denials and lack of remorse were voluntarily advanced in this case and could properly be considered. Assuming article 8 was engaged, removal was lawful, pursued legitimate aims and struck a proportionate balance, applying R(Razgar) v SSHD [2004] UKHL 27 at [20].

High Court (Administrative Court) The appeal under article 58 of the Pharmacy Order 2010 against the Fitness to Practise Committee’s removal decision was dismissed. The judgment also records an earlier unsuccessful appeal against an interim suspension order, decided by Lang J on 21 May 2014.