Rasool v General Pharmaceutical Council

In an appeal from a professional disciplinary decision, the court applied the objective test of whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A tribunal member’s prior exposure to an unsubstantiated allegation in separate proceedings does not, without more, require recusal, particularly where the material was not relied upon in the later case and the tribunal member is professionally trained to disregard it. An appellate court should accord considerable respect to a specialist tribunal’s sanction decision and interfere only for legal error, serious procedural irregularity, or a sanction that is clearly inappropriate. Erasure may be justified where misconduct is fundamentally incompatible with continued registration.

The appellant, a registered pharmacist, appealed under article 58(1)(a) of the Pharmacy Order 2010 against a Fitness to Practise Committee decision removing his name from the register under article 54(2)(c). The disciplinary findings concerned repeated unlawful supplies of prescription-only medicines during an undercover investigation.

The appellant challenged the Committee’s refusal to recuse its chairman, alleging apparent bias arising from the chairman’s earlier involvement in separate proceedings concerning another pharmacist at the same pharmacy. He also challenged the proportionality of erasure, contending that suspension would have been sufficient. An abuse-of-process ground was not pursued.

1. Bias. The applicable question was whether a fair-minded and informed observer, having considered all the relevant circumstances, would conclude that there was a real possibility of conscious or subconscious bias. The appearance of independence and impartiality was as important as actual impartiality.
2. The chairman had heard an unsubstantiated assertion in separate proceedings. No finding had been made on it, the material was not evidence in the appellant’s case, it was not referred to in the Committee’s findings, and the chairman had taken no notice of it. His professional experience and training were relevant circumstances supporting the ability to disregard the material. Disclosure did not itself require recusal.
3. The refusal to disclose the entire private transcript did not amount to a serious procedural irregularity causing injustice. The relevant transcript extract and determination were provided, the appellant’s own statement had been disclosed as unused material, and the regulator’s advocate reviewed the transcript for any further relevant material. Nor was there a procedural requirement in these circumstances for the chairman to refer the recusal application to another chairman.
4. The chairman had applied the correct objective test. The complaint was therefore about the result of applying that test to the facts, not a material error of law. The appeal on bias was dismissed.
5. Sanction. The court’s role was secondary. It should respect the specialist tribunal’s assessment unless there was an error of law, serious procedural irregularity, or a sanction that was clearly inappropriate. The Committee had considered the absence of dishonesty, cooperation, remorse, personal circumstances, testimonials, aggravating features, and the appellant’s previous suspension.
6. The repeated and deliberate unlawful supply of prescription-only medicines was properly treated as conduct affecting trustworthiness and fundamentally incompatible with registration. In accordance with the Indicative Sanctions Guidance, the Committee was entitled to conclude that suspension would not adequately protect the public, maintain confidence in the profession, or maintain proper standards. Erasure was not disproportionate. The appeal was dismissed, with consequential matters including costs left for agreement.

The judgment does not state the citation of any lower decision. The appeal was brought to the High Court under article 58(1)(a) of the Pharmacy Order 2010 against the Fitness to Practise Committee’s decision dated 28 August 2014.