Burrows v General Pharmaceutical Council

Removal from a professional register is not inevitable following dishonesty, but it may be proportionate even for a first disciplinary offence. The appellate court must respect the tribunal’s primary judgment on the seriousness of the misconduct, public confidence, insight and sanction. It should intervene only where the decision is wrong or unjust because of a serious procedural or other irregularity, and should not conduct a resentencing exercise. A registrant’s failure to attend a hearing may materially prejudice the assessment of insight and mitigation. Procedural fairness does not generally require a legally qualified tribunal chair to disclose provisional legal advice to the parties before giving it to the tribunal, particularly where both parties are represented and the chair is expressing the tribunal’s assessment rather than ruling on a contested legal issue.

The appellant, a pharmacist, appealed against the decision of the respondent’s Fitness to Practise Committee removing her from the statutory register. She had accepted a police caution arising from dishonestly switching clothing labels to obtain refunds, but had failed to notify the Council within the required period. The Committee found that the underlying conduct was dishonest, impaired her fitness to practise and warranted removal, principally because of the absence of insight or remorse.

The appeal challenged the Committee’s assessment of insight, the proportionality of removal rather than suspension, and the procedural fairness of legal advice given by the legally qualified chair. The central issues were the proper appellate approach to professional disciplinary sanctions and whether the proceedings were procedurally unfair.

1. Appeal dismissed. The Committee’s decision to remove the appellant from the register was not shown to be wrong or unjust because of a serious procedural or other irregularity.
2. Dishonesty may justify removal because it is serious and threatens public confidence in the profession. Removal is not inevitable in every dishonesty case, including where the registrant has no previous disciplinary history, but the possibility of a lesser sanction does not make removal disproportionate. The tribunal’s assessment of what public confidence requires remains primary, even where the dishonesty did not arise from professional practice.
3. The appellate court must afford appropriate respect to the specialist tribunal. It may correct material errors, but its assessment of how legal principles apply to the facts is secondary. On sanction, it must not substitute its own view by conducting a resentencing exercise.
4. The Committee was entitled to treat the appellant’s failure to attend as materially relevant to insight and mitigation. Her legal challenge to the validity of the caution could properly be pursued, but it did not prevent the Committee from considering the underlying label-switching as obvious dishonesty. Her failure to express remorse or acknowledge the seriousness of that conduct supported the Committee’s conclusion that suspension would not provide sufficient reassurance.
5. The procedural-fairness ground failed. The chair was not determining a contested point of law in private; he was expressing the Committee’s view that the appellant’s acceptance of the offences should be taken at face value because no factor such as incapacity, duress or undue influence was shown to vitiate consent. The parties had capable advocates and there was no legal assessor requirement.
6. The respondent’s costs were summarily assessed at £11,018, including VAT, with the skeleton-argument charge disallowed as included in the brief fee.

• Fitness to Practise Committee: found impairment of fitness to practise and directed removal from the register.
• High Court (Administrative Court): dismissed the appeal and summarily assessed the respondent’s costs.