Hussain v General Pharmaceutical Council

An appellate court reviewing a professional disciplinary decision must respect the specialist tribunal’s factual assessment and should intervene only where the decision is plainly wrong or unjust because of a serious procedural irregularity. A registrant has no unfettered right to obtain a late adjournment to change legal representatives or obtain expert evidence. Fairness requires balancing the registrant’s position against the public interest, witnesses and the efficient conduct of proceedings. On sanction, the court must exercise a secondary judgment and should not re-sentence. Erasure may be proportionate where the registrant’s conduct is fundamentally incompatible with continued registration.

The appellant pharmacist appealed under article 58 of the Pharmacy Order 2010 against a Fitness to Practise Panel decision erasing her name from the register. The allegations arose from undercover footage appearing to show the unlawful supply of amoxicillin without a prescription. She challenged the fairness of the proceedings, the cogency of the evidence, and the proportionality of erasure.

The appeal concerned whether late refusals to adjourn and the appellant’s lack of legal representation rendered the hearing unjust, whether the Panel’s factual findings were plainly wrong, and whether the sanction was disproportionate.

1. Appeal dismissed. The appeal under article 58 of the Pharmacy Order 2010 was governed by CPR rule 52.11. The court would intervene if the Panel’s decision was wrong, in reality plainly wrong, or unjust because of a serious procedural or other irregularity.
2. The Panel was a specialist tribunal which had heard the witnesses. Its primary factual findings, particularly those based on credibility, deserved substantial respect. The court was not to second-guess the Panel or substitute its own assessment merely because another view was possible.
3. The refusals to adjourn were lawful and fair. The applications were made late, the need for expert evidence had been known for a considerable time, and delay would prejudice the Respondent, witnesses and the public interest in the prompt disposal of disciplinary proceedings. A registrant has no unfettered right to change representatives shortly before a hearing regardless of those consequences. The Panel appropriately explained the procedure, assisted the appellant, and kept fairness under review.
4. The disclosure of privileged correspondence did not create apparent bias under [2002] AC 357. The appellant had chosen to disclose the material after being warned of the risks, and the Panel’s state of knowledge had not materially changed between the factual and sanction stages.
5. The factual findings were open to the Panel. The absence of the complete footage, the undisclosed identity of the undercover reporter, criticisms of the evidence trail and the existence of an unrelated prescription did not make the findings plainly wrong.
6. On sanction, the High Court had to exercise a distinctly secondary judgment and should not re-sentence. The Panel was entitled to assess insight and risk of repetition for itself. Its conclusion that the appellant’s conduct was fundamentally incompatible with continued registration, and that erasure was appropriate, was not disproportionate, plainly wrong or unjust.

• High Court (Administrative Court): appeal under article 58 of the Pharmacy Order 2010 dismissed.
• Fitness to Practise Panel: appellant’s name erased from the register on 18 September 2015.