Pitt and Tyas, R (on the application of) v General Pharmaceutical Council

Professional standards may regulate conduct outside working hours where that conduct may bear on fitness to practise, public confidence or professional standards. They must be read fairly, as a whole, and with common sense. Examples of expected conduct do not impose liability for every trivial private incident.

A standard is not void for uncertainty merely because it lacks absolute precision. It is sufficient if, in context, a person can reasonably understand what is required, taking advice where necessary. Convention rights may be relied on under section 7 of the Human Rights Act 1998 only by a person directly and personally affected, or who produces convincing evidence of a sufficiently likely violation. Compatibility cannot generally be assessed in the abstract before the standards are applied to particular facts.

Two pharmacists and officials of the Pharmacists’ Defence Association sought permission to judicially review new standards adopted by the General Pharmaceutical Council. The standards applied at all times, including outside working hours, and required professional behaviour, respect, empathy, compassion and appropriate boundaries.

The claim alleged that the standards were ultra vires, uncertain and incompatible with Articles 8, 10 and 11 of the Convention. At the hearing, the claimants abandoned the Article 11, consultation, irrationality and proportionality arguments. The central issues were whether the standards exceeded the Council’s statutory powers, were void for uncertainty, and could be challenged under the Convention before any particular application of them had occurred.

1. Permission refused. The claimants failed on each issue capable of determination at the rolled-up hearing.
2. The new standards were not ultra vires. They had to be interpreted fairly, as a whole, and in a practical, common-sense manner. The requirement to behave appropriately at all times did not mean that every discourteous act in private life would breach the standards. Conduct outside work could nevertheless be relevant where it shed light on the safe and effective provision of professional services, public confidence or fitness to practise.
3. The standards did not extend the established meaning of misconduct. In any event, the Council’s statutory standard-setting function was not confined to preventing misconduct, and failure to comply with a standard was not, of itself, misconduct.
4. The standards were not void for uncertainty. Absolute precision was neither attainable nor desirable in professional regulation. A norm was sufficiently certain if a person could reasonably know, if necessary after taking appropriate advice, what conduct was required in the circumstances.
5. The claimants could not rely on Convention rights under section 7 of the Human Rights Act 1998. They were not directly and personally affected, and had not produced reasonable and convincing evidence that a violation affecting them personally was likely. The standards were not inherently and necessarily incompatible with Articles 8 or 10; compatibility and proportionality required assessment in a concrete case.
6. Although the fourth issue did not strictly arise, the standards could not lawfully be applied incompatibly with Convention rights. The Council, as a public authority, was bound by section 6 of the Human Rights Act 1998. The Pharmacy Order 2010, as secondary legislation, had to be read compatibly so far as possible and would have to be disapplied to the extent of any incompatibility.