Hussain v General Pharmaceutical Council (Rev 1)

An appellate court considering a professional disciplinary sanction must give appropriate weight to the specialist tribunal’s expertise, particularly on professional standards and public confidence. It must nevertheless allow an appeal if the sanction was wrong or disproportionate. It should not substitute its own view merely because it might have imposed a different sanction.

Under Civil Procedure Rules 1998, a procedural defect justifies intervention only where it is serious and makes the decision unjust. Removal from a professional register may be proportionate where a flagrant breach of core professional and legal standards, lack of insight, risk of recurrence and the public interest justify the conclusion that continued registration is fundamentally incompatible with the profession.

The appellant was the superintendent and responsible pharmacist at a pharmacy shown in a BBC investigation to have supplied prescription-only Amoxicillin without a prescription. The General Pharmaceutical Council’s Fitness to Practise Committee found that she had knowingly participated in the unlawful supply, that her fitness to practise was impaired and that her name should be removed from the Register.

Elisabeth Laing J dismissed her statutory appeal on 23 March 2016. Before the Court of Appeal, the appellant challenged the fairness of the final day of the Committee hearing and contended that removal was disproportionate. The central issues were whether the procedure contained a serious irregularity rendering the decision unjust, and whether erasure was wrong.

1. Appeal dismissed. The procedure on the final day of the Fitness to Practise Committee hearing was not unfair and did not amount to a serious procedural irregularity that rendered the decision unjust. The appellant had clear advance notice that, if facts were found proved, impairment and sanction would be considered that day. She knew that removal was an available sanction, had time to reflect after the factual findings, and was able to participate effectively despite being unrepresented.

2. The Committee was not obliged to adjourn. There was no medical basis requiring an adjournment, the appellant did not seek one, and an adjournment is a discretionary case-management decision requiring fairness to the regulator as well as to the registrant. The Committee was not required to obtain outcomes in other pharmacists’ disciplinary cases, as sanction depended on individual circumstances. Nor did its request for Onwughalu create an unfairness: that authority was factually unhelpful and raised no new decisive issue.

3. The Court reaffirmed that an appeal in professional discipline is not an occasion to determine sanction afresh. Although the appellate court may correct a sanction that is wrong, it must approach the specialist Committee’s assessment with diffidence, especially where the assessment concerns professional standards, insight and public confidence.

4. Removal was not shown to be disproportionate. The Committee was entitled to regard the unlawful supply as a flagrant and extremely serious breach at the heart of pharmacy standards. It was also entitled, having seen and heard the appellant, to find an absence of genuine insight, a risk of recurrence and a lack of integrity. Those matters, together with the need to maintain public confidence, could justify erasure even though the misconduct occurred on one occasion and a differently constituted Committee might have imposed suspension.

5. Singh LJ and Peter Jackson LJ agreed. Peter Jackson LJ considered that an adjournment and a more explicit warning about erasure might have been preferable, but neither was required and neither established an unjust procedural irregularity. He also concluded that the Committee’s assessment of insight and sanction lay within its powers.

• Court of Appeal (Civil Division): Dismissed the appeal from the High Court and upheld removal from the Register: [2018] EWCA Civ 22.
• High Court (Administrative Court): Elisabeth Laing J dismissed the appellant’s statutory appeal from the Committee on 23 March 2016.
• General Pharmaceutical Council Fitness to Practise Committee: On 18 September 2015, found misconduct and impairment and directed removal from the Register.