Soni v General Pharmaceutical Council (Rev 1)

An appellate court hearing a professional disciplinary appeal by way of rehearing should respect the specialist tribunal’s assessment of evidence, particularly where credibility is central. Fresh evidence admitted on appeal does not automatically justify a rehearing. Remittal is appropriate only where the new material creates a real prospect that the tribunal might reach a different conclusion. Anonymous hearsay may have little weight where its author cannot be identified or cross-examined and the material is inherently unreliable. The civil standard remains the balance of probabilities. The seriousness of an allegation may affect the inherent probabilities and the evidence required, but does not create a heightened standard. Removal from a professional register will not be disturbed where the specialist tribunal reasonably considers it necessary to protect public confidence in the profession.

The appellant, a pharmacist, appealed against findings by the Fitness to Practise Committee of the General Pharmaceutical Council that he had sexually touched a patient during an emergency hormonal contraception consultation, that the conduct was sexually motivated, and that his fitness to practise was impaired by misconduct. The Committee ordered removal from the register.

After the Committee’s decision, an anonymous letter alleged that the patient had fabricated the complaint for financial gain and had been coached by lawyers. The appellant sought to rely on it and obtain a rehearing. The appeal also challenged the Committee’s assessment of evidence, the investigation, the legal advice on proof, and the proportionality of removal. The central questions were whether the Committee’s decision was wrong or unjust because of serious procedural irregularity, and whether the new material justified remittal.

1. Appeal dismissed. The Court rejected all eight grounds and upheld the Committee’s findings, removal from the register and suspension pending removal.
2. The statutory appeal was by way of rehearing without hearing the evidence again. The appellate court must give appropriate weight to the specialist tribunal’s expertise and its opportunity to hear and see witnesses. Findings based on credibility are particularly difficult to challenge unless the tribunal was plainly wrong, misread the evidence or acted irregularly.
3. The anonymous letter was admissible for the purposes of the appeal, but its admission did not determine whether the case should be remitted. It was hearsay, partly second-hand hearsay, incapable of being tested through its unidentified author, and inherently unreliable. The allegation of coaching was implausible, the Committee’s decision was coherent and compelling, and the patient’s evidence had already been thoroughly tested.
4. The appropriate threshold for remittal in the circumstances was whether there was a real prospect that the Committee, whether originally constituted or freshly constituted, might reach a different conclusion because of the letter or material revealed through it. That threshold was not met. A rehearing unrelated to the new material would undermine finality and would not be justified where the original decision was neither wrong nor procedurally irregular.
5. The Committee was entitled to reject the appellant’s account, accept the patient’s evidence, and treat inconsistencies as non-determinative. There was no general legal requirement for special caution merely because the allegation concerned sexual misconduct. The Committee applied the balance of probabilities and did not impose a heightened standard.
6. The Committee was entitled to find that discussion of breast cancer risk lacked a legitimate clinical purpose in the consultation and supported the conclusion that an unnecessary examination had been fabricated as a rationale. The criticism of the investigation and of the legal adviser disclosed no material unfairness or error.
7. Removal was not excessive or disproportionate. The misconduct occurred in a private clinical consultation, involved an abuse of professional trust, and was deliberate. The preservation of public confidence justified substantial deference to the Committee’s sanction.

• Fitness to Practise Committee of the General Pharmaceutical Council: on 15–16 April 2019 found misconduct and impairment of fitness to practise, and ordered removal from the register under the Pharmacy Order 2010.
• High Court (Administrative Court): dismissed the appeal and upheld the Committee’s decision.