Achina v General Pharmaceutical Council

An appeal from a professional disciplinary decision is ordinarily limited to a review. The appellate court must give appropriate weight to a specialist committee’s evaluative judgments, particularly where it heard the witnesses, but must independently assess any alleged procedural unfairness.

Where the statutory scheme makes a certified conviction conclusive, the practitioner cannot relitigate facts necessarily established by the conviction. Those facts include the broader factual matrix on which the criminal court sentenced, as shown by its sentencing remarks. Fitness-to-practise proceedings are protective and forward-looking. Lack of insight into serious misconduct may establish future risk and justify removal where lesser sanctions cannot protect patients or maintain public confidence.

The appellant, a registered pharmacist, appealed under article 58 of the Pharmacy Order 2010 against the decision of the General Pharmaceutical Council’s Fitness to Practise Committee to remove him from the register.

He had been convicted of theft of medication from his employer, including controlled drugs, and of absconding while on bail. The Committee found current impairment, limited insight, lack of remediation and a real risk of repetition. The appellant challenged the fairness of the proceedings, evidential rulings, findings concerning his insight, the proportionality of removal and the alleged religious or racial bias of the Committee.

1. Appeal dismissed. The appeal was governed by article 58 of the Pharmacy Order 2010 and CPR 52.21. It was a review unless a rehearing was required in the interests of justice. An appeal could succeed if the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. In assessing whether the decision was wrong, the court had to give appropriate weight to the Committee’s professional judgment and its advantage in hearing the evidence. That did not apply to the court’s assessment of alleged procedural unfairness, which it had to determine for itself. The approach in Cheatle v General Medical Council [2009] EWHC 645 (Admin) was applied.
3. The Committee was entitled to exclude or admit documents according to relevance and fairness. The appellant’s workplace grievances did not establish a relevant nexus with the criminal conduct. The Committee was also entitled to decline to hear witnesses whose evidence could not materially advance the case.
4. Rule 24(4) of the General Pharmaceutical Council (Fitness to Practise and Disqualification, etc Rules) made the certified convictions and the findings of fact on which they were based conclusive. The court held that this included the broader factual matrix on which the appellant had been sentenced, as recorded in the sentencing judge’s remarks. The appellant could not deny that he had supplied drugs to third parties for profit while the convictions and sentences remained undisturbed.
5. Fitness-to-practise proceedings are protective rather than punitive and look forward, although past conduct is relevant to present fitness: Meadow v General Medical Council [2006] EWCA Civ 1390. The Committee was entitled to treat the appellant’s continuing denial, lack of insight and absence of remediation as relevant to future risk and public confidence.
6. The sustained theft of controlled drugs from a position of trust, the diversion of medication outside the legitimate supply chain, the absence of insight and the real risk of repetition justified the conclusion that suspension was insufficient. Removal was proportionate and fundamentally compatible with maintaining public confidence in the profession.
7. The complaint of bias failed. Applying Porter v Magill [2002] 2 AC 357, a fair-minded and informed observer would not perceive racial or religious bias from the Committee’s composition or conduct.

High Court (Administrative Court): The appeal against the Fitness to Practise Committee’s decision to remove the appellant from the register was dismissed. The court invited submissions on the respondent’s costs.