Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Anor

An appellate court reviewing a regulatory decision under section 29 must determine whether the decision was wrong or unjust because of a serious procedural irregularity. A public authority may correct an apparent closure based on a fundamental mistake of fact, but a different evaluation of the same evidence is not such a mistake. A legitimate expectation may be defeated where fairness and the public interest justify resiling from it. A stay for abuse of process is exceptional because it finally prevents determination of the allegations. Serious procedural failures must therefore be balanced against the public interest in protecting the public, maintaining professional standards and preserving confidence in the profession.

The Professional Standards Authority referred the Fitness to Practise Committee’s decision to stay proceedings against a pharmacist to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002. The Committee had found that the pharmacist had a substantive legitimate expectation that the case was closed and had identified three serious irregularities: an unjustified urgent direct referral, late notification and failure to give reasons.

The General Pharmaceutical Council conceded the appeal. The pharmacist resisted it. The central issues were whether the Council could correct the apparent closure, whether the direct referral complied with the applicable rules, and whether the proceedings should be stayed for abuse of process.

1. Appeal allowed on Ground 1. The Committee’s decision to stay the proceedings was quashed and the case was remitted to the Registrar for reconsideration in accordance with directions.
2. The PRM had delegated authority to make a final stand-alone closure decision. However, on the evidence, he had not made such a decision. The closure letter resulted from an administrative mistake by officers who wrongly believed that the PRM had closed the case. That was a fundamental mistake of fact. The Council was therefore entitled to correct the error and to resile from the representation that the case was closed.
3. The representation nevertheless created a legitimate expectation. Fairness and proportionality permitted the Council to resile from it because the public interest in public safety and proper professional standards outweighed the hardship caused to the pharmacist.
4. The Committee correctly found three serious irregularities. The allegation was serious and complex but did not require urgent consideration under rule 6(5)(b). The pharmacist was denied the opportunity to make representations to the Investigating Committee. The Council also failed to notify him of the direct referral within 10 days and failed to give the reasons for it as required by rule 11.
5. A stay for abuse of process is exceptional and final. The public interest in determining allegations and protecting the public must be balanced against the integrity and fairness of the regulatory process. The Committee had not materially misdirected itself, but its reliance on the mistaken legitimate expectation weighed heavily in its decision. The exceptional remedy was not justified because the competing public interests could be met by a full reconsideration.
6. The Registrar was directed to reconsider the case afresh, conduct a thorough investigation, and, if referral remained appropriate, refer the matter to the Investigating Committee rather than directly to the Fitness to Practise Committee. The Council was ordered to pay the costs awarded by the Committee because its grossly incompetent handling of the case had caused the need for the process to be repeated.

• Fitness to Practise Committee: on 22 March 2024, imposed a stay of the proceedings for abuse of process and ordered the Council to pay R2’s costs.
• High Court (Administrative Court): allowed the Authority’s appeal on Ground 1 only, quashed the stay and remitted the case to the Registrar. Grounds 2 and 3 were dismissed.