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

On a statutory appeal from a professional regulator, the High Court must allow the appeal where the decision was wrong or unjust because of a serious procedural irregularity. A rule treating an alleged victim of sexual misconduct as a potentially vulnerable witness is discretionary. The committee must assess whether the quality of the evidence is likely to be affected and, if so, consider suitable special measures and whether attendance should be compelled.

A regulator may offer no evidence only after sufficiently opening its case so that the committee can make an informed decision. A submission of no case to answer cannot properly be determined before the tribunal has considered the evidence. The appeal was allowed, the decision quashed, and the matter remitted to a differently constituted committee.

The Professional Standards Authority referred to the High Court, under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002, a Fitness to Practise Committee decision that a registered pharmacist’s fitness to practise was not impaired.

The pharmacist admitted touching the complainant’s penis and asking him not to tell anyone, but disputed other allegations and sexual motivation. The complainant did not attend the hearing. The Council did not seek a witness summons, did not apply to admit the complainant’s evidence as hearsay, offered no evidence, and accepted a submission of no case to answer.

The Authority challenged those procedural decisions. The central issues were whether the Committee had misapplied the vulnerable-witness provisions, whether it was entitled to exclude the hearsay evidence, and whether it could accept no evidence and determine that there was no case to answer without the Council fully opening its case and calling evidence.

1. Appeal test. An appeal under section 29 is governed by CPR 52.21(3). It succeeds where the decision was wrong or unjust because of a serious procedural or other irregularity. The court should give appropriate weight to the expertise of the specialist tribunal, but that deference does not excuse a failure of process.
2. Witness summons and vulnerability. The Committee wrongly treated the alleged victim as automatically a vulnerable witness under rule 44(1)(e) of the Rules. The provision is discretionary and requires a reasoned assessment of whether the quality of the witness’s evidence was likely to be adversely affected. If that threshold is met, the Committee must consider possible special measures. Vulnerability does not, without more, mean that attendance cannot be compelled. Ground 1 therefore succeeded.
3. Hearsay. The Committee was entitled to regard the complainant’s evidence as sole or decisive on the disputed allegations and to exclude it as unfair and prejudicial where it could not be tested at the hearing. The Committee was aware of the balancing exercise required by Thorneycroft v NMC and made no material error. Ground 2 failed.
4. Offering no evidence. Applying Professional Standards for Health and Social Care v NMC and X, the Council could offer no evidence only after fully opening its case, thereby giving the Committee sufficient knowledge of the facts to decide whether the Council should instead obtain further evidence. The Council had not done so, and the Committee had not properly determined whether a witness summons should be sought. Grounds 3 and 4 succeeded.
5. No case to answer. A submission of no case to answer, whether made by the registrant or initiated by the Committee, could be determined only after the Council had fully opened its case and called its evidence. The Galbraith test presupposed that the tribunal had considered evidence. The Committee had not considered the documentary evidence, admissions, communications, or other witness statements in their entirety.
6. The appeal was allowed on Grounds 1, 3 and 4 and dismissed on Ground 2. The Committee’s decision was quashed and the case remitted to a differently constituted Fitness to Practise Committee. The Council was ordered to pay 80% of the Authority’s reasonable appeal costs.

• Fitness to Practise Committee: On 13 May 2024, determined that the registrant’s fitness to practise was not impaired and that there was no case to answer.
• High Court (Administrative Court): The Authority’s statutory appeal was allowed in part under section 29 of the National Health Service Reform and Health Care Professions Act 2002. The decision was quashed and remitted to a differently constituted Committee.