zahra hussain v general pharmaceutical council [2016] EWHC 656 (Admin)

An appeal to the High Court following allegations heard by the General Pharmaceutical Council (“GPhC”) Fitness to Practise Committee which resulted in Ms Hussain’s name being erased from the register.

Index case

Ms Hussain was the responsible pharmacist for Safeer Pharmacy. She faced allegations at the GPHC Fitness to Practise Committee following an undercover report by the BBC which was shown on the television on 12 December 2012 in which an unregistered employee (Ms Hussain’s daughter) was allegedly filmed providing Amoxicillin, a prescription-only medication, to a customer, without a prescription on 2 August 2012. The GPhC investigated the allegation and referred the case to their Fitness to Practise Committee.

On two occasions prior to the final hearing, Ms Hussain had applied for an adjournment of the hearing via her legal representatives; once on 23 July 2015 and once on 17 August 2015. Both applications were refused.

On the first day of the final hearing, 18 August 2015, Ms Hussain attended without her legal representatives and made a third application to adjourn proceedings because she had discovered communications between her legal representatives and the GPhC which she found to be offensive and insulting. Ms Hussain informed the Committee that the relationship between her and her legal representatives had broken down and said that she required an adjournment so that she could find alternative legal representation. The Committee refused her request.

The hearing continued and Ms Hussain represented herself.

Her defence was that the allegations were untrue as the footage from the BBC was not genuine.

The BBC reporter who had been involved in the making of the TV program gave evidence before the Committee as did the Detective Sergeant who led the police investigation into the same allegations. Evidence on the video footage was also received by the Committee from Ms Hussain’s husband, Dr Auda, who questioned the authenticity of the footage.

The Detective Sergeant confirmed to the Committee in evidence that he did not feel that the BBC’s evidence was tamper proof and that their storage facilities would not prevent interference with this evidence.

He also stated that he felt that the under cover reporters had manipulated pharmacy staff by coming up with cover stories that would evoke sympathy from an unsuspecting member of staff and therefore encourage them to provide the medications requested.

Ms Hussain’s case was that the BBC footage did not relate to any purchase in August 2012 but instead to the supply of the same medication on 12 October 2011 because a test purchase had been made by undercover reporters in October 2011 and Ms Hussain could produce a prescription for the same medication dated 12 October 2011.

The Committee found that it was unlikely that the BBC’s video evidence had been edited and decided that the BBC’s footage as produced was likely to be accurate in terms of what it showed and the date on which it was taken.

The Committee also found that the purchase that Ms Hussain described on 12 October 2011 was not an allegation that had been put before them and so they did not need to consider this.

The hearing went part-heard on 20 August 2015 and the Committee reconvened on 18 September 2015. The GPhC made submissions on sanction, impairment having been found proved, and stated that suspension was an appropriate sanction and that erasure would be disproportionate.

The Committee decided, in any event, that erasure from the GPhC register was a proportionate response.

Appeal

Ms Hussain appealed the decision of the GPhC Fitness to Practise Committee under Article 58 Pharmacy Order 2010 on the following grounds:

  • 1.The hearing was conducted unfairly;
  • 2.The evidence was not sufficiently “cogent” to support the Committee’s findings;
  • 3.The sanction was disproportionate

During the appeal Mrs Justice Laing set out the test under Civil Procedure Rule 52.11 for bringing such an appeal; whether the decision by the GPhC Fitness to Practise Committee was wrong or seriously unjust as a result of serious procedural or other irregularities in the proceedings and reminded the Court of the definition of “wrong” which means “plainly wrong” from the case of Shaw and Turnbull v Logue [2014] EWHC 5 (Admin).

Ground of Appeal 1: The Committee’s Conduct at the hearing

Ms Hussain’s legal representative submitted that the Committee should have recused itself from dealing with sanction as it had seen privileged information in the correspondence between Ms Hussain’s first legal representatives and the GPhC which would have prejudiced them in relation to Ms Hussain’s case.

Counsel also stated that the Committee ensured that Ms Hussain could not be represented at the hearing in refusing her the opportunity to adjourn in order that she could try to find alternative legal representation.

Counsel set out that the Committee’s decision on sanction was unfair and had paid no heed to the submissions on sanction that had been made by the GPhC representative or submissions that had been made in fact-similar cases.

Mrs Justice Laing decided that the Committee had warned Ms Hussain that she was waiving privilege when she asked them to accept the correspondence between her initial legal representatives and the GPhC but that she continued and showed it to them in any event. Therefore, the Committee had not needed to recuse itself from dealing with sanction.

Mrs Justice Laing also stated that Ms Hussain had been free to instruct legal advisers at any point in proceedings and had done so previously, even signing a witness statement prepared by her legal team which had been used in evidence on Ms Hussain’s behalf before the Committee. She stated that a registrant “does not have an unfettered right, to insist on instructing a new legal team, regardless of the consequences for the public interest and for the regulator”. She went on to state that the Committee was entitled to come to the conclusion that “with appropriate help and guidance from it…a registrant will be able to represent him or herself”. In this case the Committee had explained the procedure and legalities to Ms Hussain and so had discharged its duty. There was therefore no injustice in relation to the conduct of the hearing contrary to CPR 52.11.

Ground of Appeal 2: The evidence

It was brought to the High Court’s attention that the original video taken by the BBC was not available and had never been available to the GPhC Fitness to Practise Committee as the BBC had refused to release it to the police unless the production order made by the Court was made on restricted terms so as to protect the identity of the undercover reporters. The video that the GPhC Fitness to Practise Committee saw was a DVD copy of this footage.

It was also submitted on Ms Hussain’s behalf that the Committee had not given sufficient weight to the evidence given by the Detective Sergeant who had conducted the police investigation and that there were inconsistencies in the Committee’s factual findings in relation to the dates of the BBC’s footage and the BBC’s test purchase in October 2011.

In addition, it was submitted that Ms Hussain’s case had been prejudiced as she had not been made aware of the identity of the BBC’s undercover reporter who had been paid to obtain the medication.

Mrs Justice Laing decided that there was sufficient evidence for the Committee to be satisfied that there had been no interference with the BBC’s footage and that the Committee’s assessment of the evidence given by the Detective Sergeant was a matter for them as was their assessment of the reliability of the BBC’s footage.

She also considered that the Committee had been ‘scrupulously’ fair in the way in which they dealt with the evidence given about the BBC video by Mr Auda and she stated that it was clear that the Committee had also taken account of the mitigation evidence submitted on Ms Hussain’s behalf, her good character and her lack of legal representation.

Ground of Appeal 3: Sanction

Ms Hussain’s legal representative informed the High Court that the decided sanction did not follow submissions made either by the GPhC or Ms Hussain herself. In addition, the Committee’s decision on sanction did not follow other fact-similar cases brought to the GPhC as a result of the same under cover report by the BBC.

It was also argued that the sanction was disproportionate and ‘draconian’.

Mrs Justice Laing decided that the Committee was entitled to take a view on sanction that differed entirely from any submissions made before it and that, in relation to this Committee’s decision differing from other similar cases, each case must be considered on its own facts, considering insight and any risk of repetition which may differ in each case.

Mrs Justice Laing stated that Ms Hussain had been afforded the opportunity by the Committee to review the GPhC’s Guidance on Sanction and she accepted the GPhC’s submission that Ms Hussain could have sought legal representation between 20 August 2015 when the hearing went part-heard and 18 September 2015 when the hearing re-convened but that she had chosen not to and had decided to continue to represent herself.

Ms Hussain’s appeal was dismissed on the basis that the Committee hearing her case was perfectly entitled to decide that Ms Hussain’s name should be erased from the register as a result of their findings that her behaviour was fundamentally incompatible with registration as a Pharmacist.

Summary

This case is important as it illustrates just how reluctant the High Court is to overturn decisions made by Fitness to Practise Panels/Committees.

In addition, this case emphasises how important it is for Fitness to Practise Panels/Committees to consider each individual case on its own merits and to exercise its own judgment independent of any other cases heard which are similar in terms of the facts. If the Fitness to Practise Panels/Committees provide clear and reasonable reasons so that an informed member of the public and the registrant in question can understand why they came to such a decision, their duty has been discharged.

This case also shows just how important it is for a Fitness to Practise Committee/Panel to ensure that its duty is discharged when they are hearing a case involving an unrepresented registrant in that they must provide explanations in terms of the procedure at the hearing itself and any relevant legal issues that may arise during the Course of the hearing.

In this case, it would appear that Ms Hussain’s case was severely hampered by her lack of legal representation.

If you are a Pharmacist or any other healthcare professional facing an investigation by your respective regulator and you are without legal representation, the specialist healthcare and regulatory lawyers at Burton Copeland can assist. The moral of the case outlined in this study is do not go it alone and ensure that you get experienced, knowledgeable and reliable legal representatives. Please telephone Ms Charlotte Ellison on 0161 827 9500 for further information.

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