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Overturning Fitness to Practise decisions

4 December 2014

Since disciplinary procedures for pharmacists were first introduced 80 years ago, it has been rare for decisions of the Fitness to Practise Committee and its predecessor, the Statutory Committee, to be overturned.

So it’s remarkable that this July two decisions were overturned within less than two weeks, one by a Scottish Court and the other by an English one.

In the Scottish Case, HK (only his initials are used in the court transcript) had been convicted of a violent assault on his wife.

He committed further offences after they divorced, tricking his way into his ex-wife’s home, shouting and swearing at family members and kicking a hole in a wall before leaving with the couple’s two children.

HK had attended a domestic violence programme and apologised to the Fitness to Practise Committee for his conduct.

The sanctions available to the Committee included a suspension of up to 12 months, followed by a review; and striking off. The Committee decided a suspension for the maximum 12 months would be inadequate, so struck HK off.

The Court of Session said the Committee could have imposed a 12-month suspension with a recommendation that when a review hearing took place, a further 12-month suspension be imposed (with subsequent suspensions for as long as appropriate).

In the English case, a 4-month old baby suffered terrible injuries leading to her death. The prosecution could not prove who caused the injuries.

The baby’s mother, a pharmacist, pleaded guilty to cruelty and neglect and was imprisoned. The Fitness to Practise Committee suspended the pharmacist for 12 months.

The Professional Standards Authority appealed to the High Court on the ground that the suspension was unduly lenient.

Mrs Justice Cox agreed, saying the Committee appeared not to have considered whether the pharmacist’s misconduct was incompatible with continued registration, nor did it explain how a suspension of 12-months would be sufficient to maintain professional standards and maintain public confidence in the pharmacy profession.

Readers may agree with the English decision of the English court,  but it is not necessarily reconcilable with the Scottish judgment.

The Scottish decision, meanwhile, will have caused consternation at the GPhC, because Committees must now consider the grey area of successive suspensions, rather than a binary choice between suspension for the maximum period and striking off.

It doesn’t surprise me therefore, that the GPhC has decided to appeal against the Scottish judgment. It remains to be seen whether the courts are becoming readier to overturn fitness to practise decisions.

This article was written by David Reissner.

For more information please contact David on +44 (0)20 7203 5065 or david.reissner@crsblaw.com