23-07-2013

Ansari v General Pharmaceutical Council [2012] EWHC 1159 (Admin)

 

The pharmacist in this case was brought before the Professional Conduct Committee of the GPhC  in 2011 in respect of a number of charges of misconduct. The first concerned the application to be admitted to the register and failing to disclose a conviction for failing to supply a specimen of breath. The second related to the fact that whilst being a registered pharmacist he had been convicted of 6 offences, mainly relating to drink driving and driving whilst disqualified.

The disciplinary panel found that the allegations were proven and that his fitness to practise was impaired as a result of the misconduct. The Panel gave detailed reasons for the imposition of a striking off order and clearly took into account the mitigation advanced on his behalf. The Panel reminded the pharmacist at the hearing that he is able to apply to be restored to the Register after a period of 5 years.

 

The pharmacist appealed on this basis: that the Committee had failed to have adequate regard to a range of matters in reaching its decision, in particular that, save for the failure to disclose the conviction when first applying for registration, all other allegations related to driving convictions unconnected with Mr Ansari's clinical practice; (2) that the sanction was disproportionate to the misconduct proved and that the proven facts, whilst serious, were not so grave as to necessitate a permanent removal from the register; and (3) that the sanction of removal from the register did not properly follow from the findings of the Committee – in particular, the Committee had found that Mr Ansari had begun to develop insight and that in the light of that conclusion a proportionate alternative sanction would have been to suspend Mr Ansari pursuant to art 52(4) of the 2007 Order. One of the arguments developed during the hearing was that effectively the Panel had treated the effect of the erasure as similar to a suspension for 5 years.

To be successful in any appeal such as this, brought under the Civil Procedure Rules part 52.11 (3) the decision has to be shown to be “ wrong”. Guidance is always useful form other cases where this has been considered such as : the judgment of Langstaff J in Dr Parag Bhatt v GMC [2011] EWHC 783 (Admin), where, after reviewing certain authorities, Langstaff J said this at para 9:

“9 I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair . . . .”

This was also the principle set out in Raschid v GMC [2007] EWCA Civ 46.

 

On the basis of those authorities, the appeal court determined that the Panel had had the best opportunity of considering the live evidence of the witnesses and had carefully evaluated the relevant evidence before it and determining the seriousness of the conduct in question. The sanction was considered proportionate to the behaviour in question and the need to uphold the standards of the profession.