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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gulamhusein v General Medical Council [2014] EWHC 2591 (Admin) (14 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2591.html Cite as: [2014] EWHC 2591 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 July 2014

1. SIR STEPHEN SILBER:
2. Introduction
3. Mr Murtaza Mohamedali Gulamhusein, ("the Appellant"), is a pharmacist who has been registered with the General Pharmaceutical Council ("the Council") since 1984. Registration with the Council is a statutory qualification required so as to enable pharmacists to perform many of their functions such as supplying medicines for which a prescription is required, supervising the preparation of medicines, and supervising the sale of poisons.
4. As a result of the activities of journalists carrying out undercover activities, there was evidence that the appellant had been supplying products without obtaining a prescription for them, even though such products could only be supplied with a prescription. The appellant was suspended on 16 January 2013 by the Council's Fitness to Practice Committee ("the Committee") for a period of 18 months and his suspension is due to expire tomorrow.
5. The jurisdiction to make interim orders arises under article 56(1) of the Pharmacy Order 2010 which provides that an interim order may be made where the Committee is satisfied that it is necessary for the protection of the public to do so, where it is otherwise in the public interest to do so, or it is in the interests of the registrant.
6. An attempt by the Appellant to challenge that suspension was rejected by the Committee in a determination dated 27 May 2014 and the Appellant is appealing that determination. He contends that this order for his suspension should not have been made and that the appropriate order was one in which his registration was allowed to continue but subject to conditions.
7. I have to consider not only this appeal but also an application by the Council for an extension of that period of suspension imposed on the Appellant for a further period from 15 July 2014 to 14 January 2015 in accordance with article 56(5) of the Pharmacy Order 2010. That application is dependent on the appellant being unsuccessful in appealing the existing order and that is therefore the matter which I will deal with first.
8. The Imposition of the Interim Suspension Order in January 2013
9. The Appellant, who is 55 years of age, has been involved in running Curie Pharmacy in Maida Vale which he purchased in about 1987.
10. During an undercover operation the Appellant was approached while working at the Currie Pharmacy by a News International journalist posing as a member of the public. On 24 September 2012 he supplied to this journalist medication to deal with pregnancy, namely a Levonelle One Step 1500mg tablet known as the "morning after pill". The undercover reporter had said to the Appellant that he needed this medication to deal with the pregnancy of a friend.
11. On 27 September 2012 at the Curie Pharmacy the appellant is alleged to have provided to the same undercover reporter a pack of 60 Cytotec 200mg Misoprostol tablets without prescription even though a prescription was required for this medication, and in the knowledge that it was going to be used for the purpose of an illegal termination of a pregnancy. Before this matter was reported in the Sunday Times, the Appellant was challenged about it and he initially denied that he supplied it, but when he was told that the episode had been filmed, he said he provided the tablets in the belief that they were to treat an ulcer. It was this alleged supply of Misoprostol which led to the Committee imposing the suspension.
12. It is alleged that the Appellant was also approached by employees of the BBC who had investigated various pharmacists whom it was alleged were supplying prescription only and controlled medication without receiving a prescription. The allegation is that the Appellant first supplied a quantity of Diazepam and 150g of Viagra to an undercover operative posing as a member of the public during the week commencing 10 September 2012 and, second, that he supplied a further quantity of Viagra and Temazepam during a second incident during the week commencing 24 September 2012.
13. The Appellant was interviewed by the police and in the course of the interview, apart from confirming his name, the appellant made no comment to the questions that were put to him. He says that the police are taking no action in respect of the products supplied to the BBC employee.
14. In January 2013 the Council applied for an interim order to suspend the registration of the Appellant on the basis that he unlawfully supplied a box of drugs with 60 tablets called Misoprostol (or Cytotec) in circumstances in which he must have believed that they were to be used to procure an abortion even where there was no valid prescription for its supply and where he knew nothing about the patient for whose use it was intended.
15. The basis of the application was that there was a credible allegation of a gross breach of duties owed by a pharmacist and it showed a risk that unlawful abortions might be procured from the drugs supplied without a prescription. This showed that the Appellant was, according to the Council, prepared to sell the drugs without the requisite prescription and therefore without any clinical concerns or safeguards as to how or by whom the medicines would be used.
16. The Committee was made aware of the Appellant's personal position as a pharmacist of 28 years' standing and that if his registration was suspended, it would cost him some £60,000 a year. The Committee reminded itself that its function was not to determine facts nor decide whether the appellant was guilty of misconduct.
17. On 16 January 2013, the Committee imposed a suspension for 18 months both as being necessary for the public safety and the public interest. The suspension was confirmed by consent at reviews in January 2013 and on 11 December 2013. There was then a further hearing on 27 May 2013 to decide if the order should continue until 15 July 2014. Indeed, this judgment relates to the hearing of that appeal against that order.
18. The hearing on 27 May 2014
19. By the time of this hearing on 27 May 2014, the appellant had been charged with supplying prescription only medicine, namely Misoprostol without a prescription and he has elected trial in the Crown Court. At the time of that hearing he had not entered a plea to this count and indeed he still has not done so. There have been no criminal charges in relation to the other supplies by the Appellant. The issue before the Committee on 27 May 2014 was whether the suspension of the appellant should continue until it lapses this week.
20. Mr Martin Forde QC, who was at that hearing counsel for the Appellant as has been in the hearing before me, accepted that an order against the Appellant was appropriate, but he contended that both the public safety and the public interest could be met with conditions imposed on the Appellant's registration which would allow him to work at the pharmacy but under supervision and perhaps with a prohibition on dispensing controlled drugs and abortifacients. In support of his submission that such an order be proportionate, Mr Forde referred to the personal and professional references adduced in support of the Appellant who had not in his previous career come to the attention of either the regulating authority or the police.
21. The case against the Appellant was that the continuation of the suspension was necessary both for the safety of the public and the public interest.
22. In its determination on 27 May 2014, the Committee first found it was necessary to continue to suspend the appellant's registration on the grounds of protection of the public and the public interest. In other words, the Committee did not consider this to be a case to be determined solely on a public interest basis. The Committee was fully aware of and applied the statutory test in article 56(1) of the Pharmacy Order 2010, namely that the Committee was required to be satisfied that it was necessary for the protection of members of the public or is otherwise in the public interest to make an interim order. It is noteworthy and it was emphasised by Mr Kenneth Hamer, counsel for the General Pharmaceutical Council that the word "necessary" was used three times in the determinatiom
23. The Committee considered the importance of the requirement of proportionality both in the making of the order and in the consequential effects on the Appellant. It observed that it was satisfied that the order for the Appellant's suspension was a proportionate step to take despite the continued disruption that would inevitably be caused by it to the Appellant's business, income, and reputation.
24. In determining how to determine the case, the Committee considered but rejected the solution of imposing conditions on the registration of the Appellant. The Committee explained that it did not believe it would be possible to meet the needs of the situation caused by the allegations against the Appellant with conditions.
25. The appeal
26. Mr Forde made a number of serious criticisms of the approach of the Committee in its failure to allow the appeal so that the appellant would have been entitled to continue practising with the conditions imposed. These grounds raise a number of issues of importance relating to, first, the circumstances in which the registration of the pharmacist should be suspended on an interim basis rather than dealt with in another way, and, second, the approach which a court should take to a decision of a professional disciplinary body such as the Committee when its decision was being challenged. It is appropriate to deal with those issues at this stage.
27. The issues raised on an application for interim suspension
28. The courts have always been concerned about the serious consequences for a professional man who is suspended. Davis J, as he then was, observed in the case of R (on the application of Sheikh) v General Dental Council [2007] EWHC 2972 (Admin) in relation to an application for imposing an interim suspension order on a dentist that:

i. "16. I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest."

29. It is noteworthy that in that case the appeal against a suspension order which had been imposed by the professional disciplinary body was allowed even though the dentist concerned had pleaded guilty to conspiracy to defraud in relation to travel claims by certain of his associates. An appeal against a suspension order was also allowed in the case of R (on the application of) Sosanya v General Medical Council [2009] EWHC 2814 (Admin) in which the doctor's husband had pleaded guilty to an advance fee fraud and the doctor had been charged with money laundering to which a plea of not guilty had been entered. In both those cases the allegations did not relate to the way in which the professional person performed his or her duties. This is important bearing in mind that the threshold for imposing an order for suspension is necessity. It is therefore a remedy of the last resort where there is no other proportionate and appropriate remedy available.
30. A corollary of the test of necessity, which is set out in rule 56 of the Pharmacy Order 2010, is that an order for suspension should only be imposed if no other remedy would be appropriate and proportionate. Therefore a disciplinary Committee should first consider whether any other remedy, such as the imposition of conditions, would ensure that the interests of the public and the profession were satisfied because an order for suspension would not be necessary if another remedy, such as the imposition of conditions, would be appropriate.
31. Whether conditions can be imposed as a proportionate remedy will depend on the nature of the complaint against the practitioner concerned. It might be easier for a disciplinary committee to conclude that imposing conditions would be proportionate where the complaint related to lack of capability rather than where the complaint was one of serious misconduct. If, for example, the breach related to capability and showed a lack of training or experience, then conditions relating to supervision might be appropriate.
32. The position might therefore be different if the allegations made related to misconduct such as theft. The question for the disciplinary Committee would therefore be to see whether the complaints that had been made relating to the pharmacist could be adequately addressed by conditions if they would, among other things, ensure matters complained of would not be repeated.
33. The Court's Scrutiny of a decision of a Disciplinary Panel
34. In Ghosh v General Medical Council [2001] 1 WLR 1915, Lord Millet, giving the judgment of the Judicial Committee of the Privy Council observed at paragraph 34 that:

i. "the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted by the circumstances."

35. This approach was followed by the Court of Appeal in Raschid v General Medical Council [2007] 1 WLR 1460.
36. More recently in the General Medical Council v Hiew [2007] 1 WLR 2007, at page 2019, at paragraph 41 Arden LJ given the only reasoned judgment of the Court of Appeal explained in relation to the approach of a Court to the decision of the Panel of the GMC that:

i. "41. The judge held that the court 'naturally [paid] great respect to the view of the evidence taken by the IOP', in view of their 'immense experience'. I would prefer to say that the approach of the court to the opinion of the IOP is not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way. In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to a person's evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to all relevant circumstances including its content as well as the viewpoint of the author of the opinion. I consider that this is likely to have been what the judge, as an experienced judge, had in mind and this court must take into account that the judgment was given ex tempore in the administrative court which is known to have a heavy workload."

37. Davis J in Sheikh (supra) rejected the idea that the court should adopt an approach which equates to that of a judicial review when considering a challenge to a decision of a professional disciplinary body and he explained that:

i. "10. ... The court's approach is more open ended than that. The court has to approach the task by reference to its powers under section 32(12) as a matter of original jurisdiction. At the same time, it seems t o me that in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence."

38. More recently, Eady J explained in Patel v General Medical Council [2013] 1 WLR 2694, 2697 at paragraph 6 that:

i. "It is well established that a court, in exercising such a jurisdiction in relation to a disciplinary tribunal, will pay due respect to its decisions because of its expertise and its familiarity with the requirements to uphold professional standards and public confidence in relation to the relevant profession: see e.g. Bolton v Law Society [1994] 1 WLR 512, 517-519; Gupta v GMC [2002] 1 WLR 1691; R (Shiekh) v General Dental Council [2007] EWHC 2972 (Admin); and Sandler v GMC [2010] EWHC 1029 (Admin) at [12]-[14]."

39. I will apply those principles and give the due amount of respect to the decisions of the Committee.
40. The grounds of challenge to the order of 27 May.
41. Mr Forde, in his submissions for which I am grateful, first contended that the Committee applied the wrong test as it had applied a public interest test rather than a public safety test; second, that this was a case based on public safety and not public interest; third, Mr Forde says the Committee was relying on unproven allegations and not proven facts; fourth, the public wold be protected by the proper imposition of workable conditions; fifth, to impose a further period of suspension would not be proportionate; sixth, the Committee failed to pay regard to the impact of the suspension order upon the Appellant.
42. At the forefront of Mr Forde's case was the emphasis that he placed on the conditions which he says could and should have been imposed on the Appellant's registration and which were proportionate as they would have been sufficient to safeguard the interests of the public and the needs of the public safety. Those conditions would have been that the Appellant would have been obliged to:
43. Notify his employers, prospective employers, agents, their accountable officer for controlled drugs, and others with whom the appellant comes into contact, of the restrictions imposed upon him;
44. Notify the General Pharmaceutical Council before undertaking any position for which registration with the Council was required and which required the appellant to act as a responsible pharmacist or superintendent pharmacist or pharmacist owner in the course of his duties;
45. Nominate a suitable pharmacist to act as his mentor and the nomination would have to be provided to the Pharmaceutical Council with such obligation on the appellant (i) to seek advice and to maintain regular contact with the mentor, (ii) to arrange for the mentor to write to the Council at specified intervals to confirm that meetings were taking place, and (iii) to consent to the mentor reporting any concerns or issues to the Council;
46. Place himself under the direct supervision of the workplace supervisor who would be a registered pharmacist or pharmacy technician, such person to be approved by the General Pharmaceutical Council;
47. Only engage in a provision of certain services whilst under the direct supervision of a work place supervisor;
48. Arrange for the workplace supervisor of superintendent pharmacist to review the controlled drugs register for the pharmacy in which the Appellant is working and to provide a report to the General Pharmaceutical Council;
49. Arrange for the Appellant's workplace supervisor to send a report on his progress and development to the General Pharmaceutical Council at specified intervals or on a regular basis or in response to a reasonable request;
50. Consent to the General Pharmaceutical Council exchanging information with the workplace supervisor of the claimant in relation to the efforts to improve his pharmacy practice;
51. Refrain from working as a sole practitioner or responsible pharmacist but would instead employ a full time pharmacist to act as a responsible pharmacist in his pharmacy.
52. The Council disputes these complaints that have been put forward by Mr Forde. Mr Hamer on its behalf contends correctly, firstly, that the Committee applied the correct test under article 56 of the Pharmacy Order 2010 as the use of the word "necessary" on three occasions in its determination made clear. The Committee also said that, like the Committee on the original application, they only considered what order would:

i. "meet the necessity of protecting the public and preserving confidence and standards in the profession."

53. The Committee did not regard the present case as a public interest only case. They were right, in my view, to regard the instant case as one concerning public safety as the allegations against the Appellant involved unlawfully supplying to members of the public prescription only medicine without being supplied with a prescription. There was evidence that medication was supplied in this manner by the Appellant.
54. I agree that there was no need for the allegation made against the appellant to be proved before they could be considered relevant for disciplinary proceedings as was explained by Pill LJ when giving judgment in the Divisional Court in Dr X v General Medical Council [2001] EWHC (Admin) 447 [24]. The fact that the allegations have not been proved is clearly a matter that the disciplinary Committee was bound to take into account. What is important is that it must scrutinise the unproven allegations with great care to test their cogency. This is what this Committee did after taking account of the previous good record of the appellant and the matters put forward in his favour.
55. The Committee concluded correctly, in my view, that if the allegations are found proved, the appellant would be shown to be prepared to supply dangerous prescription only drugs improperly when asked, and where, in the case of Misoprostol (Cytotec) the risk to the public is that of procuring an illegal abortion in relation to which no prescription had been obtained and in relation to which the Appellant had no knowledge.
56. It is true that the Committee stated that a reasonable onlooker with knowledge of the facts would be appalled if no order was made and the allegations against the Appellant were eventually proved. The Committee was nonetheless very clear in stressing that, in its judgment, the order was necessary for the protection of the public and in the public interest.
57. I bear in mind, as the Committee said that they would take into account, the reputational damage to the Appellant caused by the imposition and the continuation of the suspension. In addition, there is evidence that the Appellant would be losing £80,000 a year by being suspended. Nevertheless, I consider that in the light of the seriousness of the Appellant's conduct, the Committee were quite right to reject the contention that the imposition of the suggested conditions would be an appropriate and proportionate order. These conditions might have satisfied the requirement of being appropriate and proportionate if the Appellant's alleged offence had been committed because he was unaware of the rules or that he had made an honest mistake which he had acknowledged. That is not this case. What is clear is conditions would not be appropriate where, as in this case, the conduct complained of was apparently a blatant breach of the statutory provisions for which no excuse has been suggested. I stress the Committee were entitled to reach the conclusion in the way they did that there had been this unlawful supply.
58. I reach all those conclusions irrespective of whether or not respect is owed to the decision of the Committee. The fact that respect is owed becomes an additional and fortifying reason for my conclusions to which I have just explained
59. In conclusion, it is important not to lose sight of the very important role played by pharmacists in ensuring that drugs for which prescriptions are required are not supplied to those who do not have prescriptions for them. This role is significant in many ways as the pharmacists are the gatekeepers, ensuring that drugs only go to people approved to use them and requiring them by their medical practitioners. For all those reasons, this appeal is refused.
60. Before I gave judgment, Mr Forde, who had to leave the court for another engagement, explained to me that if the appeal was to be dismissed, as has been the case, he would not object to its continuation of the order for suspension for another six months, from 15 July 2014 to 14 January next year. I have made an order for the assessment of the General Pharmaceutical Council's costs of the appeal. I have said if the parties cannot reach agreement on an appropriate figure, the appellant ought to put in writing what his submissions are in relation to the appropriate sum for costs in relation to the documents supplied by the General Pharmaceutical Council as justifying their costs. The General Pharmaceutical Council would then have seven days thereafter in which to respond. I would then reach a decision on the paper in relation to it.