QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
(THE DIVISIONAL COURT)
The Strand London WC2
B e f o r e :
MR JUSTICE GAGE
|THE QUEEN ON THE APPLICATION OF PANJAWANI|
|ROYAL PHARMACEUTICAL SOCIETY OF GREAT BRITAIN|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR N PLEMING QC (for hearing) and MS A FOSTER QC (for hearing and judgment) (instructed by PENNINGTONS SOLICITORS, LONDON EC4N 8PE) appeared on behalf of the Defendant.
Crown Copyright ©
LORD JUSTICE SEDLEY:
The Statutory Procedure:
"21. Evidence may be received by the Committee by oral statement, written and signed statement, or statutory declaration. The witness shall first be examined by the person producing him, then cross-examined and then re- examined. The Committee shall disregard oral evidence given by any person who refuses to submit to cross-examination. They may, in their discretion, decline to admit the written statement or declaration of a person who is not present, and shall disregard it if, being present, he refuses to submit to cross- examination."
"(1) A person aggrieved by a direction of the Statutory Committee under section eight of this Act or the refusal of an application made under subsection (2) of that section may at any time within three months from the date on which notice of the direction or, as the case may be, of the refusal is given to him appeal to the High Court against the direction or refusal; and the Society may appear as respondent on any such appeal.
(2) The High Court may on any such appeal make such order as the court thinks fit in the matter including an order as to the costs of the appeal and in particular as to the payment of any such costs by the Society, whether or not the Society appear on the hearing of the appeal; and the order of the High Court on any such appeal shall be final."
"Every appeal will be limited to a review of the decision of the lower court unless-
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."
"Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence. And will be by way of re- hearing. And will be by way of re-hearing."
"2. An investigation into the sale and supply of Viagra from the pharmacy was commenced in August 1999 by the Society's Inspectors, following receipt of information, that Viagra had been supplied to you from another pharmacy, (not your own) in exchange for other medicines.
3. Because it was known that Viagra has a street value, the Society's Inspector Ms Hutchinson, attempted to carry out an input-output inquiry beginning with a stock-take in Autumn 1999 to establish whether all the Viagra sales and supplies from the time that it became available to Mr Panjawani, that is 6 August 1998, until the time of the stock-take, could be accounted for by means of valid prescriptions, signed orders and other wholesale transactions.
4. The investigations into the sales and supplies of Viagra from the pharmacy was protracted, information requested from you having been provided piecemeal over a period of about one year.
5. On or about 23 September 1999, the Society's Inspectors Mr Staton and Mr Snewin visited the pharmacy..."
"11. Also in the course of Ms Hutchinson's investigations she established that you had an arrangement with Dr Guindi that he would see patients, supply them with Viagra, and write out a prescription for them. At the end of the week, Dr Guindi would take the prescriptions to the pharmacy and receive the Viagra from the pharmacy. You treated these as prescriptions, entering them into your prescription register.
12. However, both in respect of the Tenuate Dospan supplied via Dr Hamilton and the Viagra supplied by Dr Guindi, you had had no contact with the patient. In respect of the supply by Dr Guindi of Viagra, the supply to the patient preceded the dispensing of the prescriptions at the pharmacy."
"The discrepancies over 25mg and 50mg strength tablets were relatively minor. We were not particularly concerned to attempt to achieve a reconciliation of the figures of the tablets at these strengths, or to come to a view as to whose figures were to be preferred. It was over the 100mg Viagra tablets that the greatest discrepancy emerged. As I said, the Royal Pharmaceutical Society calculation was of an unexplained shortfall of 339. Mr Panjawani disputed this, claiming that 360 tablets of this strength had been stored upstairs and had erroneously, or otherwise, been left out of the Royal Pharmaceutical Society's calculations. If this was true, then clearly there was no shortfall on the 23rd September 1999, that is to say the date of the Inspectors' visit.
It was Mr Panjawani's account to us that prior to his admission to hospital in early September, he had personally taken this quantity of Viagra upstairs and stored them in an unmarked box on the floor, and had done so in anticipation of orders from a certain Dr Guindi to come in the following month of October. The locum or locums were not told of this separate stock, although there was some suggestion from him that his wife may have known of them. Curiously it was Mr Panjawani's account that this total of 360 was not ordered in one or more batches in the months immediately preceding the Inspectors' visit. He had this to say: "They were built up over the period".
"It seems to me, where the explanation has been developed, that it is actually a relatively short ambit, because so far as 100mg is concerned, it is reconciled by 360, which either was there or was not there. That seems to be a matter of credibility."
"So we have to accept your word or reject your word about that",
with which the appellant agreed. The chairman then took up something which really it had been for the advocates to canvass, namely the reliability of the inspection described in the report. He said to the appellant:
"So we have got to take your word for it, against the way they have put it, that none were found on the first floor..."
"Did it not occur to you that if these inspectors, in the course of their search, had failed to discover a significant quantity of Viagra, that it would have been appropriate for you to have brought that to the attention of the Royal Pharmaceutical Society?"
"I did not know what to do. I was not myself."
"I still do not entirely understand why, when there was such a significant quantity, which if the presence had been revealed at the time would have provided a pretty complete answer to much of the allegation against you, that you did not, as soon as you possibly could, draw that to their attention?"
"I should have done what you are suggesting but, like I say--"
"What was particularly telling was that Mr Panjawani never raised the existence of this very substantial quantity of Viagra on his return to the pharmacy, a matter of days after the inspection, and only did so first in March or April, once he had ascertained the shortfall being alleged by the Society. Mr Panjawani would appear to have had then extraordinary powers of precognition in setting aside in September the 360 tablets for Dr Guindi for the month of October. As we have seen from prescriptions provided, on 12th October 192 tablets were ordered; on 19th October, 68 were ordered and on 26th October a further 100, making precisely the total of 360. We do not believe he possesses such powers and believe that his selection of 360, matching the total orders for October, was simply an attempt to give a greater credibility to his account.
While we would hesitate on the evidence before us to characterise the transactions between Mr Panjawani and Dr Guindi as irregular or indeed unlawful, they were casual and confused and even taken at their face value, wholly unsatisfactory. For example, three signed orders, dated 25th August, 1st September and 17th September were only disclosed in March 2000 and had not been entered up as of 23rd September, the date of the Inspectors' visit."
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"It is greatly to be hoped that the Society will be able to take effective steps, with the co-operation of the Statutory Committee, the Privy Council and Parliament, to modernise the operation of its disciplinary processes so that the Statutory Committee can cope with their contemporary workload in a manner which accords with the modern standards of justice to which the courts are now rightly aspiring. Quite apart from the small membership of the Statutory Committee (which makes it impossible, incidently, for this court to remit a case for hearing before a different committee) there are features of the regulations contained in the 1978 Order in Council which bear a rather dated air."
"The need for a fair and properly expeditious disciplinary process will, of course, be accentuated when the Human Rights Act 1998 comes into force."
"Obviously, from what we have heard, we think it is highly unlikely that Mr Panjawani is going to let this happen again. He must not allow any of his procedures, record keeping and the like to fall behind whatever his personal circumstances and difficulties. It is extremely important that everything is maintained properly. We are told by Mr Panjawani that he has no wholesale business of any significance at all now, so no question arises of him applying for a wholesale dealer's licence and, as I say, we consider that a reprimand is sufficient in this case."
MR JUSTICE GAGE: In so far as the first part of my Lord, Sedley LJ's judgment deals with the merits of the appeal against the Committee's findings in relation to professional misconduct and costs, I agree. So far as the penalty is concerned his judgment is, as I understand it, a judgment of the court, but for the avoidance of doubt I agree with that as well.
LORD JUSTICE SEDLEY: Is there anything remaining to be decided?
MR DINGEMANS: No, my Lord, I am grateful.
LORD JUSTICE SEDLEY: We are both indebted to you for the help we have had from both sides.