England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 December 2005

Mr Justice COLLINS :

1. The appellant is a pharmacist and so is subject to the disciplinary procedures of the respondents. Unless he is on the Register of Pharmaceutical Chemists, he is not permitted to practise as a pharmacist. On 24 February 2005, the Statutory Committee of the Respondents, following a finding that he was guilty of misconduct alleged against him, ordered that his name be removed from the Register. He appeals to this court against that decision.
2. Registration of pharmacists is dealt with in the Pharmacy Act 1954 as amended, which, in relation to disciplinary proceedings, is supplemented by the Pharmaceutical Society (Statutory Committee) Order of Council 1978 (1978 No.20). The legislation needs and I gather is receiving attention since it has a number of inadequacies, not least of which is the lack of any power to suspend rather than remove a pharmacist guilty of misconduct from the Register. For one found guilty, if any sanction is considered necessary, those possible are a reprimand or removal from the Register: there is nothing between them. The general practice is that the Respondents will not entertain an application for restoration to the Register until at least 3 years have elapsed.
3. Section 8(1) of the 1954 Act provides, so far as material,:-

"Where –

… a registered pharmaceutical chemist … has … been guilty of such misconduct … as in the opinion of the Statutory Committee renders the … guilty person unfit to have his name on the register, the Committee may … direct the registrar to remove the name of the registered pharmaceutical chemist from the register … and … may also direct that no application to the Committee in respect of … restoration to the register shall be entertained thereafter until the expiration of such period as is specified in the direction … "

As I have indicated, if nothing is said by the Committee, it will be assumed that the relevant period is 3 years. The language is not particularly appropriate since if the misconduct is such as to render the pharmacist unfit to have his name on the Register, it is difficult to see how any lesser sanction could properly be imposed. However, the words "may … direct the registrar to remove his name from the register" have been construed as conferring a discretion upon the Committee not to impose the ultimate sanction. But it does mean that the misconduct found proved must be serious enough to justify removal even if in the particular circumstances the Committee decides that removal is not necessary.

4. Section 10 of the 1954 Act confers a right of appeal. S.10(1) reads:-

"A person aggrieved by a direction of the Statutory Committee under s.8 of this Act … may at any time within three months from the date on which notice of the direction … is given to him appeal to the High Court against the direction … and the Society may appear as respondent on any such appeal."

The nature of such an appeal has been considered by the Divisional Court in Panjawani v Royal Pharmaceutical Society of Great Britain (2002) EWHC 1127 (Admin). Sedley LJ, giving a judgment with which Gage J agreed, said that, since Article 6 of the European Convention on Human Rights was engaged, the appeal must be by way of a true rehearing. In Paragraph 14 of his judgment, after citing 52PD.22(3), he observed that an appeal under s.10 of the 1954 Act differs "in its substance from the run of appeals" so that this court could and should "substitute its own reasoning or conclusions or both wherever it is satisfied that the Statutory Committee has gone wrong".

5. This does not mean that this court will hear witnesses. It will, save in exceptional circumstances where fresh evidence is apparently credible and might affect the result of the appeal, rely on the transcript of the hearing before the Committee. This has been the approach of the Privy Council in disciplinary appeals and there is no reason to believe it should be different in appeals to this court. This court should not in my view reverse or vary a decision of the Committee unless satisfied that it is plainly wrong. Further it should recognise that the Committee has knowledge and experience of what the profession regards as appropriate behaviour and what standards should be applied. That expertise must always be respected but the weight to be attached to it will depend on the circumstances. The court may, for example, be in as good a position as the Committee to judge the seriousness of criminal conduct, but the Committee will be in a much better position to assess the seriousness of a breach of professional standards.
6. At the material time, the appellant, who had qualified in 1978, was the superintendent pharmacist in charge of a pharmacy in Manchester owned by a company. The appellant was a director and secretary of the company, but was not a shareholder and took no effective part in its management. It was run by his ex-wife and her siblings and he was paid a salary. Apart from one written warning in relation to his dealing with returned medicines, he had a good record within the profession and there were a number of testimonials produced to the Committee and which are before me showing that he was highly regarded by his fellow practitioners and by customers.
7. The allegations against him were set out in what is called a Notice of Inquiry dated 17 December 2004. They read as follows:-

"1. You were first registered with the Society on 31 July 1978.

2. At all material times you were Superintendent pharmacist and a Director of Formans Chemist Ltd ("the Company"), the proprietor of the pharmacy at 12 Parkhill, Bury Old Road, Prestwich, Manchester ("the Pharmacy").

3. Genotropin (the brand name of Pharmacia's version of Somatropin) is a Prescription Only medicine and is a treatment for children with inter alia, proven growth-hormone deficiency or Turner syndrome. Genotropin is delivered in a two-compartment cartridge for use with a special device (a Genotropin pen). Two sizes of cartridge are available, one containing 16 units (5.3 mg) and the other 36 units (12 mg).

4. Between October 1999 and march 2003 you submitted or caused to be submitted to the Prescription Pricing Authority ('PPA') for payment 33 claims in respect of a total of 416 Genotropin (36 unit) cartridges allegedly dispensed for patient JJ between October 1999 and November 2002. In respect of such claims the Company received payment in the sum of £112,886.20.5.

5. Enquiries of the Company's wholesalers have revealed that a total of only 222 Genotropin (36 unit) cartridges were actually purchased by the Company (from various suppliers) between 8 December 1999 and 1 February 2003.

6. The submission by you of erroneous claims to the PPA arose in the following circumstances. Repeat prescriptions for the Genotropin cartridges allegedly dispensed to patient JJ were requested from the patient's doctor either: by the patient's mother following consultation with you; or by you or another member of the pharmacy staff direct. On those occasions when the number of cartridges prescribed exceeded 8, you did not dispense more than 8 cartridges; however you did not endorse such prescriptions to reflect the fact that a lesser number of cartridges had been dispensed.

7. When you were interviewed by the police about these matters on 29 October 2003 you admitted that the claims for payment submitted to the PPA had included claims in respect of Genotropin cartridges not all of which had been dispensed and that this had resulted in an overpayment to the Company of thousands of pounds.

In summary, the Society's Council alleges that:

The submission by you of erroneous claims to the PPA resulting in an overpayment in the sum of approximately £52,000."

At the same time, similar allegations were made against the company which were said to render it liable to disqualification from operating a pharmacy. At the hearing, the appellant accepted full responsibility for what he had done and exonerated the company from any blame. The Committee agreed and made no direction against the company. The £52,000 wrongly paid was being repaid and there was, by the time the hearing was held, very little outstanding. The whole was expected to be repaid by the end of March 2005 and, so far as I am aware, that expectation has been met.

8. The appellant accepted that he had made the erroneous claims resulting in an overpayment of £52,000. He denied that he had acted dishonestly and it was not alleged that he had. That was made clear at the hearing. He lodged a statement of case which read as follows:-

"1. The matters set out in paragraphs 1 – 7 of the Notice of Inquiry are admitted save and except at paragraph 6. In paragraph 6 it is stated that repeat prescriptions for the Genotropin cartridges allegedly dispensed to patient JJ were requested from the patient's doctor either by the patient's mother following consultation with the pharmacist or by the pharmacist or another member of the pharmacy staff direct. It is not accepted, or admitted, that the impetus for any repeat prescription came from or was created by the pharmacist Mr Black or any member of his staff.

2. It is further admitted that the erroneous claims submitted by Mr Black to the PPA resulted in an overpayment of approximately £52,000.

3. The claims were not made dishonestly.

4. The (inadvertent) beneficiary of the overpayments was Formans (Chemist) Ltd which has repaid the amount overpaid by the PPA.

5. The only personal benefit Mr Black derived (of which he was unaware) was £1668.

6. In the circumstances, it is denied that the conduct complained of is such misconduct as to render him unfit to have his name on the Register of Pharmaceutical Chemists.

7. Alternatively, notwithstanding the seriousness of the matter, given that Mr Black is a man of good character and there is no compliant about any other aspect of his conduct as a pharmacist, it is unnecessary to direct the removal of his name from the register."

9. Genotropin is an expensive drug which is prescribed for treatment of children with growth-hormone deficiency or Turner's syndrome. It is a live medication which needs to be kept in a refrigerator. It is delivered in a cartridge which has two compartments. Although it had a relatively long shelf life, the patient's mother, Mrs J, was concerned about receiving the whole quantity prescribed (usually 30 cartridges each of which provided 4 injections and so the prescription would have produced a supply covering 120 days). The allegations against the appellant covered the period October 1999 to March 2003, when the treatment ceased.
10. Because Mrs J did not want to have too many cartridges in her refrigerator and wanted them as fresh as possible, she would not accept more than 8 cartridges (she usually limited it to 6) at any time. The appellant accordingly did not order the whole quantity on the prescription, but only sufficient to supply Mrs J as she needed them and to keep one or two in reserve in case of accidents. Although he had not dispensed the whole of the prescription at the end of the month, he claimed the cost of all of it. He said that he believed that the whole would in due course be used and so he would in due course be entitled to payment. He must have known that this was wrong since payment can only be made when the items prescribed have been dispensed. Unfortunately, when the quantity supplied to her ran out, Mrs J obtained a repeat prescription and the appellant failed to keep proper records so that he continued to make claims in the same way and the overpayments grew. His excuse for the muddle was a combination of overwork and strains resulting from the breakdown of his marriage.
11. The claimant had an arrangement with the surgery to collect repeat prescriptions on behalf of those to whom they were issued. That sort of arrangement is common. The guidance issued by the Respondents makes clear that all requests for repeat prescriptions must be initiated by the patient or carer. It is possible for the request to be made to the pharmacy which can act on it, but the pharmacy must not act without the patients' specific request. The appellant's account stated that the problems arose because Mrs J requested and obtained repeat prescriptions from the general practitioner when she ran short albeit there were still a number of cartridges outstanding on an existing prescription. There was no reason why the appellant should have requested any repeat prescriptions himself or through any employee: indeed, it would be inconsistent with his account if that had happened.
12. The notice of 17 December 2004 informed the appellant that the hearing was to take place on 26 January 2005. The Christmas break meant that there was little time to obtain the necessary advice and prepare for the hearing. In particular, it was necessary to decide whether the allegations in the notice could be accepted. On 13 January 2005, following advice from counsel, the appellant's solicitors wrote to the Respondents indicating that they would be in a position, following a conference that day, to say whether the attendance of witnesses would be required. They had also had to consider a very lengthy interview held with the appellant by the Counter Fraud Service which unsurprisingly suspected that the appellant might have been dishonest. He denied that he had been, but the questioning was robust.
13. Mrs J in her statement said this:-

"When I was getting low I would ring up the surgery and request some to be delivered to my home. The pharmacist would tell me if he had sufficient stock at his shop and if he didn't he would ask me to order some more from my doctor. I would do that by fax asking for a repeat prescription and as mentioned before it would be collected by the pharmacy."

She also said:-

"I recall that during November 2002 I received a telephone call from the pharmacist … He said he had ordered more Genotropin from the surgery on my behalf. I just said 'Thank you'…"

14. There was also a statement from a Karen Knight who was a receptionist in the general practitioner's surgery. She said that on some occasions Mrs J faxed the surgery with a request for a repeat prescription, but she continued:-

"On other occasions we received a telephone call from the chemist requesting a repeat prescription to be issued on behalf of Mrs J. However, more usually when a representative is at the surgery for another matter on behalf of [the chemists] they will request a repeat prescription be issued …

The representative … usually presents a slip of paper with the request for the medication written on it.

Those requests were dealt with as a normal repeat request …"

15. It is surprising that the doctor's surgery never spotted that there was gross over-prescribing of an expensive medication. Furthermore, it is surprising that the appellant never contacted the surgery to put it on notice that Mrs J was asking for unnecessary repeat prescriptions. His evidence of his attempts to do so was for good reason regarded as unsatisfactory. However, the second paragraph of Mrs J's statement which I have cited and that of Ms Knight were inconsistent with the appellant's account. Accordingly, the appellant's solicitor wrote on 17 January 2005 asking that the passages which the appellant did not accept be edited out of the statement in which case the witnesses would not need to attend. The witnesses were in Manchester but the hearing was to take place in London. On 18 January a witness summons was issued and sent to Mrs J. On 21 January, the Respondents were informed that all the allegations in the Notice of Inquiry were admitted save for the words "or by you or another member of the pharmacy staff direct" in paragraph 6.
16. On 24 January the Respondents received the appellant's evidence in the form of a statement from him and a member of his staff. On 24 January the lady dealing with the matter on behalf of the Respondents spoke to Mrs J over the telephone and was informed that she would be unable to attend the hearing, because her youngest child was ill and she had 8 children to look after. On 25 January, a fax was sent to Mrs J asking her to fax a letter explaining why she could not attend and drawing her attention to what the appellant was saying. The fax said:-

"[The] statements claim that each time Mr Black supplied you with Genotropin cartridges (between 3 and 6 each time) this was as a result of you ordering a new prescription from the doctor and then telephoning the pharmacy to request they collect the prescription, the statements also claim that each time Mr Black supplied you with Genotropin cartridges, he told you of the number of cartridges which were still outstanding from previous prescriptions. I will be discussing those issues with our solicitor and barrister today, but I may need to get your comments and I hope it will be acceptable if I telephoned you later today to discuss this."

Mrs J faxed a response the same day. It explained why she could not attend and continued:-

"I confirm that between 3 and 6 cartridges were ordered at times in the way Mr Black describes. I cannot honestly remember what Mr Black said when the re-order was made."

17. The appellant's advisers were expecting Mrs J to attend since they had requested that she should if the proposal to edit her statement was not accepted. They were not told that she was not going to attend until they were at the hearing on 26 January. The failure to inform them on 24 January was a serious lapse. Furthermore, they were not given a copy of the letter to which Mrs J's fax was a reply and so were unable to judge the full extent of her observations on what the appellant had said. Mr McCartney was put in a very difficult position. The appellant obviously was anxious that the hearing should take place so that he could have the matter dealt with as soon as possible. Equally, it was necessary that his case was presented in the best possible way. The manner in which the Respondents dealt with the problem caused by Mrs J's inability to attend merits severe criticism.
18. At the outset of the hearing, Mr McCartney submitted that the Respondents should not be entitled to use Mrs J's statement. He relied on Rule 21 of the Order of Council which provides:-

"Evidence may be received by the Committee by oral statement, written and signed statement, or statutory declaration….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 …"

When making his submissions, Mr McCartney was, because he had had no time to do any research, unaware of Panjawani's case. In paragraph 28, Sedley LJ said this:-

"Very probably before October 2000, but certainly since, it has been implicit in Regulation 21 that in an area of inquiry as sensitive as this, any but the most obviously pointless application that the Statutory Committee should decline to admit a written statement unless the author is made available for questioning ought to be acceded to …"

While that may put the matter somewhat too restrictively, there can be no question that the application made by Mr McCartney was far from pointless.

19. In resisting the application, Ms Morris told the Committee that the particular allegation in paragraph 6 was important since the conduct alleged was a specific breach of the code of conduct for pharmacists. The chairman refused the application on the basis that the Committee would consider in due course whether any weight should be attached to the passage in issue. He said:-

"Call it a ruling if you like but I am just saying it is premature. You may have a very powerful submission to make at the end of the day that there is so little weight to be attached to this that I should be advising the rest of the Committee to ignore it but I just cannot do it at the moment …"

He had earlier said that he did not read Regulation 21 as indicating that the statement could not be received. That was a mistaken approach in the light of Panjawani's case.

20. In fact, the evidence of Ms Knight, who did attend the hearing, was more damaging to the appellant on the matter in contention. She was cross-examined but stuck to her account. It is also hard to see what the evidence really added to the case against the appellant. Certainly, it was inconsistent with his account in one particular and his actions, if he had not had a specific request from Mrs J, were in breach of the code. But it was not alleged that he had acted dishonestly. His claim for payment when he knew that he had not dispensed the whole of the prescription was deliberate and was a breach of the code. While muddle and pressure of work might have been a reasonable explanation for why things got out of hand and the errors were not identified and cured, it could not explain the deliberate failure to abide by correct procedures. And that deliberate action meant that the failures to deal properly with the situation were more serious.
21. Miss Morris submitted that a broad discretion was conferred on the Committee to admit evidence and that the duty to protect the public carried with it an obligation to investigate complaints as fully as possible. Accordingly, it was a proper approach to admit the statement and to assess the weight to be attached to it in the light of the absence of an opportunity to cross-examine and the rest of the evidence. Regulation 21 confers the power to decline to admit a statement when the witness is not present and, as Panjawani makes clear, that power should generally be exercised if the witness's presence has been required. Obviously, the circumstances leading to the witness's absence are material. In this case, the failure to inform the appellant in advance and the knowledge that the witness could attend at a later date were highly material considerations. Furthermore, if the problem had been made known earlier, steps could have been taken to overcome the problem by, for example, arranging for a video link or even a telephone. Nor do I accept the generality of the submission that the duty to investigate means that statements should be admitted subject to the weight to be attached to them. Fairness to the person charged requires that he should be able if possible to challenge material matters of fact by testing the evidence of witnesses who assert those matters. It is not in the interests of the public that erroneous decisions are reached.
22. In their determination, the Committee do not refer to the disputed evidence and made no specific findings on it. The material observations were these:-

"There is no dispute that claims were submitted which should not have been submitted. However, beyond erroneous claims, I understand no concession was being made on Mr Black's behalf. None was necessary as the notice of inquiry went no further than to allege submission of erroneous claims with no mention of dishonesty, fraudulent conduct or the like. So for the purpose of this determination we go no further than the notice of inquiry, which talks of erroneous claims, nor need we.

In our view, Mr Black cannot avoid responsibility for the erroneous claims and we do not understand him to seek to do so, either in interview or before us. An overclaim of this sum does amount to such misconduct as to render him unfit to be on the Register … We have concluded that such is the extent of the overclaim that there is no option to us but to instruct the removal of his name from the Register. It may be that he received only a salary for his work in the pharmacy, but still he has acknowledged his sole responsibility for the amounts claimed and that is a very significant amount that might have been lost to the public purse."

23. I have no doubt that on his own account the finding that his misconduct was such as to render him unfit to be on the Register was inevitable. Mr McCartney has not sought to argue the contrary. It was not only the extent of the overclaim but the fact that, however stressed and overworked he may have been, he did not take the most elementary precautions by, for example, ensuring that the doctor was made aware of the problem particularly where such an expensive medication was involved. While there was unfairness and a failure properly to apply the Regulations in the way in which Mrs J's evidence had been dealt with, I am satisfied that it did not affect the result in the sense that the appellant's conduct was too serious to be dealt with by a reprimand.
24. Mr McCartney also submitted that the Committee ought not to have admitted the full transcript of the interviews of the appellant in which fraud was being alleged but denied. It was said that the allegations of dishonesty were prejudicial. There is in my view nothing in that point. The Committee were well aware that dishonesty was not being alleged and it is not suggested that the answers given by the appellant were other than consistent with his case. The Committee, as was made clear in its determination, was perfectly capable of understanding that the fact that allegations had been made by the investigators did not mean that there was any substance in them since the explanations were given.
25. In the light of my findings on the admission of Mrs J's statement, I think that the fair way to deal with the appeal is to assume in the appellant's favour that he did not initiate any repeat prescriptions. As I have said, his misconduct was in my view still so serious as to require a more severe sanction than reprimand. The absence of dishonesty coupled with his good reputation as shown by the testimonials and the absence of any suggestion that he had ever put any customer at risk suggest to me that if the Committee had been able to suspend him from the Register for a period, that would have been an appropriate penalty. As it was, they had no option but to direct his removal and I am satisfied that they were correct to do so.
26. Having said that, I think that for him to be removed for 3 years is too severe. Serious though the misconduct was, I think that he should be given the opportunity to seek reinstatement before the usual 3 year period has elapsed and I would recommend that favourable consideration should be given to an application for reinstatement made once 12 months have elapsed. Whether it succeeds will no doubt depend upon what the appellant has been doing in the meantime and any reports on his conduct. I have no power to nor do I make any directions. I am simply recommending a degree of leniency.
27. Subject to that, this appeal is dismissed.