England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 July 2008

1. MRS JUSTICE DOBBS: The appellant, who is a litigant in person, seeks to appeal the decision of the respondent dated 25th October 2006 that he is not fit to be on the register of pharmaceutical chemists and that he be removed therefrom.

The background

2. The appellant was first registered as a pharmacist in Australia in 1966. He came to the United Kingdom in 1998 and registered with the respondent's society. He came to the notice of the society as a result of a number of complaints. An inquiry took place which looked at allegations of misconduct in four separate employments.

The history of the proceedings

3. The Notice of Inquiry is dated 16th August 2006 and gave notice of the hearing to be held in the week of 25th September. Thus a period of some 38 days notice was given. Any applications, the Notice indicated, were to be made no less than ten days before the date of the hearing.
4. On 13th September, Mr Southall-Edwards, then representing the appellant, indicated to the respondent's solicitors that the appellant was contending that the allegations in the Notice of Inquiry which related to allegations which were referred after 2006 (the others going back some time earlier), should not be heard by the committee. This was opposed by the respondent, particularly because it had not been raised under regulation 15 of the Pharmaceutical (Statutory Committee) Regulations with the Chairman of the Statutory Committee for a ruling. In an email dated 15th September 2006 the solicitor made the society's objections clear, setting out the history of the case and the reasons why they objected. In essence one can summarise the reasons contained in that long document as follows:

(a) the appellant had been aware of the allegations for a long time;

(b) it was the appellant who was pressing for matters to be heard together all along;

(c) by February 2006 it was clear that consideration had been given by the appellant to the case in respect of three of the allegations as a provisional time estimate had been given for the defence case, with reference being made to the protocol then in existence;

(d) on 13th June the appellant's legal representative had agreed the date of the hearing to be the week of 24th September onwards;

(e) on 25th July the society served its case, draft charges and the proposed bundle on the legal representative as requested. It is to be noted that they had been prepared to serve the papers on Mr Ashby but the legal representative said he would accept service for the appellant. Following receipt of the Notice of Inquiry, Mr Ashby then asked for a copy of the bundle himself on 22nd August and then stated that he did not have sufficient time to prepare, alluding to the protocol. The society indicated that the appellant should make application to the Chairman.

5. The application for adjournment of the 2006 matter was made and by a decision dated 20th September the Chairman to the Committee refused it, making the following comments:

"This application comes perilously close to an abuse of process. The protocol was designed to be as fair as possible to the pharmacist under inquiry and to ensure he or she was fully aware of the case.

The only statutory requirement is the service of the Notice of Inquiry in accordance with the timetable in the SI.

The protocol was intended to give details of the evidence so that if possible evidence could be agreed and fewer members of the public thereby inconvenienced. Regrettably, as I understand it, Mr Ashby is not prepared to offer any agreement.

It cannot be in the public interest to postpone any part of this case until 2007. Proceedings were first instituted in 2003 and hitherto it appears that Mr Ashby was enjoying the RPSGB as soon as possible notwithstanding the present request.

The application is refused, although we will of course hear any submissions on the matter on Monday morning."

The hearing

6. The Notice of Charge set out a number of allegations but they can be summarised as follows. As indicated it concerned four separate employments:

A. At St. John's Pharmacy in Weymouth between August 2002 and 21st March 2003 an inquiry was ordered in relation to that on 10th December 2003. These allegations concerned the appellant's personal behaviour, namely verbal abuse of other members of staff and offensive language about customers within the hearing of other customers, removal of patients returns from the part pharmacy for his own use, use of prescription only medicines which had not been prescribed for him, six dispensing errors including the supply of twice the number of Temazepam tablets ordered by the prescriber and false statements to the practice manager of a doctor's surgery in respect of one of the dispensing errors.

B. At Moss Pharmacy in Hall Road, Norwich between 28th July 2003 and 31st July 2003 the inquiry was ordered on 14th November 2005 to be heard with the previous one. The allegations concerned this appellant's personal conduct in the verbal abuse of members of staff by way of offensive language, including in the presence of members of the public and a refusal to assist a diabetic patient with an urgent need for a particular medication brought about by an earlier dispensing error (to be pointed out that it was not the responsibility of the appellant) from the pharmacy.

C. At Moss Pharmacy in Dereham Road, Norwich in October 2003 an inquiry was ordered also on 14th November 2005 to be heard with the previous two. The allegations concerned verbal abuse of the manager, verbal abuse of one senior manager and of a female member of staff to another senior manager, aggression and offensive language in a voicemail message left for the Society's Inspector, aggression and offensive language over the telephone to a Pharmacist Advisor to the respondent's society, wasting the time of the society's inspector by making false claims in respect of another pharmacy, and acting as described despite the inspector's earlier warning as to the professional need for courtesy.

7. At Moss Pharmacy, Llandidrod, North Wales the inquiry was ordered on 2nd February 2006. These allegations concerned supplies of Methadone and Pethidine on four occasions otherwise than in accordance with the requirements of the prescriber and failing to read the Code of Ethics.
8. At the Alliance Pharmacy in Bridlington, Yorkshire an inquiry was ordered on 18th March 2006. These allegations concerned an assault on a female member of staff and a failure to cooperate with the respondent's investigation into that assault.
9. It has been noted that the allegations in relation to all the matters that have been set out were not at the end of the day challenged by the appellant, save for the allegation of assault which was the last inquiry to be ordered.
10. The hearing took place over the course of four days. There were no further applications made at the beginning of the hearing. As indicated, most of the allegations had been admitted both before and during the proceedings, Mr Southall-Edwards representing the appellant at the hearing summarising what was accepted at the beginning of his closing submissions.
11. Having deliberated, the decision of the Committee was as follows:

"THE CHAIRMAN: This is a complaint by the Royal Pharmaceutical Society of Great Britain against Mr Samuel Edwin Ashby. He first registered with the Society in July 1998. He comes from farming stock in Australia, fine people generally imbued with a robust good sense.

Mr Ashby was acting in various capacities when his conduct as a pharmacist was called into question. In the St John's Pharmacy at Weymouth, he was employed as a pharmacist manager; in the two Moss pharmacies in Norwich he was employed in a locum capacity; at Llandrindrod Wells, in the pharmacy owned by Moss Pharmacy, he was employed as the pharmacist in charge. In November 2003 he was employed by the Alliance Pharmacy in Bridlington, Yorkshire on a locum basis.

The case was heard before us over four days - which we regard as verging on the excessive, although there were problems about getting all the witnesses in front of us - when in fact only one matter of fact, to which I shall turn, was disputed, namely the allegation of assault.

The complaints about his acting in Weymouth are set out in paragraphs 2 to 16 of the Notice of Inquiry. They cover his rudeness to other members of staff and about a customer, his removal of patient returns for his own use, his consumption of medicines which had not been prescribed for him, a number of dispensing errors detailed in paragraphs 10 to 15 and a false representation to the practice manager of the GP's surgery. Although they have been described and remain described as dispensing errors, in fact one of the errors that is mentioned was picked up before prescription left the premises. In such circumstances that might be regarded as open to question whether in fact there had been a dispensing error or not. However, as Mr Ashby had completed all he had to do we have treated it as a dispensing error.

As Mr Southall Edwards indicated on his behalf (D4/64 of the transcript), Mr Ashby admits all the dispensing errors and only sought to excuse them on the basis that they would have not been that bad, "If I had not had to suffer the abuse and disrespect for weeks and weeks and weeks of trying to implement good standards". That is a direct quote from him on D4/10 of the transcript.

It is less clear what he is saying about the false representation to the practice manager, Miss Tina Carter, about dispensing and checking. Miss Carter gave her evidence briefly in an uncomplicated way. Mr Ashby seemed to be saying in this answer to Mr Bradly at D4/10, 'At that stage I did not believe it was a lie.'

This less than satisfactory version does not square with the challenge made by Mrs Manders on D1/26 of the transcript. We prefer the accounts of Miss Turner, Miss Carter and Mrs Manders. We concluded that Mr Ashby had deliberately lied and was indifferent to the truth in making his statement to Miss Carter.

Mr Ashby knew perfectly well that patient returns were not to be removed but, nevertheless, this is precisely what he did.

The paragraph sets out the abusive language Mr Ashby used about a customer who had just left the premises. As we understand the situation, he claimed he would have said no such thing. However there is a compelling piece of evidence from Mrs Lambert (D1/35) to the effect that one of the members of the public who had overheard this abuse had promised he would not cause any trouble.

In our view, Mr Ashby's conduct in this pharmacy in Weymouth was wholly unacceptable. He had neither the right nor good reason to be abusive to the manager or the staff or about customers, but - and I shall go on to narrate - he not only ignored the good advice about being courteous as part of his professional responsibility, received from the Royal Pharmaceutical Society Inspector, arguably, subsequent to that advice, his conduct deteriorated further.

The next part of the complaint against him relates to the pharmacy at Hall Road Norwich. Paragraph 19 narrates that an error had been made by someone else about a patient who was a diabetic. Mr Ashby declined to help even though a simple phone call to his Area Development Manager, Mr Davies, could have resolved matters. Mr Ashby appeared indifferent to this patient's plight. We heard evidence subsequently, not only from Mr Davies but also from Patient BA. The Notice of Inquiry describes this, in summary, as a failure to assist. It certainly was that but, as Patient BA told us, he was so taken aback by Mr Ashby's response, that he would not use the pharmacy again.

So, Mr Ashby not only failed to act in the interest of a patient as his Key Responsibilities require, and a diabetic one at that, but in terms of those Key Responsibilities he behaved in such a way that it brought the profession into disrepute and undermined public confidence in the profession.

Although only weeks before he had been told to be courteous while at this pharmacy, he reduced the staff to tears with his language. I refer to page 74 of the transcript of interview to be found at D1/14 15 of the transcript. We find both heads established.

His conduct did not much improve at another Moss Pharmacy in Norwich. We are not over vexed that he left a message with Mr Davies telling him not to interfere and later told him he did not know how to run to run a pharmacy. We have little doubt that that is commonly the practice between people working in similar organisations, where one is answerable to the other, but it is unacceptable for a professional to be rude about Mr Davies and to call a member of his staff 'a bitch' twice in the course of a conversation with the Regional General Manager, Mr Standerwick.

Mr Ashby then came to the attention of the Royal Pharmaceutical Society when he was in Wales acting briefly as a pharmacist in charge. On three occasions he supplied methadone without the authority of a valid prescription and on another occasion he supplied another patient with Pethidine, similarly, without a valid prescription. The only explanation given for this was that there appears to have been something of an undignified spat on a single occasion about a microwave with another member of staff whose conduct Mr Ashby described to us as being that of 'severe intimidation'.

The medicines to which I have referred are not only prescription only medicines but are controlled drugs with their own far tighter regime. We cannot wholly decide whether Mr Ashby was being just cavalier with Inspectors who interviewed him later when he said he had not read the Code of Ethics or whether that was exactly the case. Our view is that the latter is more likely, as in evidence before us on D4/1 Mr Ashby repeated that he had not read the Code of Ethics, but followed only his own ethics.

Finally I turn to the incident at the Bridlington Pharmacy. There it is alleged that he physically assaulted a member of staff. It is hotly disputed by Mr Ashby that it did not amount to an assault, although there was no doubt that there was some physical contact between him and a member of staff over the use of a peg. We are more inclined to favour Lyn Price's version but, in any event, we agree that his behaviour towards her was unacceptable. It was a petty dispute and, far from seeking to defuse the situation, he exacerbated it.

At paragraph 39 when a Royal Pharmaceutical Society Inspector had to investigate this alleged assault, he showed absolutely no cooperation with the Society and, as paragraph 39 spells out in some detail, he did not respond to what had been requested of him by the Society and by the Inspector.

The Statutory Committee finds the Royal Pharmaceutical Society's allegations, as summarised, established with the exception of the wasting of the time of an Inspector (I refer to paragraph 29). That is simply because we are not satisfied that we know enough of that matter to come to a conclusion one way or the other, although it is certainly clear that the Inspector's investigation failed to reveal any problem at Bridlington.

Our conclusion is that Mr Ashby's behaviour amounts to such misconduct as to render him unfit do be on the register.

Subsequent to arriving at that decision, we have seen the note of mitigation put forward on his behalf by Mr Southall Edwards and have considered it very carefully. However we find nothing in it which would amount to mitigation to cause us not to direct the removal of his name from the register.

The note which has been put before us by Mr Southall Edwards talks about a 'possible disorder of the mind'. We had no evidence to that effect, although we did hear of him give evidence for a day and half. In our view, Mr Ashby was high on self importance and self pity but low on inter personal skills. At times his evidence was muddled, contradictory and self seeking. It is difficult to resist the conclusion that he had no interest but to make life as difficult as possible for the Royal Pharmaceutical Society.

Accordingly, our direction is that his name should be removed from the register of pharmaceutical chemists."

The law

12. Sections 8 to 10 of the Pharmacy Act deal with control of and registration and removal by the Statutory Committee including the right of appeal. The Pharmaceutical Society (Statutory Committee) Order of Council 1978 governs the disciplinary procedures applicable when the case of misconduct is alleged or where a registered chemist is convicted of a criminal offence. Part 2 sets out the timetable of procedure in relation to the holding of inquiries. By paragraph 11 no less than 28 days' notice is to be given to the person affected of the date appointed for the holding of inquiry. Paragraph 25 sets out the sanctions available to the Committee.
13. In order to succeed in this appeal the appellant must show that an error has occurred in the proceedings before the Committee or in its decision -- see Ghosh v G.M.C. [2001] UKPC 29 and Threlfall v General Optical Council [2004] EWHC 2683 (Admin). The court will accord due respect to the judgment of the Committee on these issues -- see paragraph 34 of Ghosh which cites the case of Evans v G.M.C, an unreported appeal of 1994. Also relevant is the case of Moody v General Osteopathic Council [2004] EWHC 967 (Admin).
14. With regard to sanction the court will have regard to the fact that the Committee of the Society, which is made up of both professional and lay members, have a special expertise when it comes to making the necessary judgments as to the measures required to protect the public and to maintain standards and the reputation of and public confidence in the profession. A number of cases set out the approach of the courts to this issue and they need not be rehearsed. They can be found in paragraph 15 of the respondent's skeleton argument.

Grounds of appeal

15. The grounds are that the Committee did not afford this appellant sufficient time to prepare and serve his case in accordance with the Committee's protocol for service of evidence and the bundles of evidence. The argument simply put is that because two inquiries had already been ordered before the Protocol for the Service of Evidence and the bundles of evidence came into force, in other words 1st January 2006, they should have conducted two inquiries. The Committee allowed all enquiries to be heard together but did not require the society to follow the protocol. The protocol provided six months from the date of service of the society's case for the appellant to disclose and serve his case in normal cases and four months in fast track cases, which this was not. The society served its case on 25th July for an inquiry to commence on 25th September. Representations were made that this appellant was entitled to the time provided for serving his defence regardless of whether he needed that time. As explained in court today, Mr Ashby says he was prejudiced because he could not instruct an investigator to collect evidence to prove what he had been told about the victim of the alleged assault by other girls.
16. This leads to the second ground which is that the Committee was wrong to hear the inquiry ordered in 2006. Mr Ashby submits that the findings in respect of that inquiry be set aside and re-heard. As the finding of the determination was a global one, the order of removal from the register must also be set aside. It follows that this decision depends on the finding on the previous ground.
17. Thirdly, Mr Ashby complains in the grounds that the Committee should not have tried the earlier matters due to the lapse of time. This is not pursued in the skeleton argument, but Mr Ashby in court today says that he was trying to trace staff from one of the shops but was only able to find one girl.
18. Fourthly, that the Committee was biased against the appellant. In writing, but perhaps not in court today, the appellant accepts that he displayed an attitude to the Committee during the course of the proceedings, but submits that the Committee wrongly allowed itself to be influenced by the appellant's attitude, an attitude that he would describe as "brash Australian". Remarks made by the Chairman showed that the Chairman's mind was made up against this appellant and this led to prejudice. The appellant quotes an incident at day 4, page 27E, where it is said that the Chairman angrily, although this does not come over in the transcript, asked the appellant:

"Why do you remain in this country then? You do not have a good word to say about the nursing in this country, you do not have a good word to say about the practice of pharmacy."

It is further said that Mr Ashby's attitude and complaints that he made about the staff when giving evidence resulted in the Committee taking a generally more serious view of the matters than they would otherwise have done had he not mentioned them. In court today, Mr Ashby adds another example where he tried to explain to the Chairman that there were large problems with errors when trying to check scripts. The Chairman did not understand and the professional member of the committee said that there was not a problem. No part of the transcript was identified to this court, but Mr Ashby concluded by saying that the committee did not want to accept anything he said.

19. Fifthly, the Committee took too serious a view of technical errors for infringements. Mr Ashby did not pursue this with great vigour in court, although he pointed to one or two examples where he felt they had been blown out of proportion, but put forward the mitigation that the errors had been committed when he was under great stress and frustration.
20. Sixthly, that the Committee failed to accord sufficient weight to the appellant's health both at the time of the conduct complained of and during the course of the hearing and ought to have acceded to a proposal to adjourn for a medical or psychiatric report to be prepared before sanction was imposed, as is the usual practice of the Committee to do so when representations are made that a pharmacist is or was physically mentally unwell. The appellant had given evidence about the serious effect that workplace stress workloads and personal difficulties, including the death of his fiancée, had on him. This evidence was not challenged by the society but the Committee rejected it, finding that the appellant was high on self-importance and self-pity and low on interpersonal skills. It is submitted that they clearly ignored his evidence, including the fact that there was a serious underlying illness demonstrated, due to his attitude.
21. Seventhly, as to sanction it was wrong to remove the appellant's name from the register without having considered evidence as to his physical and mental health. The appellant had clearly shown he was ill at the time of the misconduct, most of which he admitted, and the Committee could only but come to the conclusion that he was still ill, thus they should have received evidence as to his health. However, they went ahead in the absence of such evidence. It is contended therefore, that the decision to remove the appellant's name from the register was unreasonable and unfair.
22. The respondent makes the following submissions. The committee was right to strike the appellant's name off the register because the conduct found proved was wholly contrary to the fundamental character of the profession in that it involved (a) widespread breaches of the profession's ethical guidance; (b) a large number of dispensing errors which indicate that the appellant showed no insight and did not learn from his errors but went on to commit more; (c) unprofessional and unacceptable personal conduct whilst working as a member of the profession, including offensive language towards and about the staff and in the presence of customers; (d) an assault on a member of staff; (e) dishonesty, in particular with his dealings with the practice manager of a local doctor's surgery; (f) removing a patient's return medicines from the pharmacy for his own use; (g) consuming prescription only medicines which had been prescribed for another person; (h) disregarding the advice of the inspector as to his personal conduct; (i) refusal to help a diabetic patient in urgent need of medication characterised by rudeness; (j) contempt at the profession's Code of Ethics; (k) failure to cooperate with the respondent's investigation into this inquiry.
23. Dealing with the separate identified grounds, the respondent makes reply as follows.

The protocol point

24. Under the regulations the period of service of the Notice of Inquiry is no less than 28 days prior to the date of the hearing. More than 28 days was given in this case. The protocol was put in place as a practical attempt to help pharmacists be in as best a position as they could be. It is noted that the allegations were listed together at the behest of the appellant's legal representative with the agreement of the appellant and it was only at the last moment that objection was taken. Reference is made to the emails from the appellant's legal representatives dated 21st December 2005 and 27th January 2006 where it was made clear that the appellant wanted all matters listed together as soon as possible because the outstanding matters were continuing to prevent his registration in Ireland. Further correspondence is relied on dated 8th February 2006 and 13th June 2006, the latter agreed to a hearing commencing on 24th September 2006. The society had agreed to the course proposed in order to assist the appellant. Moreover, there was no unfairness to the appellant as he had been fully aware of all the allegations against him for a sufficient time prior to the inquiry and in the case of the majority of the allegations a considerable period of time. The information available to him at the early stage included the allegations, statements from relevant persons and the report before the Infringements Committee which would decide whether to take the case any further. There was plenty of time therefore for the appellant to instruct an inquiry agent which he had only done since the hearing in 2006, although no results of that inquiry have been put before the court. There is provision in the protocol to make application in writing for a variation of the time limits and for the Chairman to hold a directions hearing. An application was made and refused. The Chairman indicated he would consider further submissions at the outset of the hearing but none was made.

The delay point

25. The respondent notes that this matter was not developed in the skeleton argument, although raised in the grounds of appeal. It is submitted that the appellant made no representations to the Committee on this matter and thus it cannot be a ground of appeal. However, the respondent submits that the mere fact that time has elapsed since the events in question does not mean that proceedings cannot and should not take place. The appellant has not sought in the grounds to argue what prejudice has been suffered due to the lapse of time, in the sense of showing that a fair trial was not possible. More importantly, he admitted the factual allegations made against him, save for the allegation of assault, both before and during the hearing. No prejudice has been made out. It is pointed out that if delay there has been, it arose out of the desire of Mr Ashby to have all the matters heard together, thus the earlier matters lay in abeyance while the more recent matters were investigated. It is pointed out, importantly, that these were disciplinary proceedings involving a healthcare professional, involving the public interest, the protection of patients and public confidence in the profession. Had a submission of prejudice been made at the hearing then the Committee would have had to balance that against the various identified public interests. This was, it is submitted, a case which necessitated an inquiry in the public interest.

Bias

26. It is submitted the appellant does not identify the issues which the Committee had allegedly pre-judged or in what respect bias was shown, save for pointing to two instances which have to be seen in the context of how they arose. Save for the assault the factual allegations were admitted. Given the nature and seriousness of the facts admitted the real issues were therefore (i) whether the appellant's conduct was such as to render him unfit to have his name on the register and (ii) whether it was necessary in the public interest to impose sanction on him. It is submitted that there is no evidence for any suggestion of bias or pre-judgment on the part of the Chairman of the Committee. The conduct in question spoke for itself. It was clearly such as to render him unfit to have his name on the register.
27. It is submitted further that the written submissions by Mr Southall-Edwards accepted the proposition that the conduct spoke for itself and was in principle liable to render the appellant unfit to have his name on the register and additionally it was accepted in the submissions that the appellant lacked insight into his conduct. It followed from the findings that the Committee was bound to make the order for the public interest in protecting the safety of patients and public confidence in the profession and maintaining professional standards.

The health issue during the hearing

28. The respondent submits that the Committee considered all the evidence in front of it. There was no medical evidence in front of the Committee. The appellant's behaviour was not such that the Committee was bound to infer that he was suffering from a psychiatric illness at the time and this is apparent from the decision. If he was not in a fit state to perform his duty safely at the time then he had a professional obligation to take steps to get assistance, but he did not. It had always been open to him to provide evidence about his current or past medical or mental condition and he has not done so even now.
29. The first mention of medical reports was not until the written submissions right at the end of the hearing. There was no application before the hearing or at the beginning of the hearing for such reports.

Sanction: Adjournment for reports

30. No application was made to the committee for an adjournment and there is no proper basis for a report as the appellant's behaviour was not such that the committee was bound to infer he was suffering from a psychiatric illness. The Committee was addressed by the appellant's legal representative on the basis that it had two options in relation to its findings. One was that his medical condition had been the root of the problems and thus an adjournment for reports would be suitable or, alternatively, that it represented a wholly unsatisfactory, unprofessional and extreme behaviour of the pharmacist who did not care what he did said or did and which warrants removal from the register. The Committee decided it was the latter. Had the appellant wished to put medical evidence in front of the Committee as to his mental health at the time of the conduct complained of and indeed currently, he could and should have done so and should have obtained it before the hearing. It follows, it is submitted, that it was not wrong to remove his name from the register without having seen medical evidence.

The technical infringements

31. It is submitted that there were a significant number of dispensing errors. To characterise them as technical demonstrates the lack of insight of the appellant. His errors included the controlled drugs Methadone and Pethidine. He failed to gain any insight from his errors and continued to make further errors. As was accepted by the appellant in evidence when questioned by the Chairman of the Committee, he had not been looking at prescriptions when dispensing some of them and also accepted that errors were not acceptable. The requirement to dispense only in accordance with the prescription derives from statute and mis-prescribing carries potential risks for patients and cannot be characterised as technical.
32. In summary the respondent submits that the order was the only appropriate order to make having found quite properly that the misconduct was extremely serious. It was necessary to protect the public, maintain confidence in the profession, maintain standards of the profession and protect those working with the appellant. The sanction was proportionate in the circumstances and was in accordance with the respondent's indicative sanction guide which was current at the time. It is further submitted that the Committee was in the best position to judge the relevant sanction and the court should be slow to interfere.

Ruling

33. In reaching my conclusions I indicate that I have read everything in the bundles and more particularly in depth the evidence before the Committee in light of the observations of the Chairman in setting out the Committee's determination.
34. I deal first of all with the events at the beginning of this hearing. Mr Ashby indicated that he had no idea how to conduct his appeal, that he had not read any of the papers and that he only received the respondent's skeleton argument the night before. Enquiries were made of the respondent. The date for this hearing had been fixed at the end of April. The appellant had been notified. The respondent had emailed the appellant on 20th June asking if he wished the skeleton argument in the respondent's bundle by email or post. The appellant responded the same day that he wanted it by email. It was emailed on 21st June and copied to the appellant's legal representative. The court, it is to be noted, has been aware for some time that the appellant for this hearing was to be in person.
35. Mr Ashby said that he relied on his previous legal adviser to do everything for him and that Mr Southall-Edwards had told him nothing about the appeal and how to conduct it. He relied on his lawyer for his grounds and the conduct of his case. He had not received the bundle of documents by email because the computer he was using was losing emails. He did not chase the respondent for a hard copy instead. He did not contact the court to get any advice or assistance. He simply tried to contact Mr Southall-Edwards and when unsuccessful did nothing. The court made it clear, although there had not been a formal application for an adjournment, that it was not minded to adjourn the hearing and thus went through the grounds with the appellant to ensure that both the court and the appellant understood the grounds being advanced. The appellant was allowed to expand on any of the grounds set out in the original document.
36. I will deal briefly with each heading to give the essence of the court's findings.

The split hearing

37. It is absolutely apparent from the correspondence that this appellant through his legal adviser had been asking for all matters to be heard together right up until the service of the society's case against him. Mr Southall-Edwards judging from the transcript of the hearing was scrupulous in taking his client's instructions regarding authority to proceed, to make admissions and the like. It is quite clear therefore that this appellant was (a) aware of what was going on, (b) had a full understanding of the allegations against him at a very early stage and (c) was anxious to proceed with expedition with all matters together as he wanted to be registered in Ireland. It was only as the day for the hearing got closer that he sought refuge in the protocol. At first blush the submission that there should have been two processes in place may seem attractive, but the protocol is precisely that. What it does is set out parameters within which cases are to be conducted. There are outside time limits and it is quite clear, given the spirit of the protocol, that expedition and fairness are the key.
38. In the light of the appellant's exhortation for all matters to be tried together as soon as possible because he was being unfairly penalised by not being able to register in another jurisdiction due to the matters hanging over his head, expedition and fairness dictated that the hearing must go ahead as soon as possible. It is to be noted that he was aware of the allegations for a long time, was aware from the end of February 2006 that three inquiries were to be held together with his consent, and was aware of the fourth set of allegations in January 2007. The papers were served two months before the hearing, but (as noted) he already had copies of the statements of witnesses many months earlier. The fourth allegation, although a separate incident, could not add substantially to any preparation. Moreover, the private investigator could only find out about the complainant what the girls had already told the appellant which he himself related to the committee. As none of the girls were prepared to give evidence no prejudice is shown.
39. It is also to be noted that no application was made at the hearing to split the hearing on this basis. In the circumstances, particularly in light of the fact that the appellant admitted most of the matters, the only real challenge being to the fourth matter, which was a question of which witness the Committee believed, the complainant or the appellant, it is difficult to see what prejudice was occasioned. To split the enquiry would have meant further delay and further time and unnecessary cost incurred and would not have been in the interests of justice.
40. As to the submission that the Committee should not have heard the earlier matters due to the lapse of time, this was not pursued in the skeleton argument. Moreover the appellant had the opportunity to challenge the allegations before the body which considers whether reference should be made to the Statutory Committee and he himself chose to make no representations accepting that the allegations were ones which would be likely to be referred. He indicated that he would vigorously defend himself before the Committee. It was due to his desire to have all matters heard together that such delay as there was took place. More importantly, it is in the public interest that serious allegations of the kind that were made are tried. The delay was not such in this case, as we can see from the transcript of the evidence, as to cause any prejudice. The appellant was able at some length to deal with the various incidents and it is to be noted that the girl from the shop that he did track down was not willing to give evidence.

Bias

41. It is true that if one looks at the odd individual comment, as the appellant has done, it could be suggested that there was bias. However, one has to read the whole of the proceedings and not just pick out extracts out of context. The extract complained of by the appellant therefore has to be read in context. The court itself drew the respondent's attention to a couple of other extracts which could, without more, seem to indicate bias. For example, Day 4 (page 54) which without more could seem to indicate bias. However, these when read in context in my view did not demonstrate bias. The extracts themselves will not be set out in full because to put them in context would mean setting out a substantial amount of the evidence.
42. There is no doubt that the appellant was not a sympathetic witness, that sings out from the transcript. It is also clear from the evidence that the conclusions reached by the Committee were open to it, particularly in the light of admissions made in relation to all but the assault allegation. Thus any allegations of bias cannot be properly sustained.

Failure to take sufficient account of the appellant's health at the time of the conduct complained of and during the course of the proceedings

43. Again having read the transcript in full the Committee was justified in taking the approach that it did. There was no medical or psychiatric evidence in front of it. There could have been. There was unchallenged evidence that the appellant's fiancée was terminally ill and this obviously would have affected him. But the Committee found that if he was so ill, as he claimed in the witness box, then he should have taken time off and should have alerted his colleagues to his predicament. Indeed a failure by him at a time when he knew, according to him, that he was very ill both physically and mentally was itself a matter of great professional concern. We note to date that there has been no professional evidence to back up the assertions despite the appellant telling the court that he has seen a couple of psychiatrists.

Sanction

44. As to the submissions that it was wrong to remove the appellant's name from the register without having adjourned and considered evidence as to his physical and mental health, although it has been suggested that the normal course of events is for this to happen, this is only an assertion. The issue was raised in the closing submissions of the appellant's legal representative who himself indicated that he had been pleasantly surprised at the appellant's ability to conduct himself during the course of the proceedings and that had the hearing happened nearer the time of the earlier events that a different person would probably have confronted the Committee. As already noted, Mr Southall-Edwards submitted that there was one of two views that the Committee could take. The Committee took the view that this was not a case which arose out of such disorder of mind of sufficient seriousness to render the appellant not properly in control of or responsible for his actions.
45. As to the suggestion that the Committee took too serious a view of technical infringements - errors in prescribing, as the Committee Chairman noted in questioning the appellant, can sometimes be fatal and are serious. In any event the Committee were looking at all of the evidence in coming to a decision on the serious nature of the charges proved and the sanction to follow.
46. I have read the transcripts of the evidence and the other documents but the Committee had the further advantage of seeing the appellant give evidence. It was a matter for them whether its members considered it necessary to call reports before considering sanction. Their decision not to in the circumstances cannot be impugned. Their description of the appellant was apt. There can be no doubt that the sanction imposed was the correct one in the circumstances of this case. It is apparent from the hearing, and this one, that the appellant has little insight into how he is perceived by other professionals and has little insight as to how even his admitted behaviour offends the high professional standards which the public are entitled to expect and the profession is entitled to impose.
47. For these and the other reasons which have already been rehearsed, this appeal is dismissed.
48. MR BRADLEY: My Lady, in view of your Ladyship's judgment, on behalf of the respondents I ask for an order that the appellant pay the costs of the appeal. My Lady in making the submission may I ask your Ladyship to have a look at a letter which was written to Mr Ashby on 1st April 2008. (Handed) A copy of which is on its way up to your Ladyship. I make the application of course on the basis of the outcome and that this letter, as your Ladyship will see, refers in the first paragraph to the outstanding appeal and then in the second paragraph, my Lady, please, as you will also be aware there were some recent material developments.
49. MRS JUSTICE DOBBS: Yes, Mr Ashby referred to being in prison but I did not pursue it because it was not relevant to what I had to decide.
50. MR BRADLEY: Certainly not relevant to what your Ladyship has had to decide.
51. MRS JUSTICE DOBBS: That is why I did not ask him for any further or better particulars. Was that the same case?
52. MR BRADLEY: Yes. What happened was that the determination was given a month after the hearing was finished and on the occasion when the Committee gave judgment the society was represented by an officer of the society and at the end of the hearing --
53. MRS JUSTICE DOBBS: Was there a trial for the actual bodily harm?
54. MR BRADLEY: Yes, there was a trial. Mr Ashby was found guilty.
55. MRS JUSTICE DOBBS: He was convicted and by virtue of that in any event --
56. MR BRADLEY: He pleaded guilty. I am helpfully informed he pleaded guilty. He received a prison sentence of I think 14 months of which he served seven.
57. MRS JUSTICE DOBBS: It was more than a push then.
58. MR BRADLEY: My Lady, it was a strike on the head with a metal bar.
59. MRS JUSTICE DOBBS: Is this the same one involved in this case?
60. MR BRADLEY: It all happened, my Lady, when the decision in this case was given.
61. MRS JUSTICE DOBBS: Is it the same assault as in --
62. MR BRADLEY: No, I was going to say --
63. MRS JUSTICE DOBBS: 14 months would be excessive for a push. I do not know need to know the details of this. It is not relevant. The actual details are not relevant. He had a prison sentence of 14 months and he served seven. The point at issue is that he has been struck from the register in any event and by virtue of the conviction. So the advice that was being given here was, actually your appeal is academic, even if you won it is not going to change the position, you are still going to be struck off and therefore you would not be able to register in Ireland or wherever. That is the point.
64. MR BRADLEY: Your Ladyship is quite right.
65. MRS JUSTICE DOBBS: Yes. Did you get any response?
66. MR BRADLEY: No. No response. What this letter did was give Mr Ashby the opportunity to withdraw on the basis that each side bear their own costs, as it were, and reminded Mr Ashby that were the appeal to proceed to a contest then there would be the application for costs which I now make to your Ladyship.
67. MRS JUSTICE DOBBS: What is the sum and have you alerted Mr Ashby?
68. MR BRADLEY: My Lady, in the letter, you will see in the penultimate paragraph of the letter on the second page in anticipation the society's costs of the appeal will be in the region of £15,000. On Friday of last week, in accordance with the rules, a schedule was served on Mr Ashby by email. The figure on the schedule is £14,482.82.
69. MRS JUSTICE DOBBS: Yes. Is there anything else you want to add?
70. MR BRADLEY: No, my Lady. I am grateful.
71. MRS JUSTICE DOBBS: Mr Ashby, costs. What do you say about that? Two points have been made. The first point is that a letter of 1st April alerted you to the fact that really pursuing this appeal was academic because even if you won you would still be struck off because of the conviction. And (2) in the letter it told you the rough cost, the risk that you were standing of pursuing the appeal, because the costs would be about £15,000 and (3) on the Friday they served a schedule on you with costs of about £14,500. You have not succeeded on the appeal and therefore the normal course is that costs follow the event and that a costs order should be made in the sum they are asking for.
72. MR ASHBY: I have no money. I cannot pay anything. I have nothing left.
73. MRS JUSTICE DOBBS: That does not stop the court from making a costs order, but you say you have got no means?
74. MR ASHBY: No. I have nothing left.
75. MRS JUSTICE DOBBS: Anything else you want to add in relation to that?
76. MR ASHBY: No.
77. MRS JUSTICE DOBBS: There will be an order that the appellant pay the respondent's costs in the sum of £14,482.82.
78. MR BRADLEY: I am grateful.