QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
|- and -
|THE GENERAL PHARMACEUTICAL COUNCIL
LYNNE SIDOH ONWUGHALU
Mr Mark Millin (instructed by General Pharmaceutical Council) for the Respondents
Hearing date: 15 July 2104
Crown Copyright ©
Mrs Justice Cox :
"These were, in my judgment, shocking injuries, whoever was responsible for causing them. I bear in mind that this is not an assault case, but it is a neglect case. These two defendants are intelligent people; the mother is a pharmacist and I have not the slightest doubt that the reason why no proper care was taken to take the child to hospital when these injuries first became evident was for fear of what would be discovered as to the perpetrator. In my judgment only a significant custodial sentence is appropriate for neglect of a child on such a shocking scale, bearing in mind her age and the range of injuries inflicted by someone."
The Hearing and the Panel's Decision
"As to insight and appreciation, this is not just a case of failing to exercise sound professional judgment. It is about the actions in concealment following the injuries to a small child, particularly the concealment of those injuries and failure to take appropriate action.
In essence, Mrs Onwughalu tells us that the learned judge got it wrong; it was just a mistake not to get medical help, rather than engagement in a sustained period of concealment to protect the perpetrator of serious injuries to her child. Mrs Onwughalu does not seem to recognise that there was a series of events of that character. Rather than accepting that she has confessed to knowingly neglecting an injured child, she seeks to assert that these were mere innocent errors."
"She passes that off today as having been confused in her emotional state, but says that she clarified the matter later. However, this ignores the fact that the doctor and the court found that the explanations, even the later ones, were implausible. Mrs Onwughalu has simply failed to engage with that issue, save to say it was all a mistake."
"The issue of public protection is engaged; Mrs Onwughalu cannot be trusted in our judgment to do what Mr Loran described as 'putting her hands up to things which have gone wrong and reacting promptly to them'. Clearly – and this is accepted by Mrs Onwughalu herself – her conduct has brought the profession into disrepute. It is a fundamental tenet of the profession to observe high personal standards and to protect the vulnerable, which Mrs Onwughalu has clearly failed to do. Further, her conduct clearly demonstrates a lack of integrity.
Having regard to what we have found about the level of insight and appreciation, it appears that nothing has changed since the events in question to show that Mrs Onwughalu has developed insight and acceptance of her wrongdoing so as to be able to assert that she has addressed the issues described and reduce the risk of future misconduct, either by disregard for patient safety or failing to act promptly and, most importantly, honestly, when difficult situations present themselves.
For those reasons, we conclude and find that by reason of the convictions recited, Mrs Onwughalu's fitness to practise is impaired."
"Crucial to the issue of sanction is the question of insight. I have already referred to the problem that the Committee has identified here, which is one of comprehension, particularly as to whether Mrs Onwughalu comprehends what is involved in the concept of insight in relation to acceptance and acknowledgement of the misconduct and its implications for the public protection, for the reputation of the profession and for the maintenance of standards.
Mrs Onwughalu does go some way in demonstrating insight, in that she has acknowledged that her conduct has jeopardised the good name of the profession. She also acknowledged that people would not feel happy coming into a pharmacy where she was practising, particularly if there were vulnerable people or perhaps children. It is regrettable that Mrs Onwughalu does not have the benefit of representation, particularly because representation would have afforded her some guidance into the concept of insight and its importance. There is considerable overlap between the factors which point towards a suspensory sanction and those which point towards removal. We are mindful of the need to act proportionately and also the need to protect the public, to declare appropriate standards and maintain the reputation of the profession. We are concerned that Mrs Onwughalu's insight is limited, although, as I have pointed out, there are some steps she has taken in that direction.
We found it would be disproportionate to remove her from the register, provided that we can impose a sanction which protects the public, maintains the reputation of the profession and declares appropriate standards. We found that the appropriate sanction would be to suspend Mrs Onwughalu for a period of 12 months, in which she would have the opportunity to develop her grasp of the concept of insight and indeed to demonstrate that she has fulfilled its requirements."
"73. What are the criteria to be applied by the Court when deciding whether a relevant decision was 'wrong'? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and reputation of the profession.…
76. … We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed.
77. … In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public."
"… the High Court will correct material errors of fact and of course law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
"The test on appeal is whether the decision of the Fitness to Practise can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. "