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
		23/07/2014

Mrs Justice Cox :

1. In this matter the Professional Standards Authority (the Authority) is appealing against a decision of the Fitness to Practise Committee of the General Pharmaceutical Council (the Panel) dated 29 January 2014.

The Background

2. The background, in summary, is as follows. The Registrant, Mrs Onwughalu, a registered pharmacist and the Second Respondent to this appeal, pleaded guilty on 25 February 2013 to two counts of cruelty to a child under 16. She was sentenced on 12 April 2013 to a term of 14 months' imprisonment concurrent on each count. After a hearing on 29 January this year the Panel found that the Registrant's fitness to practise was impaired by reason of these convictions. However, in relation to sanction, the Panel declined to order her removal from the Council's register and decided instead to suspend her from the register for a period of 12 months.
3. The Authority now appeals against that decision as one which it contends was unduly lenient. It submits that the only reasonable sanction in all the circumstances of this case was removal from the register. The Council, as First Respondent, does not resist this appeal. The Council supports the Authority's request for the Panel's decision on sanction to be quashed and for this court to substitute an order for the Registrant's removal from the register.
4. The Registrant has not attended court today and it is clear that she has not engaged with these proceedings at any stage. The statement of Ms Foster, of the Appellant's solicitors, dated 9 July 2014, together with the exhibits attached, sets out in detail the date on which the Appellant's Notice was sent to the Registrant by first class post (8 April 2014) and then the dates, between 23 April and 13 June, on which copies of the appeal bundle, skeleton argument and correspondence were also sent to her.
5. The Registrant did not respond to any of these communications. Nor has she responded to Ms Foster's most recent letter of 9 July, sent by recorded delivery, asking the Registrant to make contact with her to discuss the appeal. The Registrant has not made contact with the court at any stage. The Council confirmed on 4 June that Ms Onwughalu is registered at the address to which all these documents were sent. At the hearing before me I also read a statement from Ms Dix, on behalf of the Council, who tried to telephone the Registrant on the mobile telephone number listed on the register, on both 10 and 11 July, but the phone was not answered and there was no facility to leave a voicemail.
6. In these circumstances, I decided to proceed with this appeal. I had read carefully the bundle of appeal documents submitted, in particular the transcript of the proceedings before the Panel and the Registrant's own evidence. At the conclusion of the oral hearing I decided that the Authority's appeal should be allowed. I now set out in this judgment my reasons for that decision.

The Facts

7. The Registrant was jointly charged with her husband with two separate charges of cruelty under section 1(1) Children and Young Person's Act 1933. It was alleged that between 31 October and 20 December 2011, and then between 17 and 20 December 2011, they had wilfully neglected their four month old baby daughter ("J") in failing to obtain prompt medical assistance and treatment for her injuries, thereby exposing her to unnecessary suffering and injury to health.
8. The injuries discovered on J's admission to hospital, on 19 December 2011, were very serious. They included a complex skull fracture with underlying brain injury, a transverse fracture to the right humerus and multiple metaphyseal corner fractures to the right and left proximal femurs, right and left distal femurs and the right and left distal tibia. These injuries were of differing ages. Only the fractured humerus appeared to be a fresh injury, consistent with it having occurred shortly before her admission to hospital. Signs of healing present in the other injuries indicated that they had been caused some weeks before that date.
9. The evidence of the consultant paediatrician, Dr Dixon, established that the injuries were the result of trauma. The head injury had resulted from a blow of considerable force or impact with a hard surface. The other injuries inflicted would have required significantly greater force than would be applied in normal daily handling of the baby. The leg fractures in particular were known to be associated with the direct application of gripping and twisting force and, sometimes, with shaking the baby.
10. The Crown's case was that J's injuries would have been obvious to the Registrant as her mother; and that her failure to seek prompt medical treatment for them was motivated by fear that questions would be asked about how these apparently non-accidental injuries were caused.
11. The Registrant was arrested on 20 December 2011 and thereafter gave a series of inconsistent and contradictory accounts of how these serious injuries could have been sustained. After stating initially that she could not recall any incident that might account for them, she stated, variously, that J must have fallen out of bed onto a pillow or, later on, onto a carpet; that J was being picked up and handled by a lot of other people; that J had slipped out of a sling onto a cushion on a chair; that she had once dropped J on the stairs whilst holding her; and that her mother had told her J had been dropped on the floor at her christening.
12. Dr Dixon's evidence, accepted by the sentencing judge, was that none of the injuries, save the fracture to the humerus, was consistent with any of the explanations advanced by the Registrant; and that the excessive force necessary to inflict that fracture to the arm would be immediately apparent to a carer who was not the abuser, but who was present at or shortly after the time it was inflicted. The circumstances in which this baby suffered these injuries therefore remained unexplained. In the light of her inconsistent accounts, given over a period of time, the judge rejected the suggestion by her Defence counsel that she had cooperated with the authorities during the investigation and during the course of the Family Court proceedings that ensued.
13. Sentencing her to a term of 14 months' imprisonment concurrent on each count the judge said this:

"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."

14. It is clear that the Judge imposed an immediate custodial sentence at the highest end of the range indicated in the relevant sentencing guidelines, appropriately discounted so as to give full credit for her guilty pleas.

The Hearing and the Panel's Decision

15. At the hearing before the Panel the Registrant admitted the fact of her conviction and sentence. However, it is apparent from the transcript of proceedings that she sought in her evidence not merely to minimise her offending, but also to assert facts wholly inconsistent with her guilt of these offences. She claimed, for example, not to know about the injuries to J's legs (see page 117 at E-F); and she denied knowing of any problem affecting J between 31 October and early December 2011 (see page 119 at B). It is significant in this context that, by the date of the hearing before the Panel on 29 January 2014, more than two years had passed since the commission of these offences and almost a year since the Registrant was sentenced to imprisonment.
16. Importantly, in my view, the Registrant did not provide any explanation to the Panel for J's injuries, although it is clear that she was offered the opportunity to do so. Generally, she referred to her failures to seek medical treatment for these two separate sets of injuries as a mistake and as involving an error of professional judgment on her part rather than, as her pleas of guilty demonstrated, deliberate neglect of J in an effort to shield the perpetrator and to conceal the infliction of serious injuries on her baby daughter. She suggested that she had subsequently "clarified matters", by which she meant that she considered the later explanations she gave to be clarification of how these injuries were caused, notwithstanding Dr Dixon's clear evidence as to the implausibility of the various explanations she had advanced.
17. She also referred in her evidence to having gained a better understanding of her behaviour and of the relevant professional boundaries. However, it is clear, reading her evidence as a whole, that she regarded her conduct as involving an error of professional judgment, rather than any deliberate concealment and criminal culpability on her part.
18. In relation to impairment of her fitness to practise, the Panel referred to the serious misconduct reflected in the convictions and found as follows:

"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."

19. The Panel found expressly that the Registrant had offered piecemeal and implausible explanations for the injuries during the investigation; that she had not given the Panel an explanation for them at the hearing, despite being given the chance to do so; and that:

"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."

20. Holding that her fitness to practise was impaired the Panel gave the following reasons.

"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."

21. Turning to address sanction the Panel identified a number of serious aggravating factors in this case, namely: the fact that the Registrant's conduct involved a breach of the fundamental obligation of trust owed to her young child; that her misconduct was repeated in relation to more than one injury, causing greater pain and suffering to a vulnerable baby; that she had failed to recognise and accept that what she had done was wrong, and had sought to disagree with the analysis of the Judge on the evidence; that she was "a long way from demonstrating true insight"; and that there was clearly an element of concealment as the sentencing Judge had found. The Panel pointed out that insight involves "… a recognition and acceptance of what has been done wrong and the implications that flow from it." By seeking to explain her conduct as an error of judgment the Panel considered that she was resiling from the confession she had made in the Crown Court and was failing to recognise and accept that she had done wrong. She was, essentially, failing to accept the verdict of the Court.
22. As against these factors the Panel found that there was little by way of mitigation to redress the balance. They took into account the fact that there was no previous disciplinary history and that the Registrant had suffered some ill health during the relevant period and was on pain killers. Other mitigating factors were noted to be conspicuous by their absence.
23. Balancing these factors and stating that they had regard to the need for the sanction to be appropriate and proportionate in the circumstances, the Panel identified suspension or removal from the register as the only two options in this case. They arrived at the following conclusions:

"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."

24. On behalf of the Authority Ms Morris QC points out, with some justification, that, despite having earlier recognised the importance of insight in this case, in terms of the Registrant's practise as a clinician and in terms of public perception, the Panel did not explain how the problem of comprehension they then identified was relevant to the question they had to determine. The fundamental and straightforward question in this case, she submits, was whether the Registrant accepted the facts of what she had done and acknowledged that it constituted serious misconduct on her part. In addressing sanction the Panel do not appear to have considered whether the Registrant's misconduct was incompatible with her continued registration as a pharmacist. Nor did they explain how suspending her for a period of 12 months would be sufficient to maintain professional standards and to maintain public confidence in the pharmacy profession.

The Law

25. There is no dispute as to the relevant legal framework. The Authority have referred the Panel's decision to this Court pursuant to section 29(1)(a) of the National Health Service Reform and Healthcare Professions Act 2002. By virtue of section 29(7) it is to be treated as an appeal. The question for this Court is whether the Panel's decision was wrong.
26. In Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356, the Court of Appeal described the role of the Court in the following terms, so far as is relevant, at paragraphs 73-77:

"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."

27. In subsequent cases, decided both in this Court and in the Court of Appeal, the necessity to accord respect to the judgment of the relevant regulatory body has rightly been emphasised. The main purpose of a specialist Panel, such as the Panel in the present case, is to maintain public confidence in the profession concerned to protect the public. In Raschid v General Medical Council [2007] 1 WLR 1460, the Court of Appeal stated at paragraph 20 that, in appeals from such bodies,

"… 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."

28. In Cheatle v General Medical Council [2009] EWHC 645 (Admin), Cranston J observed as follows (paragraph 15):

"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. "

29. I respectfully agree and I approach this appeal on that basis. However, the degree of deference, as Cranston J went on to point out, will always depend on circumstances. It is a feature of this case that the Council jointly submit with the Authority that the Panel's decision on sanction was manifestly inappropriate in the particular circumstances of this case. The question is whether I too am satisfied that it was.
30. As Ms Morris submits, in determining whether the sanction imposed in this case was unduly lenient, it is necessary to have regard to relevant guidance. She draws attention to the Council's Indicative Sanctions Guidance, pointing out that removal from the register may be appropriate in a number of situations. These include, for example, where there is a continuing risk to patients or members of the public, serious potential harm, dishonesty, a lack of insight on the part of the Registrant, or circumstances where the behaviour of the Registrant is "fundamentally incompatible" with registration, or where public confidence in the profession demands no lesser sanction.

The Appeal

31. Ms Morris advances five criticisms of the Panel's decision and reasoning which, viewed individually and cumulatively, are said to support a finding that the suspension of this Registrant was an unduly lenient sanction.
32. In her first and main ground of appeal, she submits that the Panel erred in its approach to the question of the Registrant's insight into her conduct. Insight was crucial in this case. The Registrant demonstrated that she rejected the substance of the case against her on these charges and refuted the serious nature and extent of her misconduct. At no stage did she show any understanding of the seriousness of her conduct, or any recognition that what she had done was wrong.
33. I accept that submission without hesitation. It is apparent that the Registrant pleaded guilty at the Crown Court on a "full facts" basis, by which I mean that she pleaded guilty on the basis that the case alleged against her on the facts was correct in all material respects. There was no basis of plea advanced limiting her role and there was no substantive dispute with the facts alleged by the Prosecution, requiring the Judge to hear evidence and make a determination as to the correct factual basis for sentence. The Judge's findings on the evidence in his sentencing remarks were clear, as was the length of the custodial sentence he imposed.
34. Before the Panel, however, the Registrant sought throughout her evidence to deny any deliberate failure on her part to obtain medical treatment for J, and she refused to offer any explanation for the injuries that J had sustained whilst in her care. I can identify no evidence given by this Registrant which might be said to demonstrate that this position would be likely to change, or that she would be capable of acknowledging the seriousness of her conduct.
35. In these circumstances I accept Ms Morris's submission that the Panel's decision to order her suspension for 12 months, to allow the Registrant time to "develop her grasp of the concept of insight" was plainly wrong, in particular given the time that had already elapsed since the commission of these offences. The passage of time has provided no assurance that this Registrant has benefited from the opportunity it has afforded for reflection.
36. When concluding that the Registrant's fitness to practise was impaired, the clear finding of the Panel was that she had developed no insight into her conduct. Further, they found expressly that this was not just a case of failing to exercise professional judgment, but a case of deliberate concealment, demonstrating a lack of integrity. Their subsequent finding, at the point of sanction, that she had taken "some steps" in understanding the concept of insight such as might justify suspension to allow further steps to be taken, seems to me to be wholly inconsistent with that earlier finding.
37. This striking disjuncture is perplexing and, in my view, is inadequately explained. The Panel's reference to her lack of understanding of the concept of insight, and to the lack of legal representation to help her understand its meaning was misconceived. Legal advice was not a prerequisite to this Respondent's awareness of the seriousness of her misconduct; and her lack of insight, as the Panel found, was not due to any innocent misunderstanding that needed to be explained. What was needed was for her to demonstrate unambiguously that she accepted the facts of the offences, on the basis of which she had pleaded guilty; that she fully understood the seriousness of her actions; and that she had properly reflected upon them and upon her future conduct.
38. The Registrant's lack of recognition that what she had done was wrong and that it amounted to serious misconduct on her part is a striking feature in this case. It indicated a fundamental and continuing lack of insight into her behaviour and its consequences. In my judgment, the lack of insight and the lack of integrity identified by the Panel, means that their decision to suspend rather than remove was manifestly wrong. On this ground alone I would allow this appeal, but there is, in my view, merit in the further grounds advanced.
39. Ms Morris submits, in her second ground, that the Registrant's criminal conduct, her continuing lack of insight and her failure to cooperate with the investigations following her arrest, as found by the judge in the Crown Court, were all fundamentally incompatible with her continued registration as a pharmacist and that her removal from the register was therefore required.
40. I accept that submission. The offence of wilful neglect of her young and vulnerable child seems to me to relate directly to this Registrant's clinical practice and to standards of professionalism, involving as it did deliberate failures to obtain medical assistance and treatment, on separate occasions, in an effort to shield the perpetrator of serious injuries inflicted on a young child.
41. In my view the Panel erred in failing adequately to consider, at the point of sanction, how the lack of integrity they found to be demonstrated on the evidence at the impairment stage impacted upon her fitness to practise and upon trust and confidence in the pharmacy profession. This omission is curious because, as Mr Millin points out on behalf of the Council, the Panel were expressly referred to the issue of fundamental incompatibility in the Council's closing submissions.
42. Had the Panel addressed this question I agree that they could only have found that such lack of integrity would have a significant, adverse impact upon the reputation of the pharmaceutical profession, and upon public trust and confidence in that profession.
43. For these reasons I also consider that there is merit in the Authority's third ground of appeal, namely, that the Panel failed to consider and apply any of the other, individual factors identified in the Indicative Sanctions Guidance as relevant to removal from the register. The guidance identifies other circumstances, apart from conduct fundamentally incompatible with continued registration, in which removal is appropriate. These include the continuing risk to patients or members of the public; serious potential harm; dishonesty; lack of insight; serious departure from standards of conduct, ethics and performance published by the Council; and circumstances where public confidence in the profession demands no lesser sanction.
44. For the reasons already set out above I consider that all of these factors were present, to a greater or lesser degree, in this case. Had the Panel properly considered these factors I agree that they could have concluded only that removal was the appropriate sanction in the circumstances.
45. The fourth and fifth grounds of appeal effectively run together in this case. Ms Morris submits that in all the circumstances the Panel should have found that removal was the only sanction which adequately marked the seriousness of this particular case. Having regard to the need to protect the public and to uphold standards and maintain public confidence in the profession, she submits that no reasonable panel could have imposed any sanction other than removal. Further, she submits that the Panel provided no adequate reasons for explaining what was plainly an aberrant decision. For the reasons I have given I accept those submissions.
46. For all these reasons this appeal is allowed. I will therefore quash the decision of the Panel to suspend this Registrant for a period of 12 months and substitute an order for her removal from the register.

Costs

47. At the end of the oral hearing I gave directions that the Parties should present written submissions on the question of costs in this appeal, which are in dispute. I have now considered these submissions, together with supplemental submissions presented by Mr Millin. Ms Morris submits that the ordinary rule should apply, namely that costs should follow the event, and she applies for an order for the Authority's costs to be paid by the Respondents, divided between them as the Court considers appropriate in the circumstances. In my judgment that is the correct order in this case, for the reasons set out in her skeleton argument.
48. The Authority's statutory function is to bring an appeal in those cases in which it is considered that the decision of the relevant regulatory body has been unduly lenient. The fact that, as in this case, a regulator has drawn the Authority's attention to a perceived deficiency in a decision does not mean that costs should not follow the event if the appeal succeeds. The regulator cannot itself instigate an appeal. Only the Authority has the power to do that. And there is no other mechanism for review of an erroneous decision of the regulator, save an appeal to this Court pursuant to statutory provision. The Council in this case was under an obligation to bring the Panel's error to the attention of the Authority and I agree that it cannot subsequently seek a discount in relation to costs as a consequence of fulfilling that obligation. I do not consider that the case of Baxendale-Walker v The Law Society [2007] EWCA Civ 233, referred to by Mr Millin, assists in these circumstances.
49. Further, this appeal has succeeded as a result of a failing on the part of the regulator, through one of its committees, and the costs incurred are therefore an unavoidable consequence of that failing. The costs order should reflect that. I cannot accept Mr Millin's submission that the Council is not accountable for the decisions of its own committees, including the Fitness to Practise Committee involved in this case. There is no basis, in my view, for the suggestion that such a committee is somehow independent of the Council.
50. In relation to quantum, the Authority accepts that the Council effectively, and entirely properly, conceded the appeal and that it has not sought to escalate costs in this case. I do not accept Mr Millin's submission that the costs incurred by the Authority are disproportionate. None of the costs claimed were avoidable and the costs claimed are, in my view, entirely reasonable for a case of this nature. I do not accept the submission that there should be a detailed assessment in this case.
51. Notwithstanding the Council's early decision to concede the appeal, the Second Respondent's right to be heard rendered it necessary for there to be full preparation for a hearing, at which she may have attended and taken part. It was necessary for me to pre-read the appeal bundle carefully, including the entire transcript of the evidence. That was unavoidable in the circumstances.
52. Mr Millin's principal objection in respect of the statement of costs is that leading counsel was instructed, which he submits was unnecessary. I do not agree. There is nothing unreasonable about the Authority instructing specialist leading counsel in a serious case of this nature, involving the removal of a professional pharmacist from the register.
53. I therefore order that the Respondents are to pay the Appellant's costs, in the total sum set out in the Statement of Costs dated 16 July 2014. In all the circumstances I consider that those costs should be divided equally between the Respondents, each Respondent therefore being responsible for 50% of that sum.