QUEEN'S BENCH DIVISION
33 Bull Street
B e f o r e :
| The Queen
(on the application of Pitt and Tyas)
|- and -
|General Pharmaceutical Council
Karen Steyn QC (instructed by Capsticks) for the Defendant
Hearing date: 23 March 2017
Crown Copyright ©
Mr Justice Singh :
"(a) to establish and maintain a register of pharmacists …
(b) to set and promote standards for the safe and effective practice of pharmacy at registered pharmacies;
(c) to set requirements by reference to which registrants must demonstrate that their fitness to practise is not impaired;
(d) to promote the safe and effective practice of pharmacy by registrants (including, for example, by reference to any code of conduct for, and ethics relating to, pharmacy); …"
"(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; …"
"(a) set standards relating to the conduct, ethics and performance expected of registrants; and
(b) make provision in rules regarding the criteria to which the Fitness to Practise Committee is to have regard when deciding, in the case of any registrant, whether or not the requirements as to fitness to practise are met in relation to that registrant."
The New Standards
"The standards need to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals."
"The examples may not apply in all situations."
"Pharmacy professionals must behave in a professional manner
Applying the standard
People expect pharmacy professionals to behave professionally. This is essential to maintaining trust and confidence in pharmacy. Behaving professionally is not limited to the working day, or face-to-face interactions. The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions call for appropriate behaviour at all times. There are a number of ways to meet this standard and below are examples of attitudes and behaviours expected.
People receive safe and effective care when pharmacy professionals:
- Are polite and considerate
- Are trustworthy and act with honesty and integrity
- Show empathy and compassion
- Treat people with respect and safeguard their dignity
- Maintain appropriate personal and professional boundaries with the people they provide care to and with others".
The Grounds of Challenge
(1) those parts of the new Standards that require that they need to be met at all times and not only during working hours;
(2) the parts of Standard 6 about communication, empathy, compassion and respect and dignity and personal boundaries insofar as they apply to non-work related matters.
The Defendant's Response
(1) Are the new Standards ultra vires?
(2) Are the Standards unlawful on the ground of uncertainty?
(3) Are the Claimants entitled to rely on the Convention rights?
(4) Is there a breach of the Claimants' Convention rights?
The First Issue: Are the Standards ultra vires?
"Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession."
The Second Issue: Are the Standards unlawful on the ground of uncertainty?
"In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
The Third Issue: Are the Claimants entitled to rely on the Convention rights?
"(a) bring proceedings against the authority under this Act in the appropriate court or tribunal; or
(b) rely on the Convention rights or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act."
"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. …"
The Fourth Issue: Is there a breach of the Claimants' Convention rights?