Adekaiyaoja, R (on the application of) v Royal Pharmaceutical Society of Great Britain [2008] EWHC 2016 (Admin)

Case No CO/10689/2006[2008] EWHC 2016 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 4th July 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE FORBES
Between
THE QUEEN ON THE APPLICATION OF OMOTAYO ENITAN ADEKAIYAOJAClaimantv
Between
THE ROYAL PHARMACEUTICAL SOCIETY OF GREAT BRITAINDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR SOUTHALL EDWARDS (instructed by The Claimant) appeared for ClaimantMR BRADLEY (instructed by Field Fisher Waterhouse) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE FORBES: This is an appeal by Mr Adekaiyaoja ("the appellant") against the decision of the Statutory Committee of the Royal Pharmaceutical Society of Great Britain ("the Society") contained in its written determination, dated 26th September 2006, whereby it decided (inter alia) that the appellant's name be removed from the Register.[2]The appeal is brought under section 10 of the Pharmacy Act 1954. The Committee's decision followed an inquiry ("the inquiry") into the appellant's conduct that took place on the 21st - 23rd August 2006 inclusive.[3]The background facts are as follows. The appellant was first registered with the Society in August 1999. The inquiry concerned his conduct into two separate employments. The first employment was between February 2003 and August 2003, when the appellant was employed as a pharmacist at The Pharmacy in Sainsbury's Store, London Road, Cheam. It was alleged that in this 4-month period the appellant was responsible for as many as eight dispensing errors. One of those resulted in the elderly patient who took the medicine wrongly dispensed becoming ill. Another involved the controlled drug methadone. In due course the Committee found these allegations proved.[4]The second employment was in January 2004, when the appellant was employed as a locum pharmacist at Moss Pharmacy, Kings Lynn, Norfolk. It was alleged that the appellant committed a further dispensing error and then failed to respond adequately when the error was revealed. It was alleged that he initially denied making the error, then stated that the error would not make any difference and, when approached by the patient, he failed to acknowledge the error and then invited the patient to look for the correct medicine in the pharmacy fridge himself. In due course the Committee also found these allegations proved.[5]The appellant was one of three respondents to the notices of inquiry which were due to be heard on 21st August 2006. The Society's case against the other respondents, namely Sainsbury's Limited and the Sainsbury Limited Superintendent Pharmacist, Mr Martin Hardy ("Mr Hardy"), arose out of the appellant's dispensing errors whilst in the employment of Sainsbury's.[6]The Society's case involved 11 witnesses including two of the Society's inspectors, employees of Sainsbury's and patients. All the witnesses were warned to attend the hearing. In the event, six witnesses gave oral evidence and the statements of the other five witnesses were read.[7]Although notified of the date, time and place of the inquiry, the appellant did not attend any stage of the hearing and at no stage made any application to the Committee for the hearing or any part of it to be adjourned. The other respondents were represented at the hearing and Mr Hardy attended the hearing and gave oral evidence on his own behalf. At no stage did the appellant give any reason for his non-attendance, and he made no contact whatsoever with the Committee at any stage to indicate that he was unable to attend.[8]There were originally nine grounds of appeal. However, at the outset of the hearing before me, Mr Southall Edwards, who presented the appeal very ably on behalf of the appellant, abandoned grounds 1 to 3 and made it clear that there was no challenge to the findings of fact made by the Committee or to the Committee's conclusion that those findings of fact amounted to misconduct on the part of the appellant. Grounds 4 to 9 are as follows:
"4. The Statutory Committee was wrong to decide to proceed to hear the Inquiry in the absence of Mr Adekaiyaoja. 5. Alternatively, the Committee was wrong to proceed to hear the Inquiry in his absence without at least affording him a further opportunity to attend and/or be represented by adjourning once. 6. In any event, the Committee was wrong to proceed further than making a finding as to facts in Mr Adekaiyaoja's absence. 7. Alternatively, the Committee should have proceeded no further in the absence of Mr Adekaiyaoja than finding misconduct, if it was satisfied that this had been made-out by the facts found proved. 8. The Committee failed to allow Mr Adekaiyaoja the (usual) opportunity to put submissions to the Committee in mitigation, before proceeding to determine whether any sanction should be imposed pursuant to Regulation 25c or 25d of the Pharmaceutical Society (Statutory Committee) Order in Council 1978 (SI 1978 Nr 20). [I interpose to say that hereafter I shall refer to those rules as "the 1978 Rules"]. In consequence thereof the determination to direct the removal of his name from the Register of Pharmaceutical Chemists ('the Register') was unfair and should be set-aside. 9. The decision to direct the removal of Mr Adekaiyaoja's name from the Register was manifestly excessive and unjustified on the facts found proved and in all the circumstances of the case no more than a reprimand was appropriate to the facts found proved."
[9]Mr Southall Edwards referred to Rule 19 of the 1978 Rules which provides (inter alia) as follows:
"If the person affected does not appear and the Committee are satisfied that notice of the inquiry was duly sent to him, they may proceed with the inquiry in his absence or may adjourn the inquiry."
[10]Mr Southall Edwards also referred to the decision of the Privy Council in Tate v The Royal College of Veterinary Surgeons [2003] and UKPC 34 ("Tate"), and submitted that the discretion under Rule 19, to which I have just referred, is subject to certain constraints as identified in paragraph 5 of the judgment in Tate which I now quote:
"5. Counsel for the appellant drew attention to the observations of Lord Bingham of Cornhill in R v Jones (Anthony) [2002] WLR 524. Lord Bingham said (at 530) that 'the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution.' Lord Bingham approved a checklist of matters relevant to the exercise of the discretion provided by the Court of Appeal: R v Hayward [2001] QB 862 para 22(5) at p 873. Pertinent to the present case these decisions show that the following factors were significant: (1) The seriousness of the case against the defendant, (2) the risk of the tribunal reaching a wrong conclusion about the reason for the absence of the defendant, and (3) the risk of reaching a wrong conclusion on the merits as a result of the appellant's account not being heard by the Committee."
[11]Mr Southall Edwards referred to the transcript of the hearing in this matter on 21st August 2006 and the exchanges between the chairman of the Committee and Mr Bradley on behalf of the Society. Mr Southall Edwards submitted that the Committee fell into error in deciding to proceed in the appellant's absence, because it attached too much weight to considerations of costs and inconvenience to other parties and failed adequately to take into account the risk of making incorrect findings of fact in the absence of the appellant's evidence and/or the risk of the appellant's name being removed from the Register.[12]Mr Southall Edwards submitted that the Committee should have either adjourned the hearing to a future date or, at the very least, should have given the appellant a further opportunity to attend and/or be represented at the inquiry by means of a very short adjournment of, say, a day for that purpose.[13]Accordingly, in this appeal the appellant contends that the Committee was wrong to proceed in his absence at all and makes the same contention in the alternative in respect of each stage of the inquiry (see grounds 4 - 8 of the grounds of appeal quoted above).[14]On behalf of the Society, Mr Bradley pointed out that at the outset of the inquiry the Committee did consider the case of Tate (supra). Mr Bradley referred to paragraph 5 of the judgment in Tate, in which the Board referred, with approval, to R v Jones and Hayward [2001] QB 862 ("Jones and Hayward"), in which the Court of Appeal listed the factors to be taken into account by a court when exercising its discretion to proceed in the absence of a defendant.[15]It is helpful and convenient to refer to paragraph 22 of the decision in Jones and Hayward, as follows:
"In our judgment, in the light of the submissions which we have heard and the English and European authorities to which we have referred, the principles which should guide the English courts in relation to the trial of a defendant in his absence are these. (1) A defendant has, in general, a right to be present at his trial and a right to be legally represented. (2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him. (3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives. (4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. (5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present. (6) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case."
[16]Mr Bradley submitted that the Committee had been entitled to exercise its discretion to proceed with the hearing as it did and that it was right to make the decision that it did. In support of that submission Mr Bradley relied upon the following matters.[17](1) As to the decision to start the enquiry and proceed in the absence of the appellant. (a) As early as April 2006 the appellant was made aware that the matter would be heard in August 2006: see the Secretary's letter of 6th April 2006 and the terms of the conversation that the appellant had with the Secretary when he rang her on receipt of that letter. (b) The appellant made no suggestion that he was ill during the conversation that he had with the Secretary in April 2006 or at any time thereafter. (c) From the beginning of July 2006 the appellant was aware that the inquiry would begin on 21st August 2006 and that it was scheduled to continue until 24th August 2006. (d) It had been open to the appellant to inform the Society of any illness from which he was suffering or, of any other matter which put his attendance at risk, at any time prior 21st August 2006 or on that date or on any of the subsequent days of the hearing. (e) The appellant is a professional person and the Society and his professional peers, including Mr Hardy, were entitled to expect him to co-operate with the disciplinary process. (f) At no stage did the appellant produce any medical evidence to the effect that he was not well in the period leading up to the hearing in August 2006, or thereafter. (g) The appellant made no application at any stage for the hearing or any stage of the hearing to be adjourned. (h) There were no grounds for the Committee to have confidence that the appellant would appear at any adjourned hearing. (1) Adjourning the hearing in the prevailing circumstances would have involved the following undesirable consequences: (i) considerable inconvenience and possible distress to the witnesses who were due to attend on the morning of the hearing, that meant all of the witnesses; (ii) considerable inconvenience, expense and in all probability distress to Mr Hardy, one of the other respondents; (iii) a further delay in the Committee being able to fulfil its role of protecting the public, leaving the appellant free to practice pharmacy when serious allegations concerning patient safety were still outstanding; (iv) a considerable waste of valuable Committee time, the case having been listed for four full days; (v) a considerable waste of Society funds, made up substantially from the subscriptions of its membership (it is to be noted the statutory committee has no power to make an award of costs against either party in such proceedings); and. (vi) the Committee remained fully aware of the need to protect the appellant's position so far as it was possible to do so: see the terms of the written determination at page 2 letters A - G, where the Chairman said this:
"We were satisfied that all statutory requirements for notification of the Notice of Inquiry by our Secretary were met. Notification was given in accordance with the timetable prescribed to the address registered with the Society. Although both Mr Hardy and Sainsbury's were well represented by Mr David Aaronberg, Mr Adekaiyaoja did not appear before us in person, nor did he have any representation. That always causes me problems as I take the stern view that in the event of a non- appearance personally or through a lawyer we must be particularly attentive to the burden on the Royal Pharmaceutical Society of Great Britain to establish its disciplinary case. In the event as I have indicated, Mr Adekaiyaoja did not extend to us - the disciplinary arm of his professional body - the courtesy of his appearance personally or through a lawyer, either a solicitor or counsel. As I am sure Mr Bradley appreciates, we have had to put him through the mill in setting up the Society's case. I do not want to suggest that non-appearance is to be resorted to as a clever rouse to put the Royal Pharmaceutical Society to its mettle. However, I believe in his absence and without knowledge of what line, if any, Mr Adekaiyaoja wanted to take, we have sought to deal with this case with fairness and impartiality. If we have inadvertently not explored an avenue which he would have wanted to pursue, it has not been as a result of lack of trying on our behalf. His non-appearance left us with little clue or no clue of any line he might have wished to pursue."
[18]Mr Bradley submitted that in absenting himself deliberately and voluntarily as he did, the appellant clearly waived his right to be present at the hearing and the Committee's decision to proceed in his absence cannot be faulted because it plainly had fully in mind all the relevant considerations. I agree with that submission. Accordingly grounds 4 and 5 of the grounds of appeal fail for those reasons.[19](2) As to the Committee's decision to proceed beyond the fact-finding stage of the inquiry.[20]Mr Bradley submitted that the appellant made no application to the Committee to adjourn consideration of the seriousness of any misconduct it found proved in the context of his registration or possible sanction. It was Mr Bradley's submission that the allegations, if substantiated, were such that the appellant's fitness to practice pharmacy was seriously in question on the grounds of patient safety. He pointed out that the Statutory Committee possessed no power to suspend the appellant or to impose conditions on his or her registration on an interim basis, an aspect of the matter with which Mr Southall Edwards agreed. Finally, Mr Bradley submitted that there were no grounds for the Committee to have any confidence that the appellant would appear at any such adjourned hearings. In those circumstances, Mr Bradley submitted that the Committee's decision to complete all stages of the inquiry, including the sanction stage, cannot be faulted. I agree with that submission. Accordingly, for those reasons, grounds 6 - 8 of the grounds of appeal must also fail.[21]I therefore now turn to ground 9 in which the appellant submits that the removal of his name from the Register was manifestly excessive. I accept Mr Bradley's submission that in considering this issue the court must have regard to the fact that the committees of the Society, which are made up of both pharmaceutically qualified members and lay members, have a special expertise when it comes to making the necessary judgments as to measures that are required to protect the public and to maintain the standards, the reputation of and public confidence in the profession. Mr Bradley pointed out that the court's approach to that effect has been most recently confirmed in Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46, in particular at paragraphs 16 - 20, to which I refer but do not quote.[22]Mr Southall Edwards submitted that the proved misconduct in this case was not so serious as to merit removal from the Register. He suggested that there was no finding of dishonesty against the appellant and that the appellant did not come across as -- to use Mr Edward Southall's expression -- "an out and out villain". Rather, he was somebody who had made a number of errors which, in the event, had not turned out to be particularly serious. Mr Southall Edwards submitted, therefore, that this was a case that justified a reprimand, but did not justify a sanction as serious as removal from the Register. It was in this context that Mr Southall Edwards accepted that the Committee did not have any power to impose a sanction somewhere between those two extremes. There is, for example, no power to order a suspension or to attach conditions to the registration.[23]For his part, Mr Bradley submitted that the Committee had been right to categorise the misconduct it had found proved as extremely serious, that a direction for the removal of the appellant's name from the register was a direction which a Committee, acting reasonably, was entitled to make and that the direction to that effect was, in the circumstances of this case, the right order to make.[24]In support of those submissions Mr Bradley relied upon the following matters in particular:(i) accurate dispensing is fundamental for the practice of pharmacy (see the first two of the key responsibilities and parts 2A and 4.1 of the Code of Ethics);(ii) the obligation on a pharmacist is to dispense only in accordance with the terms of a medical practitioner's prescription and that is a statutory obligation, with the force of the criminal law (see sections 58, 64 and 67 of the Medicines Act 1968);(iii) inaccurate dispensing has the potential to put patients at risk;(iv) in this case, one patient (MOS) did become ill as a result of one of the appellant's errors;(v) one of the dispensing errors in this case (that in relation to patient MY) involved the controlled drug methadone;(vi) the errors in respect of the methadone dispensed to patient MY involved the appellant ignoring or deciding to override the expressed requirements of the prescribing doctor as to the timing of a particular instalment of that particular controlled drug: on one occasion the appellant succeeded and on a second occasion he was preparing to make the supply, but in the event was prevented from doing so;(vii) this case concerned a significant number of dispensing errors (eight in all) committed during a period of 4 months: not only that, but they were committed in more than one location;(viii) in those circumstances, it could only be concluded that the appellant has not maintained the high standards of practice required of him and furthermore that he is not safe to practice pharmacy;(ix) This case also involved the conduct of the appellant in the performance of his professional duties which was such as to bring the profession into disrepute because of his denial that there had been an error with regard to patient AM's insulin, when contacted by that patient's doctor, and his behaviour to patient AM in failing to acknowledge that there had been such an error, followed by his suggestion that the patient should look for the correct medicine for himself in the pharmacy fridge; and(x) the sanction imposed was in accordance with the Society's then current Indicative Sanctions Guide.[25]Mr Bradley therefore submitted that the direction made by the Committee for the removal of the appellant's name from the Registrar was proportionate, in that it reflected both the seriousness of the offences and the need to protect the public and to maintain public confidence and standards in the profession. I agree with those submissions. Accordingly ground 9 fails and this appeal must be, and is therefore hereby dismissed.[26]MR BRADLEY: My Lord, in those circumstances I ask for an order that the appellant pay the costs of the appeal. My Lord, I have with me a letter written by those instructing me to Mr Southall Edwards as long go as April of this year suggesting, notifying Mr Southall Edwards that were the appeal to be discontinued at that stage the society would not pursue its costs, but were the appeal to continue, then those costs were likely to be in the order of £15,000. There are copies also of the replies I emailed to Mr Southall Edwards "I write to inform you that in determining the appeal will continue Mr Adekaiyaoja is aware of the costs he may have to pay event."[27]MR JUSTICE FORBES: Mr Southall, is there anything you want to say on behalf of the appellant in respect of the application for costs.[28]MR SOUTHALL EDWARDS: My Lord, it is correct that there was that exchange of emails and it is also in fact correct that there was a further exchange of emails more recently, when further offers were made which were declined by Mr Adekaiyaoja. I would ask your Lordship to bear in mind the ability on Mr Adekaiyaoja to make payment, first of all, obviously with the judgment today goes Mr Adekaiyaoja's earning capacity and that will obviously be a factor which I hope your Lordship take into account. I will submit you are not bound to make an order as to costs, you have a discretion to do so. I would further say that this appeal was not unreasonably brought, it did have a reasonable prospect of success, notwithstanding that it has failed. I would ask you therefore to exercise your judgment in accordance with those submissions.[29]MR JUSTICE FORBES: Thank you Mr Southall, I am satisfied that this is an appropriate case in which I shall order that the appellant is to pay the respondent's costs of this appeal, subject to a detailed assessment on the standard basis if not agreed. Is there anything else?[30]MR SOUTHALL EDWARDS: Do you have an order as to time for payment?

MR JUSTICE FORBES: I beg your pardon?

[32]MR SOUTHALL EDWARDS: Order with regard to timing of payment?[33]MR JUSTICE FORBES: In the ordinary way I do not make any order as to the timing of the payment unless there is an application made by the party on the receiving end for the order for costs for something to extend the normal period which would apply by the ordinary operation of the rules. If you have any such application, perhaps you would let me know. Do take instructions.[34]MR SOUTHALL EDWARDS: My Lord, there is no application with regard to timing at this point.[35]MR BRADLEY: My Lord, may I just raise this, this being a case listed for one day or less? My understanding of the rules is that I ought at least to mention the possibility of a summary assessment.

MR JUSTICE FORBES: Have you served the schedule?

[37]MR BRADLEY: We have, and coincidentally it comes out at £15,184.

MR JUSTICE FORBES: Have you got the schedule? When was it served?

[39]MR BRADLEY: Yesterday.[40]MR JUSTICE FORBES: Mr Southall Edwards, have you any objection to the principal of a summary assessment of the costs? That is the first stage. If no, then we will go on to see whether you have any observations to make about the schedule (Pause).[41]MR SOUTHALL EDWARDS: I am instructed that a summary assessment is not to be objected to.[42]MR JUSTICE FORBES: In that case, have you had sufficient time to look at the schedule, Mr Southall Edwards?[43]MR SOUTHALL EDWARDS: I have not, unfortunately. No, I apologise. But, whilst I was able to forward the contents of the email to Mr Adekaiyaoja, a glitch with the software that I was unable to open the attachment and despite efforts over lunch I have similarly been unable to open the attachment. I therefore have not had an opportunity to look at it. I appreciate that may place the court in some difficulties.[44]MR JUSTICE FORBES: It does, yes. It means that unless Mr Adekaiyaoja wants to argue it himself, and draw attention to any queries that he has with regard to the schedule of cost, it will not be possible for me to hear any -- there would be no effective submissions made against the amount sought by the respondents. In ordinary way, in those circumstances, particularly with a litigant in person, I would send the matter for a detailed assessment, giving the parties the chance to agree it if they can.[45]MR SOUTHALL EDWARDS: I think, my Lord, perhaps in the circumstances, bearing in mind that Mr Adekaiyaoja is I think quite overwhelmed by the judgment and may have difficulty giving instructions at this point, and I have not seen the document, it may be that you do have little choice but to send it for detailed assessment.[46]MR JUSTICE FORBES: Mr Bradley, in those circumstances I am not prepared to go ahead with this summary assessment. Your probably most fruitful course of conduct would be to try to seek to agree the costs at some stage rather, after Mr Southhall Edwards and Mr Adekaiyaoja have had a chance to look at your schedule and I think, it more than likely I would think they would come up with an agreement with regard to the amount, judging from what I can see and judging from your schedule which I have to say does not seem unreasonable.[47]MR BRADLEY: It is unfortunate because this process of course saves further costs.[48]MR JUSTICE FORBES: Hopefully, you will not have to go to a detailed assessment although I have made that order. It is still open to you to both agree the appropriate amount. I just feel uncomfortable going through a summary assessment when I do not have the benefit, for good reason, of any submissions, drawing attention to any points of query in the schedule on the part of the losing party.[49]MR BRADLEY: My Lord, yes, one can argue that if it has to go to detailed assessment, one argue about the costs of that, but of course on the basis of whether or not really one ought to be--[50]MR JUSTICE FORBES: If it does go for a detailed assessment, you will be in quite good position to argue that the costs of the detailed assessment would have to be paid by the appellant. But hopefully that situation will not be reached because I very much would encourage the appellant and Mr Southall Edwards to try to reach agreement with costs, if they can possibly can. I have every reason to believe that should be possible.[51]MR SOUTHALL EDWARDS: With regard to your reservations, yes, I will be advising Mr Adekaiyaoja as to the consequences of a detailed assessment and to try to reach a agreement with the Society about the terms of costs and also on payment.[52]MR JUSTICE FORBES: I hand that schedule back to you. (Same Handed) Is there anything else? Thank you both very much, thank you for your assistance, Mr Bradley. As you probably realised I found your written skeleton extremely helpful in preparing the judgment at short notice, and Mr Southall Edwards let me thank you once again for the way in which you have conducted the matter on behalf of the appellant.