Shah v General Pharmaceutical Council [2011] EWHC 73 (Admin)

[2011] EWHC 73 (Admin)Case No CO/2173/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/01/2011
Before
MR JUSTICE WYN WILLIAMS
Between
MANHERLAL KESHAVLAL SHAHAppellantGENERAL PHARMACEUTICAL COUNCIL (formerly ROYAL PHARMACEUTICAL SOCIETY OF GREAT BRITAIN)Respondent
James Dingemans QC (instructed by Charles Russell LLP) for AppellantAlison Foster QC (instructed by Field Fisher Waterhouse) for RespondentHearing Hearing date: 18 January 2011
Judgment
[1]On 17 November 2009 the statutory committee of the Respondent made a finding that the Appellant was unfit to have his name on the register of pharmacists; further it directed the Respondent’s Registrar to remove his name from the register. The Appellant appeals to this court, as of right, against the direction that his name should be removed from the register. In summary, the Appellant asserts that the proportionate sanction for his admitted misconduct was a reprimand. He submits that in all the circumstances of this case a direction that he be removed from the register of pharmacists was disproportionate and that the statutory committee fell into a number of errors which led it to reach a conclusion upon sanction which was demonstrably wrong.

Relevant background

[2]The Appellant first registered as a pharmacist in 1969. Since 1977/8 he has been the superintendent pharmacist and director of MAM International Ltd which owns and operates three pharmacies. One of those pharmacies is known as the Shah Pharmacy which is located in Hertford Road, Freezywater, Enfield.[3]On 2 June 1986 the Appellant appeared at the Wood Green Crown Court charged with a number of criminal offences. He pleaded guilty to three counts of false accounting and two counts of the unlawful supply of unlabelled drugs. All the offences arose out of the Appellant’s practice as a pharmacist. He was sentenced to pay fines totalling £2750 and an order for costs was made against him. On 5 May 1987 the Respondent’s statutory committee considered those convictions together with other allegations; (in summary that the Appellant had been dispensing medicine in inadequately labelled containers). Following a hearing the committee resolved that the Appellant was unfit to have his name on the register and it directed the removal of his name from the register.[4]As was his then right, the Appellant appealed to the Divisional Court against the direction that his name should be removed from the register. On 27 April 1988 the Appellant’s appeal was allowed. A reprimand was substituted as the appropriate sanction.[5]In the aftermath of this episode close attention was paid to the Appellant's practices. At visits to his premises in February 1988, October 1988 and September 1989 deficiencies were observed. The consequence was that on 8 May 1991 the Appellant again appeared at the Wood Green Crown Court charged with various criminal offences related to his practice as a pharmacist. The Appellant faced nine charges relating to his failure to keep in proper form the controlled drugs register and three charges relating to failures to comply with regulations relating to controlled drugs prescriptions. These charges were admitted and the Appellant was fined a total of £8,000 and ordered to pay costs. A second appearance before the statutory committee followed. The committee concluded that the Appellant was not fit to have his name on the register but drew back from directing removal of his name. The committee directed that the Appellant should be reprimanded. After announcing this decision the chairman of the committee said:- “We say that in the expectation, Mr Shah, that you will not be here again. We do not expect to see you again. I think it has to be said that a course of conduct of this kind, if it is persevered with and if it comes up again, will have serious consequences the next time and thus we hope we will never see you again.”

Events in 2004

[6]On or around 20 February 2004 a patient, identified as JH, presented a prescription from her general practitioner at the Shah Pharmacy. The prescription was for 28 enalapril 2.5mg tablets. She was dispensed 28 such tablets in a manufacturer’s box comprising three foil blister strips (7 tablets on each), one blister strip of 5 tablets and one blister strip of 2 tablets. JH discovered that the expiry date on the blister strip of 2 tablets was October 2003; she also discovered that the expiry date on the box and the other blister strips was “use before 02.2004”. Unfortunately JH had consumed some of the tablets before she made her discovery.[7]On about 9 March 2004 JH telephoned the Appellant and drew his attention to the fact that the tablets were out-of-date. The Appellant told her that the tablets could be taken for a period of up to six months after the “used by date”. On the same day JH attended the pharmacy. The Appellant exchanged the one remaining tablet which had a use by date of October 2003. However, he did not exchange the tablet for a tablet which was 2.5mg. He provided a tablet which was 5mg; the error was detected only because JH noticed it. The Appellant did not offer to exchange the remaining tablets.[8]On or about 19 March 2004 JH presented a further prescription from her general practitioner. The Appellant dispensed to JH 28 enalapril tablets in a plain white box containing four blister strips. However, the box had no expiry date and no patient information leaflet and there was no batch number or expiry date on each of the four blister strips.[9]As a consequence of these matters JH made a complaint to the Respondent.[10]On 27 May 2004 inspectors employed by the Respondent visited the Shah Pharmacy. The Inspectors found a number of matters of concern which can be described by reference to a summary contained within the statutory committee’s ruling on facts and misconduct. I quote:- “The visit revealed further matters of concern about practices in the pharmacy. These included: 1) Out-of-date medicines in the dispensary. 2) Medicines where dates of expiry and batch numbers were absent or had been removed which were in the dispensary and on the first floor. 3) Mixed batches of medicines in the dispensary. 4) Medicines from other pharmacies, labelled several years previously, which were stored alphabetically with current stock in the dispensary drawers. It was alleged these were kept for general dispensing use. 5) Five medicines in the dispensary which had been removed from the manufacturer’s packaging which were unlabelled or only partially labelled. 6) European products on the first floor of the pharmacy which did not bear a product licence number.”

The ensuing disciplinary process

[11]By letter dated 21 October 2005 statutory committee gave notice to the Appellant of an inquiry into a number of matters which were specified in detail in the letter. It was alleged that those matters individually or cumulatively might demonstrate that the Appellant had been guilty of such misconduct as to render him unfit to have his name on the register. Essentially, the letter constituted a “charge sheet” of a number of allegations all related to the events discovered in 2004 and summarised above. In November 2005 a hearing before the statutory committee commenced. There were further hearings on 26 January 2006 and 22 May 2006. In June 2006 the committee determined that the Appellant had engaged in such conduct that he was unfit to have his name on the register and it issued a direction that his name should be removed from the register. That decision was communicated, formally, to the Appellant by letter dated 11 July 2006. The Appellant decided to appeal against the statutory committee’s direction. On 11 February 2008 the appeal was compromised. Holman J approved an order setting aside the statutory committee’s direction and remitting the notice of inquiry to a differently constituted statutory committee. In large part, at the very least, this course of action was agreed because it was necessary to establish, one way or the other, whether the Appellant had intended to re-use certain out of date medicines discovered by the inspectors at their inspection on 27 May 2004.[12]As a consequence of the order of Holman J a new hearing began before a differently constituted statutory committee. There were hearings on 22 and 23 June 2009. The Appellant admitted most of the facts alleged against him; he also admitted that many of the allegations that he was in breach of a governing code of practice were also made out. In particular he admitted that many of his actions had placed him in breach of two important aspects of the code, namely Key Responsibility One and Key Responsibility Three. Key Responsibility One provides that at all times pharmacists should act in the interests of patients and other members of the public and should seek to provide the best possible health care for the community in partnership with other health professionals. Key Responsibility Three provides that pharmacists should ensure that they behave with integrity and probity adhere to accepted standards of personal and professional conduct and do not engage in any behaviour or activity likely to bring the profession into disrepute or undermine public confidence in the profession.[13]It is unnecessary, in this judgment, to record in detail that which the Appellant admitted or the statutory committee found proved. The overall effect of what was admitted or proved is sufficiently summarised by the committee itself:- “We then considered whether matters found proved constituted individually or jointly such misconduct as to render Mr Shah unfit to be on the register. We accepted that the misconduct must amount to more than mere negligence and must be serious misconduct. We noted that Mr Shah had implemented a system of mixed storage of dispensing stock and waste products intermingled on the dispensary shelves. We have already said that in our view this breached provisions of the Code including the key responsibilities one and three and in our view significantly increased the risk of errors in dispensing out-of-date stock. It was implemented apparently for monetary reasons so Mr Shah could obtain rebates from out-of-date stock and had apparently been operating for several years. Accordingly Mr Shah was putting patients at risk for monetary gain. In our opinion this went well beyond mere negligence and was serious misconduct which rendered him unfit to be on the register.”[14]One of the most fiercely contested issues before the statutory committee was the allegation that the Appellant had intended to reuse certain medication which was out-of-date (the medication was identified in Schedule 4 to the Notice of Inquiry). The statutory committee did not accept that this allegation had been proved.[15]The hearing to determine the appropriate sanction took place on 17 November 2009. The Appellant was represented by Mr Dingemans QC; the Respondent was represented by Miss Foster QC. After considering the written and oral submissions of Counsel and after a very lengthy retirement the committee determined to direct that the Appellant's name be removed from the register.[16]The appeal is brought pursuant to the provisions of section 10 of the Pharmacy Act 1954. That section provides that “a person aggrieved by a direction of the statutory committee …..may at any time within 3 months from the date on which notice of the direction…..is given to him appeal to the High Court against the direction…..”[17]The Practice Direction to CPR52 provides for the hearing of such an appeal. Paragraph 22(3)(2) provides:- “Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.”[18]The appeal before me has proceeded on the basis of written evidence alone.[19]Notwithstanding that the PD provides that the appeal shall be by way of re-hearing both leading Counsel accept that I should determine the appeal in accordance with the principles formulated in a number of decisions culminating in the decision of the Court of Appeal in Raschid v General Medical Council [2007] 1WLR 1460. During the course of his judgment (with which Chadwick LJ and Sir Peter Gibson agreed) Laws LJ analysed the cases preceding Raschid in the following way:- “16. ….As it seems to me there are in particular two strands in the relevant learning….one differentiates the function of the panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment. 17. The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1WLR 1691, paragraph 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
“It has frequently been observed that, when professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied even considering the sanction of erasure imposed by the committee in this case.” 18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said: “28….in the Appellant's case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is a body which is best equipped to determine questions as to the sanctions that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and the reputation of the profession. 29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that the finding that the Appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, although undoubtedly severe, was wrong or unjustified.” 19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyds Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanction is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millet’s observations in Ghosh v General Medical Council [2001] 1WLR 1915, 1923, para 34: “The Board will afford appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.” 20. These strands in the learning then as it seems to me, constitute the essential approach to be applied by the High Court…on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: 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 a case.” “It has frequently been observed that, when professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied even considering the sanction of erasure imposed by the committee in this case.” “28….in the Appellant's case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is a body which is best equipped to determine questions as to the sanctions that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and the reputation of the profession. 29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that the finding that the Appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, although undoubtedly severe, was wrong or unjustified.” “The Board will afford appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.”
[20]It is to be observed that the Court of Appeal in Raschid was concerned with appeals under section 40(7) of the Medical Act 1983. It is common ground, however, that the approach adopted by the court as explained by Laws LJ is equally applicable in this appeal.[21]During the course of oral submissions there was some debate about the passage from the judgment of Sir Thomas Bingham MR in Bolton v Law Society referred to above in the extract of the speech of Lord Rodger in Gupta. Mr Dingemans QC submits that the passages of the judgment of Sir Thomas Bingham MR referred to in Gupta must be read in their proper context by which he means in the context of the judgment as a whole. As a general proposition, of course, that must be right. However, the interpretation put upon the passages from Sir Thomas Bingham’s judgment by Lord Rodger in Gupta is the interpretation which has held sway for many years. The interpretation was adopted without reservation by the Court of Appeal in Raschid and it has been applied without qualification by judges of this court over many years. It seems to me that the indisputable effect of Bolton and the interpretation thereof in Gupta is authoritatively summarised by Laws LJ in Raschid when he says as he does at paragraph 18 that the panel in question is centrally concerned with the reputation or standing of the profession rather than the punishment of the professional in question. That being the case there will be many instances when what might be regarded as the personal mitigation of the practitioner in question will carry less weight than it would if the punishment of the practitioner was a primary consideration.

Grounds of Appeal and discussion

[22]Mr Dingemans QC alleges that the statutory committee failed to have regard to the fact that in previous decisions of the committee there was “a consistent body of jurisprudence” showing that the reputation of the profession (which he accepts for the purposes of this submission should be the central concern of a disciplinary committee of a professional body) could be vindicated by decisions to reprimand practitioners for the supply and storage of out-of-date medicines and the storage of out-of-date medicines in cases where there was no intention for re-use. Both before the committee and this court Mr Dingemans QC relied upon the decisions in Paul Davies, the Pharmaceutical Journal, volume 263 No 7061, page 346 (4 September 1999); Amil Kkurumar Patel, the Pharmaceutical Journal, volume 265 No 7110, pages 261-262 (19 August 2000); Michael Proctor, the Pharmaceutical Journal, volume 268 No 7187, page 307 (2 March 2002); John Sugarman, Transcript 11 December 2002; Peter Rees, the Pharmaceutical Journal, volume 272, No 7301, pages 688-699 (29 May 2004); and Robert Nicholson and Pak Ho Transcript 20 January 2005).[23]Mr Dingemans QC acknowledges that it is necessary for him to demonstrate that these cases are, indeed, “a consistent body of jurisprudence”; they would be of limited or little assistance if they were simply examples of how the statutory committee dealt with the persons concerned notwithstanding that there are or might be some similarities between the facts of those cases and the facts presented to the committee in the case of the Appellant.[24]There is nothing within the reports of the cases relied upon by Mr Dingemans QC which suggests that they form part of a coherent body of consistent jurisprudence. There is no suggestion in any of the cases, for example, that later cases rely upon the earlier ones; there is no suggestion in the reports that the sanction of reprimand was imposed because that was some kind of norm in the circumstances revealed in the cases in question. As Mr Dingemans QC frankly admits the cases placed before the committee were simply those which he had found which bore some similarity to the Appellant's case.[25]Miss Foster QC submits that it would be wrong to categorise the cases relied upon by the Appellant as a consistent body of jurisprudence. I agree. I am not persuaded that these cases are anything more than individual decisions essentially related to their own facts. While I do not suggest that Mr Dingemans was wrong to place the decisions before the committee or rely upon them before me I can well understand why the committee concluded that the decisions “gave us only limited assistance in determining the appropriate current sanction in this matter.” I share the committee’s view as to the weight to be attached to these cases.[26]Before the committee and before me each of the cases was examined in some detail so as to draw out reasonable comparisons. Mr Dingemans submits that the statutory committee was wrong when it concluded that none of the cases matched the current case in terms of the extent of its facts and in terms of the previous records or previous convictions of Mr Shah. Again, I find myself in disagreement with Mr Dingemans QC. None of the previous cases involved a practitioner who had been convicted before a Crown Court of serious criminal offences arising from the practitioner’s conduct as a pharmacist. None of the practitioners had been reprimanded twice for such conduct. One of the practitioners, Mr Sugarman, had deliberately engaged in re-using out-of-date medicine and had deliberately disguised the fact that the medicine was out-of-date. To that extent his conduct was more culpable than that of the Appellant. However, Mr Sugarman had not appeared before the statutory committee on any occasion before his appearance in 2002. As is clear from the report the statutory committee concluded that removing his name from the register was avoidable “with some hesitation”.[27]I do not propose, in this judgment, to compare the previous cases, line for line, with the facts as they relate to the Appellant. Nothing would be served by such an approach. It seems to me to be clear that the statutory committee was wholly justified in concluding that the significance of the previous decisions was limited and that in the main, at the very least, the misconduct of the persons involved in those cases was less culpable than the misconduct of the Appellant when viewed against his background of previous misconduct.[28]The second ground of appeal focuses upon one short paragraph in the decision of the committee. The transcript reads:- “We considered whether Mr Shah’s misconduct was premeditated. We had regard to the fact that he had implemented a system which created a risk to the public in order to facilitate a claim to the manufacturers for a refund for out-of-date medicines. To this extent we accepted the matter was premeditated.” Mr Dingemans complains that the committee was wrong to categorise the Appellant's conduct as premeditated.[29]If the committee used the word premeditated to convey the notion that the Appellant had deliberately set out to re-use out-of-date medicines that, of course, would have been wholly wrong. In my judgment, however, the passage criticised by Mr Dingemans QC does not bear that meaning. The nub of the criticism accepted against the Appellant was that he had implemented a system which created a risk to the public and that he had done so in order to facilitate a claim to the manufacturers for a refund of out-of-date medicines. The facts admitted by the Appellant or found proved by the committee amply justified that conclusion. In that sense – but in that sense alone – the Appellant's actions were premeditated. In any event, however, nothing is to be gained by a focus upon the use of the word premeditated. The plain fact is that the system so heavily criticised by the committee was deliberately devised by the Appellant; it was a system which gave rise to a risk to the public. It was a system which had subsisted for some years on any view. In my judgment, the committee was fully entitled to conclude as it did that these features were aggravating features of the Appellant's misconduct.[30]Mr Dingemans QC next complains that the committee placed a disproportionate weight on the Appellant's previous convictions and appearance before the statutory committee in 1987 and 1992. He makes that submission since he submits that the committee failed to have sufficient regard to the fact of the time lapse between 1992 and the occurrence of the matters in 2004.[31]I accept, of course, that there was a period of about 12 years between the Appellant's appearance before the statutory committee and the Appellant's conduct towards JH. However, the committee’s finding that the Appellant had implemented a system of mixed storage of dispensing stock and waste products intermingled on the dispensary shelves was a system which had subsisted for a significant time before 2004. No precise finding was made about when this system was first implemented but the Society’s Inspectors found out-of-date products which went back a significant number of years from 2004. In my judgment this, inevitably, dilutes the force of the point which Mr Dingemans QC seeks to make.[32]There can be no doubt that the statutory committee treated the previous convictions and appearances before the committee as aggravating features. It seems to me that they were bound to do so. The view of the committee as to the significance of the convictions and previous appearances was expressed as follows:- “We considered these previous matters. We noted there were two convictions with two associated appearances before the statutory committee. Although there are differences in fact of the two appearances and of the current matter before us at the moment, we did conclude that there were some similarities between the cases, including the gaining of financial benefit from actions associated with a failure to comply with professional responsibilities and the operation of unsafe systems of dispensing medicines.” In my judgment that conclusion was wholly justified. It does not seem to me that there is any basis for concluding that the statutory committee attached more weight to the fact of previous convictions and appearances than was reasonable or proportionate in the context of this case.[33]The Appellant provided many references to the statutory committee. They are described by Mr Dingemans QC in his submissions as “many and excellent.” The statutory committee dealt with the issue of references as follows:- “We have had close regard to the character references provided by Mr Shah. It was unclear if the character referees knew Mr Shah’s practicing history, and only three of the references supplied indicated knowledge of the current allegations. There were a total of 38 character references, 31 of whom were patients or customers, 3 were from general practitioners, and 4 others including a residential care manager, a vicar, a former employee and a specialist cancer manager. It is right to say that most of these character references had known Mr Shah for some 10 years or more. Mr Shah was described as helpful, professional, knowledgeable, honourable, courteous and trustworthy. It is said that he provided an excellent personalised service in a less well off part of his Borough, and that the loss of those services would have a detrimental effect locally. He was described as a pillar of the local community. We gave all the possible credit we could to Mr Shah in the light of these many and excellent references, but we also felt it necessary to have regard to the words of the Master of the Rolls in the case of Bolton v Law Society [1994] 1WLR 512 (Court of Appeal) where it was said:
“Considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that the solicitor….” – I pause to say this case has been approved in a number of healthcare cases – “….it often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off and suspension would be little short of tragic. All these matters are relevant and should be considered, but the reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but that is part of the price.”” “Considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that the solicitor….” – I pause to say this case has been approved in a number of healthcare cases – “….it often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off and suspension would be little short of tragic. All these matters are relevant and should be considered, but the reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but that is part of the price.””
[34]Miss Foster QC submits that the statutory committee paid obvious and detailed attention to the character references. So much is clear from the analysis quoted above. She also submits that the committee accepted Mr Dingemans’ characterisation of the references – indeed it is the committee which describes them as “many and excellent”. She also submits that the committee’s approach to the references falls full square within the interpretation of Bolton which has now been widely accepted.[35]In my judgment, the committee was correct when it said that it was giving all possible credit to the Appellant in the light of his references but it was also necessary to take account of what was said in Bolton. I can see no basis for concluding that the committee failed to give sufficient weight to the references.[36]In his oral submissions, in particular, Mr Dingemans QC linked the alleged failure to afford proper weight to the references to his criticism of the committee to the effect that it had afforded disproportionate weight to the previous convictions and appearances before the committee. I am not persuaded by this argument. Essentially, the committee was engaged in making an assessment of all the features of this case which were relevant to sanction. A careful reading of the transcript of its determination shows that the committee did just that. The weight to be attached to any one feature as compared with another was very much for the judgment of the committee – a judgment to be made in the light of decisions such as Bolton and Raschid. I reject the Appellant’s fourth ground of appeal.[37]The fifth ground of appeal raises the ultimate issue. Was the statutory committee wrong to direct the removal of the Appellant's name from the register?[38]The statutory committee made the following express findings. First, if permitted to continue in practice, the Appellant posed a continuing risk to members of the public. Second, that his misconduct as admitted or proved, set in the context of the Appellant's previous convictions and appearances, was so serious as to undermine confidence in the profession. Third, that the Appellant lacked insight in relation to his misconduct. In my judgment, all of those conclusions were plainly open to the statutory committee. Mr Dingemans QC attacks in particular the findings relating to lack of insight and future risk to the public. He makes the point, fairly, that the Appellant had admitted the vast majority of allegations against him and implemented procedures to ensure that misconduct did not recur. It is clear, however, that the committee took those matters into account before concluding that the Appellant lacked insight and constituted a risk.[39]The Respondents issued a document entitled ‘Indicative Sanctions Guidance’ on 21 October 2004. Section 9 of the guidance gives examples of those cases where removal from the register may be appropriate. Six categories of cases are identified, three are in these terms:-• “Continuing risk to patients or members of the public• Offence or misconduct so serious as to undermine confidence in the profession if a practitioner were to remain on the register• Lack of sufficient insight on the part of the practitioner.”[40]In the light of its conclusion on risk to the public, reputation of the profession and insight, the committee’s decision to direct removal from the register was entirely consistent with the guidance. Section 8 of the Indicative Sanctions Guidance categorises three types of case where a reprimand may be appropriate. They are:-• “No continued risk to patients or public• Evidence of insight• Minor breaches of guidance issued by Society” It seems to me, as it seemed to the statutory committee, that it would not be correct to categorise the Appellant's case as falling within any of those categories.[41]Miss Foster QC submits that the sanction imposed in this case was entirely consistent with the guidance on sanctions issued by the Respondent and was reasonable and proportionate. I agree. I have reached the clear conclusion that each ground of appeal fails; I take the view that when one stands back at looks at this case dispassionately and objectively and in the round the committee was correct to direct that the Appellant’s name be removed from the register. This appeal is dismissed.[42]At the conclusion of the oral hearing it was agreed by Leading Counsel for the parties that I should hand down this judgment in the absence of the parties or their lawyers. It was also acknowledged that costs would follow the event. I now understand that the Appellant will submit to an order that he should pay the Respondent’s costs of the appeal which are summarily assessed in the sum of £16,750. That sum must be paid by 4pm 11 February 2011.

Cited in 1 later judgment