Azam v General Pharmaceutical Council [2014] EWHC 3620 (Admin)

[2014] EWHC 3620 (Admin)Case No CO/2056/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/10/2014
Before
MR JUSTICE COBB
Between
HURFAN AZAMAppellantGENERAL PHARMACEUTICAL COUNCILRespondent
Hurfan Azam (in person, assisted by his McKenzie Friend, Graham Southall-Edwards) for in personJessica Sutherland-Mack (instructed by Council Solicitor) for RespondentHearing Hearing date: 31 October 2014
JudgmentThe Honourable Mr Justice Cobb:
[1]By Notice of Appeal dated 6 May 2014, Hurfan Azam (hereafter “the Appellant”) appeals to this court against sanctions imposed by the Fitness to Practise (FTP) Committee of the General Pharmaceutical Council on 4 April 2014. The appeal is brought under Article 58(1)(a) of the Pharmacy Order 2010. By its order, the FTP Committee directed the removal of the name of the Appellant from the register of pharmacists. For completeness, I record that the Appellant mounted a subsidiary appeal against the imposition of an interim order directing his immediate suspension from the record, which was not in the event proceeded with.[2]For the purposes of determining this appeal, I have had the benefit of reading the FTP Committee’s conclusions on the facts relevant to the Appellant’s misconduct, its determination on the Appellant’s impairment of fitness to practise, on sanction, and on interim measures. I have had access to the statements filed for the FTP Committee hearing, the testimonial references, together with a transcript of that hearing. The Appellant has submitted Grounds of Appeal supported by a skeleton argument, and addendum skeleton argument with authorities; the Respondent has filed a Respondent’s Notice (although it in fact supports the reasoning aswell as the decision of the FTP Committee) together with skeleton argument and has provided me with other relevant authorities. I afforded rights of audience to Mr Southall-Edwards from whom I heard helpful and measured submissions on behalf of the Appellant; Ms Sutherland-Mack offered able oral argument in reply.

Background

[3]In order to set a context for my ruling, it is necessary for me to summarise the essential background facts. I take this background from the factual determination of the FTP Committee; I believe that it is uncontroversial. The Appellant was employed as a pharmacist at the New Street Birmingham branch of Boots the Chemist from 1 July 2008 until 31 July 2011. It was one of the Appellant’s important functions as a pharmacist to conduct Medicine Check Ups (MCUs) sometimes referred to as Medicine Use Reviews (“MURs”); this is a service which is intended to improve the patient’s experience of taking medications, and involves the pharmacist interviewing the patient, advising on medication use and ensuring that the patient is taking the correct medication for their needs. Pharmacists are then required to complete a patient record and a note of the patient’s visit would be made on a MUR log. This would generate a transaction through the till for a fee to be paid to the chemist by the National Health Service. The MUR log on the till receipt includes the pharmacist’s name and, therefore, it becomes straightforward to establish who carried out the MUR and made the record. The process of each MUR takes about 25-35 minutes and each one is charged in the sum of £28; Boots, the Appellant’s employer, set a target for each pharmacy to complete 400 MURs in any one year. Each pharmacist employed by Boots had a set of performance objectives which included a set number of MURs to be completed by them in that period.[4]Over a period of time, the Appellant claimed for having conducted MURs which he had not in fact undertaken. It is appropriate that I should record at this stage of the judgment that prior to the FTP Committee hearing in April 2014, the Appellant made a number of admissions about his misconduct; he accepted that between 1 July 2008 and 31 July 2011 he did not conduct certain MURs for which he submitted claims through the electronic till system; he further accepted that he did not complete the appropriate paperwork for some MURs. Mr Sutherland-Edwards submitted that the total number was in the region of 300 (this would have had a monetary value of £8,400). Significantly, the Appellant accepted that he had given false information during the investigation of his alleged conduct, admitting to the FTP Committee that his actions were inappropriate, misleading, and dishonest. Notwithstanding these material admissions, the FTP Committee was required at the hearing in April 2014 to determine the facts surrounding one specific MUR claim made on 13 April 2011 in respect of MW, the store manager. The Appellant admitted having falsely claimed for an MUR conducted on that date when in fact he had not undertaken the necessary work for the claim. The Appellant argued before the FTP committee that he had not been dishonest in relation to that particular admitted action. The FTP committee heard evidence on this disputed question of fact, and applied (appropriately in my view) the relevant legal test extracted from the Court of Appeal decision in R v Ghosh 1982 1QB 1053. The FTP Committee concluded that “this is indeed a case where the falsification of a claim is obviously dishonest by ordinary standards and, applying the second test in Ghosh, we have nothing to displace the conclusion that[the Appellant]must have realised that what he was doing was, by ordinary standards, dishonest”.[5]Having received the Appellant’s admissions and made determinations of fact, the FTP Committee went on to consider whether the Appellant’s conduct caused an impairment of his fitness to practise. The Appellant admitted impairment by virtue of his misconduct; the Committee, making its own judgment, and following the guidance in Article 51 of the Pharmacy Order 2010, agreed. It is appropriate that I should set out here the essential ingredients of that finding, as they are relevant to the question of sanction. The committee, in my judgment, conscientiously considered the relevant law set out in the secondary legislation and case law, it specifically referred to the General Pharmaceutical Council (Fitness to Practice Disqualification etc) Rules 2010, Rule 5 in particular which provides:
“(2) In relation to evidence about the conduct or behaviour of the registrant which might cast doubt on whether the requirements as to fitness to practise are met … the committee must have regard to whether or not that conduct or behaviour – (a) presents an actual or potential risk to patients or to the public; (b) has brought, or might bring, the profession of pharmacy into disrepute; (c) has breached one of the fundamental principles of the profession of pharmacy; or (d) shows that the integrity of the registrant can no longer be relied upon” (a) presents an actual or potential risk to patients or to the public; (b) has brought, or might bring, the profession of pharmacy into disrepute; (c) has breached one of the fundamental principles of the profession of pharmacy; or (d) shows that the integrity of the registrant can no longer be relied upon”
[6]The FTP Committee correctly directed itself that its determination in relation to impairment must be focused on the present position (see Article 56 of the 2010 Order). Although the Appellant has worked in the pharmaceutical profession since leaving Boots, without apparent concern, the Committee nonetheless found that the Appellant’s misconduct was such as to engage all four of the principles set out in Rule 5 of the 2010 Rules (see above); dishonesty in the practice of the profession, in the opinion of the Committee, brought the profession of pharmacy into disrepute. It further concluded that the integrity of the registrant (the Appellant) could no longer be relied upon; dishonesty in the course of pharmaceutical practice breaches one of the fundamental principles of the profession of pharmacy. The Committee rightly acknowledged that Rule 5(2)(a) was not as vividly engaged in this case as the other three grounds. The findings of misconduct and impairment were made on 3 April 2014; on the following day the Committee went on to consider and determine sanction.[7]In delivering its decision on sanction, the FTP Committee fairly summarised the options available to them; they further, accurately in my judgment, articulated the purpose of sanctions, highlighting that they are not designed for the punishment of the registrant but to “protect the public, maintain public confidence in the profession and maintain and declare proper standards of behaviour within the profession”. The Committee rightly declared that, although reference to earlier decided cases on sanctions was of some value, they were conscious to approach the facts of this individual case without any “default rule of sanction”. The FTP Committee conscientiously identified, in my judgment, the relevant aggravating and mitigating factors in play; the aggravating factors in this case included: i. That the matters relate to dishonesty. ii. That the misconduct on the part of the Appellant amounted to an abuse of his position and breach of trust. iii. That his actions were clearly premeditated and continued over an extended period of time; iv. That the Appellant’s employer had to repay a substantial sum of money. v. That the disregard for the standards of conduct and performance was blatant. vi. That his actions involved concealment of his wrongdoing. vii. That he failed to cooperate with the investigation, giving false answers to the investigating officer on three separate occasions. viii. That the actions were committed by the Appellant while he was acting in the capacity of a responsible pharmacist.[8]The Committee identified mitigating factors including: i. That there is no previous history of misconduct on the part of the Appellant. ii. That there is no evidence of actual harm brought to patients.[9]The Committee was then invited to consider the Appellant’s case in a number of respects; the Appellant contended that: i. He had always intended to write up the MURs; ii. He was being harassed by his management; iii. He was under pressure to meet targets, alleging that reviews of his performance were intimidatory; iv. He was regretful and remorseful; v. He was naïve in his approach to incomplete record keeping.[10]The FTP Committee, in very large measure, rejected these contentions. Explicitly it indicated that it “did not find [the Appellant’s] evidence to be convincing”; it found that he lacked credibility, that his evidence was “difficult to accept”, and that the Appellant was, in answering questions before the Committee, “evasive”. The Committee found that there was “a total lack of acceptance of personal, professional accountability of … actions as a pharmacist”. It found that the Appellant had not been subject to undue pressure in relation to his performance. The FTP Committee raised a series of rhetorical questions about the Appellant’s insight into his conduct; implicitly, the FTP Committee concluded that the Appellant had shown little, if any, evidence of insight, and explicitly found that he had “not shown us anything that would give us confidence that he has, or even could, develop sufficient insight”. Adding, materially, that “his testimony today does not convince us that he has genuine remorse”. The FTP Committee recognised that the Appellant had produced many “good testimonials to his character and performance”. Although these references, to some extent, spoke of his integrity, that was not a conclusion shared by the FTP committee. The Appellant’s dishonest conduct, not only in relation to the falsification of the MUR data perpetrated over an extended period of time, but compounded by his subsequent denial of the same, was of a type and gravity which the FTP Committee concluded it was or would be “difficult to remedy”; the FTP Committee did not rule out that the Appellant “may find it possible to develop” positively so as to address his behaviour.[11]In its final analysis, the FTP Committee concluded that had there been grounds for believing that the Appellant might within a reasonable time show a complete “turnaround” in his attitude, suspension might have been the appropriate sanction; the FTP Committee concluded, however, that there were no grounds for such optimism, determining that “the appropriate and proportionate sanction in this case is to direct the removal of [the Appellant] from the register”.

The Appeal

[12]The Appellant presents his appeal relying on five discrete grounds; he supports these grounds with a written skeleton argument. He contends: i. First, that the Committee was wrong to determine that there was no management pressure applied to him to complete a target of 400 MURs per year. ii. That the Committee was wrong to determine that he had no or no sufficient insight into his actions. iii. The third and fourth grounds can be taken together and reflect his complaint that the sanction of removal from the Register of Pharmacists was wrong, plainly wrong, and/or manifestly excessive in the circumstances, and/or not necessary, having regard to the purpose of the sanctions and the “Indicative Sanctions Guidance”; iv. The Committee was wrong to have determined that Interim Measures should be imposed under Article 60 of the Pharmacy Order 2010.[13]In relation to the first ground the Appellant asserts that he gave “clear and cogent evidence regarding the figure of a maximum 400 annual MUR target and the pressure to compete that existed between the various pharmacies in the relevant Boots area”; he contends that this evidence was very substantially unchallenged by the Respondent. He contends that no reasonable committee, particularly one experienced in these cases (recognising that at least two of the members of the committee were so experienced) should have rejected his evidence, and contends further that the committee was wrong to do so. He asserts (with reference to his second ground) that the committee was wrong to determine that he lacked insight, or sufficient insight, into his actions. He draws attention to the fact that he had taken responsibility for his actions and gave evidence that he understood the wrongfulness and effect of his actions; he refers, in this regard, also to his glowing testimonials and the good track record of recent practice since the events in question. In relation to the third and fourth grounds (which I took together above) he argues that the necessary and proportionate sanction would have been a period of suspension, not exceeding one year, with a review at the end of that period; he contends that removal from the register was both unnecessary and/or manifestly excessive and/or wrong, describing himself as a “young, impressionable and malleable pharmacist” – factors which he inferentially contends should have reduced his sanction. Although the Appellant goes on to develop an argument that the imposition of Interim Measures was wrong, I do not propose to deal here with that part of the case, given that, in this regard, the appeal is now academic.[14]The Respondent opposes the appeal. In relation to Ground 1 it contends that the determinations of fact to inform both conduct, impairment and sanction, is uniquely a matter for the specialist tribunal; it relies upon the dicta of

Lord Justice Auld in Meadow v General Medical Council [2006] EWCA Civ 1390 at paragraph 197:

“On an appeal … the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary fact and the overall value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.” i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary fact and the overall value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”
[15]In essence, the Respondent contends that the Committee’s view was reached properly and with full consideration of professional and legal principles and evidence; the Committee did not, in fact, find that there was no management pressure, they found there was no undue management pressure, and went on to consider the Appellant’s evidence in this regard, concluding that it was “an exaggeration”. The Committee searched for evidence of corroboration of the Appellant’s case about unreasonable pressure (which the Appellant characterised as intimidation or bullying) but essentially found none. While acknowledging that the Appellant may have felt under pressure to achieve targets, the Respondent contended that the Committee was entitled to conclude that this did not amount to undue pressure in relation to his performance such as to undermine the appropriateness of the sanction.[16]The Respondent repeats its general submission about the advantages afforded to the Committee in seeing and hearing the Appellant, when dealing with Ground 2. The Respondent credits the committee with having given full reasons why it felt there was little or no insight shown by the Appellant, applying their reasoning and judgment appropriately and in a manner which justifiably led them to the conclusion that the Appellant lacked relevant insight. The Respondent, rightly in my view, further credits the Committee with having given due regard to the testimonials submitted by the Appellant.[17]The Respondent argues that the FTP Committee fairly and appropriately reviewed the relevant case law, guidance, and the particular evidence in this case, in reaching its conclusion on sanction. The Respondent draws attention to the Committee’s explicit acknowledgment of the need for fairness, reasonableness and proportionality. As I have indicated above, and as the Respondent contends, the Committee articulated, and ostensibly considered, the competing aggravating and mitigating factors relevant to their determination. The Respondent, of course, further alludes to the specialist expertise of the committee, and the corresponding respect which this court should, in the circumstances, pay its deliberations and conclusions. The Respondent contends that the Committee was not just entitled but right to refer to the case of Bolton v The Law Society [1994] 1WLR 512; in that case the Master of the Rolls had indicated that “the decision whether to strike off or to suspend [a solicitor, though the principle surely applies to any professional] will often involve a fine and difficult exercise of judgment”. The Respondent says that when one considers, as the FTP Committee did, that: i. The Appellant had several opportunities to bring his alleged concerns to the attention of his employer and did not do so; ii. The Appellant consistently gave different accounts relating to his actions; iii. His conduct spanned 3 years, these factors alone indicate serious misconduct which justifies removal from the register. The Respondent goes on to argue that when this course of conduct is combined with the Committee’s findings on the Appellant’s lack of insight, his unjustified blaming of others for loss of records, and his lack of acceptance of the fundamental principles of professional conduct, removal is surely neither disproportionate nor excessive.

Conclusion

[18]My approach on this appeal follows that laid out in a series of cases including, but not limited to, Meadow v General Medical Council [2006] (see above), Fatnani and Rashid vGeneral Medical Council [2007] EWCA Civ 46, Cheatle vGeneral Medical Council [2009] EWHC 645 (Admin) and Devinder Luthra vGeneral Medical Council [2013] EWHC 240 (Admin). I adopt, and have very much in mind when determining this appeal, the relevant components of the test as summarised by Mostyn J in the Luthra case (above) at paragraph 4. The Appellant does not question the special expertise of the committee. His central attack is on the ultimate sanction imposed by the Committee, with collateral attacks on the Committee’s evaluation of the facts, and specifically their assessment of him and the context in which the misconduct occurred.[19]As an appellate court, I am required to bear in mind the significant advantage which the Committee has had in seeing and hearing the Appellant and the other witnesses. This is well understood on questions of credibility and findings of primary fact; but it goes further than that - it applies also to the Committee’s evaluation of those facts. In this regard I draw on Lord Hoffman’s comments in Piglowska v Piglowski [1999] 2 FLR 763, quoting what he had earlier observed in Biogen Inc v Medeva plc [1997] RPC 1, namely:
‘The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’
[20]Mostyn J made similar comments in NG v SG (Appeal: Non-disclosure) [2011] EWHC 3270 (Fam), wherein he indicated that an appellate court would only be able to say that a Judge (I interpolate – a committee) had reached a decision which was plainly wrong in the context of fact-finding if his conclusion was “demonstrably contrary to the weight of the evidence”, or the decision-making process can be identified as being “plainly defective” so that the findings are “unsafe”.[21]In my judgment the FTP Committee carefully and conscientiously considered the Appellant’s assertions that he had been placed under unacceptable, or inappropriate, or undue, pressure; taking the evidence as a whole, it is difficult for me to impugn the Committee’s finding that the Appellant had exaggerated his case in this respect. In a similar vein, it is difficult for me to conclude that the Committee was wrong to harbour significant doubts about the Appellant’s ability to withstand, and/or respond appropriately to, the ordinary pressures inherent in the running of a pharmacy in the future given their findings about his failings the past. That all said, I accept that the Appellant stood to make no direct personal financial gain from his conduct, even if his deceptions may have given an inflated impression of his professional performance.[22]Similar considerations apply to my review of the second ground of appeal; I am satisfied that the FTP Committee weighed properly in the balance the positive testimonials which had been submitted by the Appellant, and had searched for indicators that the Appellant had truly developed an understanding of the seriousness, and the professional implications, of his misconduct. As I have earlier indicated, the Committee brought to their task the significant advantage of seeing and hearing the Appellant, and their findings about his lack of insight are undoubtedly fashioned by their direct assessment of him; the Appellant’s expressions of remorse, regret and naivety, surely had to be tempered, and it appears were tempered, by the Committee’s findings that the Appellant was not an honest witness, was an evasive witness, was a witness who maintained that “nothing is his fault”, who blamed others and whose answers were, in some respects, incoherent. In that last respect I refer to the Committee’s recording of the Appellant’s evidence that he was “too busy to write up the MURs, although that somewhat ignores the admission of not actually carrying them out in the first place”. The FTP Committee was plainly struck by the Appellant’s “total lack of acceptance of personal, professional accountability of … actions as a pharmacist”.[23]It was conceded at the Committee hearing that the only legitimate outcome of this process would have been either suspension or removal from the register. A similar concession is made before me at this appeal. Mr. Southall-Edwards helpfully drew my attention to three Fitness to Practise committee decisions which arose from proceedings relevant to false claims about MURs. In Peplow-Williams (2012), the pharmacist was charged with failing to carry out 800 MURs over a 2-3 year period, leading his employer wrongly to claim £22,000; the registrant in that case had additionally wrongly retained a £800 bonus. Mr Peplow-Williams was suspended for a period of one year. In Watson (2012), 45 false claims justified a three month suspension; in Gulamhusein, 308 false MUR claims over a three month period led to a one-month suspension. By comparison, in this case, Mr Southall-Edwards acknowledged that the Appellant falsely claimed approximately 300 MURs.[24]However on close examination of the details of the earlier cases, in each there were material distinguishing features (some of which were indeed referred to by the FTP Committee considering this Appellant’s case). Specifically: i. Ms Watson and Ms Gulamhusein were acknowledged by the committees considering their cases to have shown insight into their offending; ii. Mr Peplow-Williams was said to have been suffering from personal, medical and family problems; in his case, some of the mitigation had taken place in private session, rendering it impossible to know whether there was some highly significant mitigating factor affecting the ultimate sanction; iii. Ms Watson was acknowledged to be suffering from depression at the time of the offending, receiving high levels of anti-depressants: the committee finding that “she was not seeing matters as clearly as she would have done”; iv. Ms Gulamhusein had recently experienced extraordinarily difficult domestic circumstances, and had been the victim of recent assaults which had led to her husband’s imprisonment.[25]I guard against paying too much regard to earlier decided cases; I apprehend that the Committee sensibly followed the same approach. The distinguishing features of the three comparable cases (outlined in the paragraph above) are in my judgment sufficiently material to provide a clear answer to why they should not be attributed undue prominence in the exercise of formulating the correct sanction.[26]As earlier mentioned, the FTP Committee specifically directed itself that the purpose of a sanction is not to punish a registrant, and accurately reflected the relevant purpose of sanctions as being “to protect the public, maintain public confidence in the profession and maintain and declare proper standards of behaviour within the profession”. I can see no error in the Committee’s evaluation of the factors relevant to the imposition of sanction; it obviously weighed aggravating factors as against mitigating factors, the testimonials vouching for the Appellant’s integrity as against its own assessment based on questioning and observation. It appropriately referred to the ‘Indicative Sanctions Guidance’, identifying the fact that no fewer than four of the criteria are relevant in this case, and they applied the relevant factors to the individual circumstances of this case. As the Respondent contends, and I accept, the reasoning of Cranston J in Osamudiame Giwa-Osagie v General Medical Council [2013] EWHC 1514 (Admin) is of direct relevance to the instant case; in Giwa-Osagie, Cranston J reported that: “The panel was obviously impressed by what it regarded as attitudinal deficiencies and lack of insight that the Appellant demonstrated. That was a matter that the panel returned to in its finding on sanction” (§29) “Given that it concluded that the Appellant was not prepared to acknowledge his failings, it concluded that the only penalty appropriate … was the one I have indicated” (§33) “I can see nothing wrong with this, the court should accord deference to the panel’s conclusion on matters of penalty” (§34).[27]This FTP Committee was equally impressed by what it regarded as the attitudinal deficiencies of this Appellant, and his lack of insight; this was a magnetic factor in its ultimate reckoning on the issue of sanction. Like Cranston J, I can see nothing wrong with that approach, and in respecting its conclusion I once again acknowledge and pay respect to the specialist expertise which this FTP Committee brings to a determination of this Appellant’s misconduct and impairment of fitness to practice.[28]As Mostyn J observed in Luthra my decision on sanction must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another. I can only overturn the decision if I conclude that it is wrong. For the reasons which I have set out above, I have reached the clear conclusion that the Committee did not reach a conclusion which was wrong, and this appeal must therefore be dismissed.[29]That is my judgment.