Abdul-Razzak v General Pharmaceutical Council [2016] EWHC 1204 (Admin)

Case No CO/5424/2015

[2016] EWHC 1204 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 May 2016

Before

SIR STEPHEN SILBER

(Sitting as a High Court Judge)

Between

MOHAMMED EL-HADI ABDUL-RAZZAKAppellant

GENERAL PHARMACEUTICAL COUNCILRespondent

Jason Bartfeld QC (instructed by Mackrell, Turner Garrett) for Appellant

Kenneth Hamer (instructed by Head of Professionals Regulation, General Pharmaceutical Council) for Respondent

Hearing Hearing date: 26 April 2016

Written submissions dated 4 and 13 May 2016

Judgment

Sir Stephen Silber:

Introduction

[1]On 15 August 2012 Mohammed El-Hadi Abdul-Razzak (“the Appellant”) became a registered pharmacist registered with the General Pharmaceutical Council (“the Council”). From 17 September 2012, he was the “responsible pharmacist” at Safeer Pharmacy, 194 Edgware Road, London W2 2DS (“the Pharmacy”). Between 24 and 29 June 2015, the Fitness to Practise Committee of the Council (“the Committee”) comprising of Mr. Patrick Milmo QC, its Chairman, Dr Neil Doggett, a pharmacist, and Mrs Jillian Alderwick heard a complaint brought by the Council against the Appellant.

[2]On 5 October 2015, the Committee found that whilst the Appellant was the responsible pharmacist at the Pharmacy, supplies of prescription-only medicines were made from the Pharmacy by counter assistants on two occasions on 27 September 2012 and on one occasion on 5 October 2012 without a prescription being presented on any occasion. The Committee also found that on those occasions, the Appellant’s failure to adequately supervise the counter assistant caused or permitted an unlawful supply to be made from the Pharmacy and that he ought to have known that the supply would be, or was, unlawful. It then found that the Appellant’s fitness to practise was then currently impaired by reason of his misconduct, and it directed that the entry in the Register of Pharmacists of the Appellant be suspended for six months pursuant to Article 54 of the Pharmacy Order 2010 (“the 2010 Order”).

[3]The Appellant appeals and he challenges the findings of fact that he was guilty of misconduct, that his fitness to practise was impaired by reason of his misconduct and that the sanction was fair and proportionate. The Council contends that the findings were correct in the light of the evidence and especially the Appellant’s important role at the Pharmacy at the time of the offences as the “responsible pharmacist”, which is the issue to which I now turn.

The Duties of the Responsible Pharmacist

[4]Each registered pharmacy must have a “responsible pharmacist” and section 72A(1) of the Medicines Act 1968 provides that it is the duty of the Responsible Pharmacist “to secure the safe and effective running of the pharmacy business at the premises in question so far as concerns (a) the retail sale of medicinal product”. S72A

(2) of that Act provides that “a person may not be the responsible pharmacist in respect of more than one premises at the same time” , except in circumstances which are not relevant to this appeal.

[5]The rationale for these provisions is that the responsible pharmacist performs a crucial function, as the Human Medicines Regulations 2012, regulation 214 (formerly section 58 (2) of the Medicines Act 1968), makes it unlawful (except in certain circumstances which do not apply to this appeal) to sell or to supply prescription-only medicines without a valid prescription. Thus the responsible pharmacist must be present in the pharmacy to supervise the sale or supply of prescription-only medicines and in addition, he or she must be in a position to give advice and intervene in connection with the sale or supply of prescription-only medicines. In other words, the responsible pharmacist performs a very important role in ensuring that prescription-only medicines do not get in the wrong hands.

[6]The Council’s Guidance for Responsible Pharmacists, September 2010, draws attention to the legislation and it provides guidance. The Guidance states that a pharmacist taking on the role of responsible pharmacist at a registered pharmacy must establish the scope of the role and responsibilities he/she will have as the responsible pharmacist (paragraph1.1 ), and only take on the role of responsible pharmacist if this is within his/her professional competence (paragraph

1.2 ). Paragraph 1.4 states that the responsible pharmacist must secure the safe and effective running of the pharmacy business.

[7]Standard 7.7 of the Council’s Standards of Conduct, Ethics and Performance states of pharmacist and pharmacist that: “You must make sure that you keep to your legal and professional responsibilities and that your workload or working conditions do not present a risk to patient care or public safety”.

[8]The Council is the regulator of pharmacists. Article 6(1) of the 2010 Order provides that the main objective of the Council is to protect, promote and maintain the health, safety and well-being of members of the public, and in particular of those members of the public who use or need the services of registrants, or the services provided at a registered pharmacy, by ensuring that registrants, and those persons carrying on a retail pharmacy business at a registered pharmacy, adhere to such standards as the Council considers necessary for the safe and effective practice of pharmacy.

Chronology

[9]In September and October 2012, the BBC were carrying out an investigation into whether certain London pharmacies, principally in the Edgware Road area, were unlawfully selling prescription-only medicines to patients or to the public without prescriptions. The investigative procedure involved equipping reporters with concealed filming and audio recording devices who then visited the pharmacies and asked for medicines which could only normally be supplied to a patient with a prescription. The reporters did not have prescriptions for the medicines they requested, but nonetheless they were supplied with the medicines requested. The results of these investigations later formed part of a BBC television programme.

[10]In the course of these investigations, the Pharmacy was visited on a number of occasions by a BBC reporter posing as a patient or a customer seeking to buy prescription-only medicines, and such medicines were obtained. It is alleged that these medicines were supplied without prescriptions being presented, and that the Appellant was the responsible pharmacist at the time. It is not suggested that the Appellant personally made the supply, but the allegation is that he failed adequately to supervise the counter assistants who supplied the reporter, and he thereby caused or permitted the unlawful supply to be made on three occasions between 27 September 2012 and 5 October 2012.

[11]More particularly, on 27 September 2012, a supply of Amoxicillin 500mg, a prescription only medicine, was made from the Pharmacy by the counter assistant Ali Madani (“the first supply”). Then later on the same day, a supply of Diazepam 5mg and Viagra 100mg, prescription only medicines, were supplied from the Pharmacy by the counter assistant, Hosum Auda (“the second supply”). Finally, on 5 October 2012, a supply of Diazepam 5mg, a prescription only medicine, was made from the Pharmacy by the counter assistant, Hosum Auda. (“the third supply”). Prescriptions were required for the supply of each of these items, but each of the supplies was made without a prescription being given by an appropriate practitioner. The Committee found that the Appellant was the responsible pharmacist at the time of each supply and that finding is not challenged on this appeal.

[12]The precise Particulars of Allegations against the Appellant when he appeared in front of the Committee as addressed to the Appellant were that:

“1. You were first registered as a pharmacist on 15 August 2012;” 2. On 27 September 2012, a supply of Amoxicillin 500mg, a prescription only medicine, was made from Safeer (‘the Pharmacy’) by the counter assistant Ali Madani. 3. On 27 September 2012, a supply of Diazepam 5mg and Viagra 100mg, prescription only medicines, were made from the pharmacy by the counter assistant, Hosum Auda. 4. On 5 October 2012, a supply of Diazepam 5mg, a prescription only medicine, was made from the pharmacy by the counter assistant, Hosum Auda. 5. You were the responsible pharmacist at the pharmacy at the times that the supplies detailed at paragraphs 2 and/or 3 and/or 4 were made; 6. In relation to the supplies at paragraphs 2 and/or 3 and/or 4. i) The supply was made otherwise than in accordance with a prescription given by an appropriate practitioner; ii) Your failure to adequately supervise the counter assistant caused or permitted an unlawful supply to be made from the pharmacy; iii) You ought to have known that the supply would be, or was, unlawful. By reason of the matters set out above, individually or cumulatively, your fitness to practise is impaired by reason of misconduct.”

[13]As at the start of the hearing in front of the Committee, the Appellant had not admitted any of these facts other than the fact of his registration as a pharmacist. The Council relied principally on video footage produced by the BBC from the concealed filming and audio recording devices on the reporters. The reporter was Arabic- speaking with all the dialogue in Arabic. There was also oral evidence from a number of witnesses called by the Council and from the Appellant. The Committee explained that it had viewed the video several times.

[14]The video evidence showed the events leading up to each of the three supplies by the relevant counter assistants. The Appellant was only to be seen on one of videos and that related to the second supply. During the course of the appeal, I watched the video. A transcript in English was prepared of the conversations which were heard on the video and which were in Arabic. After the hearing, I took advantage of a further opportunity to watch the video for the purpose of preparing this judgment. I was also given an agreed annotated translated transcript so as to indicate what the video showed when various comments were made.

[15]In its Determination, the Committee first considered the case against the Appellant in respect of the second supply which was the only video on which the Appellant appeared. Having seen the video evidence and considered all the evidence relating to it, the Committee concluded that these sales occurred on that occasion because of the Appellant’s failure “to adequately supervise the counter assistants caused or permitted an unlawful supply to be made from the pharmacy” .Paragraph 6(ii) of the Particulars of Allegation against the Appellant and that he “ought to have known that the supplies would be, or was, unlawful” Paragraph 6(iii) of the Particulars of Allegation against the Appellant .

[16]The Committee then proceeded to consider the case against the Appellant based on the first and third supplies. It concluded that in the light of the way in which the assistant immediately and without enquiry made the supplies in each of those cases and what had been seen in relation to the second supply, that they should make the same findings against the Appellant in respect of the first and third supplies as they had made in respect of the second supply.

[17]The next issue for the Committee to determine was whether by reason of its findings, the conduct of the Appellant amounted to misconduct and, if so, whether by reason of that misconduct, his fitness to practice was impaired. Counsel for the Appellant recognised quite rightly, in the view of the Committee, that the Appellant was guilty of serious misconduct. The Committee then found that the Appellant’s fitness to practice was impaired.

[18]The final issue for the Committee was to determine what sanction was appropriate and it concluded that the Appellant’s registration should be suspended for a period of 6 months.

[19]These findings of the Committee are challenged on the appeal by the Appellant whose grounds of Appeal can be summarised in this way: i. Ground One: The Breaches Issue. The Committee’s findings of fact in relation to sub-paragraphs 6(ii) and 6(iii) of the Particulars of Allegation were contrary to the weight of the evidence and were wrong in relation to each of the three supplies. ii. Ground Two: The Impairment of Fitness to Practise Issue. The finding of current impairment is unsustainable for a number of reasons, including that the Committee failed to take account of the Appellant’s impeccable record in the period of more than three years since the offending behaviour which occurred days after he was registered as a pharmacist and its decision was substantially founded on an unfair criticism of the conduct of the Appellant’s defence. iii. Ground Three: The Sanctions Issue. The Committee ought to have taken into account the period when his registration had previously been suspended by an Interim Suspension Order pending the hearing before the Committee and the previous recommendation from the Registrar to the Investigating Committee that the appropriate sanction for the Appellant was that he should receive advice. In any event, six months suspension was, in itself, an excessive and an unjustified period of suspension.

[20]The case for the Council is that the Committee, as the designated fact finder, correctly reached the conclusions which it did and that in any event, they were not plainly wrong or indeed wrong.

The Approach to Challenges to the Decision of the Committee on Factual Issues

[21]Article 58 of the 2010 Order provides a right of appeal against a decision of the Committee to the High Court and CPR rule 52.11 provides:

“(3) The appeal court will allow an appeal where the decision of the lower court was (a) wrong...”

[22]In an appeal based on CPR 52.11(3) (a), the Court should only intervene if satisfied that a professional conduct committee’s decision was “wrong”, which means in reality, “plainly wrong”; see Shaw and Turnbull v. Logue

[2014] EWHC 5 (Admin)

at [62] per Jay J. He proceeded to state that:

“214.The issue at this stage is whether the [Solicitors Disciplinary Tribunal’s] key conclusions that Mr Shaw was dishonest in a number of respects and that Mr Turnbull was dishonest in one specific, albeit important, respect are “plainly wrong”

. My function is to review the evidence and to apply to it a strict yardstick; it is not to second-guess the SDT’s findings or to substitute my views for theirs even if, for example, I were of the opinion that the conclusions are probably wrong (for the avoidance of doubt I do not hold that opinion). “Plainly wrong” imports a higher onus of persuasion, and for good reason: the reviewing Court does not see and hear the witnesses. “

[23]In Bhatt v. General Medical Council

[2011] EWHC 783 (Admin)

, Langstaff J, after considering a number of authorities concluded that: “9. I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:(i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

(ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

(iii) the court should accordingly be slow to interfere with the decision on matters of fact taken by the first instant body;

(iv) findings of primary fact, particularly if found upon an assessment of the credibility of witnesses are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

(v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional expertise of the [fitness to practise panel], the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be “wrong” or procedurally unfair. To this extent I accept and adopt the submissions of [counsel for the appellant]”.

[24]These principles have been adopted in Wasu v. General Dental Council

[2013] EWHC 3782 (Admin)

at [17]; and in L v. Health and Care Professions Council

[2014] EWHC 994 (Admin)

at [14]. No submission has been made to show that any of these principles are incorrect or that they should not be applied in this case. Ground 1-The Breaches Issue

[25]Mr. Jason Bartfeld QC, counsel for the Appellant, contends that the Committee erred in its findings not only in relation to the second supply (which was the only one on which the Appellant was seen on the video), but also in respect in respect of the other two supplies. He submits that they are plainly wrong. The Appellant was unable to recall any of the occasions of the three supplies. He explained that he had no reason to suspect that the sales staff were not putting proper procedures into practice and they knew that all prescriptions should be remitted to him. In cross-examination, the Appellant explained that “his satisfaction that the assistants knew what their obligations were was derived from the fact that they had been working there for a period of time”. The Appellant’s case was that if they had supplied prescription-only medicines improperly, the counter assistants must have concealed each action from him.

[26]Mr. Kenneth Hamer, counsel for the Council submits that the findings of the Committee are correct or at least are not wrong, let alone plainly wrong. Like the Committee, I will start by considering the second supply. The second supply

[27]The video evidence showed that there were conversations between the reporter and the counter assistant with some of it conducted with the reporter at the counter and the assistant at the dispensary with the Appellant being seen in the vicinity of the dispensary close to the counter assistant. It was apparent that the counter assistant went to the dispensary to obtain one of the medicines requested by the reporter “almost certainly Viagra”. The Committee concluded that the Appellant must have been aware that the same assistant was talking to the reporter about a medicine. The Appellant accepted the names of the medicines were pronounced the same way whatever dialect of Arabic was used.

[28]In respect of this supply, the Committee found first that it was apparent that the Appellant spoke not a word to the counter assistant, and second that the Appellant “showed not the slightest interest in what the counter assistant was saying or doing; or in the medicine that he was obtaining from the dispensary for the customer”. It proceeded to find that, “in our view tellingly, the assistant displayed no concern at the proximity of [the Appellant] and no endeavour to obscure and conceal from him what he was doing”. The Committee noted that the assistant “conversed quite openly with the customer (reporter) in the presence and hearing of [the Appellant]”.

[29]The Committee later concluded that: “No observer of the scene would ever have thought that [the Appellant] was supervising or trying to supervise or exercise any authority over the assistant. It is perhaps not surprising that [the Appellant] has sought to suggest that the provision of Viagra and the diazepam on that occasion was covered by prescription – as we have already stated, in our view a well-nigh hopeless proposition- as the lack of supervision is so closely apparent. We find the allegation in Paragraph 6 (ii) That the Appellant failed “to adequately supervise the counter assistants caused or permitted an unlawful supply to be made from the pharmacy”. proved in relation to [the second supply]”.

[30]Mr. Bartfeld contends that no account was taken by the Committee of the “clear evidence at the start of the footage showing the Appellant properly supervising the counter-assistant”. It must not be forgotten that the Appellant has stated, such as in his prepared statement given to the police, that he had no recollection of what happened when the BBC reporter/customer visited the Pharmacy on the occasions of the three supplies. It must follow that he cannot now say that he was supervising the staff at the start of the footage leading to the second supply. It is true that the start of the video footage shows the Appellant talking very briefly with a counter assistant to a third party, but there is no evidence as to whether the person to whom the Appellant was speaking was a customer or a friend or a neighbour, especially as the words recorded do not give any clue as to what was said other than the use of very general pleasantries. I conclude that there is no evidence that the Appellant was supervising the staff at the start of the footage.

[31]Mr. Bartfeld’s second criticism of the findings of fact of the Committee relating to the second supply is that it fails to “reflect the fact that, at the point when the counter assistant is in the dispensary at the same time as the Appellant, that he does not use the words ‘Viagra’ or ‘medicine’ when speaking to the undercover reporter”. The Committee did not state that when the counter assistant was in the dispensary at the same time as the Appellant, he used the words “Viagra” or “medicine” when speaking to the undercover reporter. Their crucial finding was that the Appellant “must have been aware the counter assistant was talking to a customer about a medicine” and that the Appellant “showed not the slightest interest in what the assistant was saying or doing; or in the medication that he was obtaining from the dispensary for the customer”.

[32]The transcript shows that the customer/reporter specifically asks for Viagra twice and the sales assistant then mentions Viagra specifically by name twice. There was also a discussion about the strength required of it and the cost of it. In respect of the supply of Diazepam, the customer first asked for Valium, which was mentioned by name on two occasions by him. The sales assistant used the name Valium six or seven times in conversations with the reporter/customer and he explained that Valium is called Diazepam in this country. The word Diazepam was used six times by the sales assistant in his conversation with the reporter/customer. There was a discussion between the sales assistant and the reporter/customer about its cost, strength and the number of tablets in a package.

[33]In his evidence, the Appellant said that he could not hear the conversation between the customer and the counter assistant. The Committee had the benefit, which I did not have, of hearing the oral evidence, as well as of seeing and hearing the Appellant giving evidence and being cross-examined, all of which took almost a whole sitting day of the Committee. Its conclusion was that during the conversation about Viagra, the Appellant “must have been aware that the assistant was talking to a customer about a medicine” and that in relation to the supply of Valium or Diazepam, the counter assistant “conversed quite openly with the customer (reporter) in the presence and hearing of [the Appellant]”.

[34]These were findings open to the Committee especially as they had explained that they had seen the video several times and that the Appellant was cross-examined on the video and his movements before and during the second supply. The video showed the Appellant and the sales assistant both in the small dispensary when the sales with the customer were under discussion. So the Committee was able to reach its conclusions and I have not seen anything on the video or in the transcript to show that this conclusion was wrong, let alone plainly wrong.

[35]Mr. Bartfeld then contends that the Committee ignored the Appellant’s evidence that he could not, and did not, hear the conversation between the operative/reporter, and instead found that the Appellant could and would have been able to hear and to understand the conversations. The Committee, as the designated fact finders, had to decide whether to accept this evidence to reach that conclusion.

[36]Next, Mr. Bartfeld complains that the Committee ignored the logical inference to be drawn from the counter assistant “deliberately directing the Appellant away from the dispensary before the second medicine was sourced”. The dispensary was a small dedicated area in the Pharmacy. There was no finding that the counter assistant did this, and, in any event, it does not appear to have been the case. More importantly, even if it was correct, such conduct on the part of the counter assistant ought to have caused deep concern on the part of the Appellant, as his duty as the responsible pharmacist was to ensure the safe running of the Pharmacy and (as the Committee correctly concluded) to supervise the activities of the counter assistants. This was a vital function as it was directed to ensuring that prescription-only medicines were not supplied without a prescription and it also necessitated the responsible pharmacist having a positive pro-active duty to prevent prescription-only medicines being supplied without a prescription.

[37]Ms Sharon Monks, an inspector with the Respondent, explained in evidence that it would only be the dispensary staff or the pharmacists who would be working within the dispensary and who would be involved in the supply of prescription-only medicines. In this case, the counter assistant involved in the second supply, who was neither a pharmacist nor a member of the dispensary staff, went into the dispensary when the Appellant was there after the customer/reporter had asked for Viagra and went in again after Valium/Diazepam had been requested although the Appellant was not there then. The fact that the counter assistant was going into the dispensary ought to have caused the responsible pharmacist, namely the Appellant to intervene and to enquire what the counter assistant was doing.

[38]The Appellant contends that the Committee set the standards too high as it failed to reflect the reasonable presumption of the integrity of properly trained counter assistants. I agree with Mr Hamer that this submission does not appreciate the significance of the policing duty of the responsible pharmacist to ensure patient safety by supervising the supply and sale of prescription-only drugs. This is a vital and pro-active responsibility which cannot be satisfied by relying on the experience of the counter-staff, who are not registered pharmacists. The standard applied by the Committee cannot be regarded as wrong in the light of the critical role of the responsible pharmacist in ensuring that prescription-only medicines are not supplied without a prescription which is an offence.

[39]This duty becomes even more important in the light of the finding of the Committee that “on the basis of [the Appellant’s] evidence”, they were:

“far from convinced that [the Appellant] was ever sufficiently informed or instructed about the procedures at the pharmacy to enable him effectively to supervise the safe running of the pharmacy; or that he took any or any sufficient measures to ensure he could exercise authority and control over, and therefore supervise, the activities of counter assistants”

[40]This finding of the Committee, which was reached after hearing and seeing the Appellant give evidence, is very significant bearing in mind the fact that they explained that in respect of the supply of prescription-only medicines the Guidance states that “ ‘Supervision’ in this context requires physical presence [of the pharmacist] and a pharmacist being able to advise and intervene”.

[41]The Committee explained their finding was based on studying the video and hearing the evidence on the Appellant’s apparent lack of interest in the activities or conversations of the counter assistant when it concluded that:

“What is the (sic) quite apparent from that footage is that not a word was spoken by Mr Abdul-Razzak to the assistant. He showed not the slightest interest in what the assistant was saying or doing; or in the medicine that he was obtaining from the dispensary for the customer. Further, and in our view tellingly, the assistant displayed no concern at the proximity of Mr Abdul-Razzak and no endeavour to obscure and conceal from him what he was doing. He conversed quite openly with the customer (reporter) in the presence and hearing of Mr Abdul-Razzak. No observer of the scene would ever have thought that Mr Abdul-Razzak was supervising or trying to supervise or exercising any authority over the assistant. It is perhaps not surprising that Mr Abdul-Razzak has sought to suggest that the provision of Viagra and Diazepam on this occasion was covered by a prescription – as we have already stated, in our view a well-nigh hopeless proposition – as the lack of supervision is so clearly apparent. We find the allegation [that the Appellant’s failure to adequately supervise the counter assistant caused or permitted an unlawful supply to be made from the pharmacy] proved in relation to [the second supply].”

[42]Having considered the video and other evidence, I have concluded that this is unimpeachable reasoning and that it does not show that the Committee had set too high a standard. On the contrary, it would not have been permissible for the Committee to set a lower standard. A further reason why the Appellant failed in his duty is that none of the medicines supplied had any label on them and the Appellant agreed that prescription-only medicine should never leave the pharmacy without a label or without going near a pharmacist.

[43]For those reasons and having considered all Mr. Bartfeld’s submissions, I unhesitatingly conclude that the appeal in relation to the breaches of duty in respect of the second supply must be dismissed as the Appellant’s case fails by a long way in showing that the decision of the Committee was wrong, let alone plainly wrong. The First and Third Supplies

[44]The conclusion of the Committee was that the Appellant was on duty at the time of these supplies even though he did not appear on the film and that the counter assistant immediately made these supplies with minimum enquiry. It considered that having regard to the film footage relating to the second supply, that the Appellant had by lack of proper supervision caused or permitted the practice within the Pharmacy of selling without prescription prescription-only medicines.

[45]The Appellant contends that the Committee’s findings in relation to the first and third supplies cannot be supported when the video footage did not show the Appellant and any communication was between the counter assistant and the reporter.

[46]There are a number of factors which show that the decision of the Committee was not wrong namely that:a. even though a prescription was required for the supply of the Amoxicillin for the first supply and of Diazepam for the third supply, none was produced for either supply and yet the supply was made;

b. the Committee found that there were no labels on the packaging on the first and third supplies, as there should have been as they were prescription-only medicines;

c. the Committee concluded “on the basis of [the Appellant’s] evidence, we are far from convinced that [the Appellant] was ever sufficiently informed or instructed about the procedures at the pharmacy to enable him effectively to supervise the safe running of the pharmacy; or that he took any or any sufficient measures to ensure he could exercise authority and control over, and therefore supervise, the activities of counter assistants”;

d. the counter assistant making the first and third supplies were able immediately and with the bare minimum of enquiry to make these supplies;

e. There is no evidence in the video to show that the Appellant supervised the first or third supplies in any way;

f. The Appellant has not given any explanation as to why he did not supervise the first or third supplies in any way; and that

g. The word “prescription” does not appear anywhere in the translated transcript relating to the supply of Diazepam in the third supply.

[47]I am quite satisfied that the decision of the Committee to find proved the breaches alleged in relation to the first and third supplies cannot be challenged. If I had been in any doubt on this conclusion, I would have reached the same conclusion after taking account of two additional factors.

[48]The first factor was, as I have explained See paragraph 23 above , the respect or deference due to the Committee as the specialist Tribunal whose understanding of what the profession expects of its members in matters of pharmaceutical practice deserves respect.

[49]The second factor was the findings to which I have already referred made in relation to the second supply which was made on the same day as the first supply and about two hours later and which showed that the Appellant had failed to appreciate that he had a duty to supervise the sales staff when selling prescription-only medicines. The Committee were quite entitled to infer that the Appellant would have acted in the same way a short period earlier when the first supply was made. Conclusion

[50]The Decision of the Committee that the Appellant acted in the manner set out in Paragraph 6 of the Particulars of Allegations is not wrong and certainly not plainly wrong. In reaching that conclusion, I have not overlooked the contentions of Mr. Bartfeld that the Appellant had taken steps to ensure that the sales staff were properly trained and that they knew the standard procedures, but the basic and essential duties of the Appellant, as the responsible pharmacist, was not merely to take those steps, but also to ensure that the sales staff did not supply prescription-only medicines without a prescription. This was an essential and vital policing duty with which the Appellant failed to comply.

Issue 2 –The Impairment of Fitness to Practise Issue

[51]The Committee explained that having found that the allegations against the Appellant were proved, it then had to consider whether this amounted to misconduct and if it did, whether by reason of that misconduct the Appellant’s fitness to practise was impaired. Article 51 (1) of the 2010 Order provides, in so far as is material that: “A person’s fitness to practice is to be regarded as “impaired” for the purposes of this Order only by reason of (a) misconduct…”.

[52]The Committee found that misconduct had to be serious to meet the requirements of Article 51 of the 2010 Order and it noted that the supply of prescription-only medicines without prescription was unlawful and an offence under the Medicines Act 1968. It noted that the duty of a registered pharmacist who is the responsible pharmacist is to ensure that prescription-only medicines are not supplied without a prescription. The Committee recorded that Mr. Bartfeld accepted that what the Appellant did or did not do amounted to serious misconduct. Indeed, I would have found that this was the case in respect of the second supply alone even if the case against the Appellant was dismissed in relation to the first and third supplies. On the basis that it was misconduct within the meaning of Article 51, the Committee then had to apply the criteria set out in Rule 5 of the Fitness to Practise and Disqualification Rules 2010.

[53]Rule 5(1) of those Rules states that the Committee must have regard to the criteria specified in Rule 5(2), when deciding in the case of any registrant whether or not the requirements as to fitness to practise are met.

[54]Rule 5 (2) provides that:

“(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 in relation to the registrant, 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.”

[55]The Committee considered that sub-paragraph (d) could not apply as it had not been alleged that the Appellant was dishonest. So they focussed on sub-paragraphs (a), (b) and (c) which in their view were “all clearly engaged and must lead to the conclusion that the requirements as to fitness to practise have not been met by [the Appellant] in the circumstances of this case”.

[56]It was explained that this decision did not conclusively determine the issue of impairment because the Committee then had to consider as required by Article 54 of the 2010 Order whether the fitness to practice of the Appellant was then currently impaired at that time, and not whether it was or had been impaired at some time in the past. The case for the Appellant was that his fitness to practise was not currently impaired at that time in October 2015, bearing in mind first, that the incidents forming the basis of the disciplinary hearings had occurred three years before the hearings, second, this was in his first job after qualifying, third, that since the events in late 2012, his subsequent conduct had been without fault, and fourth, that, as was the case, he had produced supporting references. It was also pointed out that the Pharmacy might have had in existence a culture of ignoring the rules as to the supply of prescription-only medicines.

[57]The Committee regarded that in certain circumstances these matters might be compelling factors in support of a contention of no current impairment, but that could not be the conclusion in the Appellant’s case on account of:

“ what we consider to be an insuperable obstacle to finding of no impairment, that is throughout the case, [the Appellant] has refused to recognise that he was in any way at fault, or even that there was any unlawful supply of prescription-only medicines to a reporter posing as a patient whilst he was the responsible pharmacist.”

[58]It was noted by the Committee that even after the evidence had been adduced in this case, the Appellant continued to refuse to admit that any unlawful supplies of prescription-only medicines were made while he was the responsible pharmacist. His case was that if this had occurred, this could “only have been achieved by the counter assistant responsible deliberately concealing their actions from [him]”. The Appellant continued to hold that opinion even though the evidence clearly showed that the prescription-only medicines were supplied on three occasions to a reporter, when he was the responsible pharmacist.

[59]The Committee concluded that “on the very best interpretation [the Appellant] has shown total lack of insight”. They then referred to the case of Cohen v GMC

[2008] EWHC 581

(Admin) at paragraph 65 in which it was suggested that where there might be grounds for determining that any impairment might have been remedied, there are three questions that need to be answered:

“Is what has happened easily remediable? Has it been remedied? Is it highly unlikely to be repeated?”

The Committee found that the Appellant had shown a “total lack of insight”, and that there were no grounds upon which they could find that what had occurred in this case had been remedied or was unlikely to be repeated. On the issue of whether the defect has been remedied, it explained that there were “simply no grounds upon which we can find that that has occurred in this case” because “how can you remedy a deficiency of malpractice which you do not recognise ever existed?” As to the third question of whether the conduct is highly unlikely to be repeated, the Committee explained that:

“[T]here is no premise upon which we can find or be assured that if Mr Abdul-Razzak found himself in a position where he was the responsible pharmacist in a pharmacy where the rules were not being followed or obeyed about the supply of prescription-only medicines, he would ensure that such unlawful practices did not continue. In the circumstances our assessment and conclusion is that the Registrant’s fitness to practise is impaired.”

[60]The Appellant contends that the finding on his current impairment was wrong and he appeals on the basis that this decision fails to reflect the passage of time between the allegations and the findings, the lack of any further cause of complaint against the Appellant and that the experience of being subject to the investigation had made the Appellant extremely cautious about his supervision of others to a standard above that ordinarily expected. It is also said that the decision to find impairment on account of the conduct of the Appellant’s defence was wrong, especially as the Committee had stated that it was “prepared to accept that [the Appellant] is a competent pharmacist”.

[61]After I circulated the draft judgment, I received submissions from Mr. Barfeld asking me to reconsider some of my conclusions as he contended that I had erroneously stated first, that the Appellant had made no alterations to his current practice as a result of the allegations made against him in the Particulars of Allegations and second, that this failing would be a powerful indicator of lack of insight and impairment of fitness to practice on the part of the Appellant so as to constitute a good reason for imposing an order suspending him from practice. I did state that the Appellant had not said that he had made alterations to his practice after the incidents at the Pharmacy, but regrettably, I had failed to appreciate that the Appellant had said in evidence among other matters, first, that his experience of these disciplinary proceedings had “made me a bit OCD in my procedures now, double checking”, second that he “would say [the experience of the disciplinary proceedings] has probably put more focus into checking” and third, that he was “a lot more diligent”, than he was told what to do when studying how to perform his duties. The Appellant had also said in an interview in May 2014 that he would be “a lot more careful” than he would have been in 2012 when the events took place which led to the disciplinary proceedings.

[62]Mr. Hamer submitted that I should not reconsider my judgment and he drew my attention to authorities which indicated that “an invitation to go beyond the correction of typographic errors and the like, is always exceptional”(per Lord Judge CJ in Mohamed v Secretary of State (No 2)

[2011] QB 218

[5]). In spite of Mr. Hamer’s submission to the contrary, I decided that I would reconsider my judgment because I did not want the Appellant to feel aggrieved that he had been subjected to unfair criticisms because of my error and that therefore, his case had not been considered properly. I should add that after considering all the evidence to which Mr. Barfeld had drawn my attention, I was convinced that I would have reached the same conclusions as had been expressed in the draft judgment circulated to Counsel. That was because, the Committee having considered all the evidence (including how the Appellant said he would now perform his functions at the time of the hearing) found See paragraph 93 below for a summary of those reasons. for reasons clearly and fairly explained that the Appellant’s fitness to practice was impaired at the date of the hearing before it and that a period of suspension for 6 months was the appropriate sanction. These conclusions cannot be challenged as the Committee was entitled to reach them and in any event, deference was owed to them as they constituted the specialist tribunal whose understanding of what the pharmacist’s profession expects of its members in matters of the practice of their profession deserves respect See paragraph 23,88 and 89 for judicial statements supporting this approach. .

The Approach to Impairment to Fitness to Practice

[63]There are a number of relevant principles showing how such a finding should be approached, including that: i) Impairment is a matter of judgment rather than proof; see Council for the Regulation of Health Care Professionals v. General Medical Council and Biswas

[2006] EWHC 464 (Admin)

at [40] – [41]; ii) “However, it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised [in Cohen] at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession” per Cox J in Council for Healthcare Regulatory Excellence v. Nursing and Midwifery Council and Grant

[2011] EWHC 927 (Admin)

[71]; iii) Insight – the expectation that a doctor will be able to stand back and accept that, with hindsight, he should have behaved differently, and it is expected he will take steps to prevent reoccurrence – is an important factor in a hearing (per Collins J in R (Bevan) v. General Medical Council

[2005] EWHC 174 (Admin)

at [34] and [39]); iv) In relation to impairment, it was rightly a matter of concern that the facts were not admitted until the hearing ( per Ouseley J in R (Sharma) v. General Dental Council

[2010] EWHC 3184 (Admin)

; and that v) “It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated” Cohen v GMC

[2008] EWHC 581

Admin at [65] per Silber J.

[64]Applying the Cohen approach (as the Committee did) and considering the first Cohen question of whether the Appellant’s misconduct could be easily remedied, it is clear that the deficiencies in supervision of the Appellant which gave rise to the disciplinary proceedings could easily be remedied by the Appellant carrying out his supervising duties of the responsible pharmacist in the careful way in which those duties should be performed. The second and third Cohen questions present great difficulties for the Appellant in the light of the Committee’s conclusion in paragraph 57 above. The Committee had apparently not been impressed by the evidence of the Appellant as to how he would perform his duties in future which I have summarised in paragraph 61 above. This evidence was vague and surprisingly, it did not explain precisely he would perform the duties of responsible pharmacist in future so as to adequately supervise counter assistants. More importantly, a further difficulty about accepting this evidence is the conclusion of the Committee which I set out in paragraph 59 that there was “an insuperable obstacle to a finding of no current impairment” which was that “throughout this case, [the Appellant] has refused to recognise that he was in any way at fault, or even that there was an unlawful supply of prescription-only medicines to a reporter posing as a patient whilst he was the responsible pharmacist”.

[65]In reaching that conclusion, I have not overlooked the submissions of the Appellant and I took into account mitigating matters set out in paragraph 56 above, such as the passage of time since the supplies occurred in September and October 2012, as well as the facts that there had been no complaints about him since then and he had only been qualified for a very short period when the supplies took place.

[66]This conclusion that the finding that the fitness to practise of the Appellant was impaired was not based, as Mr. Bartfeld says is the position, “on an unfair criticism of the conduct of the Appellant’s defence” on the basis that by denying liability, the Appellant was not merely stating that he had done nothing wrong but that it would be regarded as implying that he would behave in the same way in the future. The stark fact is that the Appellant could have said to the Committee first, that although he believed that he had acted properly and in accordance with his duties as the responsible pharmacist when the three supplies were made, but second, that nevertheless, in future he would act differently and explaining precisely how he would have behaved if the counter assistants were or might be supplying prescription-only medicines. The Committee concluded that he had not put forward that type of evidence and in their words, “on the very best interpretation [ the Appellant] has shown lack of insight” apart from making the crucial findings that I have set out in paragraphs 57 and 59 above. These show that the Committee did not consider that the Appellant would carry out his duties as a responsible pharmacist in proper manner irrespective of what he said that he would do.

[67]In addition, contrary to Mr. Bartfeld’s submissions, the fact that the Appellant was in the opinion of the Committee, “a competent pharmacist” did not necessarily mean that he performed the different role of the responsible pharmacist with the requisite skill when supervising staff for the reasons which I have set out in paragraphs 57 and 59 above .

[68]In conclusion, I reject the submission that the decision that the Appellant’s fitness to practise was impaired, was wrong for any of the reasons put forward by Mr. Bartfeld on the basis of the crucial findings set out in paragraphs 57 and 59 above. A further reason why I would reject the Appellant’s submissions is that, as was explained in the Bhatt case See Paragraph 23 above , this Court “will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect”. The decision on whether there should be a finding of impairment to practice in respect of the Appellant falls in this category.

Issue 3-The Sanctions Issue

[69]Under Article 54 of the 2010 Order, when the Committee has found that the Appellant’s fitness to practice is impaired, it may impose one of four sanctions on the registrant. These sanctions are first, to give a warning, second, to impose conditions on the registrant for a period not exceeding three years, third, to suspend the registrant for a period not exceeding 12 months and fourth, to give a direction that the registrant be removed from the register. The Committee explained that in determining what is the appropriate sanction, it had to have regard to the purposes of sanctions, which are threefold all connected with public interest considerations; namely first, the protection of the public, second, the maintenance of public confidence in the profession and third, the maintenance of public standards of behaviour within the profession. It observed that the purpose of sanctions was not punishment, although the effect of them may be punitive and that their purpose was different from the purpose of an interim suspension order which was imposed for the protection of the public.

[70]It was explained that although public interest considerations “weigh foremost in determining the appropriate sanction”, the Committee had to take carefully into account the interests of the registrant and to have regard to the principles of fairness, proportionality and reasonableness. This meant that the Committee had to ensure that any sanction imposed placed no greater restriction upon a registrant’s right to practise his profession than is “absolutely necessary to achieve its objectives”. None of these principles have been criticised by or on behalf of the Appellant.

[71]The Committee explained that the aggravating factors in this case were that the Appellant had maintained that if the medicines were unlawfully supplied to the reporter, then it was not his fault, and he did not accept that they were unlawfully supplied. He made, and persisted in, the suggestion that Viagra may have been a herbal version of the medicament or there may have been a prescription for it “despite the hopelessness of these suggestions”.

[72]The Committee also took into account the mitigating factors which included the fact that this was the first time the Appellant had worked as a pharmacist since being registered and so he had no experience of acting as a responsible pharmacist. In addition, it may also have been said that he may have found himself in a pharmacy where there might have been an endemic practice for prescription-only medicines to be sold without a prescription. The counter-assistants appeared from the video evidence well-versed in the practices of the pharmacy. In addition, the events giving rise to the complaints against the Appellant occurred three years previously and in addition on the basis of the testimonials, the Committee was prepared to accept that he was a competent pharmacist.

[73]Nevertheless, the concern of the Committee was the Appellant’s “complete lack of insight” being unable to accept any blame for the three supplies to undercover reporters. This raised “unanswered questions as how [the Appellant] would react if confronted with similar situations in the future”. The Committee considered, but rejected, the submission of Mr. Bartfeld that a warning would be a sufficient sanction as it doubted whether it would convey either to the Appellant the seriousness of his failings, or to the public that the Appellant’s conduct was unacceptable, or to the profession the serious consequences of failing to undertake the duties of a registered pharmacist.

[74]Having rejected the possibility of imposing conditions on the Appellant’s registration, the Committee decided that a period of suspension was appropriate and it explained that: “Miss Davies, on behalf of the Council, has submitted that a period of suspension is the appropriate sanction. We have come to the same conclusion. Our reasons are that a notable feature of the Registrant’s conduct is his lack of insight and further that the sanction must serve the purpose of restoring public confidence in the profession, and maintaining standards of practise which it should do by conveying the message to the public and the profession that the conduct of the Registrant in failing to supervise or control properly or at all the activities of assistants supplying the pharmacy’s customers with medicines cannot be tolerated and is unbefitting of a person registered with the Council”.

[75]The Committee explained that it had considered, but had rejected, the imposition of the ultimate sanction which was removal of the Appellant’s name from the register. It then imposed a period of suspension for six months which the Committee recognised was likely to cause the Appellant hardship, but in their words “it may also provide an opportunity for him to transform his attitudes to necessity to adherence to the Council’s guidance”.

The Submissions

[76]Mr. Bartfeld’s first submission is that the submission of Ms Sarah Davies, who was then solicitor-advocate for the Council, to the Committee (which is set out in paragraph 74 above) that an appropriate sanction was suspension was “a wholesale diversion from their own submission to the Investigating Committee that the appropriate sanction was a letter of advice (where the evidence had not significantly changed in the interim period)”. This submission which originally came from the Registrar was based on the fact that the Appellant “has since confirmed in his latest police interview how he has changed his practice to avoid [sales staff supplying prescription only medicines without a prescription] occurring again”. Mr. Bartfeld says that this recommendation was sent in July/ August 2013 which was almost two years before the hearing in front of the Committee.

[77]The position appears to be that the Appellant’s conduct was first investigated by the Council’s Investigating Committee and it received the recommendation to which I have referred. That committee resolved on 1 October 2014 to refer the case against the Appellant to the Fitness to Practise Committee, which was the body which made the decision which is the subject of the present appeal. The reasons why it was referred, included that the Appellant in his own statements had professed to be unaware of what was happening in the Pharmacy and was not in a position to intervene, which in the view of the Investigating Committee “is inconsistent with the professional conduct required of a responsible pharmacist”. The Investigating Committee considered that if the allegations against the Appellant are proved, there was a “significant failure in the safe running of the pharmacy for which the responsible pharmacist has overall responsibility and accountability, and a failure to supervise his staff adequately …as he admitted that he was not aware of the transactions”. This decision of the Investigating Committee amounted to a rejection of the Registrar’s recommendation.

[78]The Fitness to Practise Committee, which produced the decision which is the subject of the present appeal, had the benefit of considering much evidence which was not before the Investigating Committee or the Registrar, who produced the recommendation on which Mr. Bartfeld relies. This included the video evidence, the oral evidence of all the witnesses and, in particular, of the Appellant. In other words, the Committee had much more extensive evidence than the Registrar and quite properly considered the matter afresh as they were obliged to do.

[79]As I have explained, by October 2015 when sanctions were under consideration, the Committee had heard all this evidence including from the Appellant, who had been cross-examined. The Committee did not accept that the Appellant had changed his practice and it reached the critical conclusion that: “[T]here is no premise upon which we can find or be assured that if [the Appellant] found himself in a position where he was the responsible pharmacist in a pharmacy where the rules were not being followed or obeyed about the supply of prescription-only medicines, he would ensure that such unlawful practices did not continue”.

[80]This meant that the Committee was obliged to take steps to ensure that when acting as the responsible pharmacist, the Appellant would carry out the supervisory duties of a responsible pharmacist so as to ensure that unlawful practices in the supply of prescription-only medicines without a prescription would cease. The Committee was not bound to follow the advice from the Registrar as it had to make its own independent decision especially in the light of its finding set out in the last paragraph.

[81]There is no reason why in the light of those findings relating to their concern as to how the Appellant would act as the responsible pharmacist in future, the Committee was not entitled to suspend the Appellant especially as it explained that it trusted that in that period of suspension the Appellant: “will reflect on his behaviour in September/October 2012, and his failings at the time, and will provide the Committee at a review to take place prior to the expiry of the suspension, evidence that he has revised his attitude towards his own contribution towards, and responsibility for, the unlawful and potentially harmful occurrences that occurred at Safeer Pharmacy in 2012”.

[82]This approach is consistent with the need of the Council to maintain the standards and reputation of the profession as well as the need to maintain public confidence in the profession. So I reject the criticism of the Appellant on this issue.

[83]Second, Mr. Bartfeld submits that the Committee erred in holding that the time spent by the Appellant under interim suspension should not be taken into account in determining the sanction to be imposed on him. He contends that the situation is directly analogous to the approach in sentencing in criminal cases in which periods during which a defendant has been remanded in custody are taken into account in deciding the sentence to be served. So he submits that the period during which the Appellant was under interim suspension should have been deducted from the period of suspension to be served as a sanction.

[84]Mr. Hamer submitted that there should be no deduction in respect of that period on which the Appellant was subject to interim suspension and he relied on the decision of Eady J who decided in Ujam v. General Medical Council

[2012] EWHC 683 (Admin)

, that when considering the period of suspension which should be imposed on a doctor, the fact that the appellant’s registration had been suspended between July 2009 and February 2010 by the GMC’s Interim Orders Panel “was part of the background circumstances, but it would be inappropriate to regard it as analogous to a period of imprisonment served while on remand (which would normally be deducted from any custodial term imposed by a sentencing court)” [5]. Eady J approved paragraph 22 of the GMC’s Indicative Sanctions Guidance which stated:

“[I]n making their decision on the appropriate sanction, panels need to be mindful that they do not give undue weight to whether or not a doctor has previously been subject to an interim order for conditions or suspension imposed by the Interim Orders Panel, or the period for which that Order was effected…An interim order and the length of that order are unlikely to be of much significance for panels.”

[85]I respectfully agree with Mr. Hamer that I should adopt the same approach as Eady J because the task for the Committee when deciding on the appropriate sanction in a disciplinary case is radically different from that of a sentencing judge in criminal proceedings. First, as Sir Thomas Bingham MR has explained in a frequently quoted passage in Bolton v. Law Society

[1994] 1 WLR 512

, the Committee, unlike a sentencing judge, has to follow the golden rule that “the reputation of the profession is more important than the fortunes of an individual member”. This approach has been widely adopted as is shown by the judgments cited in paragraphs 88 and 89 below. Second and perhaps more importantly, the Committee as the professional disciplinary body, is concerned with deciding whether it is safe for a person to practise and that is not a concern of a sentencing judge. It is these crucial differences which mean that time spent subject to an interim order need not be deducted from the period of suspension as otherwise the Committee would not be fulfilling the important functions of the disciplinary body of protecting the reputation of the profession and ensuring that it would be safe for the registrant to resume practice. Indeed if the contrary view had been adopted, the Committee might well have been allowing a registrant to practise much earlier than when it would have been safe to do so.

[86]Mr. Bartfeld also contends that the finding of lack of insight is wrong and unreasonable. It is the Appellant’s case that the Committee’s findings confuse the concept of insight with that of confession. He also says that the penalty is excessive in the circumstances and that there was never any suggestion of dishonesty on the Appellant’s part.

[87]In response, Mr. Hamer submits that the principal purpose of a Disciplinary Committee is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice.

[88]He points out that in Salsbury v. Law Society

[2009] 1 WLR 1286

at [30], Jackson LJ, with whom the other members of the Court of Appeal agreed, explained that:

“the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless, if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere”

[89]The public interest encompasses the reputation of the profession. I have already referred to Sir Thomas Bingham MR’s statement that “The reputation of the profession is more important than the fortunes of any individual member”. Similarly, in Marinovich v. General Medical Council

[2002] UKPC 36

, which wasa case concerning healthcare professionals, Lord Hope of Craighead, delivering the judgment of the Judicial Committee of the Privy Council, said:

“28. …[I]t has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction 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 reputation of the profession. 29. …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.”

[90]Mr. Hamer says that these statements show why the criticisms of Mr. Bartfeld are not justified in at least two respects. First, he points out how important it was 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. Second, he contends that deference is due to the views of the Committee as it is an expert and informed tribunal, which was particularly well placed in any case to assess what measures are required to deal with defaulting pharmacists and to protect the public interest. I consider that both of these contentions are correct.

[91]I cannot accept the contention of Mr. Bartfeld that the Committee has confused the concept of insight with confession. The issue for the Committee was whether it was safe for the Appellant to act as a responsible pharmacist in and after the hearing in October 2015 and that required them to assess how the Appellant would perform his duties immediately after that hearing. It decided, as it was entitled to, that it would not be safe as he had not shown that he would have acted differently than previously as is shown, for example, by the Committee’s conclusion which I have set out in paragraph 79 above. This was a decision reached after considering all the Appellant’s evidence including what he had said about how he would act in future. In essence, the Committee rejected that evidence. That conclusion and the decision that the appropriate sanction was an Order suspending the registration of the Appellant is not wrong and in any event, deference is due to the Committee as I have explained.

Conclusion

[92]A basic and essential duty of the Appellant, as a responsible pharmacist, was to adequately supervise the counter assistants so as not to permit or cause an unlawful supply of prescription-only medicines without a prescription. This was an essential and vital policing duty, but as explained by the Committee, See Paragraphs 25 to 50 above, the Appellant failed to comply with this duty.

[93]Having heard all the evidence (including the Appellant’s evidence as to how he would conduct himself in the future), the Committee, as a specialist body whose understanding of what the pharmacist profession expects of its members deserves respect, found, as I have explained, that: (a)“what we consider to be an insuperable obstacle to finding of no impairment, that is throughout the case, [the Appellant] has refused to recognise that he was in any way at fault, or even that there was any unlawful supply of prescription-only medicines to a reporter posing as a patient whilst he was the responsible pharmacist. See Paragraph 57 above ” and that (b)“[T]here is no premise upon which we can find or be assured that if Mr Abdul-Razzak found himself in a position where he was the responsible pharmacist in a pharmacy where the rules were not being followed or obeyed about the supply of prescription-only medicines, he would ensure that such unlawful practices did not continue. In the circumstances our assessment and conclusion is that the Registrant’s fitness to practise is impaired. See Paragraphs 59 and 79 above. ” (c) “Miss Davies, on behalf of the Council, has submitted that a period of suspension is the appropriate sanction. We have come to the same conclusion. Our reasons are that a notable feature of the Registrant’s conduct is his lack of insight and further that the sanction must serve the purpose of restoring public confidence in the profession, and maintaining standards of practise which it should do by conveying the message to the public and the profession that the conduct of the Registrant in failing to supervise or control properly or at all the activities of assistants supplying the pharmacy’s customers with medicines cannot be tolerated and is unbefitting of a person registered with the Council See Paragraph 74 above. ”.

[94]On the basis of those findings, the Committee was entitled to find for the reasons carefully explained in its Determination, that the fitness to practice of the Appellant was impaired See Paragraphs 51 to 68 above and that the appropriate sanction to be imposed on the Appellant was an order of suspension for 6 months See Paragraphs 69 to 91 above . There is nothing wrong with these conclusions and in any event deference is owed to the Committee See Paragraphs 85, 88 and 89 above. .

[95]It might be some consolation to the Appellant to know that Mr Bartfeld has adduced everything that could be put forward in support of his appeal, but notwithstanding his clear submissions, this appeal must be dismissed.