Dinesh Kumar Soni v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 20 February 2020 |
| Neutral Citation | [2020] EWHC 348 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2002/2019 |
| Date | 20 February 2020 |
[2020] EWHC 348 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO/2002/2019
Mr Kenneth Hamer (instructed by Denning Sotomayor Limited) for the Appellant
Mr Thomas Hoskins (instructed in-house by the Respondent) for the Respondent
Hearing dates: 6 November 2019, 4 December 2019
Approved Judgment
I Contents
| PARAGRAPH NUMBER | SUBJECT |
| I Contents | |
| 1–4 | II Introduction |
| 5–17 | III The history of the complaint and the finding of the Committee of the GPhC |
| 18–22 | IV The developments after the finding against the Appellant |
| Grounds of Appeal | |
| 23–77 | V Ground 7 |
| 23–28 | (a) Application to admit the letter for the appeal |
| 29–32 | (b) The Appellant's Argument |
| 33–35 | (c) The GPhC's Argument |
| 36–39 | (d) How the new information fits into the appeal/statutory framework |
| 40–42 | (e) Supplemental Submissions of the Appellant |
| 43–45 | (f) Supplemental Submissions of the GPhC |
| 46 | (g) Discussion |
| 47–51 | (h) Further enquiries |
| 52–57 | (i) Law regarding anonymous/hearsay evidence |
| 58–77 | (j) Discussion |
| 78–120 | VI Grounds 1–6 |
| 78–80 | (a) Preliminaries |
| 81–85 | (b) Ground 1: Committee should not have accepted evidence of Patient A and/or should have proceeded with caution |
| 86–91 | (c) Ground 2: Inadequacies of Superdrug's investigation |
| 92–96 | (d) Ground 3: The reliability of the witnesses |
| 97–105 | (e) Ground 4: The risk of breast cancer |
| 106 | (f) Ground 5: The Council should have informed the Committee that Patient A had instructed solicitors |
| 107–120 | (g) Ground 6: The Legal Adviser |
| 121–125 | VII Ground 8: Sanction |
| 126–130 | VIII Conclusions |
II Introduction
This is an appeal from a decision of the Fitness to Practise Committee (“the Committee”) of the General Pharmaceutical Council (“GPhC”) which made a finding on 16 April 2019 against Mr Soni (“the Appellant”). It found that the Appellant's fitness to practise as a pharmacist was impaired and his name should be removed from the Register in accordance with Article 58(4) of the Pharmacy Order 2010. It decided to suspend his registration forthwith in accordance with article 60(2) of the Pharmacy Order.
There is no issue as to jurisdiction because it is accepted that the Appellant is domiciled in England as a joint owner of a property in Hounslow where he currently resides with his sister.
The case relates to a single visit by Patient A to the Dundee Superdrug Pharmacy on 10 October 2017 to obtain Emergency Hormonal Contraception (“EHC”), commonly called the morning after pill. The Appellant, a registered pharmacist of 23 years' experience, was the locum pharmacist on duty with lead pharmacist Fridah Nkomeshya.
The particulars of allegations before the Committee were as set out in paragraph 10 of the Appellant's Skeleton Argument as follows:
“The Particulars of Allegation before the Committee were as follows:
1. You were first registered as a Pharmacist on 26 July 1994.
Admitted and Found Proved
2. In or around October 2017, you worked as a locum pharmacist at Dundee Superdrug Pharmacy, Overgate Shopping Centre, Dundee, Scotland DD1 1UF (“the Pharmacy”). Admitted and Found Proved
3. On or about 10 October 2017, you:
(a) touched Patient A's breasts; Found Proved
(b) asked Patient A to remove her dress; Found Not Proved
(c) put your hands up Patient's A dress; Found Proved
(d) allowed Patient A to leave the pharmacy with Emergency Hormonal Contraception (“EHC”).
Admitted and Found Proved
4. Your actions at allegation 3(a) and/or 3(b) and/or 3(c) above were sexually motivated. Found Proved in relation to 3(a) and 3(c)
In respect of the above your fitness to practise is impaired by reason of Misconduct. Found Proved”
III The history of the complaint and the finding of the Committee of the GPhC
The relevant history in this case can be summarised as follows. I have borrowed extensively from the skeleton arguments. The Appellant registered as a Pharmacist on 26 July 1994. In October 2017, he was working as a locum pharmacist at a pharmacy on the east coast of Scotland (“the Pharmacy”).
Upon the visit of Patient A to the Pharmacy on 10 October 2017 to obtain the EHC, the Appellant and Patient A went into a private consultation room. After discussion about a medically induced abortion and its side-effects and Patient A's previous use of the morning-after pill, Patient A alleges that the Appellant physically examined her breasts and then asked her to take her dress off. She declined. Patient A alleged that the Appellant touched her breasts. The Appellant denied the allegation. He stated that his physical examination of Patient A was confined to examining her armpits, at her request, over her clothing, because she complained that her armpits were swollen. Patient A denied that there had been any examination of her armpits or that they were swollen.
The Appellant faced four allegations brought by his regulator, the GPhC, of which only allegations 3 and 4 are material to this appeal. They are summarised above in paragraph 4. By reason of these matters, it was alleged that the Appellant's fitness to practise was impaired by reason of misconduct. This was found proved.
Patient A raised a complaint on the next day, 11 October 2017: she went into the pharmacy on her way to work. Patient A was also spoken to over the telephone on the morning of 12 October 2017 by Ms Morton-Channon (the investigator of the allegations for the pharmacy).
The Appellant was then interviewed by Superdrug on 12 October 2017. A note was kept of this interview. He denied the allegation but, before being told of the detail thereof, described an examination of Patient A's under arm nodes which he claimed he was asked to complete.
A referral was made to the GPhC on 18 October 2017 by Ms Morton-Channon. The GPhC conducted an investigation into the allegation which included, on 6 November 2017, an interview with Patient A conducted by Jamie Hughes of Capsticks Solicitors LLP acting for the GPhC. The interview notes indicated that Patient A thought “ parents now getting me a lawyer”.
At a hearing before the GPhC in a separate case which concluded in March 2018 the Appellant was suspended from the register for a period of 12 months. This decision arose as a result of his having been found to have dishonestly submitted in 2015 a fake letter purporting to be from an NHS services team in order to suspend membership with the health club and thereby suspend his account with a health club and associated payment of his monthly membership fee. The Appellant contested the case before the Committee contending that his email account had been ‘spoofed’ which made it appear that the letter had been sent him when, he said, this was not the case. The Committee rejected the Appellant's evidence and found that he did send the letter and that he did so dishonestly. The Committee, which considered the sexual misconduct allegations, was not made aware of this pre-existing adverse finding until the sanction stage.
On 27 June 2018, the Appellant's representative requested that the GPhC make enquiries into Patient A's potential civil claim. The then representative of the GPhC, Mr Martin Hadley of VHS Solicitors (Mr Hamer and his solicitors did not represent the Appellant before the Committee) indicated that without further information indicating a civil claim that is related to this matter, he did not consider there was any further duty of investigation.
On 3 July 2018, the GPhC's representatives received a letter from Digby Brown LLP dated 25 June 2018 which stated that Patient A, their client, was to attend a hearing at the GPhC. It stated that they were instructed in connection with a civil claim against the Appellant's employer, Superdrug, and asked for details to be provided of the case upon conclusion.
The principal hearing was due to occur before the Committee on 4–6 July 2018 but was delayed until 26 November 2018. The letter from Digby Brown LLP was disclosed to the Appellant's representatives on 4 July 2018. It was served a second time on 5 July 2018 electronically. At no stage did the representatives of the Appellant request that the letter be included in the hearing bundle for the adjourned hearing.
The hearing resumed on 26 November 2018. Following Patient A's evidence, disclosure requests were made by the Appellant for the written records of Patient A's consultation and, specifically, the Appellant contended that it was recorded that she had complained of swollen armpits. According to two emails on 27 November 2018, no notes were in existence, but what was in existence was provided to the parties, namely a number of screenshots from a computer record. The Committee refused to grant further time for the disclosure of additional documents on Day 3 of the hearing because, although there was one missing tab of information concerning ‘history’ from the computer records and one incomplete entry about the medication, the Committee concluded they had the relevant information. Mr Hadley for the Appellant had earlier cross-examined Patient A during the Committee hearing on her having instructed a lawyer. Patient A confirmed she had instructed lawyers on her behalf. There was no re-examination nor Committee questions on this point.
Closing submissions were made on facts on 18 December 2018 and legal advice given to the Committee by its legal adviser. The matter was adjourned until 15–16 April 2019.
Allegations 3a) and 3c) and allegation 4 in relation to those allegations were found proven on 15 April 2019. Allegation 3b) was not found proven. On 16 April 2019 the...
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