Gulamhusein v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 14 July 2014 |
| Neutral Citation | [2014] EWHC 2591 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2953/2014 |
| Date | 14 July 2014 |
[2014] EWHC 2591 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Stephen Silber
CO/2953/2014
Mr M Forde QC (instructed by Neumans LLP) appeared on behalf of the Appellant
Ms S Davies (on behalf of Mr K Hamer instructed by EPHC) appeared on behalf of the Respondent
Introduction
Mr Murtaza Mohamedali Gulamhusein, ("the Appellant"), is a pharmacist who has been registered with the General Pharmaceutical Council ("the Council") since 1984. Registration with the Council is a statutory qualification required so as to enable pharmacists to perform many of their functions such as supplying medicines for which a prescription is required, supervising the preparation of medicines, and supervising the sale of poisons.
As a result of the activities of journalists carrying out undercover activities, there was evidence that the appellant had been supplying products without obtaining a prescription for them, even though such products could only be supplied with a prescription. The appellant was suspended on 16 January 2013 by the Council's Fitness to Practice Committee ("the Committee") for a period of 18 months and his suspension is due to expire tomorrow.
The jurisdiction to make interim orders arises under article 56(1) of the Pharmacy Order 2010 which provides that an interim order may be made where the Committee is satisfied that it is necessary for the protection of the public to do so, where it is otherwise in the public interest to do so, or it is in the interests of the registrant.
An attempt by the Appellant to challenge that suspension was rejected by the Committee in a determination dated 27 May 2014 and the Appellant is appealing that determination. He contends that this order for his suspension should not have been made and that the appropriate order was one in which his registration was allowed to continue but subject to conditions.
I have to consider not only this appeal but also an application by the Council for an extension of that period of suspension imposed on the Appellant for a further period from 15 July 2014 to 14 January 2015 in accordance with article 56(5) of the Pharmacy Order 2010. That application is dependent on the appellant being unsuccessful in appealing the existing order and that is therefore the matter which I will deal with first.
The Imposition of the Interim Suspension Order in January 2013
The Appellant, who is 55 years of age, has been involved in running Curie Pharmacy in Maida Vale which he purchased in about 1987.
During an undercover operation the Appellant was approached while working at the Currie Pharmacy by a News International journalist posing as a member of the public. On 24 September 2012 he supplied to this journalist medication to deal with pregnancy, namely a Levonelle One Step 1500mg tablet known as the "morning after pill". The undercover reporter had said to the Appellant that he needed this medication to deal with the pregnancy of a friend.
On 27 September 2012 at the Curie Pharmacy the appellant is alleged to have provided to the same undercover reporter a pack of 60 Cytotec 200mg Misoprostol tablets without prescription even though a prescription was required for this medication, and in the knowledge that it was going to be used for the purpose of an illegal termination of a pregnancy. Before this matter was reported in the Sunday Times, the Appellant was challenged about it and he initially denied that he supplied it, but when he was told that the episode had been filmed, he said he provided the tablets in the belief that they were to treat an ulcer. It was this alleged supply of Misoprostol which led to the Committee imposing the suspension.
It is alleged that the Appellant was also approached by employees of the BBC who had investigated various pharmacists whom it was alleged were supplying prescription only and controlled medication without receiving a prescription. The allegation is that the Appellant first supplied a quantity of Diazepam and 150g of Viagra to an undercover operative posing as a member of the public during the week commencing 10 September 2012 and, second, that he supplied a further quantity of Viagra and Temazepam during a second incident during the week commencing 24 September 2012.
The Appellant was interviewed by the police and in the course of the interview, apart from confirming his name, the appellant made no comment to the questions that were put to him. He says that the police are taking no action in respect of the products supplied to the BBC employee.
In January 2013 the Council applied for an interim order to suspend the registration of the Appellant on the basis that he unlawfully supplied a box of drugs with 60 tablets called Misoprostol (or Cytotec) in circumstances in which he must have believed that they were to be used to procure an abortion even where there was no valid prescription for its supply and where he knew nothing about the patient for whose use it was intended.
The basis of the application was that there was a credible allegation of a gross breach of duties owed by a pharmacist and it showed a risk that unlawful abortions might be procured from the drugs supplied without a prescription. This showed that the Appellant was, according to the Council, prepared to sell the drugs without the requisite prescription and therefore without any clinical concerns or safeguards as to how or by whom the medicines would be used.
The Committee was made aware of the Appellant's personal position as a pharmacist of 28 years' standing and that if his registration was suspended, it would cost him some £60,000 a year. The Committee reminded itself that its function was not to determine facts nor decide whether the appellant was guilty of misconduct.
On 16 January 2013, the Committee imposed a suspension for 18 months both as being necessary for the public safety and the public interest. The suspension was confirmed by consent at reviews in January 2013 and on 11 December 2013. There was then a further hearing on 27 May 2013 to decide if the order should continue until 15 July 2014. Indeed, this judgment relates to the hearing of that appeal against that order.
The hearing on 27 May 2014
By the time of this hearing on 27 May 2014, the appellant had been charged with supplying prescription only medicine, namely Misoprostol without a prescription and he has elected trial in the Crown Court. At the time of that hearing he had not entered a plea to this count and indeed he still has not done so. There have been no criminal charges in relation to the other supplies by the Appellant. The issue before the Committee on 27 May 2014 was whether the suspension of the appellant should continue until it lapses this week.
Mr Martin Forde QC, who was at that hearing counsel for the Appellant as has been in the hearing before me, accepted that an order against the Appellant was appropriate, but he contended that both the public safety and the public interest could be met with conditions imposed on the Appellant's registration which would allow him to work at the pharmacy but under supervision and perhaps with a prohibition on dispensing controlled drugs and abortifacients. In support of his submission that such an order be proportionate, Mr Forde referred to the personal and professional references adduced in support of the Appellant who had not in his previous career come to the attention of either the regulating authority or the police.
The case against the Appellant was that the continuation of the suspension was necessary both for the safety of the public and the public interest.
In its determination on 27 May 2014, the Committee first found it was necessary to continue to suspend the appellant's registration on the grounds of protection of the public and the public interest. In other words, the Committee did not consider this to be a case to be determined solely on a public interest basis. The Committee was fully aware of and applied the statutory test in article 56(1) of the Pharmacy Order 2010, namely that the Committee was required to be satisfied that it was necessary for the protection of members of the public or is otherwise in the public interest to make an interim order. It is noteworthy and it was emphasised by Mr Kenneth Hamer, counsel for the General Pharmaceutical Council that the word "necessary" was used three times in the determinatiom
The Committee considered the importance of the requirement of proportionality both in the making of the order and in the consequential effects on the Appellant. It observed that it was satisfied that the order for the Appellant's suspension was a proportionate step to take despite the continued disruption that would inevitably be caused by it to the Appellant's business, income, and reputation.
In determining how to determine the case, the Committee considered but rejected the solution of imposing conditions on the registration of the Appellant. The Committee explained that it did not believe it would be possible to meet the needs of the situation caused by the allegations against the Appellant with conditions.
The appeal
Mr Forde made a number of serious criticisms of the approach of the Committee in its failure to allow the appeal so that the appellant would have been entitled to continue practising with the conditions imposed. These grounds raise a number of issues of...
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