Hurfan Azam v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Cobb |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWHC 3620 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2056/2014 |
| Date | 31 October 2014 |
[2014] EWHC 3620 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cobb
Case No: CO/2056/2014
Hurfan Azam (in person, assisted by his McKenzie Friend, Graham Southall-Edwards)
Jessica Sutherland-Mack (instructed by Council Solicitor) for the Respondent
Hearing date: 31 October 2014
Approved Judgment
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.
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
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.
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".
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"
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.
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.
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.
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...
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