Hussain Jamal Rasool v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr DBE,Mrs Justice Carr |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 217 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/44171/2014 |
| Date | 06 February 2015 |
[2015] EWHC 217 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Carr DBE
Case No: CO/44171/2014
Mr Stephen Fidler (of Stephen Fidler & Co) for the Appellant
Mr Kenneth Hamer (instructed by GPhC In-House Legal Department) for the Respondent
Hearing date: 3rd February 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The appellant ("Mr Rasool") was admitted to the Register of Pharmacists ("the Register") on 28 th July 2008. The respondent, the General Pharmaceutical Council ("the GPhC"), is the statutory regulatory body for pharmacy professionals in Great Britain. It has a duty of enforcement under the Medicines Act 1968 and operates its regulatory functions in accordance with the provisions of the Medicines Act 1968 and the Pharmacy Order 2010 ("the Order").
Mr Rasool challenges the decision of a Fitness to Practice Committee ("the Committee") dated 28 th August 2014 to remove his name from the Register pursuant to Article 54(2)(c) of the Order. That decision followed a five day hearing in June and August 2014 before the Committee. The appeal is brought pursuant to Article 58(1)(a) of the Order.
The disciplinary proceedings against Mr Rasool arose out of an undercover investigation by the British Broadcasting Corporation ("the BBC") ("the BBC investigation") into the allegedly unlawful supply of prescription only medicines by a number of pharmacies in central London. One such pharmacy was the Al Farabi Pharmacy at 39 Edgware Road, London W2 ("the Pharmacy") where Mr Rasool was the superintendent pharmacist. The allegations were broadcast on television on 17 th December 2012.
Three issues were raised by Mr Rasool in his grounds of appeal:
a) (apparent) bias on the part of Mr Patrick Milmo QC, the chairman of the Committee ("the Chairman"), who ought to have recused himself, having heard matters relating to Mr Rasool in the course of an interim order hearing against another pharmacist and employee at the Pharmacy, a Ms Rafif Sarheed ("Ms Sarheed") ("the Sarheed proceedings");
b) abuse of process by reason of the BBC's failure to disclose certain material to the GPhC;
c) the sanction of erasure was disproportionate. A lesser sanction should have been imposed.
In the event, the second ground (alleging abuse of process) has not been pursued. Thus, only the question of bias and sanction arise for my determination.
The BBC investigation
The BBC hired undercover reporters equipped with hidden cameras and recording devices. The Pharmacy was visited, so far as material, on four occasions between August and November 2012: 23 rd August, 10 th September, 5 th October and 8 th November 2012. Mr Rasool was the responsible pharmacist on duty on each occasion. On each occasion a prescription only medicine was supplied in exchange for money without the "patient" providing a prescription from an approved practitioner.
The disciplinary proceedings: case management meetings
A case management meeting took place on 9 th June 2014 at the request of Mr Rasool's representatives, who wished to raise matters relating to disclosure. No substantive ruling was made. Rather the Chairman, sitting alone, directed that preliminary legal arguments would be taken first before any full hearing.
A case management meeting duly took place immediately before the commencement of the full hearing on 18 th June 2014. The chairman, again sitting alone, disclosed that he had chaired a Fitness to Practise Committee in proceedings against Ms Sarheed. Those proceedings too had arisen out of the BBC investigation. The allegation against Ms Sarheed related to an undercover visit on 27 th September 2012 (and so not a visit the subject of the proceedings against Mr Rasool). Ms Sarheed was made the subject of an interim suspension order. This was the first time that the Chairman's involvement in the proceedings against Ms Sarheed was drawn to the attention of either the GPhC's advocate or Mr Rasool and his advisers.
The Chairman indicated that during the course of the hearing involving Ms Sarheed, Ms Sarheed had stated that she was acting on the instructions of the superintendent pharmacist. That pharmacist was not named, but he presumed that it was Mr Rasool. That was no more than an assertion by Ms Sarheed, and no findings on the point were made. Ms Sarheed's material was not in evidence against Mr Rasool.
Mr Rasool's representative sought a full transcript of the interim order hearing on 20 th December 2013. The Chairman directed that the decision of 20 th December 2013 should be made available to Mr Rasool, but not a full transcript of the (private) hearing. But in any event the GPhC's representative undertook to review the full transcript to seek if there was anything that Mr Rasool's representative should know about.
An extract from the transcript of an interim order hearing on 20 th December 2013 was then provided to Mr Rasool's legal representative and the Chairman. It could be seen that in the Sarheed proceedings a witness statement had been read out in which Ms Sarheed alleged that Mr Rasool had agreed to write a statement on her behalf relating to the incident on 27 th September 2012 but that he believed that in doing so he would make things worse for himself. (The GPhC had in fact disclosed (as part of unused material) a statement from Mr Rasool in relation to Ms Sarheed's case. That statement did not form any part of the case against Mr Rasool.)
The Chairman stated that he had no recollection of anything said to him on behalf of Ms Sarheed on 20 th December 2013 in relation to Mr Rasool. In fact, he had expressly stated in respect of those submissions made by reference to Mr Rasool that he wished to stop them on the basis that he did not think that they would be of any assistance " in any way at all".
Mr Rasool applied for the Chairman to recuse himself because he had been shown the transcript page from the interim order hearing in which reference was made to Ms Sarheed's statement as follows:
" He was 50/50 to admitting everything and be done with it. However, he believed by admitting to it that it would make things worse for himself."
The essential submission was that, in a fact finding exercise such as this including assessment of Mr Rasool's credibility, it would be very difficult objectively for the Chairman to put that out of his mind.
The Chairman dismissed the application as follows:
" I have considered the point you have made. It is quite apparent to me that at the time I took no notice of it, and I will not take notice of it, and I do not think that any objective observer, having regard to my position and my training, would ever think that any bias would arise by reason of being read this document at a review hearing. Accordingly, I am not going to recuse myself and will continue."
The hearing proceeded accordingly before the full Committee.
The disciplinary proceedings: full hearing
The following allegations were admitted or found to be proved by the Committee:
" 1. You first registered as a Pharmacist on 28 July 2008.
2. While you were the Superintendent and/or Director of Al Farabi Pharmacy, 39 Edgware Road, London W2 2JE ("the pharmacy"):
i) On or about 23 August 2012 you supplied 21 x 500 mg Amoxicillin capsules, a prescription only medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
ii) On or about 10 September 2012 you were the responsible pharmacist at the pharmacy;
iii) On or about 10 September 2012 you supplied 21 x 625 mg Augmentin tablets, a prescription only medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
iv) On or about 10 September 2012 you supplied 28 x 2 mg Diazepam tablets, a prescription only and Schedule 4 controlled medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
v) On or about 5 October 2012 you were the responsible pharmacist at the pharmacy;
vi) On or about 5 October 2012 you supplied 28 x 10 mg Diazepam tablets, a prescription only and Schedule 4 controlled medicine, otherwise than in accordance with a prescription given by an approved practitioner;
vii) On or about 8 November 2012 you were the responsible pharmacist at the pharmacy;
viii) On or about 8 November 2012 you supplied a 300 ml bottle of Oramorph solution 10 mg/5 ml, a prescription only and Schedule 5 controlled medicine, otherwise than in accordance with a prescription given by an appropriate practitioner.
3. The supplies referred to at 2 above were unlawful.
4. When you made the supplies referred to at 2 above you knew that they were unlawful."
At the hearing Mr Rasool admitted that he supplied the prescription medicines of Amoxicillin, Augmentin and Diazepam as alleged, and that the recipient did not have a prescription from an approved practitioner. The Committee found that Mr Rasool had also supplied the prescription medicine Oramorph as alleged. His central defence was that the supplies were nevertheless not unlawful, as they were all emergency supplies or sales permitted under the Human Medicines Regulations 2012 ("the Regulations").
Regulations 224 and 225 of the Regulations set out the conditions for...
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