Mohammed EL-Hadi Abdul-Razzak v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 23 May 2016 |
| Neutral Citation | [2016] EWHC 1204 (Admin) |
| Docket Number | Case No: CO/5424/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2016 |
[2016] EWHC 1204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Stephen Silber
(Sitting as a High Court Judge)
Case No: CO/5424/2015
Jason Bartfeld QC (instructed by Mackrell, Turner Garrett) for the Appellant
Kenneth Hamer (instructed by Head of Professionals Regulation, General Pharmaceutical Council) for the Respondent
Hearing date: 26 April 2016
Written submissions dated 4 and 13 May 2016
Introduction
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.
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").
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
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.
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.
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 (paragraph 1.1), 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.
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".
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
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.
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.
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.
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."
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.
The video evidence showed the events leading up to each of the three supplies by the relevant counter...
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