R Rycroft v The Royal Pharmaceutical Society of Great Britain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 10 November 2010 |
| Neutral Citation | [2010] EWHC 2832 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 2010 |
| Docket Number | Case No: CO/8236/2009 |
[2010] EWHC 2832 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/8236/2009
James DINGEMANS QC & Robert KELLAR (instructed by Charles Russell LLP) for the Claimant
Robert ENGLEHART QC & Fenella MORRIS (instructed by Penningtons Solicitors LLP) for the Defendant
Hearing date: 2 November 2010
In these proceedings the Claimant challenges by way of judicial review decisions of the Defendant's Registrar to refer allegations made against the Claimant to the Defendant's Investigating Committee. The decisions under challenge are contained in documents dated 30 April 2009 and 26 August 2009.
I should say at the outset that the Defendant is the successor in title to the Royal Pharmaceutical Society of Great Britain. Nothing turns on that fact and I shall use the word Defendant to describe both the Society and the Council.
The relevant background is as follows. Between 2 May 2002 and 6 August 2006 the Claimant was employed as the superintendent pharmacist for a chain of pharmacies owned by Gordon Davis (Chemist) Ltd (hereinafter referred to as "Gordon Davis" or "the company"). The company owned approximately 30 pharmacies and was therefore involved in the supply of many millions of medicinal products each year.
The Claimant became the superintendent pharmacist in succession to Mr Alan Charles Rhodes; Mr Rhodes had been the superintendent pharmacist from July 1998 to 2 May 2002.
On or about 30 June 2006 Gordon Davis sold its business to Co-operative Pharmacies. About 6 weeks later the Claimant ceased to be employed as superintendent pharmacist. On the day after the Claimant had ceased his employment the Defendant received an email. The precise contents of the email are not known. However, it is clear that the author of the email alleged that Gordon Davis had been involved in deliberately reusing patient-returned medication and re-supplying it to customers.
As a result of that allegation the Defendant commenced an investigation. The investigation began under the auspices of Ms Susan Melvin, an Inspector of the Defendant. She began her investigation in relation to both the Claimant and Mr. Rhodes. It is also apparent that the investigation commenced by Ms Melvin was carried on in conjunction with a parallel investigation undertaken by Mr Aseltine of the Medicines & Health Care Products Regulatory Agency ("the Agency"). This joint investigation was in being because although the Defendant had statutory responsibilities in relation to registered pharmacy premises, registered pharmacists and the running of retail pharmacy businesses the Agency had similar powers in relation to certain other premises such as warehouses which are not registered pharmacies. Further, Mr. Simon Davis (the former managing director of Gordon Davis) was under investigation and it was the Agency which had regulatory powers in relation to Mr Davis since he was not a pharmacist.
Within days of the commencement of the investigation the Claimant became aware of its existence. On 6 September 2006 solicitors instructed on behalf of the Claimant and Mr. Rhodes wrote to the Defendant seeking information about the investigation. The solicitors wrote that rumours were damaging to their clients; that their clients would assist as much as possible in the investigation and that they would welcome a reply quickly.
Yet it was not until 30 April 2009 i.e. about 2 years and 8 months later that the Defendant's Registrar referred a Fitness to Practise allegation against the Claimant to the Defendant's Investigating Committee. As will become apparent this was, in effect, the first step on a road which might lead to an appearance by the Claimant before the Defendant's Disciplinary Committee. On or about the same date a similar referral was made in respect of Mr Rhodes.
The Claimant was not given notice of the referral immediately or even soon after the Registrar had made the referral. The Claimant was notified of the referral by letter dated 16 June 2009. Notice of referral was given on behalf of the Investigating Committee. By that date more than 2 years and 10 months had elapsed since the complaint to the Defendant had been received.
The notice of referral contained the allegations which were to be brought before the Investigating Committee. They were in the following terms.
"The Investigating Committee will consider the allegations set out below:
Particulars of allegations
Particulars of misconduct alleged against Stephen John Rycroft
That being registered with the Society on 1 August 1993
1(a) From 2 May 2002 to 6 August 2006, Mr Rycroft, in his capacity as Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, did not ensure that pharmaceutical waste was segregated from pharmacy stock and delayed its transfer to disposal containers, contrary to Part 3 Service Specification 16(C) of the Code of Ethics & Standards; and
(b) From 2 May 2002 to 6 August 2006, Mr Rycroft, in his capacity as Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, did not ensure the observance of all legal and professional requirements in relation to pharmaceutical aspects of the business, contrary to Part 2 A.2(a) of the Code of Ethics & Standards.
In that:
i) Mr Rycroft was the Superintendent Pharmacist for Gordon Davis (Chemist) Ltd from 2 May 2002 to 6 August 2006
ii) During Mr Rycroft's time as Superintendent Pharmacist he continued an existing practice whereby medication returned to the pharmacy by patients or care homes would be sent to the warehouse along with other pharmacy stock that was nearing its expiry date
iii) At the warehouse, stock that could be returned to the manufacturer for a refund would be separated out and patient returns would be sent back to the pharmacies for disposal in DOOP bins
iv) The practice of sending patient returned medication to the warehouse and then back to the pharmacies increased the likelihood of patient returned medication being returned to stock and supplied to patients
v) At the warehouse, patient returned medication was not adequately separated from pharmacy stock
vi) The practice of sending patient returned medication to the warehouse before sending it back to the pharmacies for disposal delayed its transfer to disposal containers
2. On a day or days during 2004–2005 when Mr Rycroft was Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, he did not ensure that pharmacy stock was stored under suitable conditions in the warehouse contrary to Part 3.2(C) of the Code of Ethics & Standards
In that:
i) Mr Rycroft was Superintendent Pharmacist of Gordon Davis (Chemist) Ltd during 2004 and 2005
ii) As Superintendent Pharmacist Mr Rycroft was responsible for ensuring that pharmacy stock was stored under suitable conditions
iii) On a day or days in 2004–2005 there was a vermin infestation in the warehouse
(iv) On a day or days in 2004–2005 Mr Rycroft did not ensure that pharmacy stock in the warehouse was stored under suitable conditions in that vermin were chewing packs of medication
And the particulars of misconduct alleged, individually or cumulatively, may render Mr Rycroft's Fitness to Practise to be impaired by reason of misconduct."
As is apparent from the particulars of misconduct set out above the allegation that Gordon Davis was deliberately re-using patient-returned medicine and re-supplying it was not being pursued. The allegations made against the Claimant were of a different order.
At or about the same time, Mr Rhodes was also notified that allegations against him had been referred to the Investigating Committee. The details of the allegations made against him are not relevant to these proceedings.
These proceedings were commenced on 29 July 2009. Mr Rhodes was also a Claimant at that stage. By an order dated 13 August 2009 but sealed 25 August 2009 the parties consented to the claim being stayed pending reconsideration by the Defendant's Registrar of his decision of 30 April 2009. I will deal with the consequences of this order in detail later in this judgment.
On 26 August 2009 the Registrar made a second decision in respect of both Mr. Rhodes and the Claimant. He decided against referring allegations against Mr Rhodes to the Investigating Committee. However, he again referred the allegations of misconduct against the Claimant to that Committee.
The Relevant Statutory Provisions
Article 49 of the Pharmacists and Pharmacy Technicians Order 2007 (hereinafter referred to as "the Order") is in the following terms:—
"49-(1). Where –
a) an allegation is made to the Society against a registrant that his Fitness to Practise is impaired; or
b) the Society has information that calls into question a registrant's Fitness to Practise, but no allegation to that effect has been made against him to the Society,
the Registrar shall, except in such cases and subject to such considerations as the Council may prescribe, refer the matter (referred to in this article as "the allegation") to the Investigating Committee.
(2). Rules under paragraph (1) may in addition provide –
a) for the allegation to be referred instead, in prescribed cases, to the Disciplinary Committee or the Health Committee; and
b) that where the Registrar –
(i) refers a case to the Disciplinary or Health Committee; and
(ii) is of the opinion that the Committee to which he has referred the case should consider making an interim order under article 54,
he shall notify the Committee accordingly,
and where the Registrar does decide to refer an allegation to the Disciplinary or Health Committee under such rules, the Registrar shall inform the registrant who is the subject of the...
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