The Professional Standards Authority for Health and Social Care v The General Pharmaceutical Council and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cox |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2521 (Admin) |
| Docket Number | Case No: CO/1533/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 2014 |
[2014] EWHC 2521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cox DBE
Case No: CO/1533/2014
Ms Fenella Morris QC (instructed by Browne Jacobson, Solicitors) for the Appellant
Mr Mark Millin (instructed by General Pharmaceutical Council) for the Respondents
Hearing date: 15 July 2104
In this matter the Professional Standards Authority (the Authority) is appealing against a decision of the Fitness to Practise Committee of the General Pharmaceutical Council (the Panel) dated 29 January 2014.
The Background
The background, in summary, is as follows. The Registrant, Mrs Onwughalu, a registered pharmacist and the Second Respondent to this appeal, pleaded guilty on 25 February 2013 to two counts of cruelty to a child under 16. She was sentenced on 12 April 2013 to a term of 14 months' imprisonment concurrent on each count. After a hearing on 29 January this year the Panel found that the Registrant's fitness to practise was impaired by reason of these convictions. However, in relation to sanction, the Panel declined to order her removal from the Council's register and decided instead to suspend her from the register for a period of 12 months.
The Authority now appeals against that decision as one which it contends was unduly lenient. It submits that the only reasonable sanction in all the circumstances of this case was removal from the register. The Council, as First Respondent, does not resist this appeal. The Council supports the Authority's request for the Panel's decision on sanction to be quashed and for this court to substitute an order for the Registrant's removal from the register.
The Registrant has not attended court today and it is clear that she has not engaged with these proceedings at any stage. The statement of Ms Foster, of the Appellant's solicitors, dated 9 July 2014, together with the exhibits attached, sets out in detail the date on which the Appellant's Notice was sent to the Registrant by first class post (8 April 2014) and then the dates, between 23 April and 13 June, on which copies of the appeal bundle, skeleton argument and correspondence were also sent to her.
The Registrant did not respond to any of these communications. Nor has she responded to Ms Foster's most recent letter of 9 July, sent by recorded delivery, asking the Registrant to make contact with her to discuss the appeal. The Registrant has not made contact with the court at any stage. The Council confirmed on 4 June that Ms Onwughalu is registered at the address to which all these documents were sent. At the hearing before me I also read a statement from Ms Dix, on behalf of the Council, who tried to telephone the Registrant on the mobile telephone number listed on the register, on both 10 and 11 July, but the phone was not answered and there was no facility to leave a voicemail.
In these circumstances, I decided to proceed with this appeal. I had read carefully the bundle of appeal documents submitted, in particular the transcript of the proceedings before the Panel and the Registrant's own evidence. At the conclusion of the oral hearing I decided that the Authority's appeal should be allowed. I now set out in this judgment my reasons for that decision.
The Facts
The Registrant was jointly charged with her husband with two separate charges of cruelty under section 1(1) Children and Young Person's Act 1933. It was alleged that between 31 October and 20 December 2011, and then between 17 and 20 December 2011, they had wilfully neglected their four month old baby daughter ("J") in failing to obtain prompt medical assistance and treatment for her injuries, thereby exposing her to unnecessary suffering and injury to health.
The injuries discovered on J's admission to hospital, on 19 December 2011, were very serious. They included a complex skull fracture with underlying brain injury, a transverse fracture to the right humerus and multiple metaphyseal corner fractures to the right and left proximal femurs, right and left distal femurs and the right and left distal tibia. These injuries were of differing ages. Only the fractured humerus appeared to be a fresh injury, consistent with it having occurred shortly before her admission to hospital. Signs of healing present in the other injuries indicated that they had been caused some weeks before that date.
The evidence of the consultant paediatrician, Dr Dixon, established that the injuries were the result of trauma. The head injury had resulted from a blow of considerable force or impact with a hard surface. The other injuries inflicted would have required significantly greater force than would be applied in normal daily handling of the baby. The leg fractures in particular were known to be associated with the direct application of gripping and twisting force and, sometimes, with shaking the baby.
The Crown's case was that J's injuries would have been obvious to the Registrant as her mother; and that her failure to seek prompt medical treatment for them was motivated by fear that questions would be asked about how these apparently non-accidental injuries were caused.
The Registrant was arrested on 20 December 2011 and thereafter gave a series of inconsistent and contradictory accounts of how these serious injuries could have been sustained. After stating initially that she could not recall any incident that might account for them, she stated, variously, that J must have fallen out of bed onto a pillow or, later on, onto a carpet; that J was being picked up and handled by a lot of other people; that J had slipped out of a sling onto a cushion on a chair; that she had once dropped J on the stairs whilst holding her; and that her mother had told her J had been dropped on the floor at her christening.
Dr Dixon's evidence, accepted by the sentencing judge, was that none of the injuries, save the fracture to the humerus, was consistent with any of the explanations advanced by the Registrant; and that the excessive force necessary to inflict that fracture to the arm would be immediately apparent to a carer who was not the abuser, but who was present at or shortly after the time it was inflicted. The circumstances in which this baby suffered these injuries therefore remained unexplained. In the light of her inconsistent accounts, given over a period of time, the judge rejected the suggestion by her Defence counsel that she had cooperated with the authorities during the investigation and during the course of the Family Court proceedings that ensued.
Sentencing her to a term of 14 months' imprisonment concurrent on each count the judge said this:
"These were, in my judgment, shocking injuries, whoever was responsible for causing them. I bear in mind that this is not an assault case, but it is a neglect case. These two defendants are intelligent people; the mother is a pharmacist and I have not the slightest doubt that the reason why no proper care was taken to take the child to hospital when these injuries first became evident was for fear of what would be discovered as to the perpetrator. In my judgment only a significant custodial sentence is appropriate for neglect of a child on such a shocking scale, bearing in mind her age and the range of injuries inflicted by someone."
It is clear that the Judge imposed an immediate custodial sentence at the highest end of the range indicated in the relevant sentencing guidelines, appropriately discounted so as to give full credit for her guilty pleas.
The Hearing and the Panel's Decision
At the hearing before the Panel the Registrant admitted the fact of her conviction and sentence. However, it is apparent from the transcript of proceedings that she sought in her evidence not merely to minimise her offending, but also to assert facts wholly inconsistent with her guilt of these offences. She claimed, for example, not to know about the injuries to J's legs (see page 117 at E-F); and she denied knowing of any problem affecting J between 31 October and early December 2011 (see page 119 at B). It is significant in this context that, by the date of the hearing before the Panel on 29 January 2014, more than two years had passed since the commission of these offences and almost a year since the Registrant was sentenced to imprisonment.
Importantly, in my view, the Registrant did not provide any explanation to the Panel for J's injuries, although it is clear that she was offered the opportunity to do so. Generally, she referred to her failures to seek medical treatment for these two separate sets of injuries as a mistake and as involving an error of professional judgment on her part rather than, as her pleas of guilty demonstrated, deliberate neglect of J in an effort to shield the perpetrator and to conceal the infliction of serious injuries on her baby daughter. She suggested that she had subsequently "clarified matters", by which she meant that she considered the later explanations she gave to be clarification of how these injuries were caused, notwithstanding Dr Dixon's clear evidence as to the implausibility of the various explanations she had advanced.
She also referred in her evidence to having gained a better understanding of her behaviour and of the relevant professional boundaries. However, it is clear, reading her evidence as a whole, that she regarded her conduct as involving an...
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