The Queen (on the application of Pitt and Tyas) v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWHC 809 (Admin) |
| Date | 11 April 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/124/2017 |
[2017] EWHC 809 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
The Honourable Mr Justice Singh
Case No: CO/124/2017
David Hislop QC and Gemma Hobcraft (instructed by Pharmacists' Defence Association) for the Claimants
Karen Steyn QC (instructed by Capsticks) for the Defendant
Hearing date: 23 March 2017
Approved Judgment
Introduction
The Claimants, who are two pharmacists and are also members and officials of the Pharmacists' Defence Association, seek permission to challenge the Standards for Pharmacy Professionals, which have been adopted by the Defendant, which is the General Pharmaceutical Council ("the Council"), and are due to come into effect on 1 May 2017.
Permission has not yet been granted. On 2 February 2017 Lang J ordered that there should be a "rolled-up" hearing. That hearing took place before me on 23 March 2017.
Factual Background
The Council was established in 2010 to regulate the pharmacy profession and related professions. Its predecessor was the Royal Pharmaceutical Society of Great Britain.
The current version of the Standards of Conduct, Ethics and Performance issued by the Council dates from July 2012. Of particular relevance for present purposes are the following. Standard 3 is headed 'Show respect for others'. Para. 3.2 states that: "You must … [t]reat people politely and considerately". Standard 6 is headed 'Be honest and trustworthy'. It states that: "Patients and the public put their trust in pharmacy professionals. You must behave in a way that justifies this trust and maintains the reputation of your profession." There are then set out numbered sub-paragraphs from 6.1 to 6.9. By way of example, para. 6.1 states that: "You must … [a]ct with honesty and integrity to maintain public trust and confidence in your profession". Another example, para. 6.5 states that: "You must … [m]eet accepted standards of personal and professional conduct".
Before leaving the current Standards it should be noted that, as far as I am aware, they have not been challenged as being ultra vires, void for uncertainty or for incompatibility with human rights. Yet the passages I have cited could apply in a pharmacy professional's private life and not only in their professional work or during working hours. A phrase like maintenance of "the reputation of your profession" could also be criticised for being vague and uncertain. As I will explain later in this judgment, in fact it is common to find such concepts in the framework for the regulation of various professions and they are not too vague or uncertain.
On 13 October 2016 a meeting of the Council decided to adopt the new Standards for Pharmacy Professionals. On 3 November 2016 the Chair of the Council signed off on the final version of the new Standards, which are due to come into force on 1 May 2017.
Before the new version of the Standards was adopted there was consultation by the Defendant: see the witness statement of Duncan Rudkin, the Chief Executive and Registrar of the Council, at paras. 6 and 20–26. As Mr Rudkin makes clear, the Council conscientiously took into account the responses to the consultation draft of the proposed new Standards and, where it thought it appropriate to do so, made amendments to the draft before the final version of the Standards was approved by the Council.
Material Legislation
Section 60 of the Health Act 1999 ("the 1999 Act") provides that an Order in Council may be made to modify the regulation of any of the health care professions, including pharmacy. Such modifications must be "necessary or expedient" for securing or improving regulation of that profession or the services provided (or contributed to) by that profession. Under section 62 of the 1999 Act such orders are made by way of statutory instruments.
The relevant order for present purposes is the Pharmacy Order 2010 (SI 2010 No. 231) ("the 2010 Order").
Article 4(1) established the Council as a body corporate. The principal functions of the Council are set out in Article 4(3). Those functions include:
"(a) to establish and maintain a register of pharmacists …
(b) to set and promote standards for the safe and effective practice of pharmacy at registered pharmacies;
(c) to set requirements by reference to which registrants must demonstrate that their fitness to practise is not impaired;
(d) to promote the safe and effective practice of pharmacy by registrants (including, for example, by reference to any code of conduct for, and ethics relating to, pharmacy); …"
Article 5 requires the Council to carry out consultation before it sets any standards or requirements under the 2010 Order.
Article 6 sets out the Council's general duties. Article 6 was amended with effect from 26 September 2016: see the Health and Social Care (Safety and Quality) Act 2015, Sch. 1: Objectives of Regulators of Health and Social Care Professions.
Article 6(1) makes it clear that: "The over-arching objective of the Council in exercising its functions is the protection of the public." Article 6(1A) then provides that the pursuit of that over-arching objective involves the pursuit of the following objectives:
"(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; …"
Part 4 of the Order deals with registrations.
Part 6 of the Order deals with fitness to practise. See in particular Article 51 of the Order on impairment of fitness to practise. Article 51(1) makes it clear that a person's fitness to practise is to be regarded as impaired "only by reason of" the specific matters which are then listed. Those matters include "(a) misconduct". Article 51(4)(b) provides that a person's fitness to practise may be regarded as impaired by reason of matters arising "at any time."
Article 48, which also appears in Part 6 of the 2010 Order, concerns Standards of Conduct and Performance. It provides that the Council must:
"(a) set standards relating to the conduct, ethics and performance expected of registrants; and
(b) make provision in rules regarding the criteria to which the Fitness to Practise Committee is to have regard when deciding, in the case of any registrant, whether or not the requirements as to fitness to practise are met in relation to that registrant."
Also of relevance are the General Pharmaceutical Council (Fitness to Practise and Disqualification etc rules) Order in Council 2010 ( SI 2010 No. 1615). Those rules set out the procedure for the investigation of allegations of misconduct by pharmacy professionals.
The New Standards
In the introduction to the new Standards, para. 5 states that there are nine standards that every pharmacy professional is accountable for meeting. The Standards apply to all pharmacists and pharmacy technicians. They apply whatever their form of practice is.
Of particular relevance in the present case is paragraph 6 of the Introduction which states:
"The standards need to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals."
Paragraph 7 of the Introduction states that the meaning of each of the standards is explained and there are examples of the types of attitudes and behaviours that pharmacy professionals should demonstrate. It goes on to state:
"The examples may not apply in all situations."
Also of particular relevance in the present case is Standard 6, which needs to be set out in full:
"Pharmacy professionals must behave in a professional manner
Applying the standard
People expect pharmacy professionals to behave professionally. This is essential to maintaining trust and confidence in pharmacy. Behaving professionally is not limited to the working day, or face-to-face interactions. The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions call for appropriate behaviour at all times. There are a number of ways to meet this standard and below are examples of attitudes and behaviours expected.
People receive safe and effective care when pharmacy professionals:
• Are polite and considerate
• Are trustworthy and act with honesty and integrity
• Show empathy and compassion
• Treat people with respect and safeguard their dignity
• Maintain appropriate personal and professional boundaries with the people they provide care to and with others".
The Grounds of Challenge
In this claim for judicial review the Claimants seek an order quashing:
(1) those parts of the new Standards that require that they need to be met at all times and not only during working hours;
(2) the parts of Standard 6 about communication, empathy, compassion and respect and dignity and personal boundaries insofar as they apply to non-work related matters.
The Claimants originally advanced two grounds of challenge. First they contended that the decision of the Council to agree the new Standards (and the new Standards themselves) are ultra vires/unlawful given that their content includes the requirement that the standards need to be met at all times. Secondly they contended that the decision of the Council to agree the new Standards is, for the same reason, unlawful as being contrary to Articles 8, 10 and 11 of the European Convention on Human Rights, as set out in ...
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