Zahra Ali-Asghar Hussain v General Pharmaceutical Council

JurisdictionEngland & Wales
JudgeLord Justice Newey,Lord Justice Singh,Lord Justice Peter Jackson
Judgment Date18 January 2018
Neutral Citation[2018] EWCA Civ 22
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2016/1583
Date18 January 2018

[2018] EWCA Civ 22

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(ADMINISTRATIVE COURT)

Mrs Justice Elisabeth Laing

CO/5052/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Peter Jackson

Lord Justice Newey

and

Lord Justice Singh

Case No: C1/2016/1583

Between:
Zahra Ali-Asghar Hussain
Appellant
and
General Pharmaceutical Council
Respondent

Mr Richard Christie QC (instructed by Mackrell Turner Garrett) for the Appellant

Mr Kenneth Hamer (instructed by Head of Professionals Regulation (Fitness to Practise), General Pharmaceutical Council) for the Respondent

Hearing date: 6 December 2017

Judgment Approved

Lord Justice Newey
1

In December 2012, the BBC broadcast a television programme in which it was alleged that prescription-only medicines had been supplied in the absence of valid prescriptions by a number of pharmacies in London. One of the pharmacies was the Safeer Pharmacy in Edgware Road, which was owned by a company of which the appellant, Mrs Zahra Hussain, was the “superintendent pharmacist”. The footage appeared to show that an undercover reporter had been able to buy Amoxicillin, a prescription-only medication, over the counter, without a prescription at a time when Mrs Hussain was the “responsible pharmacist” (within the meaning of section 72A of the Medicines Act 1968) on duty.

2

On 18 September 2015, the Fitness to Practise Committee (“the Committee”) of the General Pharmaceutical Council (“the Council”) concluded that Mrs Hussain had been knowingly involved in the unlawful supply of Amoxicillin on the occasion depicted, that her fitness to practise was impaired by reason of that misconduct and that her name should be removed from the Register of Pharmacists. On 23 March 2016, Elisabeth Laing J dismissed an appeal from the decision. Mrs Hussain now, however, challenges it before this Court. The focus of the appeal is on the sanction that the Committee imposed (viz. removal from the Register). Mrs Hussain does not take issue with the Committee's findings of fact or its conclusion that her fitness to practise was impaired.

Narrative

3

On 26 November 2014, the Council's Investigating Committee decided to refer allegations against Mrs Hussain to the Committee.

4

On 21 April 2015, the Council wrote to Mrs Hussain, copying in her solicitors, Mackrell Turner Garrett, to inform her of details of her hearing before the Committee, which was fixed for 18–20 August. Among other things, the letter explained that, if Mrs Hussain wished to rely on third-party testimonials as to her character, they had to be lodged with the Secretary to the Committee no later than nine days before the Monday of the week of the hearing. The letter also listed options that would be available to the Committee if it decided that Mrs Hussain's fitness to practise was impaired. These included both suspension and removal from the Register. A copy of the Council's “Indicative Sanctions Guidance” was enclosed.

5

On 27 July 2015, the Council wrote again to Mrs Hussain, with a copy to Mackrell Turner Garrett. The letter said that the “Indicative Sanctions Guidance” had been replaced by a document called “Good decision making: fitness to practise hearings and sanctions guidance”, which was enclosed. This document, it was explained, described the options available to the Committee at the sanctions stage of the proceedings and set out various factors that might make one sanction more or less appropriate in any particular case.

6

Shortly before this, on 23 July 2015, Mrs Hussain's then counsel, Mr Jason Bartfeld QC, had made a written application on her behalf for an adjournment. This having been refused, Mrs Hussain lost confidence in her existing legal team and instructed new lawyers, who, however, did not feel able to represent her at the hearing if it went ahead as scheduled. A second application for an adjournment was made, but without success. The matter therefore came on for hearing on 18 August, with Mrs Hussain representing herself with the assistance of her husband, Dr Ghazi Auda. At the beginning of the hearing, Mrs Hussain made a further application for an adjournment, but this too was turned down.

7

Evidence and submissions occupied the Committee, which comprised Ms Siobhan Goodrich as Chairman, Professor Jim Smith and Mrs Elizabeth Burnley, for the remainder of 18 August 2015, the whole of 19 August and until about 3.15 pm on 20 August. At that stage, the Chairman indicated that the Committee was unlikely to be able to make its decision that day and it was agreed that the matter would be adjourned until 18 September, with the Chairman explaining:

“We will start at 9.30 promptly. We will sit that day for as long as is necessary to conclude this case. That may mean that it will be slightly later than the usual time of 4.30.”

The Chairman said that the Committee would “at some stage in the morning deliver our decision on the facts”. She went on:

“If the facts are not found proven, then the case ends there. If facts are found proven the Committee then considers submissions on whether or not, on the basis of the facts found proven, there is impairment of fitness to practise currently.

So, the point is, you need to be ready on [18] September, if the facts against you are proven, you need to know what it is you want to say to the Committee about the impact of any facts proven upon your fitness to practise, all right?

The Committee then retires to decide whether or not fitness to practise is currently impaired, and we announce the decision on that. If the Committee decides that fitness to practise is currently impaired, we hear submissions, which are usually brief on both sides, in relation to the issue of sanction ….

So, you have a copy of the Hearings Guidance, which includes the guidance in relation to sanction, so that will help you. So, read that and be familiar with it, because if we find the facts proved, if we find that fitness to practise is impaired, then we will be considering the issue of sanction. So, when we have announced our finding of fact we do not hear any more argument about the facts. Once they are found, the facts are the facts, and we focus upon the next stage if the facts are found proven, and then, after that, we focus on that stage. We do not go over old ground, okay? You can obviously draw threads together, but you do not go over old ground in a way to seek to address the facts again. So, is there anything else upon which I can give you any assistance?”

Mrs Hussain responded, “Thank you very much, ma'am.”

8

In the event, the Chairman delivered the Committee's determination on facts orally at midday on 18 September 2015. The Committee concluded that the case against Mrs Hussain had been made out, observing that it considered the evidence to be overwhelming. It also said this:

“We have considered all the points made by Mrs Hussain and on her behalf about what happened on the occasion that the patient attended the pharmacy and asked for Amoxicillin. We bore fully in mind her good character. We have made every reasonable allowance for any difficulties she may have had in meeting the allegations against her including, amongst other matters, the delay before she was asked to give her account, the covert nature of the operation, the fact that she has not been able to know the identity or question the undercover operative, and the fact that these events took place more than three years ago.

We bore in mind that she was not represented. She was, however, fully able to participate in the hearing, asked pertinent questions and gave evidence at length. She clung tenaciously to her many explanations as she sought to counter the evidence as to what happened that day. In our view her account was designed to seek to provide answers to obvious problems in her case. Her account was rehearsed and manipulative. She showed a marked tendency to seek to avoid the actual questions asked of her. We formed the very clear view that this tendency had nothing to do with any deficit of understanding or the fact that she was unrepresented. She was not a credible or reliable witness.”

9

Having delivered the determination, the Chairman said this:

“It is now one o'clock and, in any event, we would ordinarily rise at this stage in order to give Mrs Hussain the opportunity to absorb and reflect upon the Committee's findings for the purposes of the next stage in the proceedings, which of course is the consideration of whether the facts which are now found proven by the Committee amount to serious misconduct and impair her current fitness to practise. It is in any event one o'clock, but we are going to take a reasonably short lunch break today. We will sit again at quarter to two. At that stage, Mrs Hussain, Mr Hepworth will address the Committee on the issue of impairment, and we will then hear submissions from you on the issue of impairment. The Committee will then make a decision on whether or not your fitness to practise is impaired by reason of the misconduct found against you, and we will announce that decision. The Committee will then hear submissions on the issue of sanction from both sides …. Of course we are going to sit late, if necessary.”

10

The hearing in fact resumed at 2.05 pm. The Committee heard first from Mr John Hepworth, the Council's case presenter. At the close of his submissions on impairment, there was this exchange:

“THE CHAIRMAN: Just on that last point, I think there is authority – I cannot now remember the name of the case – that the attitude displayed at a hearing, the conduct at the hearing, can in principle be a matter that can count for or against a Registrant when assessing the issue of insight, and indeed meaning attitude, professional responsibility, ownership of responsibility, those sorts of concepts; but of course somebody is entitled to defend...

To continue reading

Request your trial
5 cases
  • General Medical Council v Professor Robert Thompson Walton
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 December 2019
    ...(see Southall at paragraphs 55 to 56).” 14 Jagjivan was cited with approval by Singh LJ in Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 § 66, and by the Court of Appeal in General Medical Council v Chandra [2018] EWCA Civ 1898 § 15 The Court of Appeal in Bawa-Garba v Genera......
  • Dr Pantula Sastry v General Medical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 25 February 2019
    ...(see Southall at paragraphs 55 to 56).” 12 Jagjivan was cited with approval by Singh LJ in Hussain v General Pharmaceutical Council [2018] EWCA Civ 22, at [66] and by the Court of Appeal in General Medical Council v Chandra [2018] EWCA Civ 1898, at 13 I was also referred to the decision i......
  • Kenneth Nwapa v General Pharmaceutical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 28 January 2019
    ...sanction again and substitute its own view. A body such as the Committee had to be afforded a margin of judgment: see Hussein v GPHC [2018] EWCA Civ 22. It is important to note the caveated language in these authorities and in other case law. The Court is obviously not bound to slavishly f......
  • General Medical Council v Dr Azubuike Valentine Udoye
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 June 2021
    ...at [39–40] and need not be repeated here. Jagjivan was cited with approval by Singh LJ in Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 at [66] and by the Court of Appeal in General Medical Council v Chandra [2019] 1 WLR 1140 at [81]. The summary in Jagjivan should also be r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT