Factual and Procedural Background
This appeal arises under article 58 of the Pharmacy Order 2010 from a decision by the Respondent's Fitness to Practise Panel ("the FPP") dated 18 September 2015, which erased the Appellant's name from the Respondent's Register. The Appellant ("A") was the superintendent and responsible pharmacist at the Safeer Pharmacy ("the Pharmacy"). An undercover BBC investigation filmed footage suggesting that on 23 August 2012, a prescription-only medicine, amoxicillin, was supplied without a prescription by a counter assistant, who was A's daughter, and that A knew of this unlawful supply.
A applied for multiple adjournments of the hearing before the FPP in 2015, all of which were refused. After losing confidence in her initial legal team, she changed representation but was ultimately unrepresented at the hearing, with assistance from her husband. The FPP conducted the hearing in stages, with the factual hearing concluding on 20 August 2015 and a subsequent hearing on 18 September 2015 to announce decisions on facts, impairment, and sanction.
Legal Issues Presented
- Whether the hearing before the FPP was conducted fairly.
- Whether the evidence was sufficiently cogent to support the FPP's factual findings.
- Whether the penalty of erasure was disproportionate.
Arguments of the Parties
Appellant's Arguments
- The hearing was unfair, including claims that the FPP should have recused itself and that A was deprived of the opportunity to be represented.
- The evidence supporting the charge was not cogent, particularly contesting the authenticity and integrity of the BBC footage and disputing the date of the alleged supply.
- The sanction of erasure was disproportionate, being harsher than sanctions imposed in comparable cases and not aligned with submissions made to the FPP.
- The hearing on sanction was unfair, partly due to A's lack of legal representation and alleged difficulties understanding legal concepts.
- Concerns about cultural factors affecting the expression of insight were not adequately considered by the FPP.
Respondent's Arguments
- The FPP conducted a fair hearing, taking active steps to ensure fairness despite A's lack of legal representation at the hearing.
- The evidence, including the BBC footage and supporting materials, was reliable and sufficient to prove the charge beyond reasonable doubt.
- The FPP was entitled to reject the applications for adjournment based on delay, public interest, and fairness to all parties.
- The sanction of erasure was appropriate given the seriousness of the misconduct, A’s lack of insight, and the risk of repetition.
- Comparisons to other cases involving the same investigation were not determinative, as each case differed on its facts and merits.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Shaw and Turnbull v. Logue [2014] EWHC 5 (Admin) |
Standard of review on appeal: appeal court will only allow appeal if the lower court decision was "plainly wrong". |
The court applied a strict yardstick in reviewing the FPP's factual findings, deferring to their advantage of hearing live evidence. |
| Bhatt v. General Medical Council [2011] EWHC 783 (Admin) |
Deference to specialist tribunals on factual findings and matters within their expertise; court slow to interfere absent clear error. |
The court gave appropriate weight to the FPP's expertise and findings on matters within their professional competence. |
| Keith Davy (Contractor) Limited v Ibatex Ltd [2001] EWCA Civ 740 |
Procedural or other irregularity must be serious and cause injustice to allow appeal under CPR 52.11(3)(b). |
The court found no serious procedural irregularity causing injustice in the FPP's handling of the hearing. |
| Raschid v General Medical Council [2007] 1 WLR 1460 CA |
Appellate court should not re-sentence but correct material errors of fact and law on appeals against sanction. |
The court respected the FPP's sentencing discretion and did not substitute its own view absent material error. |
| Salsbury v Law Society [2009] 1 WLR 1286 |
Respect for expert tribunals' sentencing decisions in professional misconduct cases. |
The court paid considerable respect to the FPP's sanction decision, absent error of law. |
| Marinovich v. General Medical Council [2002] UKPC 36 |
Professional Conduct Committee best placed to assess sanctions in public interest; appellate intervention only on good grounds. |
The court upheld the FPP’s decision on erasure as not wrong or unjustified. |
| Porter v Magill [2002] AC 357 |
Test for recusal based on real danger of bias or prejudicial impression. |
The court found no basis to require the FPP’s recusal despite exposure to privileged material. |
| R v Galbraith [1981] 1 WLR 1039 |
Legal principles for assessing sufficiency of evidence. |
The court noted the FPP’s correct legal directions and self-directions on evidential issues. |
Court's Reasoning and Analysis
The court carefully reviewed the procedural history and noted multiple refused applications for adjournment, emphasizing the importance of balancing fairness to both sides with public interest and efficient case management. The court found that the delay in seeking expert evidence and changes in legal representation did not justify postponements, particularly given the serious nature of the allegations and the longstanding knowledge of the case details by the Appellant.
The court gave significant deference to the FPP’s factual findings, which were based on a thorough and rigorous analysis of the evidence, including the BBC footage, witness testimony, and documentary evidence. The court found no cogent reason to overturn the FPP’s conclusions, including their acceptance of the date of the alleged unlawful supply and the credibility of the key witness. Challenges to the integrity of the footage and alleged inconsistencies were rejected as unpersuasive or irrelevant to the core findings.
Regarding the fairness of the hearing, the court accepted that although the Appellant was unrepresented at critical stages, the FPP took active steps to ensure fairness, including guidance and explanation of procedures. The court rejected submissions that the absence of legal representation caused unfairness sufficient to warrant overturning the decision.
On sanction, the court acknowledged that while other cases arising from the same investigation had resulted in suspensions, the FPP’s decision to impose erasure was within its discretion and supported by the seriousness of the misconduct, lack of insight, and risk of repetition. The court found no error of law or fact in the sanction decision and no procedural irregularity causing injustice.
Holding and Implications
The court DISMISSED the appeal.
The decision upholds the FPP’s finding that the Appellant unlawfully supplied a prescription-only medicine without a prescription and confirms the appropriateness of erasure as a sanction. The ruling reinforces the principle that appellate courts will give considerable respect to specialist tribunals’ factual findings and sanction decisions, intervening only when decisions are plainly wrong or procedurally unfair. The case also highlights the importance of timely preparation and the limited scope for adjournments in regulatory proceedings. No new precedent was established; the decision primarily affirms the application of established legal standards and procedural fairness in professional disciplinary hearings.