England and Wales Court of Appeal (Civil Division) Decisions

Hussain v General Pharmaceutical Council (Rev 1) [2018] EWCA Civ 22 (18 January 2018)

Last Updated on October 10, 2019 by LawEuro

Neutral Citation Number: [2018] EWCA Civ 22
Case No: C1/2016/1583

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
Date: 18/01/2018

Before :
LORD JUSTICE PETER JACKSON
LORD JUSTICE NEWEY
and
LORD JUSTICE SINGH
– – – – – – – – – – – – – – – – – – – – –
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

  1. On 26 November 2014, the Council’s Investigating Committee decided to refer allegations against Mrs Hussain to the Committee.
  2. 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.
  3. 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.
  4. 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.
  5. 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.”

  1. 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.”

  1. 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.”

  1. 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 themselves. What I understand your submission to be, Mr Hepworth – but I am asking you this so this is clear for the Registrant – is that you are saying that the matters that Mrs Hussain has alleged go beyond a robust denial, and involve casting aspersions upon the character of others, and that is a matter that the Committee should take into account

MR HEPWORTH:  Madam, that is a very succinct summary of the points I was trying to make.

THE CHAIRMAN:  I was not seeking to better them, I just wanted to make it clear to Mrs Hussain what it is, because it is a difficult concept, and she is not represented. Nobody is ever punished for defending themselves; it is a question of what the impact of that is in relation to the overall assessment of fitness to practise moving forward.”

  1. The Chairman next invited Mrs Hussain to address the Committee on the issue of impairment. After a little while, the Chairman said this:

“Mrs Hussain, the difficulty that you are in is that the facts have been found against you, and you recall that I said on the last occasion that, once we have found the facts, those are the facts. We are now dealing with a quite separate next stage of the proceedings which is, on the basis of the facts as we have found, is there anything you want to say in relation to the question of the following issues – and I am going to help you see if you can address these. Firstly you may want to address whether you say that the facts that we have found proved … are not serious. Secondly, that that does not amount to misconduct, and the next area that you might want to see if you want to address us on is whether you say that your fitness to practise is impaired. Now what that means is that you want to address us in relation to things like – you have already told us about how you conduct yourself normally. You will want to tell us about your insight in relation to the facts we have found, your insight in relation to your professional obligations, what you say the position in relation to any risk of recurrence is, and you will also want to address your attitude, your professional obligations and your understanding of the standards of this profession. Some of those you have covered, but I am just giving you a reminder that those are the things that we will now be assessing.”

  1. Not long afterwards, the Chairman said:

“Mrs Hussain, what you are doing is you are going back over the facts. I am going to help you by actually asking you a few questions myself. You might like to tell the Committee what, if anything, you have learned in relation to the obligations of a pharmacist.”

To this, Mrs Hussain replied:

“After this issue, madam, has been brought to our attention during 2012, the pharmacy and the staff are careful more than ever to take extra vigilance by adhering to the SOPs (the standard operating procedures) in place when dealing with any customer requesting a prescription-only medicine.”

  1. In subsequent exchanges, the Chairman asked Mrs Hussain more than once questions along the following lines:

“What do you think the risk is to the public interest and the members of the public if medication that is designated by the law to be prescription-only is provided across the counter as if it is a general sale over-the-counter – what do you think the risk is to the public?”

  1. The Committee retired at 2.25 pm and returned at 3.30 pm, at which point the Chairman delivered the Committee’s determination on impairment, concluding that Mrs Hussain’s misconduct was serious and that her fitness to practise was currently impaired by reason of the misconduct. The Committee said this in its determination:

“Mrs Hussain is unable to accept the findings made against her. We recognise that acceptance of culpability is not a condition precedent of insight. It is however our function at this stage to assess Mrs Hussain’s fitness to practise in the context of the public interests engaged, and this involves consideration of her insight into the standards required of members of the profession of pharmacy. She professes to understand these. Given her trenchant denial of the facts and our assessment that she was not a credible or reliable witness, it is difficult indeed to say that Mrs Hussain has any insight into her conduct, or the impact of her proven behaviour on public confidence in the profession.

Mrs Hussain maintains that she has strengthened the standard operating procedures in the pharmacy, but we are not satisfied that Mrs Hussain really understands the reasons behind the Human Medicines Regulations 2012, and the vital role entrusted to the profession as gatekeepers for the safe and lawful use of medicines. We are not satisfied that she has any real understanding of the risk to patient safety or the public interest. We are unable to assess the risk of recurrence in Mrs Hussain’s favour, given that she has no insight. We also consider that Mrs Hussain’s integrity can no longer be relied on. As we have said, her defence went beyond the robust denial; it involved the making of allegations which we found to be lacking in any substance. We did not believe her account.

We consider that Mrs Hussain’s conduct on 23 August 2012 was egregious. The facts showed a blatant and casual disregard for the law. Leaving aside the issue of insight and the risk of recurrence, we consider that this is in any event a case where the need to declare and maintain the critical importance of compliance with the Human Medicines Regulations, and proper standards in this profession, require that a find[ing] of impairment is made so as to maintain public confidence in the profession.”

  1. The Committee then moved on to consider sanction. Mr Hepworth suggested that suspension would be an appropriate sanction. He said:

“In the Council’s submission, it is a very close decision, but removal would be disproportionate in this case because the risk can be dealt with by suspension and a number of reviews.”

  1. The Chairman then raised a number of matters with Mr Hepworth. “How,” she asked, “does a period of suspension meet the public interest in the declaration of the importance of compliance with the regulations in order to protect patient safety, and indeed in order to honour the standards of the profession?”. She also confirmed with Mr Hepworth that, “if the Committee’s assessment were that there is little or no prospect of the acquisition of insight”, that would “lean the balance towards erasure as the proportionate sanction” and that, if the Committee took the view that Mrs Hussain’s conduct indicated “fundamental incompatibility with the standards of the profession”, that would be “within the range of reasonable decisions which the Committee could make”.
  2. In the course of the discussions, this was said:

“MR HEPWORTH:  … I am aware of the cases – I think probably the latest case is an appeal against a decision of this Committee in Onwughalu where the High Court made it clear that a Committee should not impose suspension rather than removal in order to give the Registrant some time to gather a true insight. But I am not asking the Committee to impose a period of suspension for that purpose.

THE CHAIRMAN:  Onwughalu was not saying – I might have to see it – I do not think it was saying that you cannot do that in order to enable a Registrant to gather insight, it was saying on the facts there was no material upon which that was a reasonable conclusion, that there would be the development of insight – unless I have got that wrong. I think we might have to call Onwughalu up to look at it.

MR HEPWORTH:  I can certainly do that but, in the Council’s submission, that is not directly relevant in this case because, in the Council’s submission, the seriousness of the conduct can be dealt with adequately by 12 months suspension ….”

  1. Turning to Mrs Hussain, the Chairman expressed the hope that her discussion with Mr Hepworth had been helpful in terms of seeing what the Committee had to consider. The Chairman then asked Mrs Hussain about such matters as whether she intended to practise as a pharmacist, what her sources of income were, whether there had ever been any adverse findings against her and what the impact on her would be if she could not work. After that, the Chairman said:

“You have heard Mr Hepworth’s submissions in relation to sanction. Is there anything you would like to say?”

  1. The Chairman specifically inquired of Mrs Hussain whether she wished to argue against what Mr Hepworth had said about the possibility of imposing conditions. Moving on, this was said:

“THE CHAIRMAN:  … If the Committee does not impose conditions of practice, it is a question of whether suspension is sufficient and, if not, then obviously the order would be one of erasure. Do you want to deal with any matters you want to place before the Committee as to why you say no restriction should be placed on your practice?

MRS HUSSAIN:  Madam, I have been working since 1999. I never did anything wrong, believe me. You can ask the General Pharmaceutical Council, there is nothing on my record. I am very honest person, very warm. People when they come to the pharmacy, when they want to buy something, I make them calm, I give them advice, and they leave the pharmacy happy; even sometimes they say this is the first pharmacist we see that they do not encourage us to buy any medicine. I am like that person, that sort of person, this is my nature – give advice more than to sell.

THE CHAIRMAN:  Anything else you would like to say?

MRS HUSSAIN:  No”

  1. Just before retiring, the Chairman said this:

“Mr Hepworth, the Committee would like to see the case of Onwughalu, and if you provide a copy also to Mrs Hussain. I think it is more just so the Committee can remind itself of the principle there.”

  1. The Committee retired for the period between 4.05 pm and 6.25 pm. The Chairman then delivered its determination on sanction. This included this:

“We consider that this was an extremely serious breach of the law. It was also a serious departure from the Standards of Conduct, Ethics and Performance that govern this profession. In our view [Mrs Hussain’s] misconduct on 23 August 2012 was, on the face of it, fundamentally incompatible with continued registration albeit that it occurred on a single day.

We do accept that what can legitimately be said is that the misconduct in this case was not aggravated by the medication in question being one that is prone to abuse/addiction. In our view the key aggravating feature in this case is that the facts involved a flagrant breach of the law in relation to the supply of a prescription-only medicine. That breach went to the very heart of the principles of the published Standards of Conduct, Ethics and Performance that govern this profession. The Registrant was also the Superintendent Pharmacist of Safeer Pharmacy.

Given her denial, the Registrant has demonstrated no insight into her wrongdoing and no regret. This is not a case where the Registrant was ignorant of the regulations or in need of training. It is a case where the Registrant knew the requirements of the law but decided to flout it.”

  1. Having noted various matters placed before it in mitigation, the Committee proceeded to consider the possible sanctions in ascending order. It ended its determination as follows:

“Having seen and heard the Registrant give evidence, we consider that there is little or no prospect of her developing true insight. In any event, we do not consider that a period of suspension would adequately address the public interest in the maintenance of public confidence in the profession. We say this in the context of our assessment as to the Registrant’s total lack of insight, the risk of recurrence, her denial of the allegations, and her lack of integrity in maintaining her case that there had effectively been a conspiracy to present a false picture. In our view the personal characteristics that led her to make, and doggedly pursue, such allegations indicate a very profound lack of judgment and integrity. We consider that the lack of integrity she has persistently displayed since she first had the opportunity to address her responsibility in 2013 is a significant impediment to the notion that any Committee could trust anything that she may say on review.

We have considered very carefully all the personal circumstances that are before us. We are well aware of the effect that the sanction we impose will have upon Mrs Hussain’s career, her standing and reputation in the community, and her livelihood, as well as the impact upon the running of the pharmacy and its profitability.

We have weighed all relevant matters and balanced the public interest engaged against the Registrant’s interests in the continuance of her profession and her ability to earn her living. In our view it is necessary and proportionate to direct that the entry of the Registrant’s name is removed from the Register because maintenance of public confidence in the high standards of this profession demands no less a sanction in this case.”

  1. The last part of the hearing was occupied with consideration of interim measures. Matters were finally concluded at 6.50 pm.

The framework

  1. Rule 31 of the General Pharmaceutical Council (Fitness to Practise and Disqualification etc.) Rules 2010 states that, unless the Committee determines otherwise, the order of proceedings at a principal hearing in fitness to practise proceedings is to be in accordance with paragraphs (2) to (18). Paragraphs (10) to (14) provide:

“(10) The Committee must consider and announce its findings of fact.

(11) The Committee must receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the registrant’s fitness to practise is impaired.

(12) The Committee must consider and announce its finding on the question of whether the fitness to practise of the registrant is impaired, and give its reasons for that decision.

(13) The Committee may receive further evidence and hear any further submissions from the parties or from any other person who has a direct interest in the proceedings where the registrant’s fitness to practise is found to be impaired, as to the appropriate sanction, if any, to be imposed, including evidence as to any mitigating circumstances and any relevant matters in the previous history of the registrant concerned.

(14) The Committee must—

(a) having regard to any guidance issued by the Council about sanctions that particular classes of cases before the Committee should attract, consider the course of action under article 54(2) of the Order which is appropriate in the registrant’s case;

(b) announce its decision; and

(c) give its reasons for that decision.”

  1. Article 54(2) of the Pharmacy Order 2010, to which there is reference in paragraph (14), states that, where the Committee determines that a person’s fitness to practise is impaired, it may:

“(a) give a warning to the person concerned in connection with any matter arising out of, or related to, the allegation and give a direction that details of the warning be recorded in the Register;

(b) give advice to any other person or other body involved in the investigation of the allegation on any issue arising out of, or related to, the allegation;

(c) give a direction that the entry in the Register of the person concerned be removed;

(d) give a direction that the entry in the Register of the person concerned be suspended, for such period not exceeding 12 months as may be specified in the direction; or

(e) give a direction that the entry in the Register of the person concerned be conditional upon that person complying, during such period not exceeding 3 years as may be specified in the direction, with such requirements specified in the direction as the Committee thinks fit to impose for the protection of the public or otherwise in the public interest or in the interests of the person concerned.”

  1. In its July 2015 version, which Mrs Hussain was sent, the Council’s “Good decision making: fitness to practise hearings and sanctions guidance” said this at the beginning of the section dealing with sanctions:

“This guidance is not intended to interfere with the committee’s powers to impose whatever sanction it decides in individual cases. Committee members should use their own judgment when deciding on the sanction to impose. They should also make sure that any sanction is appropriate and proportionate, based on the individual facts of the case, and is in the public interest.”

  1. Paragraph 4.3 of “Good decision making” contained a table listing the available sanctions. As regards removal from the Register, this was said:

“Removing a registrant’s registration is reserved for the most serious conduct. The committee cannot impose this sanction in cases which relate solely to the registrant’s health. The committee should consider this sanction when the registrant’s behaviour is fundamentally incompatible with being a registered professional.”

  1. Paragraph 5.2 of “Good decision making” listed “Key factors to consider” when deciding on sanction. The paragraph read:

“Ensuring that a hearing has the appropriate outcome is important for both public confidence in the profession and in the way it is regulated. In deciding on the most appropriate sanction, if any, to impose, the committee should consider:

  • the extent to which the registrant has breached the standards of conduct, ethics and performance published by the GPhC [i.e. General Pharmaceutical Council]
  • the interests of the registrant, weighed against the public interest
  • the personal circumstances of the registrant and any mitigation* they have offered
  • any testimonials and character references given in support of the registrant
  • any relevant factors that may aggravate* the registrant’s conduct in the case
  • any statement of views provided to the committee by a patient or anyone else affected by the conduct of the registrant
  • any submissions made to the committee by the GPhC’s representative, the registrant or their representative
  • the contents of this guidance

* See paragraphs 5.10 to 5.23 for an explanation of mitigating and aggravating factors.”

  1. Paragraphs 5.17 to 5.19 of “Good decision making” dealt with “Insight” in these terms:

“5.17   The council believes that insight is a key factor for committees to consider during fitness to practise proceedings. The expectation that a registrant can accept and understand that they should have behaved differently, and that they will take steps to prevent a reoccurrence, is an important factor for a committee to consider.

5.18    When assessing insight the committee will need to take into account factors such as whether the registrant has genuinely demonstrated insight – not only consistently throughout the hearing but also through their actions after the incident took place – and also has demonstrated understanding and insight after the committee finding.

5.19    The committee should be aware that there may be cultural differences in the way that insight is expressed, for example, whether or how an apology or expression of regret is framed and delivered. Sensitivity to these issues is important in deciding how a registrant frames their ‘insight’ and in judging their behaviour and attitude during the hearing.”

  1. Article 58 of the Pharmacy Order 2010 provides for appeals to the High Court. By virtue of CPR 52.21(3), such an appeal is to be allowed if the decision under appeal was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court [i.e. here, the Committee]”.
  2. Paragraph 19 of Practice Direction 52D provides for appeals against decisions affecting the registration of a range of health care professionals, including pharmacists and doctors, to be “by way of re-hearing” rather than (as would normally be the case in accordance with CPR 52.21(1)) review. The appellate Court does not, however, start from scratch. In Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, which involved an appeal by a doctor against his removal from the Register, Auld LJ observed (at paragraph 128):

“given the structure of CPR r 52.11 [now CPR 52.21], the difference between a ‘review’ and a ‘rehearing’ is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR r 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E I Dupont de Nemours & Co v ST Dupont (Note) [2006] 1 WLR 2793, paras 92–98, is instructive on the overlap between the two, namely that a ‘rehearing’ in rule 52.11(1) may, at the lesser end of the range, merge with that of a ‘review’ and, at para 98, that ‘at this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal’. But even when a review is a full rehearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ, at para 96, ‘give to the decision of the lower court the weight that it deserves’. This elasticity of meaning in the word ‘rehearing’ in CPR r 52.11 should clearly apply also to the same word in the Practice Direction.”

Later in his judgment, Auld LJ explained (at paragraph 197) that, on an appeal from the Fitness to Practise Panel of the General Medical Council, the Court must:

“have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

  1. Many cases confirm that, when considering an appeal from a disciplinary body, it can be appropriate to bear in mind the body’s special expertise. Thus, in Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, Lord Millett, giving the judgment of the Privy Council on an appeal from the Professional Conduct Committee of the General Medical Council, said (at paragraph 34):

“the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public”.

In a similar vein, Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said in Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 (at paragraph 26) that the two principles which were especially important in the context of disciplinary appeals were “the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal” and, restoring sanctions that had been ordered by the General Medical Council’s Fitness to Practise Panel and set aside by the judge, commented (at paragraph 22) that “the judge’s views in Raschid as to the period of suspension and the need or lack of it of a review hearing were in reality a substitution of one view of the merits for another”. Likewise, Lord Wilson (with whom Lords Neuberger, Reed, Carnwath and Hodge agreed) said in Khan v General Pharmaceutical Council [2016] UKSC 64, [2017] 1 WLR 169 (at paragraph 36):

“An appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence. In a case such as the present, the committee’s concern is for the damage already done or likely to be done to the reputation of the profession and it is best qualified to judge the measures required to address it: Marinovich v General Medical Council [2002] UKPC 36 at [28].”

  1. Earlier this year, the “need for the court to exercise caution when reviewing a disciplinary tribunal’s decision on sanction” was mentioned by Lindblom LJ (with whom Sharp LJ agreed) in Professional Standards Authority v Health and Care Professions Council [2017] EWCA Civ 319. In Yeong v General Medical Council [2009] EWHC 1923 (Admin), [2010] 1 WLR 548, Sales J had referred (in paragraph 58) to disciplinary bodies having “a margin of judgment to decide on sanction, even if a court might not itself have chosen to impose such sanction”. On the facts of the case before him, he concluded (at paragraph 59):

“In my judgment, the sanction imposed by the FTPP [i.e. Fitness to Practise Panel of the General Medical Council] in the present case was well within the margin of judgment available to the FTPP. I do not find it possible to say that the sanction imposed was wrong.”

  1. None of this, however, means that the Courts will never conclude that a sanction was “wrong”. In Ghosh, Lord Millett observed (at paragraph 34) that the Privy Council would “not defer to the committee’s judgment more than is warranted by the circumstances”. In Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1 WLR 1286, Jackson LJ (with whom Arden LJ and Sir Mark Potter P agreed) said (at paragraph 30):

“It is now an overstatement to say that ‘a very strong case’ is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.”

In Khan, the Supreme Court overturned a direction for removal from the Register, explaining (in the words of Lord Wilson, at paragraph 40):

“The committee itself acknowledged that its direction for removal might appear harsh. It was indeed harsh. It was unnecessary. It was disproportionate. The sanction proportionate to the disrepute into which Mr Khan’s conduct had brought, or was likely to bring, the profession of pharmacy was suspension of his registration, which, at the time of the committee’s determination, should no doubt have been for a period of a year.”

Earlier in his judgment, Lord Wilson had said (at paragraph 36):

“Mr Khan is … entitled to point out that (a) the exercise of appellate powers to quash a committee’s direction or to substitute a different direction is somewhat less inhibited than previously: Ghosh v General Medical Council [2001] 1 WLR 1915, para 34; (b) on an appeal against the sanction of removal, the question is whether it ‘was appropriate and necessary in the public interest or was excessive and disproportionate’: the Ghosh case, again para 34; and (c) a court can more readily depart from the committee’s assessment of the effect on public confidence of misconduct which does not relate to professional performance than in a case in which the misconduct relates to it: Dad v General Dental Council [2000] 1 WLR 1538, 1542–1543.”

  1. Turning to procedural failings, it can be seen from the terms of CPR 52.21(3) (quoted in paragraph 30 above) that a procedural irregularity will not necessarily provide a sufficient basis for an appeal. To do so, the irregularity must have been “serious” and render the decision “unjust”.
  2. The point can be illustrated by reference to Simou v Salliss [2017] EWCA Civ 312, where the appellants had made two applications to the trial judge for an adjournment. Henderson LJ (with whom Sir Terence Etherton MR and Beatson LJ agreed) considered that there had been a procedural irregularity in the judge’s failure to address and deal with the first of the applications (paragraph 67), but was unpersuaded that this had caused any injustice (paragraphs 67 and 69). The irregularity did not, accordingly, lead to the appeal being allowed.
  3. Given the way in which Mrs Hussain’s submissions were developed before us, Simou v Salliss is also of interest for what it says about this Court’s approach to appeals from adjournment decisions. Henderson LJ explained (at paragraph 59):

“The decision whether or not to adjourn a trial is one of case management. As such, it is common ground that it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree’: see Global Torch Ltd v Apex Global Management Ltd (No.2) [2014] UKSC 64, [2014] 1 WLR 4495, at 4500 per Lord Neuberger, approving the test stated by Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51].”

A little later, Henderson LJ said (in paragraph 63):

“With regard to medical evidence, the parties were again in agreement that the relevant principles are those stated by Norris J in Levi v Ellis-Carr [2012] EWHC 63 (Ch) at [36], which were endorsed by this court in Forresters Ketley v Brent [2012] EWCA Civ 324 at [26] by Lewison LJ, with whom Longmore LJ agreed. Norris J said of the evidence in the case before him, in a passage which bears repeating:

‘In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a recent prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).’”

  1. In Forresters Ketley v Brent [2012] EWCA Civ 324, which Henderson LJ mentioned, Lewison LJ also said this (at paragraph 25):

“Whether to adjourn a hearing is a matter of discretion for the first-instance judge. This court will only interfere with a judge’s exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.”

  1. A linked point is that, in the context of disciplinary proceedings before the Committee, the Court is concerned with fairness to both the Registrant and the Council. In General Medical Council v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867, Sir Brian Leveson P (with whom Gross LJ and Sir Stanley Burnton agreed) noted (at paragraph 17) that “the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance” and then observed (at paragraph 18):

“fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC”.

Sir Brian Leveson P also said (at paragraph 19):

“the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.”

The scope of the appeal

  1. Various grounds of appeal were listed in paragraphs 22 to 34 of the skeleton argument prepared on behalf of Mrs Hussain in April 2016 by Mr Richard Christie QC, who appeared for her on the present appeal. All but the last of these related to procedural matters, it being Mrs Hussain’s case that the final day of the hearing before the Committee was unfair and unjust in a range of respects. The one ground that was not based on procedure, to be found in paragraph 34 of the skeleton argument, was the contention that the “penalty of erasure was plainly wrong and disproportionate in all the circumstances of the case as they are now known”, but this suggestion was not developed in the supplemental skeleton argument that was filed on Mrs Hussain’s behalf in September of this year (though it did not resile from the arguments put forward in its predecessor) and at one point during his oral submissions Mr Christie appeared to me at least to confirm that the appeal was based exclusively on complaints about procedure. Mr Kenneth Hamer, who appeared for the Council, nonetheless addressed the proportionality of removal from the Register as well as the procedural issues in the course of his submissions and, when he came to reply, Mr Christie said that he was maintaining that removal from the Register had been disproportionate and wrong as well as that there had been procedural failings.
  2. On balance, it seems to me that Mrs Hussain should be allowed to pursue the challenge to the substance of the Committee’s decision on sanction as well as her complaints about the procedure that the Committee adopted. In fact, Mr Hamer did not try to persuade us otherwise and, as I say, he himself commented on proportionality during his submissions.
  3. I shall therefore consider, first, the procedural issues and, secondly, whether the decision to remove Mrs Hussain from the Register was wrong regardless of whether there were procedural failings.

Procedure

  1. It is Mrs Hussain’s case that the procedure that was adopted on 18 September 2015, the final day of the hearing before the Committee, was unfair. Mr Christie both advanced specific criticisms of what happened on 18 September and urged us to look at the position in the round. Amongst the points Mr Christie made were that the Council did not draw the Committee’s attention to, and the Committee did not consider, the sanctions that had been imposed on other pharmacists following the BBC programme that led to the disciplinary proceedings against Mrs Hussain; that the Committee retired with the decision of Cox J in Professional Standards Authority for Health and Social Care v (1) General Pharmaceutical Council and (2) Onwughalu [2014] EWHC 2521 (Admin) but gave Mrs Hussain no opportunity to comment on it; that the Committee did not adequately warn Mrs Hussain that, notwithstanding the Council’s submission that suspension would be an appropriate sanction, it was seriously considering removal from the Register; that the Committee failed to explore relevant issues sufficiently with Mrs Hussain; that there was excessive use of legal, rather than everyday, language; that the Committee failed to take enough account of the fact that Mrs Hussain had in the past been the victim of two transient ischaemic attacks and of the enormous stress she will have been under; and that the Committee failed to invite Mrs Hussain to consider seeking legal representation in relation to sanction. Given the time of day, Mr Christie said, the right course would have been to adjourn the hearing. Mr Christie also suggested that the fact that Mrs Hussain had not put in testimonials supporting her was attributable to cultural issues and that we should have regard to those that Mrs Hussain has assembled since the hearing before the Committee.
  2. In my view, however, the various points advanced by Mr Christie do not either individually or taken together establish that the hearing on 18 September 2015 was unfair or (to use the language of CPR 52.21(3)) that the Committee’s decision was “unjust because of a serious procedural or other irregularity”.
  3. In the first place, Mrs Hussain was given plenty of notice that, if the Committee found against her on the facts, it would go on to consider both impairment and, potentially, sanction on 18 September 2015. As can be seen from paragraph 7 above, the Chairman spelt out the position clearly at the end of the hearing on 20 August.
  4. Secondly, Mrs Hussain will have known that the scenario for which she needed to be prepared at the hearing on 18 September 2015 was one in which the Committee had rejected her account of the facts. Issues of impairment and sanction could not otherwise arise.
  5. Thirdly, Mrs Hussain was on notice that the sanctions that the Committee could impose, if it found the case against her proved, included removal from the Register. Removal was identified as an option both in the Council’s letter to Mrs Hussain of 21 April 2015 and in “Good decision making”, of which Mrs Hussain was sent a copy on 27 July. Moreover, the Council did nothing to lead Mrs Hussain to believe that it would not favour removal until Mr Hepworth said as much after the Committee had already delivered its determination on impairment.
  6. Fourthly, Mrs Hussain had some time to collect her thoughts after the Chairman had delivered the Committee’s determination on the facts. The Chairman said that the Committee would rise for 45 minutes and, in the event, it did not sit again until an hour and five minutes later.
  7. Fifthly, while the hearing was not ultimately concluded until 6.50 pm, the argument on sanction was completed by 4.05 pm. There is therefore no question of Mrs Hussain having been required to address the issue at an unreasonably late hour of the day.
  8. Sixthly, Mrs Hussain was a professional woman who had been in the United Kingdom for some 16 years and had studied at and obtained a degree from a British university. Moreover, the Committee, having seen her handle the proceedings over several days, explained that she was “fully able to participate in the hearing, asked pertinent questions and gave evidence at length” (see paragraph 8 above).
  9. Seventhly, although Mrs Hussain did not have legal representation at the hearing on 18 September, (a) she had had it up to about the end of July 2015, (b) she could have approached lawyers in the interval between 20 August and 18 September, (c) she was not without any assistance, since she had the help of her husband and (d) it is of course by no means uncommon for people to represent themselves in Court and other proceedings. In fact, it cannot be at all unusual, even in cases involving litigants in person, for a Judge to hear evidence, give a judgment and then move on (either at once or after only a short break) to consider important consequential matters.
  10. Eighthly, although it is apparent from the transcript that Mrs Hussain became distressed at two points during the argument on sanction, there is no reason to suppose that the Committee ought to have concluded that she was not in a position to continue with the hearing. Unsurprisingly, we were told by Mr Hamer that it is not unusual for those facing disciplinary proceedings to be distressed.
  11. Ninthly, the Committee had no reason to conclude that there was a medical reason not to continue with the hearing. Mr Christie told us that the Committee had said at the hearing in August 2015 that it would keep Mrs Hussain’s health under review, but Mrs Hussain gave no indication that there was a medical issue on 18 September.
  12. Tenthly, Mrs Hussain did not ask for or suggest an adjournment. In any case, as can be seen from the authorities cited in paragraphs 37 to 39 above, an adjournment “is not simply there for the asking”; in deciding whether to grant one, regard must be had to fairness to the Council as well as the Registrant; and whether to adjourn a hearing is “a matter of discretion” and case management with which an appellate Court can interfere only in limited circumstances.
  13. Eleventhly, while it might have been preferable if the Committee had pressed Mrs Hussain to address the specific possibility of removal from the Register, (a) the Chairman did say, “it is a question of whether suspension is sufficient and, if not, then obviously the order would be one of erasure”, when speaking to Mrs Hussain, (b) it had been implicit in the discussions between the Chairman and Mr Hepworth referred to in paragraph 16 above that removal from the Register was one of the possibilities under consideration, (c) as mentioned in paragraph 47 above, Mrs Hussain was anyway on notice that removal from the Register was one of the options available to the Committee, (d) the Chairman sought to explore with Mrs Hussain specific issues relevant to the Committee’s decision and (e) I find it impossible to imagine that, in the particular circumstances, more explicit reference to the risk of removal from the Register would have been of any practical assistance to Mrs Hussain.
  14. Twelfthly, by 18 September 2015 sanctions had been imposed on five other pharmacists on the basis of conduct revealed in the BBC programme that also featured Mrs Hussain. Two of the five were removed from the Register and the other three were suspended. Mr Christie submitted that the Committee ought to have had its attention drawn to, and to have had regard to, these decisions. In my view, however, there can be no question of the Council having been under any obligation to refer the Committee to these decisions or of the Committee having been bound to ask for them. Although the misconduct of all the pharmacists was disclosed in a single television programme, there was otherwise no relevant connection between them and the sanction imposed in each case will have depended on the individual facts. Moreover, the Courts have discouraged the citation of authority in somewhat comparable situations. Thus, in Re Westmid Packing Services Ltd [1998] 2 All ER 124, Lord Woolf MR, giving the judgment of the Court of Appeal in relation to proceedings under the Company Directors Disqualification Act 1986, said (at 134):

“The principles applicable to the court’s jurisdiction under the Act are now reasonably clear. The application of those principles to the facts of the particular case is a matter for the trial judge. The citation of cases as to the period of disqualification will, in the great majority of cases, be unnecessary and inappropriate.”

Again, in Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23, [2016] 4 WLR 17, Moore-Bick LJ, giving the judgment in the Court of Appeal in a case involving an application for a non-party to be ordered to pay costs, said (at paragraph 62):

“We think it important to emphasise that the only immutable principle is that the discretion must be exercised justly. It should also be recognised that, since the decision involves an exercise of discretion, limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind.”

  1. Thirteenthly, it is most unlikely that the Committee found Professional Standards Authority for Health and Social Care v (1) General Pharmaceutical Council and (2) Onwughalu to be of significant assistance: the Chairman said when asking to be supplied with a copy that she thought it was “more just so the Committee can remind itself of the principle there”; the Committee did not refer to the case when it gave its determination on sanction; and the facts of Professional Standards Authority for Health and Social Care v (1) General Pharmaceutical and (2) Onwughalu were too different from those of the present case for it to be of help. In any case, reference by a decision-maker to an authority on which a party has not been given an opportunity to comment need not involve (as Mr Christie suggested was the case here) “a plain breach of natural justice”. Singh J (as he then was) touched on this area recently in Dill v Secretary of State for Communities and Local Government [2017] EWHC 2378 (Admin), a planning case. His judgment included this:

“106 [Counsel for the claimant] also relies on the decision of Mr Nigel Macleod QC (sitting as a Deputy High Court Judge) in Ball v Secretary of State for the Environment, Transport and the Regions [2000] PLCR 299, at 309-10. In that passage the court recognised that there may be cases where, even though a planning inspector has not erred as a matter of substantive law, he may have acted unfairly in doing his own research on the law after the proceedings have concluded and before giving his decision. It was said that:

‘There will … be cases where the Inspector’s case law, not referred to by the parties, does not give rise to illegality but still gives rise to a legitimate complaint. Such a case would be one where the Inspector’s correct understanding of the law, based on his own researches, indicates that an issue, not treated by the parties as a principal one to which they devoted significant weight in their representations, is in fact a decisive issue in the appeal. In such a case, there is a real risk that the parties would have more to draw to the Inspector’s attention in respect of the facts and circumstances relevant to the issue; and that a failure to give them the opportunity to do would cause substantial prejudice. In such a case, therefore, the Inspector’s correct reliance upon the relevant case law would not of itself give grounds for review by the court; but his decision based upon analysis of the facts and circumstances of the appeal in the light of that case law would be open to challenge unless he gave the parties an opportunity to address him further on the consequences of his understanding of the law in the circumstances of the instant appeal.’ (Emphasis added)

107 As the words which I have emphasised in that passage make clear, in such a case it will not be the mere fact that an inspector has conducted his own research on legal matters which will render the process unfair. If he gets the law wrong that will give rise to grounds for review as a matter of substantive law. But, if he gets the law right, it may still be procedurally unfair if the parties have not had a reasonable opportunity to address an issue either because they had not previously appreciated that it was an issue or if they have not had a reasonable opportunity to comment on the facts and circumstances of the case in the light of the relevant legal framework.”

In the present case, it cannot be said that reference to the Onwughalu case raised a new issue or that Mrs Hussain was deprived of “a reasonable opportunity to comment on the facts and circumstances of the case in the light of the relevant legal framework”.

  1. Turning finally to testimonials, Mrs Hussain was told in the Council’s letter of 21 April 2015 that testimonials needed to be lodged before the hearing and was also sent “Good decision making”, which referred in paragraph 5.2 to testimonials and character references. Nonetheless, no testimonials or character references were put in for the hearing before the Committee, as a result of which it obviously cannot be faulted for failing to have regard to them. By the time the matter was before Elisabeth Laing J, Mrs Hussain had filed two testimonials, without any objection from the Council, but she sought to rely on some 12 further testimonials before us. In my view, however, we should not admit this additional material. It has not been satisfactorily demonstrated that it could not have been obtained with reasonable diligence in time for the hearing before the Committee and it would in any event be unlikely to have an important influence on the result of the case.
  2. In short, I do not accept that the procedural points that Mr Christie advanced provide a basis for allowing the appeal. It is not apparent to me that there was any procedural irregularity, let alone a “serious” one rendering the Committee’s decision “unjust”. My conclusions are thus in keeping with those reached by Elisabeth Laing J.

Was removal from the Register wrong?

  1. I turn to the question of whether Mrs Hussain’s removal from the Register was disproportionate and so “wrong”.
  2. As can be seen from paragraph 27 above, paragraph 4.3 of “Good decision making” referred to removal from the Register as “reserved for the most serious conduct”. In the present case, what was alleged and proved against Mrs Hussain was misconduct on a single occasion. Plainly, it is possible to imagine worse conduct (for example, misconduct occurring on multiple occasions over an extended period). That lends support to the argument that removal from the Register was imposed in Mrs Hussain’s case for conduct that was not “the most serious”.
  3. On the other hand:
  4. Paragraph 4.3 of “Good decision making” said, too, that the Committee should consider removal from the Register where the Registrant’s behaviour “is fundamentally incompatible with being a registered professional” (see paragraph 27 above), and it is evident from its determination on sanction that the Committee considered Mrs Hussain’s misconduct to be “fundamentally incompatible with continued registration” (see paragraph 21 above);
  5. It can also be seen from the Committee’s determination on sanction (for which, see paragraphs 21 and 22 above) that it had very much in mind the various matters listed as “Key factors to consider” in paragraph 5.2 of “Good decision making” and what was said about “insight” in paragraphs 5.17 to 5.19 of “Good decision making”;

iii)                In any event, “Good decision making” stated that its guidance on sanctions was “not intended to interfere with the committee’s powers to impose whatever sanction it decides in individual cases” and encouraged Committee members to “use their own judgment when deciding on the sanction to impose” (see paragraph 26 above);

  1. The Committee was, as it seems to me, plainly entitled to take the view that Mrs Hussain’s conduct involved a “flagrant” and “extremely serious” breach of the law that went to the heart of the profession’s standards of conduct, ethics and performance;
  2. Further, we would not in my view be justified in rejecting the Committee’s conclusions on “insight” (for which, see paragraph 22 above). Unlike us, the Committee had seen and heard from Mrs Hussain over a number of days;
  3. The Court must exercise caution when reviewing a decision of the Committee on sanction and remember that the Committee is better placed to judge what is required to maintain professional standards and public confidence (see paragraphs 31 to 34 above);

vii)              Unlike the conduct at issue in Khan v General Pharmaceutical Council, Mrs Hussain’s misconduct related to her professional performance; and

viii)            While favouring suspension rather than removal from the Register, the Council regarded the decision as “very close” (see paragraph 15 above).

  1. In all the circumstances, I do not consider that it is open to us to conclude that the sanction that the Committee thought it right to impose was disproportionate and “wrong”. The fact that a differently-constituted Committee might possibly have opted for suspension rather than removal from the Register does not mean that this Committee’s decision was “wrong”.

Conclusion

  1. I would dismiss the appeal.

Lord Justice Singh:

  1. I agree with Newey LJ that this appeal should be dismissed. There is nothing that I can usefully add to what he has said about the issue of procedural fairness: see paragraphs 43-59 above.  I would like to add a few words of my own about the issue of whether the sanction imposed in this case was disproportionate and therefore “wrong”.  In agreement, as I understand it, with Peter Jackson LJ, I am in no doubt that this Court should consider that ground of appeal: it was argued before Elisabeth Laing J; it has been properly raised in this Court in the Appellant’s Notice; and Mr Hamer fairly and helpfully made submissions about it at the hearing before us.
  2. I begin with the proper role of an appellate court in proceedings of this kind. I have found helpful the summary of the relevant principles which was recently given by the Divisional Court (comprising Sharp LJ and Dingemans J) in General Medical Council v Jagjivan and another [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438, at paragraph 40, in the context of analogous proceedings under section 40A of the Medical Act 1983:

“40.      In summary:

(i)           Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Pt 52. A court will allow an appeal under CPR Pt 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

(ii)         It is not appropriate to add any qualification to the test in CPR Pt 52 that decisions are ‘clearly wrong’: see Raschid’s case at para 21 and Meadow’s case at paras 125- 128.

(iii)       The court will correct material errors of fact and of law: see Raschid’s case at para 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2003] 1 WLR 577, paras 15- 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325  at para 46, and Southall’s case at para 47.

(iv)       When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage.  The court may draw any inferences of fact which it considers are justified on the evidence:  see CPR Pt 52.11(4).

(v)         In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact.  As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence:  see Raschid’s case at para 16; and Khan v General Pharmaceutical Council [2017] 1 WLR 169, para 36.

(vi)       However, there may be matters, such as dishonesty or sexual misconduct, where the court ‘is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …’:  see Council for the Regulation of Healthcare Professionals v General Medical Council and Southall [2005] EWHC 579 (Admin) at [II], and Khan’s case at para 36.  As Lord Millett observed in Ghosh v General Medical Council [2001] 1 WLR 1915, para 34, the appellate court ‘will accord an appropriate measure of respect to the judgment of the committee … But the [appellate court] will not defer to the committee’s judgment more than is warranted by the circumstances’.

(vii)     Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

(viii)   A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal’s decision unjust:  see Southall’s case at paras 55-56.”

  1. I have also found helpful the discussion in this Court in Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462. The main judgment was given by Auld LJ: as to the approach to be taken by an appellate court, see paragraphs 117-127.  At paragraph 69 Sir Anthony Clarke MR agreed with the approach adopted by Auld LJ at paragraphs 117-127.  At paragraph 282 Thorpe LJ also agreed with the test as set out by Auld LJ.
  2. At paragraph 120 Auld LJ said:

“120.   Appeals under section 40 [of the Medical Act 1983] were transferred from the Privy Council to the High Court on 1 April 2003 by section 30 of the National Health Service Reform and Health Care Professions Act 2002 and the fourth commencement order (SI 2003/833).  As Mr Henderson noted, the Privy Council, shortly before, in Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926, had begun to distance itself from earlier expressions of deference to specialist regulatory and disciplinary bodies.  The change of approach, which, it seems to me, is more of emphasis than clear definition, is that, though such disciplinary bodies are in general better able than the courts to assess evidence of professional practice in their respective fields, the courts should still accord them an appropriate measure of respect:  see, eg, Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717.  Those were undue leniency appeals by the Council for the Regulation of Health Care Professionals under section 29 of the 2002 Act against decisions of the relevant regulatory bodies to take no or no adequate disciplinary action.  Lord Phillips of Worth Matravers MR, giving the judgment of the Court of Appeal, said, at para 78:

‘Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected.’

However, the courts should be ready in appropriate cases and, if necessary, to substitute their own view for that of disciplinary bodies.”

  1. As Auld LJ observed in the course of summarising counsel’s submissions at paragraph 121, the background was that the introduction of the Human Rights Act 1998 (“HRA”) led to changes both to the processes of Fitness to Practise panels and to appeals to the High Court (before 1 April 2003 to the Privy Council). A similar point about the impact of the introduction of the HRA on disciplinary proceedings against solicitors was made in Salsbury v Law Society [2008] EWCA Civ 1285; [2009] 1 WLR 1286, at paragraph 30.
  2. The jurisdiction of the High Court in proceedings such as these is an appellate one, not a supervisory one. It is therefore not akin to judicial review proceedings.  Moreover, it is an important part of the overall structure (embracing both the Committee and the Court) which enables there to be compliance with Article 6 of the Convention rights, as set out in Sch. 1 to the HRA, in particular the requirement that there should be access to an independent and impartial court or tribunal when a person’s civil rights and obligations are determined.  On the other hand, as the authorities in this area make clear, it is not the role of the Court simply to take the decision as to sanction again and substitute its own view for that of the Committee.  As it was put by Sales J (as he then was) in Yeong v General Medical Council [2009] EWHC 1923 (Admin); [2010] 1 WLR 548, at paragraph 58, a body such as this Committee must be afforded a “margin of judgment.”
  3. Against that background of principle I turn to the facts of the present case. Like Peter Jackson LJ I have been troubled by the possibility that the sanction of removal from the register in the present case may have been disproportionate and therefore wrong.  However, in the end I have come to the conclusion that, for the reasons given by Newey LJ at paragraphs 60-63 above, this Court cannot say that the Committee was wrong, having regard to the margin of judgment which must be afforded to it.

Lord Justice Peter Jackson:

  1. I agree that this appeal should be dismissed, essentially for the reasons given by Newey LJ. I have arrived at this conclusion by a similar but somewhat longer route and therefore add these observations.
  2. In relation to the procedural arguments, the central issue in my view is whether the Committee should have adjourned to another date before imposing its sanction, and whether the continuation of the hearing was a serious procedural irregularity rendering the proceedings unjust.
  3. The Committee undoubtedly had the power to adjourn. Rule 31(18) of The General Pharmaceutical Council (Fitness to Practice and Disqualification etc. Rules) Order of Council 2010 reads:

“At any stage before making its decision as to a sanction, the Committee may adjourn for further information or reports to be obtained in order to assist it in exercising its functions.”

  1. In the somewhat fraught circumstances that by then existed, the Committee might have done better to consider adjourning after announcing its decision on impairment. It had previously rightly refused a number of pre-trial adjournment applications, but this was an occasion on which it could have offered an unrepresented registrant in distress the opportunity to ask for time.  The fact that she did not ask for an adjournment herself does not relieve the Committee of its own obligation to assess the matter.
  2. Secondly, whether or not it adjourned, it would have been better if the Committee had explicitly warned Mrs Hussain that it was considering imposing the ultimate penalty. Its passing reference to erasure in exchanges with counsel for the GPhC does not in my view take matters further and the fact that Mrs Hussain might not have been helped by being confronted with the position does not do so either.
  3. However, taking these matters at their highest, the Committee was not in my view obliged to adjourn, and I am not persuaded by any of the other procedural arguments for the reasons given by Newey LJ. I therefore agree that the procedural challenge fails.
  4. I turn to the sanction. Although most of the forensic energy has centred on the procedural arguments, the real issue in this case is whether erasure was disproportionate to the misconduct.  This was a ground of appeal to Elisabeth Laing J and in this court, and the appellant is entitled to have it considered.
  5. In my view, making all allowances for its special expertise, the Committee overstated matters in describing the misconduct as “extremely serious” and “on the face of it, fundamentally incompatible with continued registration”. It was conduct that was serious, and the proper sanction would depend on aggravating and mitigating features.  Here, the extent of Mrs Hussain’s insight was bound to be “a key factor”, as appears at paragraph 5.17 of the Guidance, cited above at paragraph 29 above.  The following paragraph reads:

“5.18   When assessing insight the committee will need to take into account factors such as whether the registrant has genuinely demonstrated insight – not only consistently throughout the hearing but also through their actions after the incident took place – and also has demonstrated understanding and insight after the committee finding.”

  1. Here the Committee was considering a registrant who had shown no insight in the long course of the proceedings, but who had continued to practise without mishap for the better part of three years. As to Mrs Hussain’s insight after the findings had been announced, the Committee had a limited opportunity to make the more measured assessment that might have followed an adjournment.  It was fully entitled to conclude that she had shown no insight whatever up to that moment, but its conclusion that her lack of insight was irredeemable was a strong one.
  2. However, I am in the end persuaded that the Committee’s assessment of insight is one it was entitled to make and that the sanction it imposed was properly within its powers. The case is different to Khan.  There, the misconduct (though not professional) was far more serious, but the registrant had made reparation and shown insight from the start of the disciplinary proceedings.  Here, Mrs Hussain had shown no insight and had thoroughly compounded the matter by the way in which she approached the disciplinary proceedings.  While it cannot be decisive, it is not in my view irrelevant to note that she continued to fight the misconduct finding (a) for over two years from early 2013, when she was first confronted, to September 2015, when the disciplinary proceedings ended, and (b) for another six months until March 2016, when her first appeal was refused.  Even 18 months later at the hearing before us, there was no sign of acknowledgement of her misconduct or of insight.  Had Mrs Hussain acted differently at a very early stage, the Committee would no doubt have taken a different view.  Had she done so in the immediate aftermath of the disciplinary hearing, I might have been persuaded that the Committee’s approach had been shown to have been wrong.  But that is not the case, and I therefore agree that the appeal must be dismissed.

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