Grossly Incompetent Investigation by GPhC: Case Closure Rescinded

A fitness to practise committee of the General Pharmaceutical Council found that the Second Respondent had a substantive legitimate expectation that no further action would be taken against him in connection with his alleged involvement in a fraudulent scheme for the sale of medication overseas, and the Council could not properly resile from this decision. Accordingly, the allegations were not capable of being referred under the rules and the Committee had no statutory power to make a determination.  The PSA referred the matter to the Administrative Court: Professional Standards Authority for Health And Social Care v General Pharmaceutical Council & Anor [2024] EWHC 3005 (Admin) (R2) Lang J

On 29 September 2022 a letter was sent to R2 confirming that the investigation was closed and no further action would be taken against him.

It was not until 25 October 2022 that the Professional Regulation Manager (PRM) notified others within the GPhC that in the light of a senior lawyer’s advice he had not in fact made a final decision to close the case.

In the Court’s view the PRM was at fault in leaving the signed and dated closure form on the system for a month without any explanation that he had rejected the recommendation for closure for further enquiries to be undertaken. Furthermore, if he had uploaded the senior lawyer’s advice on to the system it might have prompted a check on the status of the case with the PRM before closing it on the system.

Furthermore, the PRM and another were at fault in not immediately taking steps to rectify the mistake that had been made by contacting R2 and informing him that the case against him had been closed in error. Astonishingly, R2 was not informed until 15 August 2023 when he was told the “closure decision was sent to you in error and the case concerning you remains open.”

In her Ladyship’s judgment the representation made in the closure letter sent on 29 September 2022 did give rise to a legitimate expectation that the case against him was closed and no further action would be taken. However, the Council was entitled to resile from that representation for two reasons:

First, because it was based upon a fundamental mistake of fact, namely that the PRM had decided to close the case.

Second, because Ms L was not authorised under the Council’s Authority Framework and the IPR to make the closure decision herself.

In the Court’s view this outcome was both fair and proportionate because the public interest in promoting and maintaining public safety and proper professional standards overrode the sub-standard service, stress and disappointment that R2 had experienced. The principle that public bodies had power to correct decisions which they had made based on a fundamental mistake of fact applied: R (Chaudhuri) v General Medical Council [2015] EWHC 6621 (Admin)

The appeal succeeded on ground 1, that the Committee wrongly directed itself on the erroneous closure of the case by the Council, although her Ladyship’s reasons differed from the Authority. In the Court’s view the PRM did have authority to close the case but on the facts he did not do so.

The second and third grounds of appeal were (ii) that the Committee wrongly concluded that the allegation was not capable of being referred under rule 6 of the 2010 rules, and (iii) that the Committee wrongly applied the test for the imposition of a stay for abuse of process.

Although the senior lawyer set out recommendations for lines of investigation in his email of 21 September 2022 and the PRM accepted those recommendations, neither they nor anyone else at the Council took any steps to initiate further investigations into R2’s case. The senior lawyer referred the case directly to the FTP Committee instead of to the Investigating Committee. He did not, in the Court’s view, give due consideration to the criteria for urgent referral set out in Rule 6(5) of the 2010 Rules. There was no evidence of a need for urgent consideration of the case in the public interest. R2 was unfairly denied his opportunity to make representations to the Investigating Committee.

The Council then failed to comply with Rule 11(1) of the 2010 Rules which required notice of the direct referral to the FTP Committee not later than 10 days after the date on which the relevant decision was made or the allegation was referred. The first time R2 saw the reasons for the direct referral was on the fourth day of the hearing. These were serious irregularities and breaches of the 2010 Rules.

Furthermore, the investigation of R2’s case was inadequate.

A stay for abuse of process was an exceptional step and meant that the case against R2 could never be considered on its merits and no action could be taken against him even if the allegations were well-founded. The public interest in the overarching statutory objectives of protecting the public and maintaining professional standards and public confidence in the profession had to be weighed in the balance, together with the public interest in the integrity of the disciplinary process.

The exceptional step of a stay could not be justified as the competing public interests could fairly be met by alternative measures, namely a full reconsideration of the case. The decision to impose a stay on the FTP proceedings was quashed and the case remitted to the Registrar of Council.

The FTP Committee had ordered the Council to pay R2’s costs assessed in the sum of £10,750 on the grounds that the handling of R2’s case was seriously flawed and unreasonable. It was not appropriate to quash that order.  Although the Council was entitled to resile from its representation that R2’s case was closed, the Council was wholly to blame for the grossly incompetent errors made in closing the case prematurely and then not re-opening it or notifying him that it had been reopened within a reasonable time. The Council handled R2’s case with gross incompetence and unfairness to such an extent that it was ordered to undertake the whole process again.