Pharmacist: PSA’s Successful Appeal against GPhC Finding of No Impairment

This appeal brought by the Professional Standards Authority for Health & Social Care (PSA) was against a decision of a Fitness to Practise Committee of the General Pharmaceutical Council that a Registrant’s fitness to practise was not impaired:  Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Anor [2024] EWHC 3335 (Admin)  Lang J

The Registrant pharmacist faced allegations that, in a nutshell, he indecently assaulted a male colleague (Colleague A) and that his actions were sexually motivated.

Before the hearing the Council made repeated but unsuccessful efforts to engage with Colleague A, who was the only witness to the incident, apart from the Registrant, but Colleague A did not attend the hearing.

At the hearing the Council did not apply for a witness summons to compel his attendance and the Committee agreed that it would be ‘wholly inappropriate’ to issue a witness sums. The Council did not invite the Committee to admit Colleague A’s evidence as hearsay and the Committee also agreed with this finding that it would be unfair and prejudicial to allow hearsay evidence of Colleague A to be admitted.

The Council did not offer any evidence to support the disputed allegations. The Committee agreed with the Council’s submission that the admitted allegations were not sufficient for a finding of misconduct or a breach of the relevant professional standards, would not support a finding that the Registrant’s fitness to practise was impaired, and determined that there was no case for the Registrant to answer and that his fitness to practise was not impaired.

Her Ladyship said it was difficult to discern the reasons for Colleague A’s failure to attend as his behaviour was contradictory. He made detailed oral and written statements and provided contact details to the Council, suggested times for them to call but then repeatedly failed to respond.  There was no direct evidence that he was vulnerable or distressed at the prospect of giving evidence about an incident of sexual misconduct. He told the Trust “I don’t see myself as a victim”.

The main reason the Committee gave for failing to apply for a witness summons was that he would be deemed a vulnerable witness under the Rules and entitled to the application of special measures were he to attend, and therefore it would be wholly inappropriate for a vulnerable witness to be compelled to participate in a hearing in such circumstances.

The Committee misinterpreted and misapplied Rule 44(1)(e) which was a discretionary rule. It did not follow that a witness was to be automatically treated as a vulnerable witness. The Committee had to decide whether the quality of their evidence was otherwise likely to be adversely affected before doing so. That required a reasoned decision. Furthermore, routine non-attendance by vulnerable witnesses would be contrary to the public interest in maintaining proper conduct by members of the profession, promoting the welfare of the public and maintaining public confidence in the profession.

It followed that the Committee’s reasons did not adequately address the issues which it was required to consider and that ground of appeal succeeded.

Ground 2, refusal to consider hearsay evidence was dismissed.  Grounds 3 and 4 of the appeal concerned offering no evidence and finding that there was no case to answer.

There was some confusion as to the correct procedure to follow for an application to offer no evidence, issues which had been considered in Professional Standards for Health and Social Care v NMC and X [2018] EWHC 70 (Admin) by Elisabeth Laing J.

Applying the principles in that case, the Council was entitled to apply to offer no evidence provided it fully opened the case so that the Committee was able to make an informed decision as to whether it should instead try to obtain more evidence. Here the Authority failed to place sufficient evidence before the Committee, in particular the communications between Colleague A and the Registrant, the Registrant’s own admissions and explanations of the case and other evidence relevant to the background circumstances. The Committee did not have a sufficient opportunity to scrutinise the evidence before making a decision.

If the Committee had decided that an application for a witness summons should be made, it would have rejected the application to offer no evidence and it is very likely that the case would have been adjourned and not proceeded to a submission of no case to answer.

Applying the principles in the case of X, a submission of no case to answer by the Registrant and/or on the initiative of the Committee, could only be determined by the Committee once the Council had fully opened its case and called its evidence. As explained in X, the test in  R v Galbraith [1981] 1 WLR 1039 could only be applied if a tribunal had considered evidence; if it had not, there was nothing to which that test could be applied.

For those reasons, grounds 3 and 4 were also successful. The Committee’s decision was quashed and the case remitted for reconsideration by a differently constituted Fitness to Practise Committee.

The General Pharmaceutical Council was ordered to pay 80% of the Authority’s reasonable costs of the appeal.