PSA succeeds in GPhC appeal case in PSA v GPhC & Anor [2024] EWHC 3335 (Admin)

The Professional Standards Authority (PSA) has successfully appalled a fitness to practise ruling made by a General Pharmaceutical Council (GPhC) committee.

In Professional Standards Authority for Health and Social Care v General Pharmaceutical Council & Anor [2024] EWHC 3335 (Admin) (20 December 2024), the Registrant (a registered pharmacist) faced an allegation of impairment of fitness to practise by reason of misconduct, namely, inappropriate sexual behaviour towards Colleague A.

Prior to the Committee hearing, the GPhC made repeated but unsuccessful efforts to engage with Colleague A, who was the only witness to the incident, other than the Registrant. Colleague A did not attend the hearing.

At the hearing, the GPhC did not apply for a witness summons to compel the attendance of Colleague A and the Committee agreed with this approach, finding that it would be “wholly inappropriate” to issue a witness summons.

The GPhC did not invite the Committee to admit Colleague A’s evidence as hearsay and the Committee agreed with this approach, finding that it would be “unfair and prejudicial” to allow hearsay evidence of Colleague A to be admitted.

The GPhC decided not to offer any evidence to support the disputed allegations. The Committee agreed with the GPhC’s submission that the admitted allegations were not sufficient for a finding of misconduct or a breach of the relevant professional standards, and would not support a finding that the Registrant’s fitness to practise was impaired.

Grounds of Appeal

Ground 1: witness summons – The Authority submitted that the decision not to apply for a witness summons was infected by a serious procedural irregularity, with the consequence that the Committee did not substantively consider the allegations against the Registrant thus rendering it impossible to determine whether or not the Committee’s decision was appropriate.

In upholding ground 1, Mrs Justice Lang commented:

“I accept the Authority’s submission that, in this passage of its Decision, the Committee misinterpreted and misapplied Rule 44. Rule 44(1)(e) is a discretionary rule. It does not follow from the fact that a witness is the alleged victim of an act of a sexual nature that they are automatically to be treated as a vulnerable witness. The Committee has to decide “whether the quality of their evidence is otherwise likely to be adversely affected” and if so, whether they should be treated as a vulnerable witness. This requires a reasoned decision. The Committee in this case did not follow the wording of Rule 44. Instead it based its decision not to apply for a witness summons on the assumption that Colleague A “would be deemed a vulnerable witness under the Rules and entitled to the application of special measures were he to attend” (Decision/36).

“If the Committee did decide that the test for a vulnerable witness was met, it should then have proceeded to consider potential special measures, but it did not do so. The objective of Rule 44 is to assist vulnerable witnesses in giving evidence. Rule 44 does not provide that once a person is designated as a vulnerable witness, they need not attend the hearing, and should not be compelled to do so. 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 (Article 6(1A) of the Pharmacy Order 2010). Of course, there may be cases where, on the evidence, a committee might legitimately decide that it would be inappropriate or unnecessary for a vulnerable witness to be compelled to attend a hearing, but such a conclusion would require careful consideration, including exploration of other means of obtaining the witness’ evidence.”

On the second grounds of appeal, refusal to consider hearsay evidence, the PSA argued that the Committee’s decision not to consider Colleague A’s hearsay evidence was “infected by a serious procedural irregularity with the consequence that the Committee did not substantively consider the allegations against the Registrant thus rendering it impossible to determine whether or not the Committee’s decision was appropriate.”

Mrs Justice Lang turned down this ground of appeal saying:

“In my judgment, the Authority’s criticisms of the Decision under Ground 2 were essentially forensic and legalistic and did not identify any genuine error in the Committee’s approach and its conclusions.”

 On the final two grounds (3 – offering no evidence & 4 – no case to answer), tge PSA argued that the GPhC erred in failing to put sufficient evidence before the Committee and the Committee failed to exercise sufficient oversight of the Council’s decision to offer no evidence. These failings constituted serious procedural irregularities, with the consequence that it is not possible to determine whether or not the Committee’s decision was appropriate.  It further argued that the GPhC erred in its approach to the submission of no case to answer. This constituted a serious procedural irregularity, with the consequence that it is not possible to determine whether or not the Committee’s decision was appropriate.

Mrs Justice Lang upheld both grounds, ultimately quashing the decision and remitting for reconsideration by a differently constituted Fitness to Practise Committee.

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