Pharmacy law practitioner Richard Hough summarises what new GPhC guidance for the investigating committee means in practice

On December 18, 2015, the General Pharmaceutical Council published new guidance which sets out the role of the investigating committee (IC) in deciding the appropriate outcome when allegations against pharmacists are referred to it. The guidance also explains how the IC should decide which cases to refer to the Fitness to Practise Committee (FtPC).

The guidance, ‘Good Decision Making: investigating committee meetings and outcomes guidance’, came into effect on January 13.

The IC, which operates independently of the GPhC, holds a meeting when a concern about a pharmacist has been received and initially investigated by the GPhC. Concerns can be dealt with at three different stages:
(i) After the initial investigation
(ii) At an IC meeting
(iii) At a FtPC hearing.

Threshold criteria are applied at the initial investigation stage and, if fulfilled, a registrant’s case is referred to the IC. The guidance covers such referrals to the IC, the IC’s decision-making process and the outcomes of IC meetings. The IC must take into account the guidance when making a decision on outcome and, if it departs from the guidance, it should give clear reasons.

The IC is different to the FtPC in that it does not hear oral evidence from registrants or witnesses. However, the registrant concerned will be invited to provide written representations to the IC on the allegation and on any recommendations the registrar makes for dealing with the case.

The IC has a range of outcomes it can decide on, depending upon its assessment of the evidence. These include:
(i) Taking no action
(ii) Giving advice to the registrant
(iii) Issuing a warning
(iv) Agreeing undertakings with the registrant
(v) Referring the matter to the FtPC.

Options for the IC

Before an outcome is reached, the IC may:
(i) Adjourn its meetings until it has more information
(ii) Ask for further investigation
(iii) Require a registrant to have a medical examination
(iv) Get advice from a legal, clinical or other specialist advisor
(v) Consider rescission (cancelling a referral to a FtPC)
(vi) Inform the registrar that the GPhC should consider bringing criminal proceedings against the registrant.

In making its decisions, the IC must consider the “real prospect” test, pursuant to which it must:
• Consider the evidence and decide if there is enough information on which to reach a decision
• Decide whether there is a real prospect of the fact of an allegation being proven
• Decide whether the facts, if proven, would mean that there is a real prospect that the FtPC will make a finding that the registrant’s fitness to practise is impaired
• Decide on whether the matter ought to be considered by a FtPC or whether another outcome is more appropriate.

The IC’s role

The IC conducts a limited paper-based exercise on the information before it but does not make any findings of fact. Its role is to decide whether any allegations should be considered by a FtPC.

The IC must clearly identify which allegations are supported by evidence and which are not. It should clearly say what conclusions it has reached and why and how it has reached them. It must also give a formal statement setting out its decision and its reasons for that decision, which should tell everyone involved in broad terms why the IC reached its decision.

Decisions are shared with the person raising the concern, the registrant and, in some cases, the registrant’s employer.

In applying the real prospect test, the IC must consider the factual allegations and the question of whether the facts, if proven, could demonstrate that the registrant’s fitness to practise is impaired. A real prospect means that something must be a genuine possibility and not merely remote or fanciful.

The IC must first assess the evidence before it and decide whether there is a real prospect of the alleged facts being established and only then can it consider the second part of the test.

Proving the facts

The IC should bear in mind that at a FtPC hearing it is for the Council to prove the truth of the alleged facts on the balance of probabilities.

The second part of the test is that the IC should ask itself whether there is a real prospect that a FtPC will make a finding that the registrant’s fitness to practise is impaired. This does not mean that the IC will decide whether the registrant’s fitness to practise is currently impaired, as that is a decision for a FtPC.

If the IC concludes there is no real prospect of the FtPC deciding that the registrant’s fitness to practise is currently impaired, but decides that there is a real prospect of the alleged facts being proven, then it should consider whether an advice or warning is the appropriate sanction in the circumstances of the case.

Registrants often consider that GPhC investigations lack transparency and are biased against the registrant. However, the guidance sets out clearly what the IC can and can’t do and is a useful yardstick to hold it to account for its decisions.

Richard Hough is partner, pharmacist and head of healthcare at Brabners LLP.
Contact him on 0151 600 3302,
or at richard.hough@brabners.com.