A question of fitness to practise

The purpose of a sanction is to protect the public, maintain public confidence in the profession and to maintain proper standards

A GPhC investigation can be a traumatising experience. Pharmacy lawyer Richard Hough explains what happens when a registrant’s fitness to practise is called into question

The vast majority of pharmacists are dedicated professionals who conduct themselves in exemplary fashion and abide by both the law and the profession’s accepted standards of conduct, ethics and performance. Regrettably, the actions of some registrants occasionally fall beneath accepted standards and, in some circumstances, the scope or gravity of those actions is such that the registrant’s fitness to practise is called into question.

The Pharmacy Order 2010 contains provisions which govern when a pharmacist’s fitness to practise may be called into question. Regulation 51 states that a registrant’s fitness to practise is to be regarded as ‘impaired’ only on a limited number of grounds, the main ones being:

  • Misconduct
  • Deficient professional performance
  • Adverse physical or mental health
  • A conviction for a criminal offence
  • Accepting a police caution.

Engaging in behaviour which is considered to be inappropriate, misleading or dishonest, which breaches the GPhC’s Standards of Conduct, Ethics and Performance, or which breaches medicines or criminal legislation, is likely to warrant further investigation. Certain health issues, such as suspected alcohol or drug abuse or psychiatric problems, are also likely to be investigated.

When an allegation is made

When an allegation is made to the GPhC, which relates to behaviour exceeding its threshold criteria, the Registrar must, in most cases, refer the matter to the Investigating Committee (IC) for consideration. More serious allegations may, however, be referred directly to the Fitness to Practise Committee (FTPC).

The IC will decide, by reference to referral criteria, whether the allegation needs to be considered by the FTPC. If it decides not to refer the matter to the FTPC, it may decide to take no further action against the registrant, issue a warning, or provide advice to the registrant in connection with any matter arising out of, or related to, the allegation.

We would always advise our clients to seek legal advice at the earliest opportunity, so that representations can be submitted on behalf of the registrant for early consideration by the IC, rather than to wait before the matter comes before the FTPC.

FTPC hearings

If the matter proceeds to a FTPC hearing, various legal documents, including the Particulars of Allegation, which sets out the full extent of the allegations, will be sent to the registrant, together with statements from witnesses called by the GPhC. Together these documents constitute the GPhC’s case against the registrant.

Upon service of the GPhC’s case, the registrant will be able to consider the supporting evidence, the robustness of which will determine in many cases whether the registrant will admit, dispute, or partly admit, the allegations.

Fitness-to-practise hearings are held in public before a tribunal consisting of a legally qualified chairman and two lay members. Proceedings commence with the FTPC considering preliminary legal arguments brought by the parties’ legal representatives. The allegations against the registrant are then read out, including the alleged facts upon which the allegations are based.

FTPC hearings follow a three-stage process (findings of fact, whether the registrant’s fitness to practise is impaired, and sanction). The Committee will make findings of fact based on admissions and cross-examination of each side’s witnesses. The second stage involves further submissions from the parties as to whether, on the basis of any facts found proved, the FTPC finds the registrant’s fitness to practise is impaired.

Before the FTPC imposes any sanction, the parties’ representatives make further submissions regarding any relevant mitigating or aggravating circumstances. At this third stage, the FTPC will also consider testimonials regarding the registrant’s character and/or his clinical abilities if relevant.

The FTPC will refer to the GPhC’s ‘Good decision making: fitness to practise hearings and sanctions guidance’, which sets out the available sanctions, the circumstances in which these may be imposed, and commonly occurring mitigating and aggravating factors. When imposing any sanction, the FTPC will have regard to the principle that the purpose of a sanction is to protect the public, maintain public confidence in the profession, and to maintain proper standards.

FTPC sanctions

The FTPC may impose the following sanctions:

a)  Take no action, in which case no record will be made in the Register
b)  Give advice, if no impairment is found, and no record of the advice is made in the Register
c)  Give a warning, details of which will be recorded in the Register
d)  Impose conditions on the registrant’s registration for a period of up to three years, which will be recorded       in the Register
e)  Suspension for a period not exceeding 12 months, which will be recorded in the Register
f)  Removal from the Register.

After the imposition of a sanction, the matter will normally end there. However, those who wish to fight on may exercise their right of appeal, which must be lodged in the High Court (in England) within 28 days of the FTPC’s decision.

Undoubtedly, a GPhC investigation can be an extremely traumatising experience, but to mitigate this and to try to get the best possible outcome, we recommend getting good advice early on in proceedings.

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

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