In Burrows v General Pharmaceutical Council the High Court has once again highlighted the importance of clients attending regulatory hearings. A failure to do so, where an allegation is one involving dishonesty “...amounted virtually to courting removal”.
In Burrows, a pharmacist received a police caution after having seemingly made admissions to switching the price tag on two dresses so that she paid less for one of the dresses than she should have. The amount involved was less than £100.
The pharmacist did not inform the General Pharmaceutical Council of the caution within the 3 month period allowed.
As she had a holiday booked the pharmacist did not attend the final hearing; instead she instructed a barrister to attend and represent her. No attempt was made to change the date of the hearing. During the hearing the barrister suggested that: there had been no dishonesty; that the caution had been wrongly administered; and that consequently the fitness to practice committee could not remove her from the register. The fitness to practice committee disagreed and found that:
(a) it would not have found her fitness to practise impaired solely by the failure to declare but that it was impaired in relation to the caution and the dishonest behaviour behind it;
(b) the lack of insight or expression of remorse was very concerning;
(c) a period of suspension was unlikely to lead to a complete rehabilitation and provide the necessary reassurance that the public interest would be protected;
(d) without some degree of insight it was not appropriate to impose a period of suspension; and
(e) the proportionate and reasonable sanction was removal from the register.
The pharmacist appealed on three grounds:
(1) the committee had been wrong and unreasonable in its approach to and assessment of insight. She argued that insufficient credit had been given for her cooperation with the police, the absence of a prosecution and conviction, her apology and formal admissions. The committee should have treated her as having been genuinely unsure of the status of the warning she had been given, and whether it was a formal caution and not just a warning, which would not have been reported
(2) the sanction was too severe and a suspension would have been enough.
(3) the legally qualified committee chairman should have notified the parties of the proposed content of any advice on the law he proposed to give the lay members and heard their representations on the correctness of the advice before giving it in private.
The appeal was heard, and dismissed, by Kerr LJ. The rejection of grounds (b) and (c) was to be expected and can be dealt with shortly: (b) the action was severe but within the committee’s remit; and (c) it was not a legally complex matter and both parties were represented by competent advocates.
It is (a) which goes directly to the heart of advice that will have to be given to client’s who are facing disciplinary proceedings based on their state of mind where the infraction could be considered to be of a minor nature. Here, Kerr LJ held that the pharmacist, by not giving the committee the opportunity to test her insight, had deprived herself of the opportunity for a lenient disposal. In particular, Kerr LJ indicated that where a case involves an element of dishonesty and there was non-attendance by the registrant, a committee will be normally be justified in a decision to remove a person from the relevant practice register.
What approach should be taken?
Contrast the outcome in this case with one from a client we had who was in front of the General Medical Council (“GMC”).
In our case the client, a junior doctor at the beginning of his career, had pleaded guilty to money laundering and conspiracy to commit fraud. The case attracted national attention and was widely reported. Kishoree Kotecha-Pau, a partner in the Criminal and Regulatory teams, advised the client to fully engage with the disciplinary procedure, and the GMC was made aware of the case. After hearing from the client and those he worked with; the client received a short suspension and was free to re-engage with his vocation in a way that did not impinge on his career progression.
The stark contrast between Burrows and our client’s outcome shows what is really just common sense – if a person is going to be judging your character they need to see your character. The reality is that regulatory panels are made up of people who will want to look at you, speak with you, assess you and ultimately make a judgment of you.
The job of a lawyer in regulatory proceedings is not just to advise you on the law; after all legally there was nothing procedurally wrong in Burrows. The pharmacist was entitled to not be there provided she had given instructions and was represented. Our solicitors will advise on the law and the best way to present yourself and your case. So, in cases such as Burrows our advice will be that registrants should attend their fitness to practice hearings unless they have an almost exceptional reason for not doing so.
If you are facing proceedings, at whatever stage, please don’t hesitate to contact us to talk about your situation. Our specialist department will be more than happy to listen to you and, if you want it, to give you advice and representation. Our number is 020 7935 3522 and you can contact me by clicking here.
Partner and Higher Court Advocate