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The GPhC, remote hearings and pharmacy professionals’ fundamental rights

The GPhC must ensure that the flexibility of remote hearings does not outweigh pharmacists’ and pharmacy technicians’ fundamental right to a fair hearing, says Noel Wardle

The General Pharmaceutical Council (GPhC) has a number of statutory functions, one of which is to ensure that registered pharmacy professionals (pharmacists and pharmacy technicians) are fit to practise.

A pharmacist’s fitness to practise might be called into question in a number of ways: by reason of misconduct, their health, a criminal conviction or deficient professional performance, for example.

Where the GPhC is made aware of a concern regarding a pharmacist’s fitness to practise, it has in place a mechanism for investigating and assessing those concerns. For the most serious of cases, that assessment may take place at a principal hearing before the fitness-to-practise committee (the FtPC).

The FtPC has a set of detailed rules that govern how a principal hearing must be carried out to ensure that it fulfils the GPhC’s statutory functions (to enquire into an allegation of impaired fitness to practise), while allowing the registrant to fully and fairly participate in those proceedings.

 

Emergency powers under COVID-19

 

Until the COVID-19 pandemic, all principal hearings took place in person at the GPhC’s offices in Canary Wharf, east London. It was possible for an individual to join the hearing remotely where circumstances required it (for example, a witness could attend the hearing remotely via video link if they were unable to travel to Canary Wharf for a good reason), but the hearing usually proceeded with all parties physically present.

When the country went into lockdown, the GPhC used emergency powers to move all hearings to remote hearings, where all the parties (including the committee members themselves) attended via video link. To an extent that was a necessity because lockdown rules required social distancing to be maintained and it was not considered safe for parties to attend in person. As lockdowns were eased and then reimposed, the practice of holding remote hearings continued, although, as rules allowed, some hearings took place in person at the request of the parties.

There were certainly some benefits to hearings being held remotely (apart from the obvious benefit of allowing the fitness-to-practise process to continue during lockdown). These included: parties not having to travel to Canary Wharf to attend hearings; hearings being easier to schedule; it may be easier for witnesses to attend remotely; and parties participating in the proceedings may feel more at ease in the familiar setting of home and less nervous about giving evidence, etc.

 

Think carefully before stating your preference for remote or in-person hearing

 

There are, however, potential downsides to a remote hearing, and pharmacists facing a principal hearing who are asked to state their preference should think carefully before stating it.

For example, where a pharmacist’s integrity is being called into question (such as where there is an allegation of dishonesty) remote attendance through a video screen may act as a potential barrier to effective communication. Where a pharmacist is legally represented at the hearing, thought should also be given to how the pharmacist will communicate effectively with their legal team when they are not sitting side-by-side. The use of remote technology may, of itself, cause difficulties in participating in the hearing, for example due to a lack of IT skills or IT failure (including issues with connectivity, which can occur at short notice and be intermittent).

Now that the UK’s lockdown rules have been lifted, the GPhC might have been expected to simply revert to its previous practice of holding all hearings in-person. However, to do so would be to ignore the clear benefits – in appropriate cases – of hearings being held remotely.

The GPhC has therefore recently consulted on a permanent change to its rules to allow hearings to be held remotely, where directed by a FtPC chair. The 12-week consultation was opened in November 2021, and the results of the consultation were considered by the council at its meeting on May 12.

The council was provided with a detailed report of the outcome of the consultation. A total of 483 people and organisations responded to the consultation. The consultation report considers and summarises the potential benefits and drawbacks of remote hearings. It proposes that the GPhC’s FtPC rules be amended to enable FtPC chairs, at their discretion, to direct that hearings of the FtPC may be conducted by teleconference or video link.

The ability of FtPC chairs to direct that hearings may take place remotely is unlikely to cause much controversy; it is the way in which chairs exercise that discretion that will be of most importance to a pharmacist or technician facing the prosect of a principal hearing.

 

A fair hearing is a “basic human right”

 

It is a basic human right (enshrined into law by the Human Rights Act 1988, and long-established in the UK) that everyone is entitled to a fair hearing. That includes a hearing before the FtPC where a decision may be made that could prevent a person from practising in their chosen profession either temporarily or permanently.

In those circumstances, where a registrant believes that fairness requires that his or her hearing should be held in person, this preference should be given considerable weight by FtPC chairs, and an in-person hearing should be held unless there are very strong reasons for continuing with a remote hearing.

The GPhC has indicated that it intends to publish guidance to support the proposed rule change in September 2022. The guidance will need to be considered carefully to ensure that the potential flexibility offered by remote hearings does not outweigh the fundamental right of a pharmacist to have a fair hearing, particularly given what is at stake for the pharmacist.

Noel Wardle is a solicitor and Partner at Temple Bright LLP, specialising in pharmacy law.

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