Interim orders are back in the news following information that the General Pharmaceutical Council (GPhC) is using its powers to suspend or impose interim conditions in its crackdown on distance selling pharmacies.

But what are they, and what are the steps you need to take if you find yourself on the receiving end of one?

 

What are interim orders and why should pharmacists be concerned?

 

According to the pharmacy order 2010, interim orders are the GPhC’s way of managing risks that may emerge because of fitness-to-practise concerns and can be either conditions on practice or a suspension.

The pharmacy order says an interim order can only be made if “it is necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of the registrant.”

An interim order is a serious step as there is no decision on the allegations themselves; the interim order can be imposed where a pharmacist is later exonerated from any wrongdoing.

In deciding whether to impose an interim order, the GPhC must balance protection of the patients and the public interest with the impact of an order, including suspension, on the registrant.

The impact can be significant. For pharmacists who own their business in their own name, the effects can be particularly devastating as the impact of a suspension is that it is a suspension for all regulatory purposes, and this can affect a business’s inclusion in the pharmaceutical list.

 

What does the GPhC assess before making such a step?

 

Factors include:

• the gravity of the concern – in other words, the seriousness of the matter, (eg a case where pharmacists were secretly filmed supplying prescription-only medicines without a prescription in a BBC Inside Out programme was held to be sufficiently serious by the High Court),
• the nature of the evidence – although in a criminal matter, this does not mean that the police will have had to have made a decision to charge,
• the seriousness of the risk of harm to patient or the wider public; domestic violence has been held not to pose such as risk,
• whether public confidence in the pharmacy profession is likely to be seriously damaged if the pharmacy professional continues to practise without any restrictions,
• whether it is in the pharmacy professional’s interests to hold unrestricted registration – this ground can be used in cases where there are addiction issues.

 

How long will the order last?

 

The order will usually last until the case comes before a full fitness-to-practise committee. However, there are statutory safeguards against a tick-box continuation of the order.

The maximum time for which an interim order can be imposed is 18 months and the GPhC has to review the case every six months. After 18 months, the order has to be scrutinised by the High Court, which can lead to its termination.

For example, in one case where there were issues relating to controlled drugs, the High Court conducted its own balancing exercise after a suspension had been imposed for three years. The court considered that, given the delays in investigating, it was no longer in the public interest for the suspension to be maintained.

The Scottish equivalent of the Court of Appeal confirmed in August that when the extension of an interim order is considered by the court, the role of the court is “not simply to rubber stamp the decision of the tribunal” but to examine the matter afresh.

In fact, the interim suspension in that case, concerning a doctor charged with preparation of terrorist acts involving the New IRA, was extended as it met the statutory criteria and was proportionate.

The Professional Standards Authority’s most recent review of fitness-to-practise procedures showed a decline in dealing with cases in a timely manner. This is a significant concern as it can mean that pharmacists could be subject to interim orders for a lengthy period of time.

 

What should you do if you are at risk of receiving an interim order?

 

• The email address used for service will be the one you have given to the GPhC for registration. The notice of interim order will be served at short notice – normally around seven days. Make sure your contact details are up to date with the GPhC to prevent communications going astray. All is not lost though – I have successfully argued that reasonable notice runs from when the notice was effectively delivered and opened.
• Seek advice as soon as possible. Contact indemnity providers or solicitors as there will be much to prepare in very little time.
• Think about the effect of an order on you personally and your business. Also consider the positive elements of your work and personal history so that the committee can be told about them.
• Accept that this is not the day on which the alleged facts will be tested. The interim order hearing does not make findings of fact – that exercise will take place at the full hearing of the fitness-to-practise committee.
• Be prepared that a decision may be made on the day of the hearing, which may mean that you cannot work as a pharmacist on the next day.

The final point is that these are appealable decisions. If it is thought that the decision reached by the fitness-to-practise committee is not proportionate or is otherwise incorrect, then there is a route for an appeal to the High Court in England and Wales or the equivalent in Scotland.

 

Susan Hunneyball is a partner at Gordons Partnership law firm.