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Opinion: Antisemitism ruling is illogical and disturbing

It was obvious to me that Mr Ali’s words were antisemitic and, although I have spent a lifetime defending pharmacists in fitness to practise cases, I found the Committee’s decision so disturbing that I complained to the Professional Standards Authority...

I am Jewish, so I took a keen interest when a case involving antisemitism was heard by the GPhC’s Fitness to Practise Committee.

Nazim Ali is a pharmacist who, at a rally in Central London in June 2017, shouted comments through a loudhailer that included: 

(a) “It’s in their genes. The Zionists are here to occupy Regent Street. It’s in their genes, it’s in their genetic code.”

(b) “European alleged Jews. Remember brothers and sisters, Zionists are not Jews.”

(c) “Any Zionist, any Jew coming into your centre supporting Israel, any Jew coming into your centre who is a Zionist. Any Jew coming into your centre who is a member for the Board of Deputies, is not a Rabbi, he’s an imposter.”

(d) “They are responsible for the murder of the people in Grenfell. The Zionist supporters of the Tory Party.”

Mr Ali was referred to the Fitness to Practise Committee, accused of misconduct. He admitted that his comments were grossly offensive, but denied that they were antisemitic.

Read more: Pharmacist appointed new chair of GPhC board of assessors

Somewhat surprisingly, the Fitness to Practise Committee decided that Mr Ali’s comments were not antisemitic because he did not intend them to be antisemitic.

It was obvious to me that Mr Ali’s words were antisemitic and, although I have spent a lifetime defending pharmacists in fitness to practise cases, I found the Committee’s decision so disturbing that I complained to the Professional Standards Authority (PSA) which oversees all healthcare regulators.

The PSA agreed that the decision was legally incorrect and it appealed to the High Court.

A High Court judge accepted that the Fitness to Practise Committee had got the law wrong because the test of whether the words were antisemitic or not was not a subjective one, but an objective one: how would the words be understood by reasonable people.

The judge sent the case back to the Fitness to Practise Committee to make a fresh decision.

I attended the fresh hearing of Mr Ali’s case. The lawyers were the same as the first time round, and the Committee was composed of the same people. It was a somewhat dull affair, as if all the people involved had lost interest and were going through the motions. After a short hearing, the Committee ruled that comments (a) and (b) were not antisemitic, but (c) and (d) were. Mr Ali was given a warning, which was the lowest level of sanction available to the Committee.

Read more: High Court: GPhC FtP ‘erred in approach’ to alleged antisemitism case

The Professional Standards Authority appealed to the High Court again, this time arguing that the warning was unduly lenient. In March, Mr Justice Chamberlain ruled that because Mr Ali’s comments were unscripted, his comments lacked premeditation, and this was relevant to the sanction. The judge said that the Fitness to Practise Committee had got one thing wrong: it had given more prominence than was warranted to its finding that Mr Ali did not intend his comments to be antisemitic, saying:

“Where a regulated individual makes a comment which… is obviously racist, it will rarely count much in his favour that he did not intend it to be racist. The lack of understanding that or why it was racist may, indeed, give rise to a separate concern.”

However, the judge found that this was not a good enough to reason to find that a warning was unduly lenient.

The PSA had argued that suspension from practice was needed to maintain public confidence in the pharmacy profession. The judge did not agree, saying that because there had been two separate fitness to practise hearings and two High Court hearings, no objective observer could doubt that the underlying misconduct had been regarded as serious both by the regulator and the courts.

Read more: GPhC: Pharmacist’s ‘grossly offensive’ remarks result in FtP warning

I find it hard to follow the judge’s logic, because any pharmacist in any case could claim that the very fact that the GPhC had brought a case in the first place was sufficient to maintain public confidence in the profession, because it showed the case was taken seriously.

By coincidence, within days of Mr Justice Chamberlain’s judgment, the GPhC published new guidance for Fitness to Practise Committees on the outcomes of fitness to practise cases. Amongst other things, the guidance says this about discriminatory behaviour such as abusive verbal comments, including hate speech, or offensive writing (including on social media or public platforms):

Because of the serious nature of these types of concerns and the impact on public trust and confidence in the profession, the committee should usually consider outcomes at the upper end of the scale.”

I can’t help feeling that if this guidance had been brought out before Mr Ali’s second GPhC hearing, the Fitness to Practise Committee would taken his case more seriously.

David Reissner is Chair of the Pharmacy Law & Ethics Association

 

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