I’ll soon be retiring as a partner in my law firm, and although I’ll continue to have involvement in the community pharmacy sector, I won’t be representing clients in fitness-to-practise cases any more.
I hope this means I can’t be accused of having a self-interest in what I write here.
Because one of the most frustrating things in my 40 years of practice has been the community pharmacists who don’t want to spend money on good legal advice when they are facing fitness-to-practise proceedings – in which their livelihoods are at risk.
Good legal advice can often make the difference between a suspension and being struck off from the General Pharmaceutical Council (GPhC) register. This is not because well-represented pharmacists necessarily have a silver-tongued advocate, but because good advice enables a pharmacist to gain insight.
A recent Court of Appeal case illustrates my point. In December 2012, the BBC broadcast an Inside Out programme in which a number of pharmacists were caught on camera selling prescription-only medicines over the counter without prescriptions.
One of the pharmacists who was filmed for the programme went on to spend money on an unsuccessful High Court appeal, which was dismissed in 2016. Now the same pharmacist has just thrown good money after bad by appealing – also unsuccessfully – to the Court of Appeal. She denied selling amoxicillin over the counter, but the allegation was found proved, and she was struck off.
The law says that appeals in these cases will only be upheld if the fitness-to-practise committee’s decision was “plainly wrong”. So a decision will not be overturned just because a judge might have come to a different conclusion.
In the most recent case, the Court of Appeal considered a number of complaints that the committee’s decision was unfair. One judge criticised the committee because it found the unrepresented pharmacist’s fitness-to-practise was impaired, but did not offer to adjourn before moving on to consider what sanction to impose.
The judge also criticised the committee for not warning the pharmacist that it was considering striking her off, and even considered that the committee had overstated the seriousness of the case. However, he concluded that the committee’s decisions were ones it was entitled to make, and so the court could not interfere.
The judge said that if the pharmacist “had acted differently at a very early stage, the committee would no doubt have taken a different view”. Taking good legal advice at that early stage could have saved a pharmacist’s career, and avoided years of litigation and money spent on appeals.
David Reissner is senior healthcare partner at law firm Charles Russell Speechlys LLP