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High Court Overturns Stay in Pharmacist Fraud Case
39 Essex Chambers barrister Nyasha Weinberg has successfully represented the PSA in Professional Standards Authority for Health And Social Care v General Pharmaceutical Council & Anor [2024] EWHC 3005 (Admin).
On 25 November, the High Court delivered judgment in a case which was described by Lang J as containing grossly incompetent errors made by the GPhC in closing the case against the registrant prematurely. The GPhC’s fitness to practice committee (“the committee”) considered the case against the registrant, a registered pharmacist who was allegedly involved in a fraudulent scheme for the sale of medication overseas. Following a series of irregularities in the GPhC’s handling of the Registrant’s case the committee found that the respondent had a substantive legitimate expectation, following errors made by the GPhC in closing the case prematurely, that no further action would be taken against him. The committee therefore imposed a stay in proceedings following the rule in R v Maxwell [2010] UKSC 48.
The High Court, following an appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the 2002 Act"), found that the case against the Respondent registered with the GPhC should be re-opened.
The PSA appealed on three grounds:
- wrongly directed itself on the erroneous closure of the case by the Council (Ground 1);
- wrongly concluded that the allegation was not capable of being referred under rule 6 of the 2010 Rules (Ground 2); and
- wrongly applied the test for the imposition of a stay for abuse of process (Ground 3).
The High Court found Ground 1 proved on the basis that the Professional Regulation Manager (“PRM”) did have authority to close the case against the registrant, but did not actually close the case. There was therefore a “fundamental mistake of fact” as to whether the case had been closed or not. The court found that public bodies have power to correct decisions which they have made based on a fundamental mistake of fact applies here: see R (Chaudhuri) v General Medical Council [2015] EWHC 6621 (Admin) at [43-51].
The Court concluded as follows at [105-106]: “A stay for abuse of process is an exceptional step. […] The public interest in the overarching statutory objectives of protecting the public and maintaining professional standards and public confidence in the profession has to be weighed in the balance, together with the public interest in the integrity of the disciplinary process.
On a fair reading of the decision, I do not consider that this experienced Committee misdirected itself on the legal principles to be applied, or overlooked the overarching statutory objectives, but the legitimate expectation must have weighed heavily in the balance in the mind of the Committee. On re-considering the matter on the basis that a public authority may resile from a legitimate expectation in circumstances where it is fair to do so, I do not consider that the exceptional step of a stay can be justified, as the competing public interests can be fairly met by alternative measures, namely a full reconsideration of his case. I acknowledge that this will be stressful and difficult for R2, but I consider that expedition will mitigate the burden of the further proceedings.
