2021-07-02 12:28:37
In Professional Standards Authority for Health and Social Care v General Pharmaceutical Council and Ali ([2021] EWHC 1692 (Admin), the PSA has successfully appealed against a decision of the GPhC’s Fitness to Practise Committee in the case of Mr Nazim Hussain Ali, who was accused of broadcasting antisemitic comments in public.
Mr Ali led an Al Quds Day rally in central London in June 2017. Al Quds refers to the status of Jerusalem which Palestinians regard as being occupied by the State of Israel. Using a loudhailer, he shouted, amongst other things:
“It’s in their genes. The Zionists are here to occupy Regent Street. It’s in their genes, it’s in their genetic code…European alleged Jews…They are responsible for the murder of the people in Grenfell. The Zionist supporters of the Tory Party.”
The GPhC’s Standards for pharmacy professionals require professional behaviour at all times. Mr Ali’s case calls to mind the judicial review application made by the PDA when the Standards were due to be introduced. In R (on the application of Pitt) v General Pharmaceutical Council [2017] EWHC 809 (Admin), the PDA argued that the Standards went too far because they required professional standards to be observed during the private lives of pharmacy professionals, not only when working. Mr Justice Singh rejected the argument and gave, as an example of conduct that might infringe the Standards, a racist rant on Twitter.
Mr Ali’s was referred to a Fitness to Practise Committee at which he was accused of making antisemitic remarks. Mr Ali admitted that his words were offensive but he denied that they were antisemitic.
The Fitness to Practise Committee referred to a dictionary definition that defined “antisemitism” as “hostile or prejudiced against Jewish people”. The Fitness to Practise Committee then asked itself how the words would be understood by a “reasonable person”. They took into account Mr Ali’s good character and decided that a reasonable person would have no particular characteristics. They considered what Mr Ali intended his words to mean (he, himself had been unable to explain them). The Committee analysed each of the individual statements Mr Ali admitted using, and concluded that the words were not antisemitic.
The Fitness to Practise Committee decided that Mr Ali’s comments
“brought disgrace upon the profession. The comments…regarding Grenfell Tower were particularly offensive then and now, alleging as they do, without foundation, that specific groups of people had ‘murdered’ the victims of the fire. The Committee accordingly judged that the Registrant’s comments did amount to serious misconduct.”
The Committee gave Mr Ali a warning.
It is rare for the PSA to appeal against a GPhC decision. The only previous occasion on which a PSA appeal against a GPhC decision reached the High Court was in 2014. However, the PSA has decided to appeal against the decision in Mr Ali’s case. Mr Ali opposed the appeal but the GPhC did not.
Mr Justice Johnson held that:
- In order to decide whether the words used were antisemitic, it was necessary for the Fitness to Practise Committee to consider the meaning of the words.
- The assessment of meaning is an objective test that does not depend on the intention of the author or speaker.
- The Fitness to Practise Committee had sought to apply an objective test. However, it erred by taking account of what it considered to be Mr Ali’s intention.
- The Fitness to Practise Committee had erred in taking Mr Ali’s character into account in deciding whether the words he used were antisemitic. His good character could be taken into account when assessing the credibility of his evidence but was not relevant to the meaning of the words he used.
- The Fitness to Practise Committee had erred in not taking into account the cumulative impact of the language used. (He had used the word “Zionist” in a context that did not appear to have anything to do with the State of Israel which gave rise to an allegation that the word was used to refer to Jews).
The judge held that Mr Ali’s intention and character were relevant to whether using the words in question amounted to misconduct, to whether his fitness to practise was impaired and any sanction.
The Fitness to Practise Committee’s errors were serious irregularities. Mr Ali’s counsel argued that the case should not be sent back to the Fitness to Practise Committee for re-determination because, even if the allegations were found proved, the sanction – a warning – was likely to be the same. However, Mr Justice Johnson concluded that:
“This case does…engage significant questions of public confidence. It is vitally important that all sections of the community are able to place trust and confidence in advice given by pharmacists…[T]hat is vividly illustrated by the current pandemic, and the need that all communities are able to have confidence in advice given by pharmacists and other professionals about the risks and benefits of vaccination”
The judge considered that the Fitness to Practise Committee was far better placed than the court to make an assessment of the appropriate sanction. He directed that in re-determining the case, the Committee should assess the objective meaning of Mr Ali’s words without taking into account his subjective intention or good character.