2023-12-18 17:19:10
All the UK healthcare professions, including pharmacy, have similar, but not identical, fitness to practise procedures. When a healthcare professional’s fitness to practise is found at a final hearing to have be impaired then, the sanctions available to fitness to practise tribunals include suspension of registration for a period not exceeding 12 months (in the case of a pharmacist or pharmacist technician, this is in Article 54(2)(d) of the Pharmacy Order 2010).
Sanctions involving suspension or removal from the register take effect 28 days after the decision is given (which is the period for bringing an appeal); and, if there is an appeal, the sanction will not take effect until the appeal has been disposed of (ie withdrawn or dismissed by the appeal court – Article 59(1)). However, if a fitness to practise tribunal is satisfied that it is necessary for the protection of members of the public, or is otherwise in the public interest or the interests of the registrant, the tribunal may order an immediate suspension, until the direction to suspend (or remove from the register) comes into force (Article 60(2) in the case of the Pharmacy Order). Immediate post-sanction suspensions are not supposed to be routine, though it sometimes seems that fitness to practise tribunals impose them automatically.
In Aga v General Dental Council [2023] EWHC 3208 (Admin), Mr Justice Ritchie had to wrestle with the effect of an immediate suspension.
Mr Aga is a dentist. He was found by a fitness to practise tribunal to be guilty of sexually-motivated stalking and harassment. The General Dental Council’s Professional Conduct Committee (PCC) imposed a 9-month suspension. It also directed an immediate suspension pending the 9-month suspension taking effect. In this case, there appears to have been very good reason for immediate suspension, because of the risk that stalking would resume.
Mr Aga appealed to the High Court, arguing that the suspension was manifestly excessive or disproportionate. The hearing took place 4½ months after the Professional Conduct Committee hearing, so that if the 9-month suspension only commenced when his appeal was dismissed (because the original grounds of appeal were, unsurprisingly, unsuccessful), his suspension would have lasted for 13½ months. Mr Justice Ritchie was troubled by this, since the Dentists Act 1984 provided for a maximum suspension period of 12 months.
The General Dental Council argued that the immediate post-sanction suspension was a different suspension to the 9-month suspension that the Professional Conduct Committee (PCC) had imposed. Mr Justice Ritchie rejected this argument in trenchant terms, saying:
“such an interpretation breaches the statutory ban on any suspension being over 12 months and is in effect a punishment for appealing which is contrary to established principle. The effects of the interaction of the [provisions in the Dentists Act] does not permit for a longer duration of suspension. Parliament fixed the maximum duration in [the Dentists Act] of 12 months and did not legislate for that to be ignored or breached by the interaction between [the provisions for suspension and for immediate suspension pending the former provisions taking effect]. The latter are subservient to the former. I consider that the GDC’s interpretation of the Sections drives a coach and horses through the statutory 12 month maximum on the …power to impose suspensions which cannot have been the intention of Parliament.
I consider that GDC’s interpretation of the Sections is unfair to the Appellant. It effectively increases the PCC’s carefully measured and titrated sanction just because he has appealed. I do not consider that professional conduct and standards are maintained by such an approach, which results in registrants considering that they are being treated unfairly in relation to appeals because their sanction is increased by the very act of appealing. Therefore, I consider that this interpretation is contrary to one of the main objectives of the Act. Furthermore, in my judgment it is contrary to natural justice to penalise an appellant just for the act of appealing (not the substance of the appeal), when the right to appeal is provided by statute.
…the correct construction of the [provisions in the Dentists Act] in the context of this appeal is that:
(1) the start of the suspension was when it actually started, namely when the immediate suspension order took effect.
(2) When the immediate suspension order ceases to have any effect (when the order on this appeal is made) then the direction for suspension will “take effect”. …
In my judgment the end of the suspension occurs after 9 months of suspension have been served and it does not matter which piece of paper had the effect of causing the suspension.”
Although the GPhC’s Fitness to Practise Committee operates under powers in different legislation – the Pharmacy Act 2010 – its powers are sufficiently similar to those in the Dentists Act to suggest that Mr Justice Ritchie’s judgment will be equally applicable. Even if a pharmacist or pharmacy technician does not appeal against a suspension sanction, if the Fitness to Practise Committee imposes an immediate suspension pending the sanction coming into force, the immediate suspension will not have the effect of adding 28 days (the appeal period) to the length of the suspension.