2024-03-17 12:26:26
It is unusual for the Professional Standards Authority (PSA) to appeal to the High Court against a decision of a healthcare regulator on two separate occasions in the same case, but that is what has happened in the case of pharmacist Nazim Hussain Ali.
In the first appeal, the High Court held that the General Pharmaceutical Council’s Fitness to Practise Committee had misdirected itself in applying a subjective test to the question whether Mr Ali’s remarks, made through a loudhailer at a public rally, were antisemitic.
The remarks that were alleged to be antisemitic were:
“(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.’”
When the PSA’s first High Court appeal was upheld, the case was sent back to the Fitness to Practise Committee for redetermination, applying an objective test of whether the remarks were antisemitic. Perhaps surprisingly, the judge at the first appeal did not direct that the rehearing should take place before a differently constituted Fitness to Practise Committee.
At the redetermination, the Fitness to Practise Committee decided that, applying an objective test, comments (a) and (b) were not antisemitic, but that comments (c) and (d) were antisemitic. The Fitness to Practise Committee found that making the antisemitic comments was misconduct. It was highly likely that Mr Ali would be identified as a pharmacist and that his comments brought the pharmacy profession into disrepute and likely would have caused distress to many members of the public.
Finding that Mr Ali’s fitness to practise was impaired, the Committee decided that Mr Ali had no intention to make comments that were offensive and antisemitic, and the GPhC had not expressly alleged that the comments were made with the intention of being either offensive or antisemitic. Mr Ali had not repeated his conduct and had apologised for being offensive, (though not for being antisemitic because he denied that he had been), and decided that a warning was a proportionate sanction in the circumstances of the case.
On the second appeal to the High Court in Professional Standards Authority v General Pharmaceutical Council and Ali [2024] EWHC 577 (Admin), the PSA argued that the sanction of a warning was insufficient because racism was a serious problem in healthcare and deterred those entitled to care from accessing it. The PSA submitted that the Committee had given undue weight to its finding that Mr Ali had shown insight and remorse, and that a suspension should have been imposed to maintain public confidence in the profession.
Mr Justice Chamberlain found that the fact that Mr Ali’s comments were unscripted was relevant to sanction; it meant that his comments lacked premeditation. The judge held that the Committee 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, objectively construed, 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.”
The judge said it was a matter of concern that, even by the time of the second hearing, Mr Ali did not recognise that comment (d) was obviously racist. However, the judge found that this was not enough to vitiate the decision on sanction because the comments were not premeditated and the Committee had recognised and given full weight to the distress that comment (d) was bound to cause. As to the maintenance of public confidence, the judge found 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. Some readers may find difficulty with the logic of the latter proposition, because any regulator or registrant may point to the fact of even a single appeal as an indication that misconduct has been taken seriously.
The judge dismissed the PSA’s second appeal.