2023-04-28 17:35:15
At our annual seminar last week, Cathal Gallagher gave a presentation on the legal and ethical implications of pharmacist prescribing. He spoke about fitness to practise issues arising from prescribers who transcribed prescriptions for overseas pharmacies so that the prescribed medicines could be supplied by British pharmacies. He presented case studies. Two days after the seminar, Mrs Justice Foster DBE gave her judgment in a case where similar issues arose – Professional Standards Authority v General Medical Council and Professor Sundara Lingam [2023] EWHC 967 (Admin).
A British pharmacy business had sent Professor Lingam written by overseas medical practitioners. Professor Lingam wrote equivalent prescriptions that enabled the pharmacy to supply the medications.
Professor Lingam appeared before the Medical Practices Tribunal charged with
- prescribing without sufficient information to allow safe prescribing because the information he received did not contain the patient gender, contact details, GP or specialist medical records, community GP contact details, proof of identity, medical history of prescribed medication, allergies etc.
- failing to identify “red flags” including that overseas consultants requested medication to be written for patients who lived in a different country from themselves.
- failing to obtain contact details for patients or their regular doctors
- failing to ascertain gender or other necessary details for safe prescribing
- prescribing medications in inappropriately large quantities without knowing what they were for, nor the monitoring arrangements that they required.
Professor Lingam’s practice area was paediatrics, yet he prescribed medication for adults. He admitted all the allegations and that he had acted outside his level of competence, without current experience in the relevant specialist fields which included rheumatology, infectious disease, gastroenterology, blood or renal carcinomas, dermatology and oncology. He admitted that he had been reckless.
Professor Lingam represented himself before the Medical Practitioner Tribunal and gave evidence in which he conceded everything alleged. The Tribunal found Professor Lingam guilty of misconduct and held that his fitness to practise was impaired. It imposed conditions of practice for a period of 24 months. The Professional Standards Authority (PSA) appealed against the sanction.
The judge agreed with the submissions of the PSA, principally on the grounds that the Tribunal had given inadequate reasons for its decision on sanction and that the Tribunal had not followed the applicable sanctions guidance without explaining why. Of particular note were:
- what the judge said about prescribing, which may be equally applicable to some cases of inappropriate prescribing by pharmacists – she said:
“The context here suggest the Professor may have exhibited significant blindness to obvious risks, or, alternatively have possessed awareness of risks yet taken a decision to run those risks in any event.”
- what the judge said about how the Tribunal had conducted the hearing; because Professor Lingam had not contested any of the allegations at the Tribunal hearing, he was not heavily cross examined. The judge considered that the Tribunal should have questioned Professor Lingam more closely to establish the facts in more detail.
The judge said:
“There is a significant risk that the Panel may have misapprehended the seriousness of the actions of Professor Lingam…A Panel has a duty to interrogate where necessary to understand the issues clearly… A Panel should feel bold, where the facts have been opened only, (not canvassed thoroughly in evidence), to resolve any material issues they have by questioning as far as they need to do so, to clarify the central issues arising. Cogent analysis at sanction stage is easier where the context and the significance of the evidence has been explored. As stated, this exploration may, in a case where the facts are admitted wholesale, and no, or only a short, hearing takes place, need to be accomplished by the Panel itself… This is part and parcel of their function in protecting the public interest.” (emphasis supplied.)
The case was sent back to the Medical Practitioner Tribunal to re-determine the sanction.
In the past, tribunals have been criticised for “descending into the arena” by appearing to question registrants closely: in adversarial proceedings, it may be seen to undermine the impartiality of the tribunal. The Department of Health and Social Care has expressed the view that fitness to practise cases should be less adversarial and become more inquisitorial in nature. Even before legislative change is made, this case indicates that fitness to practise tribunals may already be expected to adopt an inquisitorial process, at least in cases where the registrant makes admissions.