General Pharmaceutical Council v Nazir

JUDGE COE: This is an application by the General Pharmaceutical Council ("the applicant") seeking an extension of the interim suspension order which was made as long ago as 28 August 2013. It is made under Article 56(5) of the Pharmacy Order 2010. It has been subject to further orders by the court. The extension sought is for a period of 4 months from its current expiry date of 25 February 2017. It was reviewed as recently as 7 February.

I do not intend to rehearse the details, but the respondent, Mr Nazir, came to the attention of the applicant on 31 July 2013 following a referral from the pharmacy where he was working, Ayesha's Pharmacy. He faced allegations of having supplied a vulnerable patient, "DD", with a quantity of a controlled drug, diazepam, at a strength of 10 milligrams (the patient had a valid prescription for diazepam at a lower strength); and also with supplying the same patient with co-codamol tablets, a prescription-only medicine, without a prescription.

The details of the specific allegations and concerns are set out as part of the allegations in the case pleaded against him at paragraphs 4 to 7 in the particulars of claim. Clearly, those allegations are properly described as of the utmost gravity: in effect for a pharmacist to provide drugs without a prescription and prescription drugs for cash, to a person who is vulnerable by reason of their difficulties with addiction. There are other matters: for example, the labelling which is alleged to have taken place to give the appearance that these were validly prescribed; and allegations which have also been raised as to pressure being put on the patient DD as to how he should give his evidence to the police.

The criminal proceedings were significantly delayed. I have seen a charge sheet which refers to two charges relating to the supply of diazepam and the supply of co-codamol, but no copy of the indictment which was before the court. Ultimately, as I say, these criminal proceedings were delayed for some considerable period of time, and it was not until 13 October that the jury seem to have returned verdicts on three counts or three charges acquitting the respondent of all matters. What other third charge there may have been I do not know.

It is put forward on behalf of the applicant that the investigation has been on hold pending the outcome of those criminal proceedings. In fact, as long ago as January 2016 (and I have been referred to the hearing that took place then), it was being said that, whatever the outcome of the criminal proceedings, the applicant was considering whether or not charges would be brought and considering the evidence available to it. Clearly (and I make this point in general terms; the specifics are outlined in the papers), given the difference in the standard of proof in the criminal proceedings and these proceedings, and given the matters relating to misconduct rather than criminal offences, the fact of an acquittal is not necessarily the end of the matter, and that has been acknowledged by the applicant throughout. Nonetheless, it is the applicant's position that these matters have been on hold despite their earlier indication to the panel.

In any event, it seems that, after the acquittal or the indication of the acquittal, the applicant made attempts to contact and engage the patient, DD. Those attempts have been unsuccessful, culminating in a letter dated 28 November (page 156 in the bundle). It seems that the applicant acknowledged that there were evidential difficulties. The matter was listed for an early review and came before the Committee at a hearing on 7 February. The applicant had put forward the position that the suspension may no longer be necessary and proportionate in light of the evidential difficulties and the failure to engage with DD, and those matters are summarised in the transcript of the hearing. It was considered that perhaps the Council would only be able to establish any misconduct on the basis of the discrepancy in the drugs which had been dispensed, rather than any guilty knowledge as to the risk to the vulnerable patient.

It seems, however, that the Committee felt that these matters were very serious and so, as set on page 7 of the bundle, they considered that there may be sufficient evidence to say that the interim order was necessary to protect the public and to protect the public interest; whereupon, and as a result of that, it seems that the applicant has further reviewed the case and formed the view that the Committee's comments should be respected and so wish now to explore avenues of evidence which may be able to be pursued even without the engagement of the patient DD, hence the request for the extension.

It is expected that within that four-month period the applicant will have concluded the investigation and formulated the charges and served any case that it intends to pursue on the respondent. Thereafter, the respondent has 12 weeks to prepare his case. The applicant acknowledges that, even if the case is served within that four-month period, there will not thereafter be a suspension order in place. The applicant acknowledges that any decision has to be made soon. The applicant says, "Well, we have obtained a report from patient DD's GP identifying that the patient took an overdose of the medication he obtained from the pharmacist, and as a result of that he required a hospital visit", and they have identified the investigations they may need to make.

I am reminded of course of the criteria to be applied following the case of Hugh. It has to be necessary and proportionate to protect the public and to protect the public interest, and there are matters which in particular I have to consider. Those are, of course, firstly, the gravity of the allegations, and I should say, and I do not need to repeat the allegations as I have already outlined them, but there is, as I find, absolutely no dispute that these are very grave allegations. Secondly, the risk of harm, and again there is no dispute that there is a significant risk of harm if it were to be established that a vulnerable patient had been dispensed prescription drugs without a prescription and in particular, the opiates, co-codamol and diazepam, for cash, which ultimately led to an overdose. The applicant says there is no reason to say the respondent may not behave in the same way again. Of course, the difficulty (and it is relied upon by Mr Khan to some extent in terms of how I should assess the risk) is that, given that the respondent has been suspended since August 2013, the only evidence that the court has as to risk relates to what is alleged to have happened at the time.

I also have to consider the nature of the evidence. The applicant has gone to some length at this stage to say that obviously, the best evidence would be evidence from DD, the patient, himself, but there is also the patient's carer and another relative; and there may be evidence obtained from the patient's general practitioner that there may be boxes still available which contain drugs; there are some photos in the bundle; and there may be the possibility of relying on hearsay evidence.

Of course, the difficulty the applicant has in putting forward arguments in respect of the nature of the evidence is that the applicant has taken no steps, certainly since October, to ascertain whether or not that evidence is available, or to start to assemble the evidence. The reasons why matters have not been concluded, the applicant accepts fully, that certainly since October enquiries ought to have been carried out and they have not been. Unusually in this case, even though the criminal proceedings were ongoing, the police were very co-operative and helpful and there is significant correspondence in the bundle to identify that. But it does not seem that the officer in the case has been consulted as to any reasons for the acquittal, as to the actual charges, as to the nature of the evidence and so on, and certainly no transcript has been obtained.

I am also then obviously bound to take into account the prejudice to the respondent himself. This is a serious matter. His ability to practise as a pharmacist has been curtailed since August 2013. I am told that his wife is also a pharmacist. She has been able to practise, but clearly the suspension does prejudice the respondent.

The applicant concludes by saying that, given the gravity of the allegations and the short extension sought, I can be satisfied, applying those tests, that the order sought is justified.

The matters relied on by Mr Khan on behalf of the respondent relate essentially following the appeal decision in GMC v Srinivas [EWHC] 2513 (Admin) at paragraph 12 to the failure of the applicant actively to investigate, follow up or pursue this matter. I should say that, without needing to repeat some of the points made on behalf of the respondent, I am entirely satisfied that the applicant has not acted actively in any way expeditiously to address or deal with the matters. That is both since January 2016 when it seems the applicant had formulated a view that matters might be pursued whatever the outcome of the criminal proceedings so that a twin-track approach could have been pursued at that stage and certainly since October after the acquittals, given that they had help available from the police which they have not pursued. It seems that that might have been influenced by their decision that, if DD would not engage, basically they could not pursue this matter any longer. They therefore came very late in the day following the Committee's view in February to think that maybe there are still some matters that should be pursued.

Those factors are all some explanation but do not sufficiently address the issues properly put forward on behalf of the respondent to the effect that they have had more than enough time, and indeed even since 7 February, as I find, could have put in motion all sorts of inquiries which might have produced some result already, particularly, as I say, given the co-operation available from the police.

On behalf of the respondent the application is opposed. Looking at the test I have to apply, the respondent says that the risk factor to put into the balancing exercise has not been properly established. I am referred to the authorities of Harry v GMC [2012] EWHC 2762 (QB) and also Scholten v GMC [2013] EWHC 173 (Admin), and I am urged to find that no real risk has been identified either by the applicant or by the panel in February; that there is no evidence before the court which might temper the nature of the allegations, in particular any assessment as to why the jury acquitted the respondent; and that, in circumstances where there has not been that identifiable risk, and given the lack of expedition and the fault of the applicant, the prejudice to the respondent outweighs the application and it should be refused.

I should say that I do not find that the Committee did not consider that there was a risk. My attention has been specifically drawn to the paragraphs at pages 9 and 10 in the bundle, where it is apparent that the Committee said that, given the evidence available which suggested that the respondent might have knowingly sold controlled drugs for cash to a vulnerable patient and thereby contributed to his admission to hospital by taking an overdose, he would represent a risk to patients. That would have brought the profession into disrepute and would have broken a fundamental principle of the pharmacy. If he is guilty of those matters, his integrity cannot be relied upon and his acquittal of the criminal charges would not automatically mean that he would not be found on the balance of probabilities that his fitness to practise is impaired.

I accept that the Committee did find that there is a risk and I myself make the finding that on the basis of the allegations, were they to be established, there would undoubtedly be a risk, that risk is identified and it is a serious risk to the public.

That does not assist the respondent. But what I do have to do is to balance, therefore, the gravity of these allegations, which I consider to be very serious, and the risk of the harm which has undoubtedly been identified against the applicant's catalogue of failures to address the evidence in this case, the failure of expedition and the failure to conclude this matter, against, of course, the prejudice to the respondent which I have identified.

I consider that the risk identified and the gravity of the matters tip the balance in favour of granting the application. It only just does so, because the applicant certainly has not acted expeditiously or in the way that it should. Whether by reason of lack of resources I do not know, but clearly this case comes as finely balanced as probably they can be in the light of such serious allegations and in light of the period of delay. However, the allegations are serious and if they were to be established as evidence of misconduct they certainly would pose a risk to the public and the public interest and the extension sought of four months is a relatively short one.

In the circumstances, I will grant the application. I should say, and I think the applicant has already acknowledged, that there is no prospect of any further application, in my view, being successful. It is only my view - I cannot bind anybody - but the applicant must now ensure that the respondent is notified of what charges, if any, the applicant intends to bring, within as short a period as possible. There can be no further delay and there can be no further excuses made. Everything that should be done has been identified on more than one occasion and rehearsed again today. There is an officer in the case who is helpful; the criminal proceedings are concluded; if there is evidence which can be relied upon, then it must now be assembled and served and the respondent needs to know, certainly within the next three months or so, what charges, if any, he is to face.

MISS FLECK: Thank you, my Lady.

JUDGE COE: So four months takes it to?

MISS FLECK: It will be from 26 February, my Lady, so that will take us to 25 June.

JUDGE COE: 25 June. So, the extension is to 25 June.

MISS FLECK: Thank you.

MR KHAN: Thank you.