David Reissner Awarded Honorary Chair
Posted: Monday, August 1st, 2022
From 1 August 2022, David Reissner has been awarded an honorary chair appointment at the University of Nottingham School of Pharmacy. David is Honorary Professor in Pharmacy and Medicines Law.
David has been considered by many, the country's leading expert in Pharmacy Law. David recently retired as Head of Healthcare at Charles Russell Speechlys LLP and is co-editor of the latest edition of Dale and Appelbe's Pharmacy and Medicines Law, the go to law textbook for all students studying Pharmacy in the UK. David has published over 250 articles.
PLEA is delighted that David's contribution to the profession has been recognised by the University of Nottingham.
More details on the announcement are available from the University of Nottingham website
Sexism, racism, freedom of speech and fitness to practise
Posted: Tuesday, July 26th, 2022
We have reported on recent cases involving words published on social media and the tension between the requirement to behave professionally at all times and the right to freedom of expression.
In Kwiatkowski v Bar Standards Board  EWHC 1800 (Admin), a senior barrister was found guilty of misconduct by a Disciplinary Tribunal. Mr Kwiatkowski is a senior barrister. While in a public waiting area at Worthing County Court, he had a conversation with a female barrister who was representing his client’s opponent. He referred to a witness statement by a female legal executive, filed on behalf of his client’s opponent. He described the witness statement as that of “a hysterical woman” and said words to the effect of:
“I have been practising since before the century. When more women joined the profession, the ground shifted. You do get stupid and unreasonable men in the profession but the ground shifted. The number of incidents of over egging the pudding and just going overboard in a routine situation multiplied”
The Tribunal find Mr Kwiatkowski £500. He appealed against the Tribunal’s decision, Mr Kwiatkowski. Amongst other things, he argued (1) that his right to freedom of expression had been infringed; (2) that the obligation to behave professionally had not been breached because no member of the public was present to overhear his words; (3) the word “hysterical” was not a term of abuse.
Mr Justice Choudhury held that the right to freedom of expression was a qualified one, subject to necessary and proportionate limitations. He held that the appellant’s argument failed to comprehend that public confidence in barristers and the professin required protection. The judge held that whether the conduct was likely to diminish trust and confidence in the barrister or the profession was an objective test. There was no requirement that nay particular member of the public was shown to have actually lost trust and confidence. The Tribunal had to assess how a hypothetical ordinary member of the public within earshot would be likely to view the conduct in question. In this case, the evidence was that members of the public, including a court usher, were present when the offending remarks were uttered.
In relation to the appellant’s argument that the Tribunal had been wrong to find his words as “sexist” because the term is not defined and it would open the door to a highly subjective assessment of what constitutes sexist conduct, the judge said:
“Whilst it may be true that some conduct might be said to fall on the borderline as to what is “sexist”, language that perpetuates well-known negative gender stereotypes or which unequivocally depicts women as generally inferior to men or as being the
cause of a drop in standards across the legal profession can, uncontroversially and without the need for further definition, be described as ‘sexist and discriminatory’.
The judge rejected an argument that the use of the word “hysterical” was trivial and inconsequential, saying:
“The term represents a disparaging gender-based stereotype: that of a woman overreacting to a situation because of an inability to contain her emotions. It is undoubtedly an offensive epithet when used in the way that it was. The fact that the word “hysterical”may be applied to some men does not diminish its discriminatory character when applied to a woman in the way that the appellant applied it. If the term had been used in a way that could be characterised as an uncharacteristic lapse or an accidental slip during an unguarded moment, then, on its own, the remark might not have crossed the line into serious professional misconduct. However, that was not how it was used. Instead, its use was the first of four distinct statements made by the appellant, each of which was offensive and demeaning about and towards women.”
The judge described the comments about what happened in the profession after more women joined it as “an unambiguous slur on women’s abilities within the legal profession. It is about as close as one can get to stating that women are inferior without stating it in those precise terms.”
In another case involving unprofessional comments, the Professional Standards Authority and the General Medical Council appealed against a decision of the Medical Practitioner Tribunal that the fitness to practise of doctors in a WhatsApp group was not impaired. The doctors exchanged numerous messages that were offensive, racist discriminatory, and disrespectful towards women, disabled people and people who are LGBTQ. One doctor also shared extreme pornographic images. No patients were discriminated against. The appeal was settled with agreement that the medical practitioners would be given warnings that would be placed on the medical register for two years. https://www.professionalstandards.org.uk/news-and-blog/latest-news/detail/2022/06/08/warning-approved-by-high-court-in-whatsapp-case
Remote Fitness to Practise hearings
Posted: Friday, June 24th, 2022
The General Pharmaceutical Council (Fitness to Practise and Disqualification etc) Rules which govern the GPhC's Fitness to Practise procedures have been amended by the General Pharmaceutical Council (Amendment) Rules Order of Council 2022.
The amendments, which will come into force on 6 October 2022, adopt changes that were introduced on a temporary basis during the pandemic to allow hearings to take place remotely. Specifically, the rules will enable hearings to be attended physically or by telephone conference or video link.
The amended Rules will provide that at the discretion of the chair, meetings and hearings may be conducted by teleconference or by video link.
Sexual misconduct - whether comments are harmful and whether colleagues are members of the public
Posted: Wednesday, May 25th, 2022
At our seminar on 4 May 2022, Mark Harries QC gave a presentation on Sexual misconduct in healthcare fitness to practise cases. The presentation, comprised of two documents, can be accessed on the home page of our website. Amongst other things, Mark remarked on the different approaches of Mr Justice Mostyn and Mrs Justice Foster to the determination of whether a registrant’s conduct was sexually motivated.
Less than a week after our seminar, Mrs Justice Foster gave judgment in Alberts v General Dental Council  5 WLUK 119.
Mr Alberts, a dentist, had made inappropriate comments to a dental nurse, including about her eyes, that left her eeling uncomfortable and embarrassed. The General Dental Council found that his actions amounted to misconduct that impaired his fitness to practise. The GDC imposed a 12-month suspension. Mr Alberts appealed, arguing that the length of suspension was disproportionate. He argued that:
- the GDC had been wrong to find that his fitness to practise was impaired on the; grounds of public protection because the nurse was not a member of the public;
- his behaviour was no more than over-friendly and had not caused harm; and
- his misconduct was at the lower end of seriousness for sexual misconduct.
Dismissing the appeal, Mrs Justice Foster held:
- The GDC's overarching objective of protecting the public included within the meaning of “the public” not only patients but also colleagues and visitors to the dental practice.
- It was wrong to say Mr Alberts’ conduct caused no harm: inappropriate sexual behaviour often came with a power imbalance. This case involved an experienced professional and a new dental nurse who was a third of his age. Even if the embarrassment and discomfort caused to her were moderate, harm had still been caused. A woman was entitled to be protected from sexually motivated commentary, especially in her work environment.
- It would have been open to the GDC to impose a shorter period of suspension, but the sanction could not be characterised as disproportionate.
Hub and spoke dispensing response
Posted: Friday, May 13th, 2022
Our detailed response to the Department of Health and Social Care's consultation on hub and spoke dispensing has been submitted. You can read it by clicking on the link on our website home page.
Bell v Tavistock - Supreme Court refuses to hear appeal
Posted: Tuesday, May 10th, 2022
On 19 September 2021, we reported that in Bell v Tavistock and Portman NHS Foundation Trust  EWCA Civ 1363, the Court of Appeal had overtunred the Divisional Court’s decision on the the continuing practice of the Tavistock Cliniic to prescribe puberty-suppressing hormone blockers to children under the age of 18 who experience gender dysphoria. The case turned on the ability of minors to give consent. The Supreme Court has refused permission to appeal because an arguable point of law was not raised.
Further Medicines Act changes to be made
Posted: Sunday, May 1st, 2022
The Pharmacy Rebalancing Board made proposals for changes in the law on which the Department of Health and Social Care conducted a consultation in 2018. DHSC has just published its intentions in the light of the consultation responses, one of which was submitted by PLEA - https://www.gov.uk/government/consultations/pharmacy-legislation-on-dispensing-errors-and-organisational-governance/outcome/rebalancing-medicines-legislation-and-pharmacy-regulation-programme-consultation-outcome .
The proposed changes are substantial and they will be made through two statutory instruments, the Pharmacy (Preparation and Dispensing Errors – Hospital and Other Pharmacy Services) Order and the Pharmacy (Responsible Pharmacists, Superintendent Pharmacists etc.) Order. DHSC intends to make only one change to the originally-proposed amendments to the law.
In summary, the statutory defences to prosecutions for dispensing errors that were introduced in relation to community pharmacy in 2018 will be extended to hospital pharmacies provided that certain conditions are met, including a requirement that the hospital has a chief pharmacist whose role will be analogous to that of a superintendent pharmacist in a community pharmacy owned by a body corporate.
In community pharmacies, the roles of superintendent pharmacists and responsible pharmacists will be changed and clarified. Superintendent pharmacists must be a person with a significant role in the making of decisions about how the whole or a substantial part of the activities of the retail pharmacy business.
Currently, a superintendent pharmacist’s role does not extend to general sale list medicines. When the law is changed, superintendents will have a legal duty to secure the save and effective running of the pharmacy business so far as concerns the sale and supply of all medicines.
Superintendents will be permitted to be the superintendent of more than one company and, if the company has the word “chemist” in its name, the superintendent will no longer have to be a member of the board.
The law will make it clear that a responsible pharmacist’s legal duty to secure the safe and effective sale and supply of medicines only relates to the particular premises where they are designated as the responsible pharmacist and only while they are on duty (whereas a superintendent pharmacist’s responsibilities are not time-limited). The duty will cover sales and supplies at or from the pharmacy premises, so as to cover home deliveries.
The current record-keeping obligations of responsible pharmacists will be removed.
A responsible pharmacist will have to be on duty for all sales, including general sale medicines and also when medicines are being assembled, prepared or dispensed. However, a responsible pharmacist will not have to be on duty if medicines are merely being put on shelves.
The GPhC and, in Northern Ireland, the PSNI will be empowered to make rules and standards covering a number of matters that will no longer involve legal obligations. Amongst other things, the rules and standards may include:
- Whether responsible pharmacists can be absent from pharmacies.
- Extending the professional responsibilities of superintendent pharmacists beyond medicines to clinical and public health services.
- If a pharmacist is the superintendent of more than one company, what the superintendent should and should not be doing.
- Exceptions to the general rule that a responsible pharmacist may only be in charge of one pharmacy at a time.
- Spelling out the professional responsibilities of superintendents and of responsible pharmacists.
- The qualifications and experience of superintendent pharmacists and responsible pharmacists.
These news items are not exhaustive but are selected according to their relevance to pharmacy practice, NHS community pharmacy contracts and the regulation of the pharmacy profession. If you wish to add any items that you think we have missed, contact our news editor.