The requirement to behave professionally at all times v Article 8 EHCR
Posted: Tuesday, December 1st, 2020
Article 8 of the European Convention on Human Rights concerns the right to respect for private life. There is a tension between Article 8 and the obligation in standard 6 of the GPhC’s Standards for pharmacy professionals which requires pharmacy professionals to behave in a professional manner at all times, not only during working hours. This tension was considered by Mr Justice Singh when the Pharmacists Defence Association challenged the introduction of the Standards in R (on the application of Pitt) v General Pharmaceutical Council  EWHC 809 (Admin); the challenge was unsuccessful because the applicant could not show that regulating behaviour in a registrant’s private life would necessarily infringe the registrant’s Convention right to private life.
In Beckwith v Solicitor’s Regulation Authority  EWHC 3231 (Admin), the High Court allowed the appeal of a senior solicitor whom the Solicitors Disciplinary Tribunal found had acted “inappropriately” by having a consensual “sexual encounter” with a junior colleague after an event at which they had both had too much to drink.
The High Court held that professional rules:
“may reach into private life only when conduct that is part of a person's private life realistically touches on her practise of the profession ... or the standing of the profession ... Any such conduct must be qualitatively relevant. It must, in a way that is demonstrably relevant, engage one or more of the standards of behaviour which are set out in or necessarily implicit from the [professional standards]. In this way, the required fair balance is properly struck between the right to respect for private life and the public interest in the regulation of the ... profession. Regulators will do well to recognise that it is all too easy to be dogmatic without knowing it: popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.”
GPhC fails PSA standards and launches consultation on Fitness to Practise
Posted: Wednesday, November 4th, 2020
The Professional Standards Authority (PSA) has just published its annual review of the GPhC’s performance. The report can be accessed here https://www.professionalstandards.org.uk/docs/default-source/publications/performance-reviews/performance-review-gphc-2019-20.pdf?sfvrsn=1acd7620_8
The GPhC failed to meet three out of five standards and in relation to one of the two standards that were met, the PSA had “significant queries about the robustness of the GPhC’s triage process for fitness to practise referrals” and the PSA’s decision “finely balanced”.
The timeliness of processing fitness to practise cases seems to have been a concern that the PSA has commented on every year. The PSA said:
“… improvements we were expecting to see in the overall end to end timeframe for concluding…cases had not materialised…and our audit found avoidable or unexplained delays in a high proportion of the cases we reviewed.”
All timeframes were heading in the wrong direction. In numbers, it took:
- over 60 weeks from receipt of a referral to a final Investigating Committee decision;
- 40 weeks from final Investigating Committee decision to final Fitness to Practise Committee decision;
- early 100 weeks from referral to a final Fitness to Practise Committee decision
The GPhC had more than twice as many open cases older than 156 weeks than it did in 2015/16.
We reported a few months ago that the GPhC had presented a new Fitness to Practise strategy to its Council. The GPhC has just launched a consultation on the strategy. A link to the consultation is here https://www.pharmacyregulation.org/news/gphc-launches-consultation-fitness-practise-strategy . PLEA plans to respond to the consultation. If you have any particular views you want us to reflect, please email our Chair, David Reissner, at email@example.com by 30 November 2020.
GPhC responds to Times investigation by serving improvement notice
Posted: Thursday, October 29th, 2020
The GPhC continues to make use of its newish powers under the Pharmacy Premises Regulations. Responding to a story about a pharmacy "sell[ing] hormones for trans children online", the GPhC has carried out an inspection and served an improvement notice on the owner of the pharmacy. The improvement notice can be accessed here https://inspections.pharmacyregulation.org/pharmacy/enforcement/1123405-2020-10-21-156.pdf
DHSC consultation on amending Human Medicines Regulations
Posted: Friday, September 18th, 2020
The Department of Health and Social Care has just completed a consultation (conducted over only three weeks) on amending the Human Medicines Regulations (HMR). The aim of the proposed amendments is to enable COVID-19 vaccines (when available) to be used before there has been time to grant a marketing authorisation “if there is a compelling case, on public health grounds, for using a vaccine before it is given a product licence”.
Currently, regulation 345 of the HMR gives immunity from liability for loss and damage where the MHRA recommends or requires the use of a product without a marketing authorisation. Regulation 345 currently extends immunity to manufacturers, marketing authorisation holders, their employees and health care professionals. The amendments proposed to the HMR include extending immunity from liability for loss and damage to pharmaceutical companies that place unlicensed products on the market; and also to extend immunity to other health care workers.
GPhC interim suspension extended by High Court
Posted: Monday, August 17th, 2020
On 5 July 2020 reported on GPhC v Kellett and Gamble in which the High Court had refused a GPhC application to continue an interim suspension pending a full fitness to practise hearing. In another case on 11 August 2020, General Pharmaceutical Council v Umar, the High Court continued an interim suspension order for 9 months.
The registrant, Ms Umar, had admitted to her employer that she was addicted to codeine and had been taking codeine products from them over a long period. In September 2019, an interim suspension order was made for 12 months pending an investigation. A criminal investigation for theft had started, was then delayed by the COVID-19 pandemic, and ended with a police caution.
The GPhC argued that a 9-month continuation of the interim suspension was necessary because of the delay to the criminal investigation and other matters.
The Court regarded the allegation of theft from an employer as serious, and the alleged actions posed a risk of harm to the registrant herself and to public confidence in the profession. The prejudice to the registrant resulting from the interim suspension was outweighed by the public interest in preventing her from working as a pharmacist while she was or might be unfit to do so because of her admitted addiction and the risk of her having unrestricted access to medication that might tempt her to self-medicate.
Cumberlege review of Medicines and Medical Devices
Posted: Wednesday, July 15th, 2020
The Independent Medicines and Medical Devices Safety Review published its report on 8 July. Chaired by Baroness Cumberlege, the report is entitled First Do No Harm. The report includes a number of issues that relate to pharmacy.
Baroness Cumberlege’s team investigated what had happened in respect of two medicines and one medical device:
- hormone pregnancy tests, such as Primodos, which were withdrawn from the market in the late 1970s and which are thought to be associated with birth defects and miscarriages;
- sodium valproate, an anti-epileptic drug which causes physical malformations, autism and developmental delay in many children when it is taken by their mothers during pregnancy; and
- pelvic mesh implants, the use of which has been linked to crippling, life-changing complications.
Baroness Cumberlege referred to the harrowing stories of the women who had been affected by these devices and medicines. The report refers to:
- A system that cannot be relied upon to identify promptly significant adverse outcomes arising from a medicinal product or device because the system lacks the means to do so. The Yellow Card scheme for reporting adverse reactions is decades-old. It is clear there is under-reporting, and the complaints system is “too complex and too diffuse to allow early signal detection”.
- “the system is not safe enough for those taking medications in pregnancy or being treated using new devices and techniques. Patients are being exposed to a risk of harm when they do not need to be.”
- The statutory duty of candour “has not been entirely effective”. The Professional Standards Authority reports that regulators are not identifying duty of candour breaches or considering them as fitness to practise matters.
- A cultural shift away from blame is needed to create a healthcare system where people are open and honest. The recent emphasis on whistle-blowing will not solve the problem in itself. A no-blame, systems-based approach to delivering redress is essential to deliver a safer NHS where healthcare professionals have no reason to fear being candid and telling the truth to their patients.
- The GPhC discussed with the review team the difficulty of ensuring that information is being communicated in the most effective way, and the problems of having to disseminate information via a variety of alternative channels, such as pharmacy owners, those responsible for governance, and involving non-registered staff, such as counter assistants.
- A recent Company Chemists Association report suggested only half of at-risk patients taking valproate were physically present in the pharmacy to collect medication.
- The majority of mistakes are system errors, yet litigation usually deals with the culpability of individuals such as individual doctors or pharmacists.
- Creating the post of Patient Safety Commissioner.
- A Redress Agency as an alternative to litigation when things go wrong. A healthcare system should aim to eliminate avoidable harm: an open, honest culture in which mistakes are learned from and barriers to disclosure are removed is overdue and essential.
- For both medicines and medical devices, there is a need for more robust, publicly accessible post-marketing surveillance. This should include mandatory requirements on healthcare organisations to report adverse events within a designated time period. The MHRA should provide assessments of the risks of individual medicines or devices and of classes of medicines or device where one or more members of the class carries an elevated risk.
- The Yellow Card system should be reformed to provide a “user-friendly, accessible, transparent repository of adverse event reports.”
- An online system for the Pregnancy Prevention Programme should be accessible by pharmacists at the point of dispensing.
- When the EU Medical Devices Regulation is implemented after the Brexit transition period, the UK should adopt its more stringent standards and there are areas where further improvements should be made.
- A register of medical devices should be created and maintained by the MHRA so that it is possible to know what devices are (or were) on the market at any given time. Entry on the register should be a condition for selling in the UK, with the MHRA having power to de-register devices and remove them from sale, if necessary. The MHRA would be more like a licensing authority than in the past, with a greater emphasis on vigilance.
CMA concludes fludrocortisone case with £2.3m fines
Posted: Friday, July 10th, 2020
The Competition and Markets Authority (CMA) has announced that it has closed its investigation into the supply of fludrocortisone, a prescription-only medicine mainly used to treat primary or secondary adrenal insufficiency, commonly known as Addison’s Disease.
The CMA found that the pharmaceutical companies Amilco and Tiofarma agreed to stay out of the fludrocortisone market so that Aspen could maintain its position as the sole supplier in the UK.
In exchange, Amilco received a 30% share of the increased prices that Aspen was able to charge, and Tiofarma was given the right to be the sole manufacturer of the drug for direct sale in the UK.
Following the agreement, the price of fludrocortisone supplied to the NHS increased by up to 1800%.
All 3 companies involved in the agreement – Aspen, Tiofarma, and Amilco – admitted to taking part in an anti-competitive agreement regarding the supply of fludrocortisone tablets.
The CMA has levied fines totalling just under £2.3 million for this illegal behaviour.
As well as the fines, Aspen approached the CMA last year and agreed to pay the NHS £8 million to help resolve the CMA’s competition concerns in relation to fludrocortisone. This payment has now been made.
GPhC proposed Fitness to Practise strategy
Posted: Friday, July 10th, 2020
Just after we reported High Court criticism of fitness to practise delays by the GPhC, the GPhC presented to its Council for consideration on 9 July 2020 a proposed Fitness to Practise strategy. Excerpts from the strategy include:
“A pharmacy professional may not be fit to practise for a number of reasons, for example if their behaviour is putting patients at risk, they are practising in an unsafe way, or their health may be affecting their ability to make safe judgements about their patients. Our current approach to dealing with concerns about pharmacy professionals is too often cumbersome, lengthy and inefficient. This means it can be frustrating to patients, professionals and employers alike.
We will only use formal fitness to practise processes when it is absolutely necessary and seek early solutions and remediation where appropriate. Most registrants who have difficulties in their practice are willing and able to improve and resolve the problem. We want to break down the barriers that stop them from doing so as early as possible and we will work with employers, other regulators and those that set our standards to achieve this goal.
…shifting the balance towards more anticipatory, proportionate and tailored approaches to regulating pharmacy. We are developing our equality, diversity and inclusion strategy in parallel with this fitness to practise strategy
[Our approach] is still perceived as being overly legalistic, adversarial and time-consuming. It is largely rigid and reactive when it needs to be flexible and proactive
We need to understand more about why BAME professionals are disproportionately represented in the concerns we receive and those that progress through the process. We need to understand more about the impact of a professional not having legal representation, or not attending a hearing, as our analysis indicates these factors can result in a more serious outcome.
We have successfully held some remote hearings during the pandemic with the consent of everyone involved and the response has been positive whilst public protection has been maintained. We are keen to take the positive learning from this period and to hear stakeholders’ views on the potential benefits of continuing with some remote hearings in future, including the types of circumstances when this might be appropriate.
- quickly identify the key regulatory issue(s) on which we should take action
- take swift action when there is an immediate risk to patient and public safety
- recognise that it is not always appropriate or necessary to take formal action in response to a concern or incident, particularly with pharmacy professionals who make honest mistakes and are open about them and show how they have learned from them
- use other ways to resolve concerns swiftly when there’s no need for a full investigation following initial enquiries (see below)
- move cases forward quickly where there’s no disagreement about what has happened.
We will also develop proposals for making more enquiries in the early stages of our process after receiving a concern (triage). Making initial enquiries within a set framework will help us ensure the right concerns are investigated and those that can be resolved through alternative means are dealt with quicker.
We will also:
- broaden the options for concluding concerns to provide support and facilitate reflection and learning as an outcome for certain concerns (as set out above)
- consider wider use of voluntary removal from the register in appropriate cases
- look at the wider context and system risks associated with any patient /public safety issues and where appropriate combine individual outcomes with action focused on bringing an end to any risk caused by the way in which a pharmacy is operating
- share information with our inspection colleagues to inform risk so they can better target inspection resources
- explore mediation as an alternative outcome. Employers may often be best placed to recognise and manage some concerns. So we will actively work with employers to help identify the types of concerns that can be managed locally for faster, focused and fairer resolution.”
GPhC fitness to practise application refused by High Court
Posted: Sunday, July 5th, 2020
On 19 February 2020, we reported that the Professional Standards Authority (PSA) had criticised the General Pharmaceutical Council’s handling of fitness to practise cases. Amongst other things, the PSA concluded that at over 93 weeks on average from the initial complaint, the GPhC is still taking too long to bring cases to a final hearing.
The High Court has just considered an application by the GPhC to extend an interim suspension of two pharmacists pending a full hearing by the Fitness to Practise Committee.
In General Pharmaceutical Council v Kellett and Gamble  6 WLUK 456, the pharmacists, Kellett and Gamble, were a husband and wife who were directors of a company that owned three pharmacies and held a wholesale dealer’s licence. Gamble was the superintendent. In 2016, the police found a large number of Class C controlled drugs, such as zopiclone, at their premises. They were arrested by the police for unlawful possession and supply of Class C controlled drugs. They informed the GPhC of the investigation. They also terminated their wholesale business.
In January 2017, the Fitness to Practise Committee imposed an interim suspension for the maximum period of 18 months to be reviewed every 6 months. The suspension could then be extended by the High Court for successive periods of up to 6 months.
The Medicines and Healthcare products Regulatory Agency (MHRA) began an investigation, but the MHRA’s in-house lawyer did not review the papers until May 2020, only to find that further work was required before a file could be sent to the Crown Prosecution Service (CPS) for a decision on whether to charge the two pharmacists with any offence.
After previous extensions of the interim suspension order, the suspensions were due to run out on 5 July 2020. The GPhC applied to the High Court for a further extension. The MHRA was still not in a position to send the papers to the CPS.
The pharmacists argued that there had been an unconscionable delay of four years, yet there was still no clear indication
Mr Justice Soole ruled that the court had to take into account two competing questions: whether it would be acceptable not to suspend if, at the end of the day, the pharmacists were found guilty, and whether it would be acceptable to suspend if, at the end of the day the pharmacists were acquitted on all charges. Having considered the evidence and submissions, he found:
- The allegations of supply and conspiracy to supply were grave: serious offences were involved.
- Despite four years having passed, there was still no indication what charges, if any, might be brought.
- Even though the GPhC could not be blamed for delays by the MHRA, the GPhC had to share significant responsibility for the consequences. The GPhC had not been pro-active in pressing the MHRA for updates.
- The GPhC had not provided the court with any evidence as to why an extension should be granted.
- The pharmacists had suffered real and substantial prejudice as a result of the delays.
- No decision whether to bring any charges was likely to be made before October 2020.
- It was no longer proportionate or in the public interest to grant any extension, though this could be considered afresh when the investigation was concluded.
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.