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When is a failure to accept allegations an aggravating factor in FtP proceedings?

Posted: Thursday, May 20th, 2021

If a healthcare professional contests allegations that are found proved, should the fact that the allegations have been contested be held against them in Fitness to Practise proceedings? That is a question that Mr Justice Mostyn grappled with in  

Towuaghantse v General Medical Council [2021] EWHC 681 (Admin).

In another case recently decided by Mr Justice Mostyn – Bux v General Medical Council [2021] EWHC 762 (Admin) - the judge considered the reliance in Fitness to Practise proceeding on expert evidence.

In Towuaghantse v General Medical Council a doctor was accused of mishandling the treatment of a baby born with a rare and complicated medical condition, and of contributing to the baby’s death. There were no other complaints concerning the doctor. The Medical Practitioner Tribunal found that his fitness to practise was impaired and directed his removal from the medical register.

When determining whether the registrant’s fitness to practise was impaired, the Tribunal had taken into account that he had failed to accept findings made by the coroner at the inquest into the baby’s death and had sought to blame others for what had gone wrong in the baby’s treatment.

Mr Justice Mostyn noted that the doctor’s pleas of not guilty (in effect) were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty. The judge was not impressed with the Tribunal’s reasoning. He said:

     “In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court…

     …where a registrant has doughtily defended allegations against him in the fact-finding phase. It surely leads to say that it is…oppressive for that defence by the registrant to be used against him in the impairment and sanctions phases.

     …an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.

Mr Justice Mostyn had to reconcile his views with those of Mrs Justice Yip in Yusuff v GMC [2018] EWHC 13 (Admin), That case concerned a review hearing which was held some time after the initial sanction was imposed. Referring to the GMC’s Sanctions Guidance, Mrs Justice Yip had observed that “refusal to accept the misconduct and failure to tell the truth during the hearing will be very relevant to the initial sanction.” She further observed that a want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment.

Mr Justice Mostyn endeavoured to square his ruling with that or Mrs Justice Yip by saying:

     “In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the       decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the         future.

     Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque … if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired         because you have disputed that your fitness to practise is currently impaired.

     In my opinion the capacity of the registrant to remediate sincerely should be judged by reference to evidence unconnected to his forensic stance in the fact-finding phase (unless the fact-finding decision included findings of blatant dishonesty by the registrant).”

In Bux v General Medical Council a doctor who had been writing medical reports on an industrial scale to support personal injury claimants. Amongst other things, the doctor was accused of dishonesty and of acting in disregard of a conflict of interest.

Mr Justice Mostyn held: 

     “It was difficult to see how medical practitioners tribunals would be assisted by opinions from medically qualified professionals in understanding the legal test for conflict of interest and the concomitant duty of disclosure, and whether that legal test was satisfied on the facts. The questions were             legal and factual, not medical or technical. Judges and those acting in a judicial capacity should be capable of answering them without expert assistance. The tribunal should have ruled that the reports were inadmissible or should have refused to read them on the ground that they were irrelevant.       There was an urgent need for an equivalent to [the Civil Procedure Rules that govern court proceedings] to be inserted into the procedural rules governing regulatory proceedings”

Two Bills affecting pharmacy announced in The Queen's Speech

Posted: Thursday, May 13th, 2021

The Queen’s Speech this week announced two pieces of legislation that will probably affect pharmacy practice. There will be a Health and Care Bill which will presumably implement the proposals in the Government’s recent White Paper, including subsuming Clinical Commissioning Groups into Integrated Care Systems. A Professional Qualifications Bill has already been introduced in the House of Lords. The Department of Business, Energy and Industrial Strategy says in a Policy Statement:

“We are proposing a framework that allows highly skilled professionals from all around the world to practise in the UK. This will end the systematic disparity in treatment of professional qualification holders from the EU, Norway, Iceland and Liechtenstein (European Economic Area (EEA) compared to those from other countries. Instead, the UK Government and devolved administrations can make sure that employers can access suitably qualified professionals from all around the world where there is a demand for their services.”

NICE clarifies cannabis guidelines so as not to deter prescribing

Posted: Wednesday, March 31st, 2021

According to a report in the Guardian https://www.theguardian.com/society/2021/mar/28/parents-of-boy-with-severe-epilepsy-drop-cannabis-challenge , the parents of a three-year-old have dropped a judicial review claim against NICE in which they intended to argue NICE guidelines on the prescribing of medicinal cannabis which, they said “put doctors off prescribing ‘live-saving treatment’”

Prescribing cannabis was legalised subject to certain conditions in 2018.  The judicial review claim was dropped because NICE has now clarified its guidance which says there is insufficient evidence to support a recommendation relating to the whole population of people with severer treatment-resistant epilepsy. The clarification says the NICE guidelines:

“should not however be interpreted by healthcare professionals as meaning that they are prevented from considering the use of unlicensed cannabis-based medicinal products where that is clinically appropriate in an individual case. Patients in this population can be prescribed cannabis-based medicinal products if the healthcare professional considers that that would be appropriate on a balance of benefit and risk, and in consultation with the patient, and their families and carers or guardian.”

https://www.nice.org.uk/guidance/ng144/resources/cannabisbased-medicinal-products-clarification-of-guidance-march-2021-9070302205

Pharmacies required to disclose results of lateral flow tests

Posted: Sunday, March 21st, 2021

Last year, COVID-19 was added to the list of notifiable diseases in Schedule 1 to the Health Protection (Notification) Regulations 2010. This Schedule lists diseases that doctors must notify to Public Health England if a case is detected in a patient. The addition of COVID-19 to the list did not have any immediate significance for pharmacies, because the GPhC had banned pharmacies from selling lateral flow tests.

On 15 February 2021, the GPhC changed its position, allowing pharmacies to sell lateral flow tests. This brought Regulation 4A of the Health Protection (Notification) Regulations into play.

Regulation 4A imposes a duty on point of care test providers to notify Public Health England of the results of tests for the detection of the SARS-CoV-2 virus or influenza virus. A “point of care test” is a defined as a diagnostic test which is not carried out in a diagnostic laboratory. A “test provider” is defined very widely and would include any pharmacy carrying out point of care tests for the detection of SARS-CoV-2 or influenza virus.

Notification to Public Health England can be made electronically and must be made in writing within 24 hours of the time when a positive or indeterminate SARS-CoV-2 test result is received by the test provider. If the test is negative or void, notification must be made within seven days. In the case of influenza virus, notification must be made within seven days of the test result being received by the test provider. 

The details to be notified include, insofar as they are known to the test provider, the patient’s name, sex, date of birth, NHS number, ethnicity, current address (including postcode), and, in the case of a test for SARS-CoV-2 that is positive or indeterminate, a telephone number and email address  The test provider must notify its name, the nature of the establishment, specimen identification number (if applicable), specimen type, specimen date, test method, result of test, date on which the test was carried out, and the name of the testing equipment manufacturer. 

Failure to notify in accordance with the Regulations without reasonable excuse is an offence punishable on summary conviction by a fine. 

 

Gross negligence manslaughter when a patient overdoses

Posted: Wednesday, March 10th, 2021

There have been no recent manslaughter prosecutions of pharmacists, but the recent case of R v Rebelo ([2021] EWCA Crim 306) sheds light on the legal position if a patient overdoses on a drug of abuse sold in a pharmacy.

Bernard Rebelo ran an online business which sold a chemical, Dinitrophenol (“DNP”), as a food supplement to promote weight loss. DNP is used in the manufacture of dyes, wood preservatives, explosives, and insecticides, amongst other things. It can act as a ‘fat burning’ and weight reducing drug by blocking the normal processes by which energy is stored in the body, causing energy to be released as heat.  It is not licensed as a medicinal product.  Ingestion can be hazardous, with serious toxic effects that include kidney failure, liver failure and cardiac arrest. Fatalities have been reported in the UK from the ingestion of DNP.

A 21-year-old student, Eloise Parry, purchased a quantity of DNP capsules online from Mr Rebelo. Ms Parry had eating disorders. She consumed eight tablets at one time (described as “a massive overdose”) and died. Mr Rebelo was prosecuted for gross negligence manslaughter (and other offences). Mr Rebelo’s defence was that Ms Parry’s decision to take eight tablets at once was a free, informed and deliberate act that broke the chain of causation after the sale of DNP and that her actions “eclipsed” any negligence by Mr Rebelo.

The Court of Appeal had ruled on an earlier occasion that in determining whether a breach of duty by the defendant was a substantial and operative cause of death, the jury had to be satisfied that the victim had made “a fully free, voluntary and informed decision to risk death by taking the quantity of drug that she ingested”. The victim’s mental capacity was a factor, but it was not the only one.

Mr Rebelo argued that the sale of DNP was simply meeting customer demand; he may have been negligent but not grossly so. Those who purchased DNP knew what they were buying; numerous people took DNP without any adverse effect. The evidence was that Ms Parry was aware of the risks of taking DNP.

The trial judge invited the jury to consider whether Ms Parry was acting under any compulsion, whether caused by her mental health problems or any psychological addiction she may have had to DNP, and whether her ability to resist feeling compelled to take the DNP was impaired.

The jury found Mr Rebelo guilty of gross negligence manslaughter and he was given a 7-year prison sentence. The Court of Appeal dismissed his appeal.

 

Suspended pharmacist can't get himself removed from register

Posted: Wednesday, February 24th, 2021

The recent decision in General Pharmaceutical Council v Rabadia [2021] 2 WLUK 258 illustrates how difficult it can be to remove oneself from the GPhC’s register if fitness to practise proceedings are pending, and how things may change in future.

Mr Rabadia had worked as a locum pharmacist.  The owner became suspicious of high volumes of controlled drugs that were ordered on days that Mr Rabadia worked. Mr Rabadia admitted he had been selling the drugs over the counter and to specific people who had placed orders whom he could not name. There was no evidence of these explanations. The owner reported the matter to the police.

The GPhC’s Fitness to Practise Committee imposed an 18-month interim suspension pending a full (principal) hearing. When the interim suspensions had been reviewed, Mr Rabadia had participated in the hearings and accepted he had failed to comply with professional standards, that he had put the public at risk, and had brought the profession into disrepute.

The principal fitness to practise hearing had not taken place because the police investigation was not complete. The interim suspension was about to expire. Mr Rabadia did not consent to an extension of the interim suspension because he wanted the fitness to practise proceedings to be finalised and he wanted to be struck off so that he could move on with his life.

The GPhC applied to the High Court to extend the interim suspension. Mr Tim Corner QC, sitting as a Deputy High Court Judge, held that the court was required to look at the gravity of the allegations, the seriousness of the risk posed to the public, the reasons the proceedings had not yet reached a conclusion, and the prejudice to Mr Rabadia caused by the extension. The judge ruled that the prejudice which Mr Rabadia would suffer was outweighed by the need to protect the public’s confidence in the profession in the light of the seriousness of the allegations. To protect the public, the interim suspension was extended by 12 months which was considered to be a reasonable and proportionate period having regard to the timescale of the criminal investigation.

The recent consultation by the GPhC on its fitness to practise strategy proposes that fitness to practise cases could be resolved with agreed outcomes. The use of such a power might provide a speedy and cost-efficient way to deal with cases like Mr Rabadia’s.

 

Sad news - Professor Joy Wingfield

Posted: Wednesday, February 17th, 2021

We are deeply saddened to report the death from COVID-19 of our founder, Joy Wingfield.

Joy was chair of the Pharmacy Law & Ethics Association until 2015.

Early in Joy’s career, she was an inspector of the Royal Pharmaceutical Society of Great Britain when it was the regulator of the pharmacy profession. Later, she became Boots Special Professor of Pharmacy Law and Ethics at the University of Nottingham. In 2009, she was also appointed visiting professor of pharmacy law and ethics at the University of Hertfordshire.

Joy was a titan in the field of pharmacy law and ethics. With Gordon Appelbe and, later, Karen Pitchford, she edited Dale & Appelbe’s Pharmacy and Medicines Law (the original title was Pharmacy Law & Ethics) from the fifth edition in 1993 until the eleventh edition in 2017. She was also the co-author of Pharmacy Ethics and Decision Making (2007) and the author of Practical Exercises in Pharmacy Law and Ethics (1997, 2002). Joy made many contributions to the Pharmaceutical Journal and her wit often came through. For example, when writing on the vexed subject of decriminalising dispensing errors, she began a PJ article in 2015 “Well hooray and alleluia! A ray of common sense pierces the clouds of officialdom.” 

Following her retirement, Joy became Honorary Professor of Pharmacy Law and Ethics at the University of Nottingham. Until 2017, Joy maintained a pharmacy consultancy, Wingfield Works, enabling pharmacists and organisations to continue to benefit from her expertise and wisdom. She retained an interest in PLEA and was in touch over the date of our 2020 seminar which she had hoped to attend.

In Joy’s long career, she made a major contribution to the subject of pharmacy law and ethics, breaking new ground in the way she brought to the fore the subject of ethics in pharmacy teaching and practice.

We hope to publish a more detailed appreciation of Joy in the near future.

The Medicines and Medical Devices Act 2021

Posted: Monday, February 15th, 2021

The Medicines and Medical Devices Act 2021 received the Royal Assent on 11 February 2021. To a large extent, the Act was necessitated by the pre-Brexit abolition of the European Communities Act 1972. The 1972 Act had provided powers to amend EU legislation that had been introduced in the UK, so a new Act was needed to provide powers to amend the Human Medicines Regulations, the Veterinary Medicines Regulations, the Medical Devices Regulations and other legislation.

Amongst other thingsIt is expect that the powers in the Act will be used to permit independent pharmacies to outsource dispensing (hub and spoke dispensing). The Act has also been used to create a Patient Safety Commissioner in accordance with the recommendation of the Cumberlege Review that followed the PIP breast implant scandal. The statutory core duties of the Patient Safety Sommissioner are to -

(a) promote the safety of patients with regard to the use of medicines and medical devices, and

(b) promote the importance of the views of patients and other members of the public in relation to the safety of medicines and medical devices.

Government response to Cumberlege Review and the Medicines & Medical Devices Bill

Posted: Tuesday, January 12th, 2021

Last July, we reported on the Cumberlege Review which followed the PIP breast implant scandal. The Government has just published its response to the review https://www.gov.uk/government/speeches/update-on-the-governments-response-to-the-independent-medicines-and-medical-devices-safety-review . Points of note include:

Separately from the Government’s response to the Cumberlege report, the Government has responded to criticisms of the very wide powers in Medicines and Medical Devices Bill. The Government has introduced an amendment to the Bill, stipulating that an overarching objective of making regulations must be to safeguard public health for human medicines and medical devices. In the case of veterinary medicines, the overarching objective must be to promote the health and welfare of animals; the health and safety of the public; or the protection of the environment.

 

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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.