“Poor Professional Performance” finding by PSI appealed to the High Court.

In a recent decision in Colin Lannon v Council of the Pharmaceutical Society of Ireland, the High Court rejected an appeal by a pharmacist to cancel a 2-month sanction imposed on him as a result of a finding of poor professional performance. In this article, Hilda O’Keeffe, Partner, CKT and Ana Harrington, Intern, CKT review the case and its findings.

Background

The applicant was a supervising pharmacist who had dispensed Kalydeco, a high-tech drug, to two children. It is stated that all patients being treated with this drug are required to attend three-monthly clinical reviews to monitor the patient in order for their prescription to be renewed. It is also stated that notwithstanding the absence of valid prescriptions, the pharmacy continued to dispense the drug for a further eight months. While the applicant only personally dispensed the medication on one occasion, he remained responsible as the supervising pharmacist, under the high-tech drug scheme.

Fitness to Practice

A fitness-to-practice complaint was brought, and a finding of poor professional performance made, not only for eight instances of supplying high-tech medicine without a valid prescription to minors, but also for failing to ensure the pharmacy complied with its standard operating procedure in supplying high-tech medicines. It was noted by the Professional Conduct Committee (PCC) in preparing its report that the conduct was very serious; high-tech medications entail greater responsibility. The PCC found that while the applicant could very easily have made inquiries regarding prescriptions, he ignored his responsibilities, which might have had serious and life threatening effects upon the patients.

The PCC was not persuaded that the applicant had insight into his conduct, as he relied on the lifelong prescription and medical necessity, and the fact that he did not personally dispense medication. It recommended a 2-month suspension, and that the pharmacist be supervised for a period of 9 months, as a fair and proportionate sanction that would discourage repeat offences, express public censure, and protect the public.

When the matter came before the Council of the Pharmaceutical Society of Ireland (Council), the applicant accepted responsibility for his actions, and gave evidence in the form of a report by an expert pharmacist that aside from these events,  in all other areas of his practice he was a responsible pharmacist. The Council nonetheless imposed the sanctions recommended by the PCC.

High Court Appeal

In the High Court, the applicant sought the cancellation of the suspension only. He expressed regret at the lack of insight he had shown previously and the tendency to minimise and shift blame, however he felt that the Council had not taken his subsequent insight into account.

This was the first time a Court had been asked to alter a Council disciplinary sanction, and was guided by the relevant jurisprudence concerning s.75 of the Medical Practitioner’s Act 2007, which bears strong similarities to s.51 of the Pharmacy Act. In particular, the Court cited Andrea Hermann v. Medical Council, which emphasised the principle of curial deference: while Courts should not consider themselves ‘boxed in’, they should still respect the decisions of regulators who have access to substantial precedent and set the standard for their own profession. The relevant factors to consider are prevention of repeat offences, pointing out to other members of the profession the gravity of misconduct, protecting the public, and also to assist practitioners with as much leniency as possible.

The Court here considered that it was incumbent on the applicant to show either that the Council had made an error, or that there was a specific reason that the sanction should be cancelled. The applicant gave 5 reasons:

1. The Council mischaracterised the seriousness of the offence: The Court concluded that even if harm did not actually occur, there was still a significant risk of harm, and the applicant never sought to confirm if there were valid prescriptions. The incident was also not an isolated one – it involved 2 patients and continued over a period of time.

2. The sanctions were harsher than those imposed on other pharmacists for similar offences: While 14 comparators were given, only one was cited as being directly comparable. While a lesser sanction was imposed, the Court did not consider that a single case constituted a ‘straight-jacket’ on the Council’s discretion, and the Council clearly appreciated past precedent. It did note that it would have been ‘helpful’ if the Council had addressed the differences among the more pertinent cases.

3. The Council failed to engage with evidence of insight: The Court drew a distinction between this case and Dowling v An Bord Altranais, where the applicant showed remorse early on in the fitness-to-practice process. The Court opined that the type of insight shown here, which was gained over time ‘by attrition’, was insufficient to render a recommended sanction invalid, particularly where the sanction was already proportionate.

The Court also considered the tension between the right to maintain innocence and the importance of showing insight and remorse. Ultimately it held that while the former right certainly existed, it would inevitably be harder for an applicant who relied on it to then claim he showed insight.

It is worth noting that the Court did not find this insight to be contrived, but described the applicant as ‘honest and conscientious’, even going so far as to say that he could not now be considered unfit to practice. However, there were still considerations of the importance of public censure and the reputation of the profession that merited a suspension.

4. The Council did not engage with the evidence of the applicant’s expert witness: The Court recognised that the Council did not attach much weight to the report of the applicant’s expert witness, but found that this was reasonable given that the first report was incomplete and difficult to interpret. With the benefit of subsequent clarifying evidence, it was now clear that the applicant had an otherwise impeccable practice as a pharmacist. However, that did not diminish the severity of the conduct in question in the proceedings, which the Court found still warranted a sanction.

5. The Council did not afford leniency and give weight to other mitigating factors: In circumstances where the PCC’s report considered leniency and all the mitigating factors in full, it was acceptable for the Council to rely on it in imposing the recommended sanction. This can be distinguished from Dowling, where the Nursing Board opted for erasure instead of the censure recommended by the PCC.

CONCLUSION

In many ways, this case turned on the question of insight. It is clear that professionals who demonstrate insight and remorse early on in the Fitness to Practice process will be much more likely to receive a lesser sanction than those who only show it at the sanctioning stage. It is also noteworthy that even a single incident, if serious, will still merit sanctions even where a professional record is unblemished in every other way. Finally, this case highlights the enormous responsibility on supervising pharmacists even where they do not personally dispense medications.

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