Case Summary – General Pharmaceutical Council v Kellett and Gamble [2020] 6 WLUK 456

Last week’s ruling sets out the principles to apply in applications to extend interim orders and serves as a warning that interim orders will not be extended without good reason.

In this case the High Court refused an application by the General Pharmaceutical Council to extend an interim order of suspension in relation to two pharmacists who were subject to investigation by the Medical and Healthcare Products Regulatory Agency (“MHRA”) for allegedly supplying large quantities of Class C controlled drugs.

Facts

The respondents were co-directors of a company which owned three pharmacies.   In 2016, the police found a large number of Class C controlled drugs, such as zopiclone, at their business. The respondents did not have the necessary wholesaler dealer licence for the supply of controlled drugs, and it was discovered that there was a lack of correlation between purchase and supply receipts. They were subsequently arrested for possession and supply of Class C controlled drugs.  Upon being informed by the respondents that they were subject to a criminal investigation in January 2017, the fitness to practise committee suspended the respondents from practising as pharmacists for an 18 month period.  The order was reviewed, and continued by consent, on numerous occasions and was due to expire on 5 July 2020.  There had been numerous delays with the MHRA investigation with the most recent update of May 2020 being to the effect that further work was required before the file would be ready to be passed on to the Crown Prosecution Service for a decision on charge.

Applicable principles

Soole J set out the appropriate principles to be applied in an application for an extension of an interim order.

The criteria to consider were the protection of the public, the public interest and the practitioner’s own interests.  In its consideration of the criteria the court could consider the gravity of the allegations, the evidence of risk of harm to the public, why the case had not yet concluded and any prejudice which would be caused to the practitioner if the order were extended.   The function of the court was to consider whether the suspension should be prolonged and no view should be taken as to the merits of the allegations. Moreover, if it was being argued that the allegations were unfounded such a challenge should be by judicial review.  (General Medical Council v Hiew [2007] EWCA Civ 369, [2007] 1 WLR, [2007] 4 WLUK 543)

Further, the court should consider whether it would be acceptable not to suspend if the final disposal was a guilty finding and whether it would be acceptable if the final resolution was an acquittal on all charges. (R (on the application of Sosanya) v General Medical Council [2009] EWHC 2814).

Held

Whilst the court readily accepted the gravity of the allegations it noted that nearly four years had passed and there was still no indication as to whether charges would be brought against the respondents and, if so, what they would be.  Whilst the court understood the delays to the investigation had taken place in the context of the investigator’s long term ill health and issues due to COVID-19 it did not consider that these factors provided an adequate explanation for the delay.  The applicant was not considered to be responsible for the delays to the investigation but it had not been sufficiently pro-active in seeking updates nor had it provided evidence as to why the extension should be extended.

It was also noted that the application had been prepared on the assumption it would be consented to. The respondents, whose wholesale business had been terminated in 2016, had experienced real and substantial prejudice to their business due to the suspensions.  It was held that the suspension was no longer proportionate or in the public interest.  It was noted that the issue of whether an interim suspension order was required could be considered afresh at the conclusion of the investigation.

Case commentary

This decision acts as a useful reminder of the appropriate principles to apply in applications by regulators to extend interim orders.  It is also serves to highlight that in cases where the regulatory proceedings are on hold pending the conclusion of a criminal investigation (a common situation), the High Court will not simply extend interim orders indefinitely.  Regulators should be aware of this and ensure that they are pro-active rather than reactive.  Finally, it is also useful to note that the court pointed out that the issue of whether an interim order was required could be reconsidered afresh upon completion of the criminal investigation.

If you have any queries about the implications of this case for your organisation, or there are any other issues we can help you with, please do get in touch with Matthew Corrie.