Mr Adrian Barr Smith

GENERAL PHARMACEUTICAL COUNCIL FITNESS TO PRACTISE COMMITTEE PRINCIPAL HEARING 25 Canada Square, London E14 5LQ Thursday 17 November 2015 Chairman: Mr Michael Caplan QC Committee Members: Committee Secretary: Dr Frances Akor Mr Adrian Barr Smith Mr Mark Mallinson CASE OF: BROWN, Robin GPhC Registration No 2015641 MR KABIR SIDDIQUI, Case Presenter, appeared on behalf of the General Pharmaceutical Council Mr Brown was present but not represented Transcript of the Shorthand Notes of T. A. Reed & Co Ltd Tel No: 01793 764614

I N D E X Page DETERMINATION IMPAIRMENT 1 DETERMINATION SANCTION DETERMINATION INTERIM MEASURES PLEASE NOTE: Copies printed from email may differ in formatting and/or page numbering from hard copies

(The Committee went in camera at 10.44 am and returned into open session at 11.17 am) DETERMINATION IMPAIRMENT THE CHAIRMAN: This is principal hearing regarding Mr Robin Brown, a pharmacist first registered with the Royal Pharmaceutical Society of Great Britain on 9 September 1968 and subsequently with the General Pharmaceutical Council under number 2015641. The Council is represented today by Mr Kabir Siddiqui. Mr Robin Brown also attends, and we are very grateful to him for doing so. The allegations have been put to Mr Brown. They have all been admitted by him and we have found them proved. We have now moved to the stage where we have to give a determination as to whether Mr Brown s fitness to practise is currently impaired. We have considered the submissions made by both Mr Siddiqui and Mr Brown. We have considered all the documentation that has been placed before us by both the Council and the registrant. The particulars of allegation in this case, which have been admitted by the registrant, are as follows: On 19 March 2015, whilst employed as a Locum Pharmacist at Asda Pharmacy Llandudno; 1. You made an error when checking a prescription for 50mg of Sildenafil which resulted in 50mg of Sertraline being dispensed to a patient; 2. Once the incorrectly dispensed item of 50 mg of Sertraline was returned by the patient, you removed the label from the dispensed item in order to conceal the dispensing error; 3. You returned the dispensed item of 50mg of Sertraline back into pharmacy stock, so that it was available to be re-dispensed; 4. You removed the prescription for 50mg of Sildenafil from the Pharmacy without authorisation; 5. You failed to report the dispensing error referred to in particular 1 above 6. Between 21 March 2015 to 23 April 2015, when questioned by pharmacy staff in relation to the missing prescription you denied any knowledge of the location of the missing prescription; 7. On 23 April 2015, when interviewed about the error you stated that the prescription for 50mg Sildenafil was in a folder within the pharmacy when you knew that you had removed the prescription from the pharmacy;

8. Your actions at 2, 3, 4 and 7 above were dishonest in that your actions sought to conceal that a dispensing error had occurred. By reason of the matters above, your fitness to practise is impaired by reason of your a) Misconduct. Dealing briefly with the factual background to the case, the registrant was employed as a locum pharmacist at Asda pharmacy in Llandudno. He worked on 19 March 2015, when the incident originally occurred, and he subsequently worked there on 3 April and 23 April 2015. We have considered evidence, which has been placed before us and which is accepted by the registrant, from Patient A and from three members of the pharmacy staff at Asda Pharmacy in Llandudno. They are: Tracey Welsh, the Accuracy Training Technician; John Evans, the superintendent pharmacist; and Tobia Nwimueyi, the Pharmacy Manager. Allegation 1 concerns that on 19 March 2015 the registrant made a dispensing error when checking a prescription of 50 mg of sildenafil, a medicine for erectile dysfunction, which resulted in 50 mg of sertraline, an antidepressant, being dispensed to Patient A. Patient A returned home after collecting his repeat prescription. He opened the bag that contained the medicine and realised that it was not the medication he normally received. The dispensing error came to light when Patient A returned to the pharmacy shortly after and spoke to Ms Welsh, to report that he thought he had been given the wrong medication. The sertraline was taken from Patient A by Ms Welsh and the patient was provided with the correct medication. That correct medication was labelled and signed by Ms Welsh, and checked and bagged by the registrant. In relation to allegations 2 to 6 the factual background is as follows. Ms Welsh informed the registrant that the label from the incorrectly dispensed box of medication had to be retained in order to allow an investigation into the error to be conducted. Ms Welsh placed the incorrectly dispensed medication, the prescription, a note detailing the dispensing error and her telephone number in a basket, which she left on a bench in the dispensary for the matter to be investigated by the pharmacy manager, Mr Nwimueyi, the following day. Before leaving the pharmacy, Ms Welsh informed the registrant that the error would be logged on to the pharmacy system and investigated. Later that evening she sent a text message to Mr Nwimueyi to inform him that she had left the dispensing error in the pharmacy. On 20 March 2015 Ms Welsh received a text message from Mr Nwimueyi to ask where the basket was. Ms Welsh called him to explain where she had left it and he advised that he was unable to find it. The next day, 21 March, Mr Nwimueyi states that a member of the pharmacy staff, Mr Dickinson, had contacted the registrant to ask about the whereabouts of the prescription and the registrant said that he did not know. Mr Nwimueyi then reviewed the pharmacy CCTV footage of the date of the registrant s

shift, that is 19 March. On watching this footage, he saw the registrant had taken the prescription from the basket, put the prescription in his pocket and removed the label that was on the box of sertraline and put the box back into the pharmacy stock. The Council s case was that this suggested that the registrant had misled Mr Dickinson when claiming that he was unaware of the whereabouts of the prescription. The registrant s actions were also in contravention of the pharmacy Standard Operating Procedures on how to manage dispensing errors. On Sunday 22 March 2015 Ms Welsh returned to work at the pharmacy and was informed of what was revealed by the review of the CCTV footage. During this shift she checked the drawer where the sertraline was usually stored and noticed that one of the boxes had been indented with her signature and the signature of the registrant. This was considered to be the incorrectly dispensed box of sertraline, which had been placed back in the pharmacy stock by the registrant. Ms Welsh contacted the registrant later on the same day. The registrant said that he had not touched the basket and that it should have been where Ms Welsh had left it on 19 March. Allegation 7 is in relation to dishonest responses during questioning at a disciplinary meeting. On 23 March 2015 Mr Nwimueyi completed an incident report and reported the incident, that is the dispensing errors, the missing basket and contents, and the review of the CCTV footage, to a pharmacy compliance team. Mr John Evans, the superintendent pharmacist, requested the pharmacy store management to conduct a disciplinary meeting with the registrant. That took place on 23 April 2015. At that meeting, when initially questioned about the location of the prescription, the registrant stated that it was in a folder within the pharmacy. When subsequently asked whether he had taken the prescription away with him on 19 March 2015 he admitted to having done so and to placing the incorrectly dispensed box of sertraline back on the shelf. He expressed his regret at acting unprofessionally, although maintained that this was the first time that he had acted like this. He apologised for the incident, explained that up until this incident he had considered himself to be a better than average pharmacist and an ethical one. The registrant was employed subsequent to 19 March for two other days: 3 April and 23 April. Following the investigation, the superintendent pharmacist emailed the registrant on 8 May. He advised that the dispensing error was not his biggest concern; however, the registrant s subsequent action, namely his actions taken to cover up the error, were of concern. In the same email the superintendent also asked the registrant to self-refer to the Council. Following that, the registrant did self-refer to the Council. He did so in a letter that was received by the Council on 22 May 2016. He admitted in that letter removing the label from the box of sertraline, placing the box back into the pharmacy stock and putting the prescription and Ms Welsh s note into his pocket. He also said that in his next shift at the pharmacy he would return the prescription and notes to the pharmacy box file that was kept for these purposes. The question of dishonesty, which arises in this case, has been recently considered in the case of Kirschner v General Dental Council. Mostyn J said that as things stand the test

is: The tribunal should first determine whether on the balance of probabilities, a defendant acted dishonestly by the standards of ordinary and honest members of that profession; and, if it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was by those standards, dishonest. Clearly the registrant has admitted the allegations of dishonesty and accepts that by his actions he was taking steps to cover up a dispensing error more likely than not dishonest by the standards of ordinary and honest members of the pharmacy profession, and that it was more likely than not that the registrant knew that what he was doing was by those standards dishonest. As I have said, the registrant has admitted all the particulars of allegation against him. We have to consider at the next stage whether his fitness to practise is currently impaired. The Council has submitted to us that there is evidence here on which we can make that finding. The registrant says that, although, in his words, it is a weak thing to say, he does not believe his fitness to practise is currently impaired. We have had regard to the submissions made to us by the Council and by the registrant on this issue and considered all the documentation that has been placed before us. There is considerable legal authority on what a panel has to consider when it comes to determine whether a registrant s fitness to practise is currently impaired. In the case of Cheatle v General Medical Council, Cranston J said: a panel must engage in a two-step process. First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired. The Council invites the Committee to find impairment in accordance with Article 51A of the Pharmacy Order, which provides: A person s fitness to practise is to be regarded as impaired for the purposes of this Order only by reason of (a) misconduct. There is no strict definition of misconduct. In the case of Roylance v General Medical Council the judge said: Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances and that such falling short must be serious.

In The Queen (on the application of Remedy UK) v General Medical Council, Elias LJ said: First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession. The submissions here are that the registrant s actions fall well below the standards expected of a registered practitioner. We have been referred to the Council s Standards of conduct, ethics and performance, and it has been said and these have been accepted by the registrant that these have been breached. Under 6: Be honest and trustworthy, the Standards of conduct, ethics and performance say at 6.1: at 6.5: and at 6.8: Act with honesty and integrity to maintain public trust and confidence in your profession Meet acceptable standards of personal and professional conduct. Respond honestly, openly and politely to complaints and criticism. When considering current impairment Silber J set out in the case of Cohen: It must be highly relevant in determining if a doctor s fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. The Council s view, placed before us, is that the dishonesty may demonstrate an attitudinal shortcoming that is arguably difficult to remedy. We have considered the statements made by Cranston J in the case of Cheatle v General Medical Council, in which he says: 21. There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past. 22. In my judgment this means that the context of the doctor s behaviour must be

examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor s misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. We have also been referred to what Mitting J said in the case of Zygmunt v General Medical Council, in which he gave examples of reasons for unfitness, including that, as he put it, the doctor had brought the profession into disrepute and the doctor had breached one of the fundamental tenets of the profession. Those are clearly matters that we need to consider. In the case of Grant v CHRE the judge said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. We have also been referred to the recommendations made by Dame Janet Smith in the Shipman Inquiry report, in which, amongst others, she said that when considering the question of the registrant s fitness to practise being impaired a number of the matters that need to be considered are as follows: whether in the past the registrant has brought or is liable in the future to bring the pharmacy profession into disrepute; has in the past breached or is liable in the future to breach one of the fundamental tenets of the pharmacy profession; has acted in the past dishonestly and is likely to act dishonestly in the future. All those are factors that we need to consider in our consideration of whether the registrant s fitness to practise is currently impaired. We also need to and have considered the question of the registrant s insight into what occurred. He has given evidence before us and we have taken note of all that he has said. We have also considered the statement that he made and also documents that have been placed before us at this stage. He has shown some insight but we cannot overlook the fact that there was a period of time that elapsed between what occurred, that is the covering up, and when he admitted the incident. It could be said that there was a pattern of dishonesty here. He only made the self-referral when in fact it was made clear to him that there was evidence and indeed when the employers of Asda suggested that that should take place. We refer particularly to paragraph 9 of the statement of John Evans that we have received. Mr Evans said that: When questioned as to why the error had not been reported as per pharmacy SOPs, Robin Brown said that he had been in then pharmacy on his own and so did not think to report it. He was then asked about the location of the original

prescription, Robin Brown initially insisted during the interview that it was contained within a folder in the pharmacy. Leyan Dyson then challenged this during the interview and explained that CCTV footage shows Robin Brown taking the prescription away from the pharmacy premises. Robin Brown then admitted that he had taken the prescription away from the pharmacy premises when he should not have. In other words, it was only after the interview and it was made clear to him that there was the existence of CCTV footage that he eventually admitted what had occurred in the pharmacy. He was also asked by the panel why he did not admit what had occurred earlier. He said he took the wrong path and he could give no plausible explanation. Whilst he is remorseful, and we accept that and we accept that he has from the very commencement of these proceedings admitted the allegations against him, we find it strange that he refers to what occurred as crass. Having said all of that, we do accept that he has shown remorse and we do accept that he has admitted the allegations against him and we do accept that he does have an unblemished career. We have also had regard to the fact that the allegation here is one of dishonesty and that there are breaches of the most fundamental tenets of the profession. Having considered all the matters placed before us and the submissions, we have come to the conclusion that a finding of impairment is necessary in the circumstances of this case to maintain public confidence in the profession. We therefore find that the registrant s fitness to practise is currently impaired. -------- (The Committee went in camera at 11.53 am and returned into open session at 12.34 pm) DETERMINATION - SANCTION THE CHAIRMAN: The registrant has admitted the allegations and we have said that we find the facts of the case proved. We have also made a finding that his fitness to practise is currently impaired and we have set out the reasons why we consider that to be the position. We will now give our decision on the question of sanction. The Committee has to decide what if any sanction should be imposed in this case. The Committee s powers upon a finding of impairment of fitness to practise are set out in Article 54(2) of the Order. They are a warning; the registrant s removal from the register; a direction for suspension for a period not exceeding 12 months; or a direction for conditions to be imposed upon the registrant s registration for a period not exceeding

three years. The Committee is aware that the purpose of any sanction is not to punish, although any sanction may be punitive in its effects. Any sanction must be just, proportionate and appropriate. The Indicative Sanctions Guidance states that the purpose of sanction is threefold, namely the protection of the public, the maintenance of public confidence in the profession and the maintenance of proper standards. The Indicative Sanctions Guidance sets out as the key factors to consider in deciding the most appropriate sanctions to impose: the extent to which the registrant has breached the standards of conduct, ethics and performance published by the GPhC the interests of the registrant, weighed against the public interest the personal circumstances of the registrant and any mitigation the registrant has offered any testimonials and character references given in support of the registrant any relevant factors that may aggravate the registrant s conduct in the case any submissions made to the committee by the GPhC s representative, the registrant or their representative the contents of this guidance. To make sure that the sanction is proportionate the Committee should consider each available sanction, starting with the lowest and deciding if it is appropriate to the case. If it is not, the Committee shall consider the next sanction until it decides whether a particular sanction is appropriate. The Committee should also consider the sanction immediately above and say why it has decided the more serious sanction is not appropriate and proportionate. We have to give weight to the public interest and the need for public confidence in the profession and the maintenance of proper standards, as well as to consider the position of the registrant. The registrant accepts that he was dishonest. The guidance says that there are many acts which, whilst not presenting a risk to the public, are so serious that they undermine confidence in the profession as a whole. Cases involving dishonesty can be complicated and the guidance says that the Committee should carefully consider the context and the circumstances in which the dishonesty took place. Therefore, though serious, there is not an assumption of removal in all cases involving dishonesty. The guidance also says at paragraph 6.10: When deciding on the appropriate sanction in a case involving dishonesty, the committee should balance all the relevant issues, including any aggravating and mitigating factors. It is important to understand the context in which the dishonest

act took place and make a decision considering the key factors. The committee should then put proper emphasis on the effect a finding of dishonesty has on public confidence in the profession. We have been referred to authority in relation to this issue. The case of Bolton v the Law Society has been brought to our attention, where Sir Thomas Bingham said: Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed In the case of Siddiqui v General Medical Council, the judge emphasised the importance of public confidence in professionals. In the case of The Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council and Wilson, Laing J emphasised that: the over-riding factor in the case was the public interest in maintaining the reputation of the profession. The NMC and the public are entitled to the highest standards of honesty and integrity from the registrants In the recent case of The Professional Standards Authority v Health and Care Professions Council and Ajeneye, the judge said: Deliberate dishonesty must come high on the scale of misconduct. That is particularly so when a direct consequence of that misconduct is physical harm to a patient. The lack of financial motive or personal gain means that a further aggravating feature is not present. It does not mitigate the risk of harm to patients created by the breach of professional standards. Equally, the number of instances of dishonesty is important, once might be described as an aberration but more than once, even if only twice, may demonstrate a tendency to act dishonestly. A failure immediately or speedily to acknowledge and admit such conduct is material. The aggravating features in this particular case are that the incident took place within the pharmacy where the pharmacist, that is the registrant, was at that time employed. Furthermore, the registrant at that time sought to cover up his error and in so doing acted dishonestly. As we have already referred to, there was in our view a pattern of dishonesty. He only self-referred the matter when it was suggested to him that he should do so by the company, following the fact that there was clear evidence that he had acted in the way in which he sought to say he had not acted. We do, however, accept that there was no harm to patients and there was no financial motive. Nevertheless, this was an act of dishonesty, and that has to be regarded very seriously. In mitigation, we have accepted the registrant s position. We have taken note of the fact that he has been a registered pharmacist since 1968. He has an unblemished record.

He has placed before us a reference from Mr Suketu Patel, who is an independent owning and managing two pharmacies in Cheshire. The registrant has worked for him as a regular locum. He has clearly acted in the best interests of that company and there is no suggestion that he has acted in any way other than properly at all times whilst employed. We have also taken note of the fact that he has held with distinction a number of positions and he has given service both to the profession and to the public. It is also right to record that he has attended and given evidence before us today. We have considered carefully all that he has said. We have considered all the documentation that has been placed before us. The Committee has come to the conclusion that it does not consider a warning would be appropriate. The matter is far too serious in the Committee s view for a warning. The Committee does not consider that there are any conditions that could be imposed that would address the public interest. The Committee has considered carefully whether a period of suspension would be fair and proportionate to highlight to the profession and the public that the conduct of the registrant was unacceptable and unbefitting of a member of the pharmacy profession. Public confidence in the profession demands no lesser action. The Committee does consider that a period of suspension would be fair and proportionate. The Committee has considered the question of removal of the registrant from the register and does not believe that the registrant s behaviour, given the particular facts and the context of this case and particularly the mitigation placed before it, requires his name to be removed. Therefore, the Committee has come to the conclusion that the appropriate sanction in this case is one of suspension. We accordingly direct that the registrant be suspended from the practice for a period of three months, which we consider to be the appropriate length in the case. We do not consider that there is a need for a review before the expiry of the period of suspension. That period of suspension will commence after 28 days, the period in which the registrant can, if he wishes to, and he is able to consider whether he wishes to, lodge an appeal. --------

A (The Committee went in camera at 12.47 pm and returned into open session at 12.49 pm) DETERMINATION INTERIM MEASURES B C D E F G THE CHAIRMAN: We have considered whether we should impose interim measures in this case under Article 60. Quite rightly, the Council brings to our attention that it is open to us to do so and it is right that we consider whether it is appropriate to impose interim measures. They can be imposed where it is necessary for the protection of members of the public or otherwise in the public interest. The Council brings the powers to our attention but does not make a formal submission that there should be interim measures in this case. Mr Brown says to us by way of his submissions that they should not be imposed. He says that he has not reneged on any appointments and it would be fair and reasonable to allow him the 28-day period in order to fulfil his commitments and to cancel any appointments that there are. We have considered our powers and considered the submissions made to us. We have had particular regard to the fact that there has not been an interim order in this case and that Mr Brown has acted as a pharmacist since the incident happened in March 2015. We have particularly had regard to the testimonial placed before us from Mr Patel, who runs two pharmacies in Widnes, Cheshire, where Mr Brown is a regular locum. We have had regard particularly to what Mr Patel has said about the conduct of Mr Brown and the way he has acted. We do not consider that there is any necessity for the protection of members of the public or otherwise in the public interest for us to impose interim measures in this case and therefore we do not do so. As I said, Mr Brown, and as I am sure you appreciate, the period of suspension will therefore start after the 28-day period, but you do have the right within that 28-day period to appeal, should you so wish. We would like to thank you, Mr Siddiqui, for your assistance on behalf of the Council. Mr Brown, we would like to thank you for coming along today and we have taken account of what you have said. We would like to thank our Secretary and everyone else involved in the proceedings. That concludes the hearing. --------------- H T. A. REED & CO LTD 01793 764614 1