Miss Elaine Donnelly

GENERAL PHARMACEUTICAL COUNCIL FITNESS TO PRACTISE COMMITTEE 129 Lambeth Road, London SE1 7BT Wednesday 22 May 2013 Chairman: Mr Christopher Gibson QC Committee Members: Clinical Adviser: Committee Secretary: Mrs Kay Roberts Miss Elaine Donnelly Dr Farrukh Alam Miss Kylie Ellway CASE OF: NASH, Timothy Charles (Registration Number: 2063208 MR JOHN HEPWORTH, of Blake Lapthorn, Solicitors, appeared on behalf of the General Pharmaceutical Council. MR GRAHAM SOUTHALL-EDWARDS, of EPLS, appeared on behalf of Mr Nash, who was present. Transcript of the shorthand notes of T A Reed & Co Ltd Tel No: 01992 465900

I N D E X Page DETERMINATION ON IMPAIRMENT 1 DETERMINATION ON SANCTION 5 PLEASE NOTE: Copies printed from email may differ in formatting and/or page numbering from hard copies

(The Committee returned into open session at 1.50 p.m.) DETERMINATION ON IMPAIRMENT THE CHAIRMAN: This is our determination on the issue of impairment of fitness to practise. Timothy Charles Nash has admitted all of the allegations against him and yesterday I read out the admissions that he made and the facts that we found on the basis of those admissions. In summary, they are as follows. From 2009 to August 2011, while he was the pharmacist manager of a local Boots branch in Torpoint, he made claims for 638 Medicine Use Reviews which he claimed to have carried out. In respect of each one, a fee was claimed from the Prescription Pricing Division of the NHS, which is the body which pays pharmacies for the provision of services to the public under the NHS. The fee for an MUR was 25 when this started and, then in the course of the period with which we are concerned, it rose to 28. Of those 638 MURs that Mr Nash claimed for, he had in fact only properly carried out and completed ten. It follows that over a period of about two years, he falsely claimed for no fewer than 628. It has been calculated that the wrongful claim from the PPD was just under 17,000. It has of course been repaid by Boots when they investigated this matter and dismissed Mr Nash, but the money was falsely claimed and then paid on the basis of the false claims. There is no suggestion that Mr Nash derived any financial benefit himself from this pattern of deception and he received no bonus from Boots for the MURs that he claimed to have carried out. The most that has been suggested is that by making these claims and pretending that he had carried out all of the MURs, he avoided criticism from his line manager for failing to reach his targets. In addition to this, for 66 weeks between September 2009 and July 2011, Mr Nash dispensed methadone to a methadone patient otherwise than in accordance with a prescription. For this patient, the prescriptions provided for each supply to be given singly on the day on which it was to be consumed, except for Sundays, when the pharmacy would be closed. The prescriptions provided for two supplies to be given on Saturday so that the patient could take one of them away with him and then he would have his methadone for the Sunday. In fact, Mr Nash s branch did not open on Saturday either and for 66 weeks he regularly simply provided 1

three supplies to the patient on Friday. This divergence from the prescriptions was accurately entered up in the controlled drugs register. There is no evidence that the patient was harmed or that he used the three supplies that he was given on a Friday in any way inappropriately, and when the situation was appreciated, we understand that it took only a phone call to the drug treatment team for the prescriptions to be changed to permit the dispensing of the three supplies on the Friday. But this was a regular supply of a controlled drug over a substantial period of time otherwise than in accordance with the prescriptions supplied to the patient and which had been presented to Mr Nash. Mr Nash appears before us today to face the allegation that his fitness to practise is impaired by virtue of the misconduct that I have described and which he admitted. We found the facts of the misconduct proved, as we were invited to do, and he has also admitted before us that his fitness to practise is impaired by virtue of his misconduct. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXXXXXXXXXXXXX It seemed to us yesterday and Mr Edwards specifically confirmed it that he was proposing, or at least considering, arguing that Mr Nash was suffering from a medical condition that was partly responsible for the conduct that has brought him here before this Committee. We were referred to the provisions of the General Pharmaceutical Council s (Statutory Committees and their Advisers) Rules of 2010 and in particular to rule 22(1)(c), which provides as follows: A clinical adviser must 2

(c) be present at any meeting of, or hearing before, the Fitness to Practise Committee where health related issues are to be, or are likely to be, considered; It seemed to us that this rule was engaged and that it required the presence at the hearing of a Clinical Adviser. We therefore adjourned the hearing after finding the admitted facts proved so that our Clinical Adviser could hear the evidence relating to any health related issue that was going to be raised. Today, Dr Alam has attended to assist us as our Clinical Adviser. XXXXX XXXXX XXXXXXXXXXXXXXXX. We consider that his admission that his fitness to practise is impaired on the basis of his misconduct is realistic and sensible, but it does not automatically follow that his fitness to practise is impaired simply because he admits that it is. We have to consider the issue ourselves and come to our own view as to whether or not his fitness to practise is currently impaired as a result of the misconduct that he has admitted. We believe that we can do this economically. We have been referred to cases on the issue of impairment of fitness to practise by Mr Hepworth in his combined Statement of Case and Skeleton Argument on behalf of the Council and also in his oral submissions. Of the cases which he cited to us in his written skeleton argument, I think we need refer only to the case of Grant, but we have in mind the others which have been referred to and the material from them that has been set out for us. We have also considered the case of Zygmunt. In Zygmunt v GMC, Mr Justice Mitting adopted the summary of potential causes of impairment formulated by Dame Janet Smith in the Fifth Shipman Inquiry Report, in which she stated that the impairment of fitness to practise might arise where, in that case a doctor, (a) presents a risk to patients; (b) has brought the profession into disrepute; (c) has breached one of the fundamental tenets of the profession; and (d) has acted in such a way that his integrity can no longer be relied upon. In the case of NMC v Grant, Mrs Justice Cox said: 3

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. In this case, there were obvious potential risks to the patient and to the public in dispensing methadone otherwise in accordance with the prescriptions and in giving the patient three supplies on a Friday, when it was considered that he should only ever have two supplies on the Saturday. We have regard to the fact that each supply consisted of 20 ml of oral solution, one 20 mg ampoule of methadone hydrochloride and one 50 mg ampoule of methadone hydrochloride. Ampoules in particular have the potential for diversion and have a street value. It is also a breach of a fundamental part of the pharmacist s principles of conduct that he should hand out methadone to a patient otherwise than in accordance with the prescriptions provided, and we are of this view even though it is apparent that the patient did not misuse the drugs that he was given and that the prescriptions were changed immediately to accommodate the fact that the pharmacy was closed when the situation was explained in just one phone call to the drugs team. The fact that no harm was done and that the prescriptions could easily be changed do not alter the principle that a pharmacist has no business ignoring the requirements of prescriptions and taking his own decisions as to how and when to dispense controlled drugs in order to make life more convenient for himself or for a patient. Mr Nash s admissions also demonstrate that he has shown himself to be prepared to act dishonestly in making claims to the PPD for payment and that in this regard his integrity can no longer be relied upon. In this way, as well as in his failure to dispense methadone only in accordance with prescriptions, he has brought the profession into disrepute. This is a case in which a pharmacist was guilty of making false and dishonest claims against the health service in respect of payment for services that were not carried out over a substantial period between 2009 and August 2011, with no fewer than 638 false claims for payment, involving just under 17,000. 4

We have borne in mind the fact that Mr Nash made full admissions at an early stage, as well as before us, and he appears to have understood the significance of what he did. We have to bear in mind the question of whether his fitness to practise is impaired now. In our judgment, the sustained dishonesty that Mr Nash showed in his dealings with these false claims for MURs and his ignoring of the principle that controlled drugs can only be dispensed in accordance with a valid prescription over a substantial period of time, mean that the public interest in upholding professional standards and public confidence in the profession require a finding that his fitness to practise is impaired, and we have no hesitation in holding that his admission to us was rightly made and that his fitness to practise is impaired by virtue of the misconduct which he has admitted. Accordingly, we move on to the next stage of sanction. DETERMINATION ON SANCTION THE CHAIRMAN: Yesterday afternoon, I delivered our determination on the issue of impairment of fitness to practise. This determination on sanction has to be read in conjunction with that earlier determination. In brief, the effect of our findings of fact that were based on Mr Nash s admissions and our decision on impairment of fitness to practise is as follows. Between 2009 and August 2011, Mr Nash submitted false claims to the PPD for a total of 628 MURs that he had not carried out and for which he knew that he and his employers were not entitled to payment. The false claims stopped only when he was discovered by his employers, investigated and then dismissed. Mr Nash knew what he was doing and he has admitted that what he was doing was dishonest. At the earliest stage, he made full admissions, both as to misconduct and dishonesty, and he was also prepared to admit that his fitness to practise was impaired by reason of his misconduct. Over the time that the false claims were being made, the fee paid for an MUR 5

increased from 25 to 28. The information that we have is that the overpayment by the PPD as a result of the false claims totalled the sum of 16,984. All of that money has been repaid by Boots. In addition, Mr Nash admitted that for 66 weeks, between September 2009 and July 2011, he dispensed methadone to a patient otherwise than in accordance with a prescription. The prescriptions provided for each supply to be given singly on the day on which it was to be consumed, except for Sundays, when the pharmacy would be closed. The prescriptions provided for two supplies to be given on Saturday, so that the patient had his supply for Sunday. Each supply consisted of three parts: 20 ml of oral solution, one ampoule of 20 mg methadone hydrochloride and one ampoule of 50 mg methadone hydrochloride. In fact, Mr Nash s branch did not open on Saturday or Sunday and for these 66 weeks he regularly provided three supplies to the patient on the Friday. There is no evidence and it is no part of the Council s case that the patient was harmed or that he used any of the three supplies that he was given on Fridays in any way inappropriately, but this was a regular supply of a controlled drug otherwise than in accordance with the prescriptions. We have noted in our determination on impairment of fitness to practise that the dispensing of drugs only in accordance with valid prescriptions is at the core of the role of the pharmacist and it is no part of his job to depart from the requirements of valid prescriptions because it appears to him to be either more appropriate or more convenient for him or for the patient to dispense the drugs in another way. But we also have in mind that every time that he supplied the methadone in a way that was inconsistent with the prescriptions, he recorded exactly what he had done in the controlled drugs register, so the records were accurately and carefully kept. There is no suggestion that Mr Nash stood to gain financially by this or by his continued deception in respect of the MURs. The view expressed by Boots was that his motivation was to avoid difficulties with his line manager for not meeting the targets for MURs. We have started our exercise in considering sanction by reminding ourselves that the 6

purpose of the sanction that we are to impose is not to punish Mr Nash, although its effect may well be punitive for him, but that it has three purposes: firstly, to protect the public; secondly, to maintain public confidence in the profession; and thirdly, to maintain proper standards in the profession. We have also reminded ourselves that the sanction that we impose must be fair to Mr Nash and proportionate to all the circumstances of the case. Mr Hepworth, who appeared for the Council, has referred us to, and we have had regard to, the Indicative Sanctions Guidance, as well as to passages from the wellknown case of Bolton v The Law Society. There are a number of aggravating factors here that we have identified. There are seven. Firstly, there was dishonesty. Secondly, we consider that there was abuse of trust, in that this was a fraud against the NHS by a pharmacist whose position of being able to make claims on the PPD put him in a position of trust. Thirdly, it was misconduct repeated over a substantial period of time. Fourthly, the dishonest conduct was premeditated. Fifthly, there was blatant disregard for the pharmacist s Standards of Conduct and Ethics. Sixthly, there was potential harm to a patient and potential for methadone to be misused. Seventhly, this was misconduct by someone in charge of pharmacy premises. Against this formidable list of aggravating factors, Mr Edwards has argued that there are many mitigating factors. We consider that the following matters should be taken into account. Again, we have seven. Firstly, there is no evidence of any harm resulting to the patient involved or to anyone else as a result of Mr Nash s actions in respect of the methadone. Secondly, we accept of course that all of the funds that were wrongly paid were refunded by Boots. Thirdly, there is no prior disciplinary history. Fourthly, Mr Nash has genuine insight into his misconduct. Fifthly, he made full admissions at an early stage and he repeated those admissions before us. Sixthly, we accept, having seen him give his evidence, that he is genuinely remorseful about what he has done and that he understands its importance both for him and the profession. Seventhly, we also accept 7

that at the relevant time, Mr Nash was suffering from some degree of isolation and stress and may have been suffering from ill-health. This last is a central part of the submissions made by Mr Edwards. Mr Hepworth, in a short and effective submission to us on behalf of the Council, pointed out to us the fact that the only category in the Indicative Sanctions Guidance which refers to dishonesty is the category of cases where removal from the register may be appropriate. He referred us to the well-known section in Bolton v The Law Society in which Sir Thomas Bingham MR referred to the purpose of disciplinary sanctions and emphasised that membership of a profession carries obligations as well as benefits, and that the reputation of the profession can sometimes require a sanction that will have a devastating effect on an individual. He urged us to consider carefully whether removal from the register was necessary in this case. Mr Edwards, on behalf of Mr Nash, argued that at the time of the misconduct, that is, at the time that he was submitting false figures for the completion of MURs and dispensing methadone to his patient otherwise than in accordance with the prescriptions, he was suffering from serious ill-health. The contention is that he was suffering from XXXXXXXXXXXXXXXXXX and that it is this that explains his otherwise inexplicable conduct. Mr Edwards submission was along these lines. Mr Nash derived no financial benefit from the dishonest claims in respect of the MURs and one short phone call was enough to sort out the prescriptions for the methadone. It is accordingly inexplicable why Mr Nash would do what he did, rather than being accurate about the MURs and sorting out the prescriptions for the methadone. Mr Edwards has also referred us to three cases in which the Fitness to Practise Committee of the GPhC had considered allegations relating to MUR fraud in which the sanctions imposed varied from a suspension of one month to a suspension of 12 months. Although he was careful in the words that he used, he was suggesting to us that there was a tariff in which it would be inconsistent and arbitrary to impose a sanction of removal from the register on Mr Nash, when in other cases removal has 8

not been ordered and when in particular, in the case concerning Mr Anthony Peploe- Williams, a suspension of 12 months was imposed where the facts were significantly more serious than in Mr Nash s case. In the end, we did not find this submission helpful. In the cases involving both Mr Peploe-Williams and Mrs Watson, the determinations on sanction contained clear statements that dishonesty by pharmacists would normally result in removal from the register, or that it would be unusual in such circumstances to escape removal. Each case of this type is decided on its particular facts and we would in our turn emphasise that in a case such as this, involving dishonesty for a substantial period and involving a significant sum of money, it would be an unusual case where the registrant avoided removal from the register. Mr Edwards said that in fairness, we need to look for a reason why Mr Nash would behave as he did in order properly to understand the importance and significance of what it was he did. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX We have considered this contention and the evidence on which it is based with care. Mr Nash gave his evidence. 9

XXXXXXXXXXXXX Dr BXXXXX was not called to give evidence before us and we have not been able to ask him to expand on the contents of these documents. I have referred to what he has written at some length because we consider that the letters are hard to follow, and may not be consistent XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX We are grateful to Dr Alam, our Clinical Adviser, for his help in interpreting these letters in the light of Mr Nash s evidence and the material that he had seen. In the end, it seemed to us that the correct interpretation was this. XXXXXXXXXXXXXXXXX He became unable to cope with his job as a manager and felt isolated and unable to seek help. XXXXXXXXXXXXXXXXXXXXX at the time that the misconduct occurred, but we do believe that he felt isolated and could not cope, and that he felt that he was under extreme stress as a result, XXXXXXXXXXXXXXXXXXXXXXXXXXXXX We make no criticism of Boots. It was acknowledged in the course of the hearing that they have a good reputation for occupational health and providing support to their pharmacists if it is requested. Here, Mr Nash was advised to seek help from within the company, but he did not feel able to do so. We have been particularly struck by the fact that when he was inappropriately providing methadone to his patient, Mr Nash was recording exactly what he was doing in the controlled drugs register to make sure that the register was properly and 10

accurately kept. It seems to us that this shows that Mr Nash is not by nature a dishonest man. Despite his actions and his admissions that do show dishonesty, it was not for personal gain and we consider that on the facts of the case his actions can be seen to have been wholly out of character. We have taken into account the testimonial on his behalf that we have seen from Mr Martin Cappell and everything that Mr Edwards has said for him. It is not argued here that immediate issues of public safety are involved, but our concern is for the maintenance of public confidence and standards in the profession. We consider that this case is self-evidently too serious for a warning to be considered as an appropriate sanction and it has not been suggested that conditions could be appropriate to what has happened. We have been asked by Mr Edwards to consider a suspension of Mr Nash s registration. He accepts that if we agree that approach, it could be a suspension at the higher end of what we can impose because of his contention that in addition to the misconduct, Mr Nash is currently unwell and not fit to practise. Mr Edwards has asked us to consider that Mr Nash became overwhelmed by his work and was unable to cope. He says that Mr Nash was suffering XXXXXXXXXXXX and that without that element, he would not have committed these senseless and apparently motiveless acts that bring him before us. We have given this submission anxious and careful consideration. Mr Nash committed a continuing fraud that caused payments to be made from the PPD that would not otherwise have been made over a considerable period. We accept that he derived no personal financial benefit from it, but it seems that it was to avoid being seen to fail in his MUR targets while he felt unable to seek help and to admit that he was not able to cope with all the demands of his job XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX. His conduct in respect of the methadone prescriptions was a deliberate breach of a fundamental principle for a pharmacist, repeated over many occasions and a long period. No harm was done, but he showed himself prepared to ignore the rules and in 11

a context in which there was a chance that harm could be done and methadone, particularly the methadone ampoules, misused. It was not his position to take the decision that there was no risk. We accept that it is likely that Mr Nash s isolated personality and XXXXXXX XXXXXXXXXXXXXXXXXXXXXX contributed to his lack of judgment in deciding to make false and dishonest claims, rather than accept the consequences of failing to meet targets and in deciding for himself how to dispense to his methadone patient, rather than approaching the prescriber. Mr Nash has rightly accepted that what he did was wrong and in the case of the MURs dishonest, but we do accept that his isolation, his character trait and his XXXXXXXXXXXXXXXXXX prevented him seeking help and actually prevented him realising that he needed help, and we also accept for the reasons that I have already given that the dishonesty that he has admitted was wholly out of character. In reality, the issue for us is whether a suspension can adequately meet the facts of this case or whether Mr Nash s behaviour was fundamentally incompatible with continued registration and public confidence demands no lesser sanction than removal from the register. We do not believe that the public is at risk from Mr Nash. Our consideration is whether the public interest in the maintenance of standards and confidence in the profession requires us to remove him from the register. We have borne in mind the case of Atkinson v GMC, in which Mr Justice Blake said: erasure is not necessarily inevitable and necessary in every case where dishonest conduct by a medical practitioner has been substantiated. There are cases where the panel, or indeed this court on appeal, have concluded in the light of the particular elements that a lesser sanction may suffice and it is the appropriate sanction bearing in mind the important balance of the interests of the profession and the interests of the individual. It is likely that for such a 12

course to be taken, a panel would normally require compelling evidence of insight and a number of other factors upon which it could rely that the dishonesty in question appeared to be out of character or somewhat isolated in its duration or range, and accordingly there was the prospect of the individual returning to practice without the reputation of the profession being disproportionately damaged for those reasons. For the reasons that I have given, we feel that Mr Nash has full insight into what he has done and that his dishonesty, which was of no material benefit to him, was out of character. In the circumstances, we believe that this is one of those unusual cases where dishonesty has been established, but where the public interest can be adequately served by a suspension of Mr Nash s registration. The sanction that we impose is that his registration will be suspended. Our intention is to impose a suspension for a period of 12 months. We consider in the circumstances that it has been submitted on Mr Nash s behalf that he is currently unfit to practise as a result of XXXXXXXXXXXXX that it would be right to impose interim measures so that he will be suspended for the month before his substantive period of suspension comes into force. Accordingly, the period of suspension that we order is 11 months, which will make a period in total of 12 months, together with the period of the interim measures. Towards the end of the period of suspension, there will be a review. At that hearing, Mr Nash will be expected to provide: 1. Evidence that he has kept his knowledge of pharmacy up-to-date and that he has completed an appropriate return to practice course; 2. Reports concerning all work that he has carried out between now and then, whether paid or unpaid and whether within the pharmacy setting or outside it; and 3. A report from Dr XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13

XXXXXXXXXXXXXXXXXXXXXXXX It may also be the case that the Council will wish to have Mr Nash examined themselves and, if it does, he must make his medical records available and attend any appointment for an examination accordingly. That concludes our determination, subject to one matter. Mr Edwards, I have indicated that it is our intention, for the reasons that I set out, to impose interim measures. That has to be a preliminary indication, because we have not yet given you the opportunity to address us on it. If you wish to address us, please do so, and we will consider anything that you have to say. MR SOUTHALL-EDWARDS: Sir, Mr Nash has told us that he has not been working other than under supervision until recently. My understanding from Mr Nash is that he has no plans to practise pharmacy in the near future and I do not think I would be in any position to oppose interim measures. THE CHAIRMAN: I have given you that opportunity, because you are entitled to address us. We were concerned, although the reference that was provided spoke eloquently of Mr Nash s qualities, that it could have been interpreted as indicating that on occasions he was doing work for which registration as a pharmacist was required. That may be a misinterpretation, but it may not be, and of course there was nothing stopping him from doing it as long as he felt that he was fit enough to do so. On the basis of the contentions that you have made to us on his behalf, Mr Edwards, as to his state of health, which is at best uncertain, we thought it right to impose interim measures at this stage and to reduce the substantive term of suspension from 12 to 11 months, so that in fact his period of suspension would be 12 months. MR SOUTHALL-EDWARDS: I think that is absolutely right, because also, speaking from the point of view of his insurers, I think the reality is that having heard the determination, as it were, that the Committee wants to impose a suspension of 12 months, part of which perhaps has to do with his health, I do not think the insurers will be happy with him working the next month anyway. I think, given the reduction of a month, it is an eminently sensible decision and, frankly, I can only support it, sir. THE CHAIRMAN: Thank you. In that case, our determination is concluded. We would only say, Mr Edwards, that we know you will explain the last section of our determination in respect of what Mr Nash will be expected to provide at a review; we know you will explain that to him in detail. That concludes the proceedings. 14