MS NIRPAR UDDIN, Case Manager, appeared on behalf of the General Pharmaceutical Council. The respondent was neither present nor represented.

Transcription

1 NRAL PARMAUTIAL OUNIL ITNSS TO PRATIS OMMITT 129 Lambeth Road, London S1 7T Monday 10 September 2012 hairman: Mr Stuart Turnock ommittee Members: Mrs Kathryn ouglas Ms asmita Lad ommittee Secretary: Ms Kylie llway AS O: PARSONS, William (Registration Number: ) TRMINATION MS NIRPAR UIN, ase Manager, appeared on behalf of the eneral Pharmaceutical ouncil. The respondent was neither present nor represented. Transcript of the stenograph notes of T A Reed & o Ltd Tel No:

2 I N X Page etermination 1 PLAS NOT: opies printed from may differ in formatting and/or page numbering from hard copies

3 (At 11.50) TRMINATION T AIRMAN: The ommittee are now in a position to deliver its determination in this matter. Mr William John Parsons, a pharmacist, was first registered with the Royal Pharmaceutical Society of reat ritain on 5 November 1974 with registration number e transferred to the eneral Pharmaceutical ouncil on 27 September 2010, with registration number On 5 November 2010, Mr Parsons was convicted following a jury trial at Southwark rown ourt on three counts of advertising prescription-only medicines, contrary to regulation 7 of the Medicines Advertising Regulations Those offences occurred between 13 July 2006 and 28 November Regulation 7 of the Medicines (Advertising Regulations) 1994 provided that: Subject to regulation 11 no person shall issue an advertisement which is likely to lead to the use of a relevant medicinal product, which is a medicinal product supplied by prescription only, and which is subject to any of the restrictions imposed by section 58(2) of the Medicines Act On 2 ecember 2010, Mr Parsons was sentenced to nine months imprisonment, suspended for 24 months and ordered to carry out unpaid work for 150 hours, before 1 ecember 2012, on each offence, the sentences to run concurrently. The period of suspended prison sentence imposed therefore remains currently effective. On 7 September 2011 the itness to Practise ommittee of the Ph found proved an allegation that Mr Parsons fitness to practise was impaired as a result of the convictions. The sanction which the ommittee imposed was that Mr Parsons registration should be suspended for a period of 12 months. It directed that there should be a review of the order shortly before the date upon which the conditions were due to expire. The ommittee today has conducted that review. T A R & O LT Mr Parsons was not in attendance, nor represented at today s hearing. Rule 25 of eneral Pharmaceutical ouncil (itness to Practise and isqualification etc) Rules 1

4 2010 provides that where the person concerned is neither present nor represented at any hearing, and the ommittee is satisfied that service of the notice has been properly effected, the ommittee may nevertheless proceed to consider and determine the matter, in the absence of the Registrant. vidence was produced that the notice of hearing had been sent to Mr Parsons on 6 March 2012 by special delivery and first class post. In response, Mr Parson sent a response dated 14 March 2012, which he had signed, indicating that he did not intend to attend the hearing, nor be represented. The ommittee decided that Mr Parsons had properly been served with a notice of hearing. In deciding whether to proceed in Mr Parsons absence, the ommittee has considered the relevant case law as set out in R v ayward [2001] WA rim 168, which was approved on appeal by the ouse of Lords as R v Jones (Anthony) [2002] UKL 5, and applied in disciplinary proceedings in professional bodies at the Privy ouncil in Tait v Royal ollege of Veterinary Surgeons [2003] UKP 24. In R v ayward, referring to the discretion to proceed in a defendant s absence, Rose LJ said at paragraph 22: T A R & O LT That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if a defendant is unrepresented. In exercising that discretion, fairness to the defence is of prime importance, but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: the nature and circumstances of a defendant s behaviour in absenting himself from the trial disrupting it as the case may be, and in particular whether his behaviour was deliberate, voluntary and as such plainly waived his right to appeal. In this case, it is quite clear that Mr Parsons has made the decision not to appear today, and that has been confirmed by him in writing when responding initially to the notice of hearing. e has not sought an adjournment and has indicated that he does not wish to be represented. e has had the relevant documentation served upon him. e is fully aware of the nature of the hearing, and had the opportunity to submit any representations he wished to make. The ommittee concluded that he has voluntarily chosen not to attend and thereby waived his right to participate in the hearing. The ommittee accordingly determined that the hearing should proceed in the absence of Mr Parsons. 2

5 The ommittee s powers in relation to a review are contained in Article 54(3)(b) of the Pharmacy Order Relevant provisions are that: Where the itness to Practise ommittee has given a direction under this Article, other than a direction that the entry in the register of the person concerned be removed, it may, if it thinks fit, following a review: (a) Where the entry in the register of the person concerned is suspended, give a direction that: (i) the entry be removed from the register; (ii) the suspension of the entry be extended for such further period not exceeding 12 months as may be specified in the direction, starting from the time when the period of suspension would otherwise expire; ( ) (v) on expiry or termination of the period of suspension (including a period of suspension that was expressed to be indefinite), the entry being conditional upon that person complying, during such period not exceeding three years as may be specified in the direction, with such requirements specified in the direction as the ommittee thinks fit to impose for the protection of the public or otherwise in the public interest or the interests of the person concerned. It is appropriate at this stage to set out the relevant background which led to the original finding that Mr Parsons fitness to practise was impaired, and for the imposition of the sanction as a result of that finding. Mr Parsons ran a pharmacy in ayfield, erbyshire and a website, potency.co.uk, was part of that business. That website was started by him in April It was registered from its inception to a company called Parsons reen Limited, in which Mr Parsons and his wife were directors. T A R & O LT In May 2003, Mr Parsons had been warned about the content of his website by the Medicines and ealthcare Products Regulatory Agency (the MRA), which is an executive agency of the epartment of ealth and is responsible for the administration and enforcement of medicines legislation in the UK. On 13 July 2006, an investigating officer of the MRA made an unannounced visit to Mr Parsons retail pharmacy in erbyshire. 3

6 On 18 ecember 2006, Mr Parsons was written to by the MRA and he was informed that his website had been reviewed, and their view was that the website was designed to promote the sale and supply of prescription-only medicines to the public and was therefore in breach of regulation 7 of the Advertising Regulations, which strictly prohibit the issue to the general public of an advertisement which is likely to lead to the use of prescription-only medicines. The letter stated that the website should be withdrawn or amended immediately. On 3 October 2006, Mr Parsons responded by letter to the MRA, stating that he had no intention of withdrawing or modifying the site. The MRA then initiated criminal proceedings against Mr Parsons. As previously set out, Mr Parsons was convicted, following a trial by the jury and sentenced by the presiding judge, is onour Judge Tester. The Judge made a number of remarks which the ommittee took into account, when determining the appropriate sanction. These included: And: These regulations concern the sale of prescription medicines that are there for the protection of the public. I am not making any finding that the public were endangered by the defendant s conduct, although the requirement of a prescription is there for a good reason, because there are contraindications associated with the medicines. This defendant has behaved in a way which he knows was illegal, and that is the mischief of what he has done. aving seen him in the witness box I am sure that he is somebody with a very powerful personality. That was no doubt part of the background to his decision just to carry on, in the belief that he was not going to be stopped. e has not pleaded guilty. e sought to defend the indefensible, no doubt relying on the force of his personality in order to bamboozle the jury. appily that did not work. I have taken the view that for a fully-qualified pharmacist to deliberately refuse to comply with his legal obligations concerning the sale of medicines, and for such a qualified pharmacist to do so by way of business over a substantial period of time, was so serious that only an immediate custodial sentence was an appropriate response, and I still take that view. or reasons of personal mitigation, the judge went to explain, were such that he felt able in the circumstances to suspend the sentence. T A R & O LT The procedures to be followed at review hearings are set out at Rule 34 of the eneral 4

7 Pharmaceutical ouncil (itness to Practise and isqualification etc) Rules As Ms Uddin, on behalf of the ouncil, noted the rules are silent on the question of whether a finding of current impairment should be made. She submitted that the recent relevant case law suggests that consideration should be given as to whether a registrant s fitness to practise is currently impaired before imposing an order. ases referred to were ohen v M [2008] W 581, Zygmunt v M [2008] W (Admin), Azzam v M [2008] W 2711 (Admin), heatle v M [2009] W 645 and Khan v M [2009] W 535 (Admin). Those are all cases involving doctors. Rules 22(f) of the eneral Medical ouncil (itness to Practise) Rules, Order of ouncil 2004, which governs review proceedings in respect of doctors, provides that the itness to Practise Panel shall consider and announce its finding on the question whether the fitness to practise of the practitioner is impaired. owever, the ommittee accept that it is necessary, in the case of pharmacists, to consider whether a registrant s fitness to practise is impaired, when considering how to conclude the review, as in the absence of impairment, there would be no justification for imposing a sanction. Mr Parsons, in an of 20 August 2011, accepted that his fitness to practise was impaired. The ommittee found that the conviction for offences directly related to Mr Parsons work as a pharmacist self-evidently constituted misconduct and, further, the offences were not technical or minor breaches, but were intrinsic to the overall scheme of regulation of prescription-only medicines, with the important aim of protecting the public from harm. In those circumstances, they were satisfied that the misconduct was serious. T A R & O LT The ommittee then moved to consider whether Mr Parsons fitness to practise was impaired at the date of the hearing, as a result of his misconduct. They bore in mind that the question of impairment is focussed on an assessment, as at the date of the hearing, and that given that the allegation related to conduct in the course of Mr Parsons professional duties, the issue of remediation had also to be carefully considered. They reminded themselves that the finding of misconduct need not lead, inexorably, to a 5

8 finding of impairment. They noted that Mr Parsons himself, in his of 20 August 2011, conceded that his fitness to practise was impaired, although he provided no greater detail as to the specific basis of his concession. The ommittee concluded that his actions in contravening regulations which are designed to regulate the supply of prescription-only medicines, with the very purpose of protecting the public from harm, undoubtedly in their view brought the reputation of the pharmacy profession into disrepute, thereby diminishing public confidence in the profession. They also concluded that such conduct also constituted a breach of a fundamental tenet of the profession. The ommittee noted that when considering the question of remediation we find nothing in any of the documentation to suggest that Mr Parsons has any insight into his wrongdoing despite his admissions, and that he retains to same attitude now to the offences as he did throughout his trial, and both during the investigation and indeed stretching back to 2003, when he was first warned by the MRA about his website. The ommittee concluded that in all the circumstances they were entirely satisfied, taking into account the protection of the public, maintenance of public confidence in the profession and the declaring and upholding of proper standards of behaviour within the profession, Mr Parsons fitness to practise was impaired at the date of the hearing. The original finding of impairment was based on the convictions of Mr Parsons and the misconduct it reflected. The conviction and the underlying misconduct are matters of fact, and there does not need to be established any further misconduct upon which to base a finding of impairment as of today. The ommittee concluded that it was necessary to consider whether that conviction of misconduct meant that Mr Parsons fitness to practise remains impaired. In the case of Abrahim v M [2008] W 183 (Admin), lake J said: T A R & O LT In my judgment, the statutory context for the rule relating to reviews must mean the review has to consider whether all the concerns raised in the original finding of impairment through misconduct had been sufficiently addressed as to the panel s satisfaction. In practical terms there was a persuasive burden on the 6

9 practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient, that through insight, application, education, supervision or other achievement sufficiently addressed past impairment. Again, that is a case relating to a doctor, but the same principles apply in relation to a pharmacist. The ommittee noted that Mr Parsons, who accepted at the original hearing that his fitness to practise was impaired, has not sought to argue that his fitness to practise does not remain impaired. Ms Uddin, for the ouncil, drew the attention of the ommittee to the fact that the ouncil has not received any further evidence, in relation to assessing whether Mr Parsons fitness to practise is still currently impaired and whether he has remedied his actions that led to his suspension. The ommittee today are satisfied that Mr Parsons fitness to practise continues to be impaired. Turning to the question of sanction, the ommittee today firstly carefully considered the reasons for the imposition of the original sanction. The ommittee imposing that sanction considered the aggravating features which they took into account, which were: 1. Misconduct sustained over a long period of time. The conviction covered the period July 2006 to November 2007; although on his own admission Mr Parsons had been conducting similar advertising for some years prior to these dates. 2. Potential harm. Our determination on impairment has already highlighted the potential harm to those responding to the website s manifest encouragement to purchase prescription-only medicines. T A R & O LT 3. Minimal (and we would add wholly inadequate) steps to reduce potential harm. Although Mr Parsons has required purchasers to complete a short online assessment form, very limited reliance could possibly be placed upon the accuracy of such information, in the context of the particular prescription-only medicines with which we are concerned. 7

10 4. Actions premeditated. There can be no issue, given the jury s verdict, that Mr Parsons unlawfully intended to encourage members of the public to purchase prescription-only medicines. 5. latant disregard of the Standards of onduct, thics and Performance, published previously by the Society. In our determination of impairment, we refer the breaches of certain aspects of the standards in force at the relevant time. 6. Lack of insight. Mr Parsons to this day responds to the opprobrium of his conduct from the court and his professional regulator by seeking to deflect and minimise it, by reference to others who may be similarly guilty. The difficulty with this approach is that it in no way addresses the central illegality of his own conduct. It is a matter for the MRA to take action against those it considers to be in breach of the relevant regulations. That others may be equally guilty in no way ameliorates the seriousness of Mr Parsons own misconduct. 7. isregard of the written and oral advice given by the MRA. Mr Parsons was warned in 2003, and again following the MRA officer s visit in 2006, about his website, and yet made clear his intention to ignore such warnings. 8. Misconduct committed by a person in charge of pharmacy premises. Although these offences of advertising were through the medium of the internet, the website amounts to a virtual pharmacy, and would have had to have been associated with a physical pharmacy, of which Mr Parsons was a dispensing pharmacist. T A R & O LT 9. reaches of the statutory requirements in line with the Indicative Sanctions uidance. The ommittee is aware, and takes account of, the following which was stated in almoody v UK for Nurses Midwifes and ealth Visitors [1998] W 521that where a professional person has infringed an important statutory requirement in the course of duties of a senior or supervisory kind so as to attract a criminal sanction, a professional body and the court was bound to view those infringements with grave concern. 8

11 As to mitigating factors, the ommittee took account of the fact that until his conviction Mr Parsons was, to their knowledge, a man of good character and that there were no previous disciplinary findings against him. They further took account of the fact that, leaving their findings on his level of insight aside, he had made admissions to facts, and to his impaired fitness to practise. In deciding upon the appropriate sanction, the ommittee bore in mind that although it was open to the ouncil to allege additional facts in respect of misconduct, it chose to limit the allegation of impairment to the conviction. Therefore the ommittee confined itself to Mr Parsons proven breaches of the 1994 regulations. They expressed the view that whatever Mr Parsons present professional circumstances, a sanction of suspension would be serious and one which would reflect strongly the ommittee s disapproval of his misconduct. The ommittee noted, in relation to suspension that the Indicative Sanctions uidance suggested some features of case that would make suspension a suitable sanction. They included: (i) evidence of disposition towards non-compliance; (ii) lack of sufficient insight on the part of the registrant; (iii) public confidence in the profession demands no less a sanction; (iv) a message needs to be sent to the profession and the public that the conduct is unacceptable and unbefitting of a person registered with the ouncil; and (v) the conduct falls short of being fundamentally incompatible with continued registration. T A R & O LT The ommittee indicated that they had considered suspension very carefully, and concluded that, in the specific circumstances of this case, and bearing in mind the points just quoted from the Indicative Sanctions uidance, it would indeed meet all three purposes for which sanction is to be imposed; in particular, preventing any further exposure of the public to potential harm, and the conduct of this registrant while suspended and that it would be a wholly proportionate response to the seriousness of Mr Parsons misconduct, as they saw it. 9

12 The ommittee expressed the view that both Mr Parsons and the public at large could be in no doubt that the ommittee did indeed treat with grave concern his flagrant and sustained breaches of regulations, intended to provide fundamental protection to the public from harm, that can so easily result from medication prescribed without adequate medical assessment - the more so for the fact that the prime motivator would seem to be financial. The ommittee indicated that they had considered the erasure of Mr Parsons name from the register, but they had concluded: owever, the ommittee, having considered removal as a sanction, took the view that it would, in all the circumstances, be disproportionate, given the very specific offences for which the registrant was convicted. In ordering a review, the ommittee indicated that the ommittee will need to satisfy itself at the review that the registrant has fully appreciated the seriousness of the relevant breaches, has not committed any further breaches of the ouncil s Standards of onduct, thics and Performance, has maintained his skills and knowledge up-to-date and the public will not be placed at risk by resumption of practice, or by the imposition of conditional registration. The ommittee imposed a period of suspension from the register for 12 months. There was no evidence before the ommittee today that Mr Parsons has reflected upon the seriousness of the breaches he committed, that he has developed insight, nor that he has maintained his skills and knowledge up to-date. There is no evidence that his attitude, which he expressed at his criminal trial and which was commented upon by the sentencing judge, has changed. Ms Uddin confirmed that there was no information provided to the ouncil in relation to proving whether Mr Parsons has kept up with pharmacy practice and his P accreditation. T A R & O LT 10

13 The ommittee noted that the ouncil has not received any evidence to suggest Mr Parsons has breached the suspension, imposed on 7 September In Nicholas Pillai v eneral Medical ouncil [2009] W 1048 Mitting J said, at paragraph 19: In the ordinary case such as this the attitude of the practitioner to the events which gave rise to the specific allegations against him is, in principle, something which can be taken into account, either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired and at the stage of determining what sanction should be imposed upon him. Ms Uddin, on behalf of the ouncil, submitted that in the absence of any indication from Mr Parsons regarding any developing insight or attempts at remediation, that a suspension for a further period of 12 months should be imposed. The ommittee were concerned that Mr Parsons attitude appears to be unchanged, and that in the period since the imposition of the suspension, he has not reflected upon his behaviour which led to his conviction. e has not shown any insight and the ommittee concluded that, in the event of him returning to practise at this stage, it could not be sure that he would not display a similar attitude with the intention of putting patients and the public at risk of harm. T A R & O LT The ommittee considered whether conditional registration might be appropriate. It concluded, however, that there were no conditions which could be imposed which would adequately protect the public. There was no evidence that Mr Parsons would comply with any conditions imposed. iven his total failure to engage with the regulator, conditional registration would not send the correct message to the public and the profession. The ommittee did consider whether it would be appropriate at this stage to erase Mr Parsons name from the Register, but concluded that, at this stage, that would not be a proportionate response, and that the public would be protected by the imposition of a further period of suspension. iven Mr Parsons continued failure to engage with the ouncil, it concluded that the maximum period of 12 months would be the appropriate 11

14 period for suspension. The ommittee directs that there should be a full review shortly before the date on which this order is due to expire. The itness to Practise ommittee at that stage will consider what, if any, further action should then be taken. Such action includes, amongst other options, extension of the suspension, or indeed removal from the Register. As the Indicative Sanctions uidance sets out, in relation to a review of a period of suspension, the ommittee would need to satisfy itself at the review that the registrant has fully appreciated the seriousness of the relevant breaches, has not committed any further breaches of the ouncil s Standards, thics and Performance, has maintained his skills and knowledge up-to-date, and that the public will not be placed at risk by resumption of practice or by the imposition of conditional registration. That concludes the ommittee s determination. MS UIN: Thank you, Sir. T AIRMAN: Unless there are other matters, that concludes the hearing. (oncluded at 12.17) T A R & O LT 12