The New GPhC Fitness to Practise Guidance
The General Pharmaceutical Council (“GPhC”) has issued a new GPhC fitness to practise guidance, ‘Good decision making: fitness to practise hearings and sanctions guidance.’ This guidance came into force on 20th July 2015.
What happens with a GPhC Fitness to Practise investigation?
The GPhC will write to a registrant notifying them that they have been referred. A case manager will investigate the allegation and decide if the allegations meet the threshold necessary to consider referring a registrant to the Investigating Committee.
If the GPhC are going to refer a registrant to the Investigating Committee, then the registrant will be given an opportunity to make written representations. The purpose of the Investigating Committee is to meet and decide if the case needs to be referred to a GPhC Fitness to Practise Committee. In effect they act as a filter, to ensure that only the more serious cases end up referred to the Fitness to Practise Committee.
Well worded representations submitted at this stage can make the difference between a decision to refer to the GPhC Fitness to Practise Committee or not.
If an Investigating Committee decides to refer a registrant to the GPhC Fitness to Practise Committee, then a full hearing is arranged. At this hearing, which will usually be in public, the registrant can and should be legally represented to present their case.
GPhC Fitness to Practise Committee
The committee will consider 3 stages:
- Fact Finding
If the allegations are disputed, then the Committee will hear evidence from both sides and will then make a decision as to the facts and if the allegations are proved. If not, then the case ends there. If so, then they consider impairment.
The Committee will consider if they think the registrant’s current fitness to practise is impaired. Impairment can be due to misconduct, lack of competence, ill health, or a conviction for a criminal offence. They will hear legal submissions from both sides before making this decision. If they decide that the registrant is not currently impaired, then the case ends there, (subject to the Committee deciding to give advice or a warning). If impairment is found, they consider sanctions.
The Committee can make any of the following decisions on sanction:
Take No Action
This is the most lenient sanction available and is fairly rare. This means that the case is closed and that no record of the case is recorded on the register. This may be ordered, for example if the misconduct is at the low end of the scale and there is no risk to the public.
This can only be given if no impairment is found. The advice is not recorded in the register. This tends to be given when the concerns, whilst not amounting to impairment, are still serious enough to merit a formal response.
This is more formal than a letter of advice and is recorded on the register. Warnings tend to be given when the Committee concludes that there is a need to demonstrate that the conduct was unacceptable, but that there was no risk to patients or the public and so no further action is deemed necessary.
Conditions place specific restrictions on a registrant’s registration for up to 3 years. These conditions are recorded on the register. Conditions may be given for example in a case involving poor performance, when a Committee decides that a registrant may benefit from retraining and or supervision.
This prevents a registrant from practising for a specific period of up to 1 year. This is recorded in the register. This is reserved for more serious cases, that don’t merit the ultimate sanction of removal, but where the Panel wish to highlight to the profession and public that the conduct was unacceptable and to retain public confidence in the profession.
This is the ultimate sanction and prevents the registrant from continuing to work as a pharmacy professional in the UK. This sanction isn’t available where the allegations purely relate to health. It is reserved for the most serious allegations, where the behaviour is fundamentally incompatible with being a pharmacy professional. An example of this would be a conviction for a serious sexual offence.
How to decide on the appropriate sanction
TheGPhC Fitness to Practise Committee will need to take into consideration the GPhC’s Good decision making: fitness to practise hearings and sanctions guidance.’ However they are also encouraged to use their professional judgment for each individual case.
The Guidance encourages Committees to take into consideration the following issues:
- The extent of the breach and if it was pre-mediated or involved any attempts to cover up misconduct etc.;
- The public interest – which includes the need to protect the public, maintain public confidence in the profession and to maintain proper standards of behaviour;
- Relevant mitigating and aggravating factors. The Panel should look at the individual circumstances of each case;
- The relevant fitness to practise history of the registrant;
- Frequency of misconduct – The Panel will take into account if misconduct was a one off incident or part of a sustained pattern;
- Insight demonstrated – The Panel will want to know if the registrant has accepted and understood that they should have behaved differently and steps have been taken to prevent a reoccurrence.
- Behaviour and attitude – this can include co-operation with the investigation, remorse demonstrated, apologies offered, honesty before the Panel.
- Testimonials – However the author’s should demonstrate that they are aware of the allegations, the registrant’s position and the purpose of the testimonial, to ensure that the Panel feels able to attribute proper weight to them.
The new guidance refers to the newly termed ‘duty of candour’ and emphasises the need for pharmacy professionals to act with openness and honesty when things go wrong. The Panels expect to see a registrant’s honest and candid explanation for mistakes, together with expressions of empathy and apologies.
The guidance also states that the GPhC will take seriously allegations where a pharmacy professional has failed to raise concerns where patient safety is at risk.
If you would like more information on the issues raised in this article, please read our Fitness to Practise or our Pharmacist Lawyer services pages and get in touch with one of our specialist medical lawyers today.