Colin Lannon v Council of the Pharmaceutical Society of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Egan
• Judgment Date: 11 February 2022
• Neutral Citation: [2022] IEHC 80
• Court: High Court
• Docket Number: [2021 196 MCA]

In the Matter of Section 51 (1) the Pharmacy Act, 2007 and

In the Matter of an Application Brought by Colin Lannon, a Registered Pharmacist

Between

Colin Lannon

Applicant

and

Council of the Pharmaceutical Society of Ireland

Respondent

[2022] IEHC 80

[2021 196 MCA]

THE HIGH COURT

Registration – Suspension – Poor professional performance – Appellant seeking the cancellation of the respondent’s decision to suspend his registration as a pharmacist for a two-month period – Whether the respondent mischaracterised the seriousness of the conduct at issue

Facts: The applicant, Mr Lannon, applied to the High Court pursuant to s. 51 (4) of the Pharmacy Act 2007 seeking the cancellation of the decision of the respondent, the Council of the Pharmaceutical Society of Ireland, to suspend his registration as a pharmacist for a two-month period as a result of a finding against him of poor professional performance. The applicant advanced five reasons as to why the court should cancel the suspension order: first that the Council mischaracterised the seriousness of the conduct at issue; secondly that there was a disparity in the sanction imposed on the applicant compared with other pharmacists against whom similar findings had previously been made; thirdly that the Council failed to engage with evidence of insight on the part of the applicant when the matter came before it; fourthly that the Council failed to engage with the expert evidence before it demonstrating that, apart from the prescriptions in issue, the applicant’s prescribing practices were impeccable; and fifthly that the Council was insufficiently lenient and failed to give appropriate weight to mitigating factors.

Held by Egan J that the sanction imposed was reasonable and that the Council carried out a correct calibration of the conduct, the purpose of sanction and the mitigating factors. The court was not prepared to cancel the sanction imposed.

Egan J held that, in light of the fact that the applicant had not been successful in his application to cancel the sanction imposed by the Council, the respondent was presumptively entitled to its costs of the proceedings.

Application refused.

JUDGMENT of Ms. Justice Egan delivered on the 11th day of February, 2022

Introduction

1 This is an application pursuant to s. 51 (4) of the Pharmacy Act, 2007 (“the Pharmacy Act”) by Mr. Colin Lannon (“the applicant”) seeking the cancellation of the decision of the Council (“the Council”) of the Pharmaceutical Society of Ireland (“the PSI”) to suspend his registration as a pharmacist for a two-month period as a result of a finding against him of poor professional performance.

Factual background

2 The applicant has been a registered pharmacist for over fourteen years and in 2014 became a supervising pharmacist in Lannon's Late Night Pharmacy, Sligo (“the pharmacy”).

3 In July 2018, the applicant became the subject of a fitness to practice complaint (“the complaint”) made to the PSI by Ms. Kate Mulvenna, Head of Pharmacy Function at the Health Service Executive (“HSE”), regarding a course of dispensing by the pharmacy of a medication called Kalydeco. This is an expensive “high-tech” drug used as a treatment for cystic fibrosis which can only be prescribed by a designated specialist registered medical practitioner. All patients taking such medication are required to attend for three monthly medical reviews to facilitate clinical monitoring and in order for their prescription to be renewed. The dispensing, the subject matter of the complaint, was to two children in one family (“the two patients”), both suffering from cystic fibrosis, who had been approved by Professor Des Cox, consultant in paediatric respiratory medicine at Our Lady's Hospital, Crumlin, for “lifelong treatment” with Kalydeco. The two patients' prescriptions for Kalydeco were duly renewed over time with the last prescription being valid up to July 2017. Notwithstanding the absence of valid prescriptions, the pharmacy continued to dispense Kalydeco to the two patients during a period of eight months between August 2017 and February 2018. The applicant personally dispensed this medication to the two patients on only the first occasion. However, he was at all material times the supervising pharmacist and was responsible for all operations of the pharmacy.

4 The complaint became subject of a fitness to practice inquiry which was conducted by the Professional Practices Committee (“the PCC”) of the PSI on 24th and 25th February, 2021. It was alleged that the applicant was guilty of poor professional performance in (a) supplying, or permitting the supply, to two minors of a “prescription only” high-tech medication in the absence of any valid prescription on eight occasions in relation to each minor and (b) failing to ensure that there was any adequate compliance with the standard operating procedures of the pharmacy for the management of high-tech medicines.

5 At the PCC inquiry the applicant was represented by a solicitor who cross examined witnesses and made submissions on his behalf. The applicant did not call any witnesses nor himself give any evidence before the PCC. His solicitor informed the PCC that although the applicant had intended to be present to address the PCC, he was unwell and unable to do so because of side effects following a Covid-19 vaccine injection given on the second day of the PCC inquiry.

The PCC report

6 On 9th April, 2021 the PCC produced a report (“the PCC report”) finding, beyond a reasonable doubt, that the applicant was guilty of poor professional performance in relation to each of the allegations in the notice of inquiry. The PCC recommended to the Council that the applicant's registration was suspended for a period of two months and that thereafter the following conditions should attach to his registration:

• a) That he should not act as a supervising pharmacist, superintendent pharmacist or a sole practitioner for a period of nine months;

• b) That he be prohibited from practising other than under the supervision of a senior and experienced registered pharmacist acceptable to the PSI, for a period of nine months or for such further time as is recommended by the appointed pharmacist;

• c) That during the period of nine months he must not work as a locum or undertake any work where he is the sole pharmacist unless approved by the appointed pharmacist and with the prior agreement of the PSI and;

• d) That he discharge all costs associated with these requirements.

7 The PCC report sets out in detail the reasons for the recommended sanction. The PCC accepted the evidence of the expert pharmacist Mr. Keith O'Hourihane MPSI, that the applicant's poor performance was not only serious but also fell far below what would be expected of a supervising pharmacist; that the applicant's poor professional performance was at, or very close to, the most serious end of the spectrum; that a pharmacist must determine whether or not a prescription is appropriate and, where it is not, must undertake due process in the form of a call or email to the prescribing medic before dispensing; that any genuine difficulty in producing a prescription could easily have been addressed by inquiry but that the applicant simply chose to ignore his professional obligations in respect of the patients; that in the context of the high-tech scheme, with its particular conditions and requirements for which pharmacists receive a special additional fee, the pharmacist's professional obligation is correspondingly greater and the pharmacist's role in this aspect of patient care is critical; and that the lack of quarterly reviews by Professor Cox might have had serious and life-threatening effects upon the patients. The PCC was further concerned by the applicant's failure, as supervising pharmacist, to engage in internal supervision and control of any kind within the pharmacy.

8 The PCC sought a fair and proportionate sanction, in the light of the seriousness of the poor professional performance, such that the applicant would learn from the process and be deterred from repetition and in order to inform the wider profession of its views on such wrongdoing. The PCC's paramount consideration was the protection of the public interest, including the need to protect the public from professional wrongdoing and to maintain trust in the profession and in the PSI's regulation of the profession.

9 The PCC was not persuaded that the applicant had insight into his conduct and expressed concern with the approach he had adopted at the inquiry as exemplified by: the applicant's reliance upon the fact that he did not personally dispense the prescriptions; his argument that the dispensing's were potentially justified by the fact that the “lifelong prescription” box had been ticked on the HSE forms; his argument that a valid prescription had in fact been in place (when that transpired not to be the case); his contention that this presented a case of ethical dilemma because depriving the children of essential medication was undesirable; and his trenchant attacks on HSE personnel and Crumlin Hospital. Although the PCC emphasised that it drew no adverse inference from the applicant's exercise of his right to deny the allegations or from his decision not to give evidence, this meant that nothing of substance had been put before the PCC to explain the reason for the applicant's repeated poor professional performance.

Council's decision on sanction

10 A hearing on sanction before the Council took place on 25th June and 2nd July, 2021. In contrast to his approach before the PCC, the applicant appeared before the Council, accepted responsibility for his actions and answered questions from members of Council. In addition, the applicant also engaged an expert pharmacist witness Mr. Noel Stenson MPSI, who prepared a report in respect of the applicant's prescribing practices generally and...