Council of the Pharmaceutical Society of Ireland v A.B.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 30 September 2020 |
| Neutral Citation | [2020] IEHC 481 |
| Docket Number | [2020 No. 243 SP] |
| Court | High Court |
| Date | 30 September 2020 |
IN THE MATTER OF S. 45 OF THE PHARMACY ACT 2007 AND IN THE MATTER OF A REGISTERED PHARMACIST AND ON THE APPLICATION OF THE PHARMACEUTICAL SOCIETY OF IRELAND
[2020] IEHC 481
Richard Humphreys
[2020 No. 243 SP]
THE HIGH COURT
Suspension – Registration – Prohibition – Applicant seeking an order suspending the registration of the respondent and prohibiting the respondent from engaging in the practice of pharmacy – Whether suspension was the appropriate approach to take
Facts: The applicant, Council of the Pharmaceutical Society of Ireland, in the special summons filed on 17th September, 2020, sought an order suspending the registration of the respondent and prohibiting the respondent from engaging in the practice of pharmacy “pending further procedure under Part 6 of the [Pharmacy Act 2007] in relation to the complaint in respect of the Respondent”. Consequential orders were sought for notification of interested parties and entitling the applicant to amend the respondent’s registration status on the “public facing register of pharmacists” to indicate that he is suspended. On 23rd September, 2020, having heard the matter, the High Court (Humphreys J) informed the parties of the order being made and indicated that reasons would be given later.
Held by Humphreys J that a risk existed as specified in s. 45 of the 2007 Act, warranting suspension of the respondent. Having considered whether that was adequately mitigated by an undertaking having regard to the fact that in material respects an undertaking in the circumstances was less effective in addressing the risk than an order for suspension, Humphreys J considered that suspension was the appropriate approach to take. Regarding the specific issue about whether the court should give directions in relation to what the Society could say to third parties who made enquiries, Humphreys J held that a situation where there was no general publicity, but where the Society could respond to queries, struck the appropriate balance.
The order made by Humphreys J on 23rd September, 2020 was as follows: (i) an order in terms of para. 3(a), (b) and (c) of the special summons, suspending the practitioner and granting related reliefs; (ii) an order under para. 3(d) of the special summons directing the applicant to make an appropriate amendment to the public-facing register regarding the respondent; (iii) an order under para. 3(e) of the special summons allowing the applicant to disclose the terms of the order in response to inquiries; (iv) liberty to apply by either side on 48 hours’ notice; (v) an order by consent reserving costs to the finalisation of the proceedings - that was in the context where, while all relief in the special summons had been granted, there would ultimately be a further application to the court to finalise proceedings after the disciplinary process.
Application granted.
This appears to be the first written judgment on the suspension of pharmacists under s. 45 of the Pharmacy Act 2007, although the principles in relation to suspension of other professionals are closely related. Section 45 of the 2007 Act allows the court in certain circumstances to direct the suspension of a pharmacist pending the processing of a complaint, and sub-s. (5) provides for such applications to be heard in private unless the court otherwise orders. Accordingly, the judgment has been redacted.
It is unnecessary to go into the facts in detail because the pharmacist here accepts in para. 2 of his affidavit that “I should not be practicing as a pharmacist for the time being. I have developed significant issues arising from mental health and as a consequence, have now developed an addiction to alcohol and medication”.
On 3rd September, 2020, concerns about the respondent were conveyed to the Society. On 11th September, 2020, the Society by remote meeting considered an undertaking offered by the respondent not to practice, but decided to apply to the court for an order suspending the respondent from the register. The reasons for taking that approach included:
(i). the overall seriousness of the allegation;
(ii). an allegation that he had dispensed the wrong product;
(iii). an allegation that he had attended while drunk;
(iv). an allegation that he sought to conceal the taking of medication by asking staff to leave the pharmacy;
(v). evidence of denial when confronted with wrongdoing; and
(vi). an allegation that methadone was left for patients in an alleyway or a bookie's shop.
The Society said that it expected that there would be an undertaking not to practice pending the application to the court. The respondent has voluntarily ceased to be superintendent pharmacist of the pharmacy concerned and states that he has not worked there since 4th September, 2020. He no longer holds keys or passwords. He resigned as a director of the company operating the pharmacy on 18th September, 2020.
The special summons in this case seems to have been filed on 17th September, 2020 although it is incorrectly dated 23rd September, 2020. In that summons, the applicant seeks an order suspending the registration of the respondent and prohibiting the respondent from engaging in the practice of pharmacy “pending further procedure under Part 6 of the Act in relation to the complaint in respect of the Respondent”. Consequential orders are sought for notification of interested parties and entitling the applicant to amend the respondent's registration status on the “public facing register of pharmacists” to indicate that he is suspended. On foot of that application, I have received helpful submissions from Ms. Zoe Richardson, Solicitor, for the applicant, and from Mr. Simon Mills S.C. for the respondent. On 23rd September, 2020 having heard the matter I informed the parties of the order being made and indicated that reasons would be given later.
Section 45(1) of the 2007 Act provides that, “[t]he High Court… may by order suspend the registration of a registered pharmacist… against whom a complaint has been made.” Two significant conditions are set out in the section. Subsection (3) provides that, “[t]he High Court shall not make an order… unless satisfied that the Council has notified the registered pharmacist … of its intention to apply for an order”. Subsection (4) provides that, “[a]n order… may be made only if the High Court considers that there is a risk to the health and safety of the public which is of such magnitude that the pharmacist's … registration should be suspended pending further procedure under this Part”
Subject to consideration of whether the fact that the respondent now offers an undertaking dissipates the risk involved, the threshold for making...
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...an interim suspension order. That point was also adverted to by Humphreys J. in Council of the Pharmaceutical Society of Ireland v. A.B. [2020] IEHC 481. 79 . In this case, the respondent offered undertakings to the Council at its meetings on 11th August, 2022, and 27th September, 2022, and......