Treating mentally-ill pharmacists like criminals - is this really in the public interest?

The only way that the Society could get you off the Register against your wishes, was to wait until you did something that could be classified as misconduct, and then bring you before the Statutory Committee under section 8 of the Pharmacy Act 1954. This meant that there were often occasions when practitioners who were ‘unfit’ were on the Register and practising, to the danger of the public and the detriment of the profession.

In April 2007, the Pharmacy Act 1954 was repealed and replaced with the Pharmacists and Pharmacy Technicians Order 2007, commonly known as the Section 60 Order. This major change in legislation occurred almost silently with most pharmacists totally unaware. In this legislation, the RPSGB ensured that it obtained far reaching powers to change its ability to control registration, once and for all.

Pharmacists can now remain unaware until the day, perhaps, when the postman delivered a fle of papers, comprising 250–500 pages, containing allegations and ‘charges’, set-out like a Crown Court criminal indictment, seeking an ‘interim order’ for immediate suspension from the Register or conditional registration until a full hearing can be convened.

Interim orders can be applied for against not just those whose health is impaired, but also against any pharmacist whose fitness to practice is thought to be seriously enough impaired to warrant one (e.g. someone who is being investigated for multiple dispensing errors and where the Investigating Committee thinks they could be a danger if left practising while the investigation proceeds).

All pharmacists who have received such applications have been horrifed by the aggressive way in which the Society behaves in seeking these orders; pharmacists who are mentally ill fnd it particularly difficult to cope.

Whereas pharmacists are often given as little as two weeks, and rarely more than three weeks, in which to digest the allegations, find a lawyer specialising in healthcare regulation and (usually) also to find a medical expert in the relevant field, the Society when launching its application for an interim order has almost always worked and investigated the case unbeknown to the pharmacist for months (or even years in some cases). In health cases, it usually demands that members agree to make available from their GP all their medical notes since birth and that they also attend a medical examination by the Society’s own appointed expert. If members refuse access to medical records then the Society can gain a court order under the new regulations. Additionally, it can threaten the pharmacist with a Code of Ethics breach for failure to co-operate with an investigation.

The Society is therefore very well informed and prepared for the application; its lawyers are well-briefed, in advance of the hearing. Against this of course, members (now more fashionably called ‘Registrants’) usually had no idea what was coming and have no idea what to do; much worse, those who are mentally ill usually have little or no insight into their condition and no capacity to take on the Society’s legal machine.

Any members who seek to defeat one of these applications acting on their own would do well to understand that this is an area for specialist advice by those qualified in law and well-versed in healthcare regulation. A visit to their friendly high street solicitor could eventually lead them to appropriately knowledgeable counsel, but generally, one of the very few firms in the country specialising in pharmacy law and regulation will need to be instructed.

The cost is not cheap; typical costs are in the order of £5,000+ and that is before any medical specialist is instructed; these experts typically add another £3,000 - £5,000 to the costs, according to how complicated the case is and whether or not they are called to attend the hearing. Members of the PDA will be relieved to know that the PDA has a great deal of experience, more than most, of dealing with applications for interim suspension orders and of advising members how best to approach their defence and to what they should or should not agree.

Members should not, however, think that a defence will be easy; to date, the PDA has only successfully opposed three such applications for interim orders. One was brought against a pharmacist who was alleged to have made multiple dispensing errors. While this fact was actually admitted, the PDA’s legal representative successfully argued that matters from four years previously did not necessarily put the public in immediate danger in the present, and the Disciplinary Committee did not make the order. His Honour Judge Mota Singh said: “It [the interim order] has to be necessary to stop it [conduct that is ongoing and that places the public at risk]”. He said that because the misconduct had happened in the past and there was no evidence that fitness to practise was currently impaired, there was nothing to stop, because the Society had failed to establish that there was any ongoing problem.

How it works

Interim orders and full case hearings are all held in a similar way except that health cases are held in private and Discipline Committee cases are usually held in public.

The proceedings open with the Society’s lawyer presenting the case for the Society; most Registrants say it is just like a scene from a Crown Court trial in ‘The Bill’; they feel just like criminals on trial, not health professionals who may have made a mistake (discipline cases) or have had the misfortune to be taken ill (health cases). The ‘charge sheet’ contains a list of allegations, which always finishes by saying that “by reason of the above facts, taken either individually or cumulatively, your fitness to practice may be impaired.”

In health cases where applications are made for interim orders, the Society rarely calls witnesses; applications are usually decided on the written evidence of ill-health provided by the Society’s experts. Unless Registrants can counter this with a report from similarly qualified experts, they face the near certainty that an interim order will be made, because all that is necessary is for the Society to establish that the person’s fitness to practice could be impaired and that there could be a risk to the public. If it is a choice (as it often is) between depriving people of their living and placing them in dire financial straits overnight, and potentially leaving them practising and putting the public at risk, the Committees always come down against Registrants. Recently, a Committee Chairman observed that the person affected could always apply in six months (review time) to have the order reconsidered, to which the PDA responded that in that time they would have lost about £25,000 and possibly their home too.

Even in cases where Registrants supply reports from psychiatrists and other appropriately qualified medics, the Society’s experts always seem to get the last word; recently, it has been suggested by the Society that any physicians treating the pharmacists (who, the PDA believes, have the most intimate knowledge and are best placed to assess risk), could “lack objectivity” by reason of their position as consultants in charge of treatment.

It has also recently been suggested by the Society that members’ consultants possibly do not have the necessary understanding of the health regulatory system.

In any health proceedings, when there are findings against Registrants that their fitness to practice is impaired, the Committee then proceeds to determine what ‘sanctions’ to impose.

Frequently, mentally-ill pharmacists are also condemned in determinations for failing to have insight into their illness; the PDA believes that this shows how little understanding some of these Committees must have, because a lack of insight is the very essence of a psychotic illness.

The Committees lack ‘bedside manner’ in imposing their sanctions. It can be understandable that in a disciplinary case, where deliberate wrongdoing is proved, the use of the word ‘sanctions’ is appropriate; in health cases, however, Registrants are made to feel they are being punished for illness that is not usually of their making. It would be open to a Committee to say it is “very sorry that it has found that the person’s fitness to practice is impaired and that it is ‘sadly’ its duty to impose registration conditions or suspend registration in order to protect the public. Unfortunately, the Committees choose not to show such sympathy; they just read out the sanction imposed, as if they are sentencing a villain who has been convicted of armed robbery. Respondents in health cases frequently leave hearings in a state of serious shock and distress, and their physicians repeatedly complain of the serious and damaging effect the proceedings have on their already fragile state of mind.

What comes next?

Despite all this, there is some better news on the horizon. With the creation of the new regulatory body for pharmacists in 2010, there will be an opportunity (through the public consultation process) to infuence the content of the new Section 60 Order which will be required as a result. PDA members can be assured that we will be doing our utmost to try and persuade the government lawyers to ensure that the new regulations whilst protecting the public, do not create additional and unnecessary misery to pharmacists who may have made a mistake or who may through no fault of their own have fallen ill.