The Judicial Review of the GPhC’s new standards

An analysis of the High Court's ruling on the PDA's challenge of the GPhC's new Standards.

Tue 11th April 2017 The PDA

In 2016, the General Pharmaceutical Council (GPhC) launched a consultation on its proposed new standards of Conduct, Ethics and Performance for the regulation of pharmacists and invited pharmacists, pharmacy bodies and others to submit their opinions in a consultation.

The previous standards from 2012 already stated that “Patients and the public put their trust in pharmacy professionals. You must behave in a way that justifies this trust and maintains the reputation of your profession”. This standard was applicable during working hours and outside of work.

The PDA recognises that certain behaviours outside of work could have the effect of diminishing public trust in the profession, for example involvement in violent acts, racial abuse or otherwise criminal behaviour. However, the proposed standards introduced new requirements, which in the view of the PDA, went too far in the expectations it was placing upon pharmacists. The GPhC consultation referred to the need for appropriate use of body language, tone of voice and courtesy and politeness, which when read with the requirement that these standards would apply at all times was a matter that the PDA recognised would cause confusion and be of great concern to all pharmacists. The standards as written, appeared to lack clarity and were vague; this problem needed to be addressed.

Firstly, in completing the annual GPhC renewal declaration, pharmacists are required to notify the GPhC of any conduct that may not have complied with the GPhC’s standards. The proposed standards were unclear as to the extent of disclosure pharmacists had to make in order to be compliant with their obligations. This raised concerns as to the extent of any required disclosures and whether this encompassed every single episode from outside the workplace, where because of life’s challenges and frustrations, pharmacists may have used poor body language, a harsh tone of voice or acted discourteously.

Additional concerns were the potential enormity of disclosure that maybe required and how the GPhC might make use of such material in disciplinary action. The repercussions for non-disclosure of information relating to a pharmacist’s private life raised fears for registrants who may subsequently be accused of making false declarations.

Secondly, the PDA recognised that even in the workplace when facing patients, there are times when pharmacists who are exercising their duty of care to patients, cannot always remain courteous and polite; they may have to be firm or forceful to protect themselves, colleagues or property from aggressive or threatening patients. The PDA were concerned that these types of situations may be construed as being in breach of the new standards thus exposing pharmacists to censure.

Giving the standards a wide interpretation seemingly demanded behaviour completely divorced from the every day realities of pharmacy practice. They appeared to take no account of violent or abusive patients and the threats pharmacists encounter in their daily work. The PDA believed some recognition had to be acknowledged by the regulator in order to bring a sense of reality to the new proposed standards.

Finally, the PDA was concerned by its experiences of supporting pharmacists subjected to employment disciplinary procedures. Frequently employers have sought to use a liberal interpretation of the professional regulations to pursue inappropriate disciplinary allegations against employees. Giving the new standards a wide interpretation would expose pharmacists to potential abuse by employers.

For all of these reasons, a legal challenge by way of judicial review was necessary to secure the clarity that was missing from the proposed standards and to ensure that they should be interpreted in a sensible way in the future. The PDA were concerned that any guidance on the interpretation by the GPhC would only be guidance, not binding and could be subject to change at any time. To secure clarification a challenge through the courts was required.

On a wider issue, irrespective of the outcome of the hearing, the regulator would be more likely to be approach future consultations with the knowledge that the PDA is prepared to challenge its decisions through the courts, if it became necessary to do so.

The outcome of the hearing

This type of legal action cannot be taken by an organisation as such, but only by individuals. The legal challenge was led by two PDA employee pharmacists, Mark Pitt and David Tyas. Seeking a judicial review prior to the new standards becoming live on May 17th was always going to present some practical difficulties (see next paragraph) however it was felt that it would be preferable to seek a resolution before the new rules went live, rather than challenge the new rules after implementation which could put pharmacists at risk in the interim. The judicial review was therefore heard on March 23rd 2017 in the High Court before Mr Justice Singh, a leading authority in the field of human rights.

The hearing was intended to consider two significant points:

a) Whether the Judicial Review should be allowed to proceed in the first place.

And if so,

b) What was the decision.

The judge ruled that he would not permit the Judicial Review to proceed, primarily on the grounds that the two pharmacists bringing the action could not be considered to be ‘victims of the proposals’ since the rules had not yet come to force and he could not consider matters in advance. However, to arrive at this decision, the judge did hear all of the legal arguments from both sides over a full day in court and in his determination he has provided the clarification that the PDA had hoped to secure via a full judicial review. The Judge’s determination provides the answers to the concerns that had been expressed by the PDA. It restricts the approach that the GPhC and employers can take in their application of these standards to a narrow and Human Rights Convention compliant interpretation and it provides the clarity that was missing from the standards. The GPhC has an obligation to apply the new standards in the way the judge has determined.

What the judge confirmed

  1. The standards must be interpreted in a way which is rooted in real life and common sense. The relevant obligation in the Standards is for pharmacists to behave appropriately at all times. Consequently, if a pharmacist has not been polite in a domestic situation, they need not declare this in their annual declaration, unless of course their actions are indicative of a wider issue which could call into question the way in which they approach patients. So for example an entry on Facebook which takes a forthright approach on a sporting matter, does not need to be declared at the annual declaration. However, there may be occasions which occur outside normal working hours and unrelated to the professional work of a pharmacist which may be relevant to the safe and effective care which will be provided to patients. The Judge gave an example: if a pharmacist engages in a racist tirade on Twitter, that may well shed light on how he or she might provide services to a person from an ethnic minority. As can be seen from the example, the “bar” is set very sensibly high.
    This clarification satisfies the primary reason why the PDA sought a legal remedy to the GPhC’s proposed standards.
  2.  The above narrative from the determination also addresses the second reason why the PDA sought a legal remedy. The Judge made it clear that the GPhC cannot apply these standards in a wider sense. The PDA will now press the GPhC to accept that there will be certain patient facing situations in which the hostile realities of pharmacy practice could mean that the requirement to rely on courtesy, politeness and open body language, can simply not be observed. The PDA is committed to defending its members who have acted appropriately when facing hostile situations in the workplace and based upon this determination, the PDA believes that such a defence would be entirely permissible.
  3. The third reason why the PDA sought legal remedy has also been answered within the Judgment. The New Standards cannot be interpreted in a way that violates the (European Human Rights Convention) rights of Pharmacists.

Whilst this immediately impacts on the GPhC as a public authority, the reality is that it also binds employers as they cannot seek to interpret the standards in a way inconsistent with convention rights. Should the Standards be construed by the GPhC (or by employers) in a way that violates a PDA member’s right to private life or freedom of expression (Articles 8 and 10 of the Human Rights Convention), they leave themselves open to legal challenge.

Additional benefits from the determination

The Judge has clarified that:

  1. The examples that the GPhC have provided within their standards are just examples and may not apply in all situations.
  2.  Failure to comply with the standards “is not, of itself to be taken to constitute misconduct”

GPhC concessions offered to the Court during the proceedings

Legal representatives acting on instructions and on behalf of the GPhC acknowledged that the new standards would benefit from clarification and suggested a number of remedies before and during the hearing. Firstly, they told the court that they would be setting up a helpline that pharmacists could ring in the event that they were unsure as to whether they needed to notify the GPhC about conduct outside of work when they come to make their declaration. This unusual concession is a little like phoning the local police station because you were concerned that you may well have broken the law – but you were not entirely sure and you wanted to discuss whether you had or not. Other concessions were the offer of information evenings and written guidance for pharmacists so that the practical effect of these new standards could be discussed and considered within the profession.

The wider issues related to these proceedings

These proceedings were initiated by the PDA because the GPhCs new standards, in our view, lacked clarity and were vague. They appeared to extend the scope of expected behaviours to tone of voice, body language, courtesy and politeness; if applied in a wider sense they would have imposed an unacceptable burden of behaviour upon pharmacists in their private lives. The action was not only necessary to prevent the GPhC from applying the standards in a broad sense, but it was also important to restrict employers seeking to use the standards inappropriately in employment matters.

Although the full Judicial Review was not permitted to proceed by the judge, the determination has provided much needed clarity and enable the PDA to better defend members against inappropriate regulatory activity. It also assists employee pharmacists as the PDA will now be able to use this judgment to assist in employment disputes related to the interpretation of regulatory standards.

The subtext to the ruling is that the new standards must satisfy common sense and have to pass the real-life test when applied. The standards have the overriding aim of looking after the public interest, their interpretation does need to reflect that there will be grey areas and pharmacists are permitted to act in a way that is appropriate and proportionate to any given situation.

The GPhC offered a number of concessions during the course of the hearing and this is to be welcomed. This suggests a recognition that the standards are complex and lacked clarity which had caused confusion. The PDA believes that the GPhC needs to go further still. To properly reflect the determination, we believe the GPhC should consider adjusting its annual declaration process.

Going forward

One of the consequences of this action is that the GPhC will be aware its work is being carefully scrutinised. The PDA is the only organisation that was prepared to challenge and hold the regulator to account in order to protect the interests of pharmacists.

Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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