High Court considers suspension under Pharmacy Act 2007

In the recent High Court decision of the Council of the Pharmaceutical Society of Ireland v AB^[1] , the High Court made its first written judgment on the interim suspension of pharmacists from registration under section 45 of the Pharmacy Act 2007 (the “Act”).

Background

In this case, the pharmacist accepted that he should not be practising, and he accepted that as a result of mental health issues he had developed an addiction to alcohol and drugs. He had offered an undertaking not to practice, but the Pharmaceutical Society decided to apply for a court order suspending the pharmacist from the register.

The Society opted to take that approach and seek an order to suspend the registration of the pharmacist due to the following reasons:-

(a) the overall seriousness of the allegation;

(b) an allegation that he had dispensed the wrong product;

(c) an allegation that he had attended the pharmacy while under the influence of alcohol

(d) an allegation that he sought to conceal the taking of medication by asking staff to leave the pharmacy;

(e) evidence of denial when confronted with wrongdoing; and

(f) an allegation that methadone was left for patients in an alleyway or a bookie’s shop.

Section 45 of the Act

Section 45 of the Act states the following at subsection 1:-

“The High Court, on application by the Council, may by order suspend the registration of a registered pharmacist or registered retail pharmacy business against whom a complaint has been made.”

Therefore this section allows the court in certain circumstances to direct the suspension of a pharmacist pending the processing of a complaint. Section 45(5) states that such applications are to be heard in private unless the court orders otherwise. In this instance the hearing was held in private and therefore the judgment was redacted accordingly.

Justice Humphreys considered the options available under section 45 of the Act. Interestingly subsection 4 states that “an 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.” Justice Humphrey’s outlined that the threshold for making such an order was clearly met in this instance.

Undertakings or Orders?

Justice Humphreys also noted that informal options may be available if a regulator is prepared to accept undertakings by a practitioner either to restrict practice or not to practice, however an undertaking did not have a statutory basis in the pharmacy context as it did in some other regulatory circumstances.

Arguments were made in respect of the giving of an undertaking by the pharmacist outlining that he would cease to practice versus an order by the Court. Counsel for the pharmacist argued that the pharmacist should not be subject to a draconian order where another method is available. However Justice Humphreys took the view that an order is not going to be draconian in circumstances like this where the pharmacist will not practice anyway.
Counsel for the pharmacist also referred to his client’s good name and reputation, but the judge felt that the respondent’s reputation was going to be impacted either way and was not persuaded that an undertaking would be sufficient on that basis.

Counsel for the pharmacist also referred to the need for expedition in these matters, however Humphreys J. felt that alone was not a reason to accept an undertaking.

Finally, counsel for the pharmacist argued that this case concerned a health issue and that therefore it was preferable to respond to the respondent’s engagement. Once again Justice Humphreys did not accept that argument as a compelling reason not to make an Order instead of an undertaking. The Society’s solicitor also pointed to the fact that these addiction issues could impact the meaning and effectiveness of an undertaking.

In respect of a comparison between undertakings and orders, Justice Humphreys outlined the following:-

1. the enforceability of undertakings is less convenient. There is a specific statutory offence to practice while not having a current registration at subsections 31 and 32 of the Act. On the other hand, there is no specific statutory offence not to practice when one merely has given an undertaking not to do so;
2. the legal status of registration will be ongoing notwithstanding an undertaking;
3. the terms of the public facing register and the information available to third parties should reflect the respondent’s non-practising status and that was more appropriately achieved by a suspension order, rather than merely an undertaking.

Therefore Justice Humphreys considered that the suspension was the appropriate action to take in that case.

Conclusion

This case provides useful guidance on the issue of undertakings versus orders in the context of interim suspension under the Act, and is the first written judgment on this point.

Pharmacists who face such an Order would have to have compelling reasons before an undertaking of some sort would be accepted and should be mindful of the differences between an Order and undertakings for the purpose of facing such applications.

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie