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GENERAL PHARMACEUTICAL COUNCIL
FITNESS TO PRACTISE COMMITTEE
129 Lambeth Road, London SE1 7BT
Thursday 1 May 2014
Chairman: Mr Stuart Turnock
Committee Members: Mr Edward Mallinson
Mr Richard Davies
Committee Secretary: Mrs Georgia Jerome
CASE OF:
O’SULLIVAN, Michael Edward
(Registration Number: 2070628)
DAY TWO
IN PUBLIC
DETERMINATION ON THE FACTS
__________________________
MS CASSANDRA SCARBROUGH, counsel of Capsticks, appeared on behalf of
the General Pharmaceutical Council
MRS DIANA SOUTHALL-EDWARDS, from EPLS appeared on behalf of
Mr O’Sullivan who was present
__________________________
Transcript of the shorthand notes of T A Reed & Co Ltd
Tel No: 01992 465900
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I N D E X
Page
DETERMINATION on the facts 1
(The hearing continued in private – see separate transcript 11)
DETERMINATION, continued 12
PLEASE NOTE: Copies printed from email may differ in formatting and/or
page numbering from hard copies
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DETERMINATION ON THE FACTS
THE CHAIRMAN: Following a referral to the General Pharmaceutical Council by Boots
on 19 July 2012 and the Council’s subsequent enquiries, Mr O’Sullivan faced
an allegation that his fitness to practise is impaired as a result of his misconduct.
The particulars of allegation are:
1. You were first registered as a pharmacist on 27 July 2009.
2. Between approximately 13 September 2010 and 31 August 2011, you were
employed as a Pharmacist and/or Store Manager at Boots, 66 Clarence Street,
York (“Boots”).
3. As the Pharmacist Store Manager, you were responsible for processing
Medicine Use Reviews (“MURs”) in order to claim payment.
4. Between 13 September 2010 and 31 August 2011, you caused or allowed
approximately 337 MURs (“the MURs”) to be processed for payment.
5. When you caused or allowed the MURs to be processed you knew and/or
ought to have known that the MURs had not been completed in accordance with
the Standard Operating Procedure, in that they were processed:
a) without any record of the MURs on Nexphase;
b) without any or any adequate paperwork available for the MURs.
6. Your actions as set out at allegations 4 - 5 were:
a) inappropriate; and/or
b) misleading; and/or
c) dishonest, in that you caused or allowed the MURs to be processed for
payment in circumstances where you knew:
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i) you had not conducted the MURs; and/or
ii) you had taken no steps to verify that the MURs had been
conducted; and/or
iii) there was no paperwork to support the claims for payment.
7. Between approximately 31 March 2012 and 7 April 2012, when you were
suspended from Boots, you contacted approximately 20 patients in order to obtain
a statement from them.
8. Your actions as set out above at 7 above were inappropriate.
9. On approximately 6 April 2012, you approached Patient S and you:
a) asked for her contact details;
b) told her that Boots may need to contact her regarding missing files, or
words to that effect.
10. Your actions as set out at 9 above were:
a) inappropriate; and/or
b) misleading; and/or
c) dishonest, in that you knew that you were collecting contact details for
your own use.
By reason of the matters above, your fitness to practise is impaired by reason of
your misconduct.
At the outset of the hearing Mr O’Sullivan admitted all of the particulars save 10(c).
Those facts admitted were found proved in accordance with Rule 31(6) of the General
Pharmaceutical Council (Fitness to Practise and Disqualification etc Rules 2010) (“the
Rules”).
In respect of the particular allegation not admitted, it fell to the Committee to hear and
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consider the evidence presented to it and determine whether the Council, which bears the
burden of proof, had established on a balance of probabilities that Mr O’Sullivan had
acted dishonestly.
In support of its case, the Council called Mr Alastair Firth to give oral evidence and, with
the agreement of Mr O’Sullivan, read into the evidence witness statements from Mr
Robert Proctor and Patient S. There was also produced a significant number of
documents.
Mr Firth was at the relevant time the area manager for Boots UK Limited who covered
the store at which Mr O’Sullivan was manager. Mr Proctor was employed by Boots UK
Limited as a clinical governance manager. Mr O’Sullivan gave evidence on his own
account.
Mr O’Sullivan graduated in pharmacy in 2008 and undertook his pre-registration year at
Boots’ Coney Street York store. After registering as a pharmacist on 27 July 2009, he
worked for Boots at Monks Cross Shopping Centre. In August 2010 he was appointed to
the position of pharmacist store manager at the company’s 66 Clarence Street York store.
In September 2011 he was appointed as pharmacy manager at the Boots store at Hull.
Following his departure from the Clarence Street store there was a routine audit of the
pharmacy, which included Medicine Use Reviews, which had been claimed for during the
period 13 September 2010 to 31 August 2011. Medicine Use Reviews, MURs, also
referred to as Medicine Check Ups, MCUs, are an NHS funded service whereby the NHS
provides payment to pharmacies for reviewing the patients’ medicines to make sure they
are being used correctly and that there are no problems. They also have a bearing on
patient safety and protection as they record changes to medicine use and the reason for
such changes.
Claims for payment for conducting MURs are submitted by the pharmacy on a monthly
basis on Form FP34c, which is the same form used for making prescription claims. The
NHS require a box to be completed on the form FP34C indicating the number of MURs
undertaken and the declaration that the claiming pharmacy is entitled to payment in
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accordance with the relevant provisions of the terms of service contained in the NHS
Pharmaceutical Services Regulations 2013 and the drug tariff and that the information
given on the form is correct and complete. There is no requirement to submit any
evidence in support of the claim, although information can subsequently be sought by the
NHS for the purpose of verification of the claim.
Boots had a Standard Operating Procedure, a SOP, for completing an MUR, which
involved obtaining a patient’s consent and completing a triplicate MUR form; a copy of
which should be given to the patient at the end of the consultation. At the end of
a consultation the pharmacist is required to record the MUR on the patient’s medication
record; the Nexphase system at Boots. The pharmacy is legally required to keep a paper
record of all MURs performed and the MUR should also be recorded through the till.
The SOP provided that the patient is suitable for a Medicine Check Up, MCU, if they
have either:
been using the pharmacy for the dispensing of his or her prescriptions for at least
the previous three months and had not had an MUR in the last 12 months, or
had a significant problem with his or her medication, (known as a prescription
intervention).
Mr O’Sullivan’s evidence was that he was aware of the existence of the SOP but he did
not precisely follow its provisions. The NHS set a limit on the number of MURs on
which they will pay a pharmacy and that limit is 400 per pharmacy each year. Boots
adopt that limit as a target for each of their pharmacies, although they employ some
flexibility and will revise the target down where it is clear that 400 MURs could not be
achieved in the year at a particular pharmacy.
Mr Firth told the Committee that in his view the target of 400 for Clarence Street was
a “tough call” and would be difficult to achieve but there had been no adjustment of the
target. As the pharmacy store manager Mr O’Sullivan had ultimate responsibility for
ensuring that any NHS services conducted by himself or by other pharmacists working in
his store were correctly recorded and processed for payment in accordance with the
company policy. He had a responsibility to check the legitimacy of all MUR claims to
ensure that a paper form existed and it had been entered through the till. Mr O’Sullivan
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also had overall responsibility for ensuring that the FP34c form submitted at the end of
each month correctly stated the number of MURs completed during the month in order to
claim payment.
When Mr O’Sullivan took on the responsibility for the Clarence Street store, there had
been a period of time during which no MURs had been conducted; that meant there were
a large number of patients who were eligible for a review. Initially therefore
Mr O’Sullivan was able to ensure that a sufficient number of MURs were carried out to
meet the pharmacy’s target. However, once that initial ‘pool’ of patients had been
reviewed, it became clear that it was not going to be possible to meet the target set for the
store.
Boots make no direct payment to an individual pharmacist or a store manager for MURs
carried out. Mr Firth’s evidence was that achieving the target was not determinative of
the performance assessment of a manager, although it had a significance. His estimate
was that it was worth in the region of 10 to 15 per cent of the assessment of overall
performance. He told the Committee that a manager would be marked on a scale of 1 to 3
and his or her mark would affect the pay rise and bonus for which they might be eligible.
Clearly it would also affect the long-term prospects of a manager.
Mr O’Sullivan accepted that he was not put under any direct pressure by Mr Firth with
regard to the target but he felt that there was a culture of expectation that the targets
would be met. The Committee recognise that any manager set a target would seek to
meet it and be seen as a good manager who could deliver results.
Mr Firth’s assessment of Mr O’Sullivan was that he was a good member of staff with
a good attitude. He was hard-working and diligent and Mr Firth said he had high hopes
for his future. When Mr O’Sullivan found that he could not legitimately meet the MUR
target, his response was simply to complete the claim forms on the basis that he was
making satisfactory progress towards meeting the targets. That meant putting down false
figures on the FP34c forms, which gave a false impression to his line manager and led to
the NHS paying, on the basis of a declaration, for MURs which had not been carried out.
That continued throughout the period up until August 2011 at which point Mr O’Sullivan
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moved to become the pharmacy manager for the Boots store in Hull.
In March 2012 there was the audit of the Clarence Street store, which revealed that
between April 2011 and August 2011, Boots had received payment for 207 MURs but
there were only 17 records entered on the Nexphase system. Of those records 3 were
completed by Mr O’Sullivan; the remaining 14 having been completed by locum
pharmacists.
Mr O’Sullivan was invited to an investigatory meeting with Mr Firth on 27 March 2012.
Mr O’Sullivan of course knew at that time that he had approved claims for a significant
number of MURs which had never taken place. However he did not tell Mr Firth that was
the case but maintained in the interview that the MURs had actually been carried out,
despite the absence of records. He was specifically asked whether there had been times
when he thought that he did not have time to write up the MURs, and so would do them
later, he told Mr Firth:
“Very occasionally. It was a quiet shop so most were done with patients”.
He was asked if he had any evidence he could produce for the missing 190 MURs and he
said that he did not unless:
“... a copy of the MUR sent to the GP could be found”.
Of course, as Mr O’Sullivan knew, there had been no copy sent to GPs as the MURs had
not been carried out.
Following that meeting Mr Firth made some further enquiries and it was established
between the period 13 September 2010 to 31 August 2011, 435 MURs were processed
through the till as being completed and claimed for payment but only 98 MURs had been
recorded on the Nexphase and only 13 paper copies could be found. The balance of
337 MURs had attracted a payment of £9,436 from the NHS, which, when it was
discovered was not in fact payable, was repaid by Boots.
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Mr Firth invited Mr O’Sullivan to a further investigatory meeting on 29 March 2012,
following which he was suspended. Mr O’Sullivan’s position at that time was set out in
a letter that he wrote to Mr Firth dated 31 March 2012. In that letter he stated, with
regard to the discrepancy between MURs recorded and the actual records, that he had no
option but to accept Mr Firth’s word that the discrepancy existed but other than the
finding of the discrepancy, it was Mr O’Sullivan’s opinion that no proper investigation
had taken place. He further stated:
“If these [the 337 MURs] were processed through the till, I had carried out these
[MURs] with due care and consideration for the well-being of the patients
concerned and diligently documented my findings in the Nexphase system.
I strenuously deny any breach of trust and confidence” and “I expect a proper and
thorough investigation to be undertaken expeditiously, this false allegation
rescinded forthwith, my good name restored, and sanctions removed”.
Although Mr O’Sullivan was fully aware that false claims had been approved by him for
submission, he was still maintaining to the company that the reviews had actually been
carried out.
The matter was then referred to a formal disciplinary interview to be conducted by
Mr Munday, a pharmacy store manager with Boots, which was initially fixed for 2 April
2012, which was adjourned on that date to give Mr O’Sullivan some further time in which
to prepare. It was reconvened for 10 April 2012.
Mr O’Sullivan knew that the documentation could not be found, as it did not exist, but he
nevertheless undertook a somewhat desperate attempt to produce some evidence to
persuade Boots that reviews had been undertaken. His aim was to put himself in a better
light with Boots, even though he knew that any evidence he gathered could not justify the
false MUR claims. Mr O’Sullivan set about to make contact with patients for whom he
contended he had conducted a medicine review. He prepared a pro forma, which he
asked patients to sign. The pro forma was in the following terms:
“To whom it may concern,
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This is to state that I know the above named person in his capacity as a pharmacist
at the Clarence Street branch of Boots Pharmacy and that during my visits to the
pharmacy he reviewed my medication and offered appropriate advice”.
The purpose of seeking a patient’s signature to the pro forma was so that it could be
produced to Boots in an effort to persuade the company that he had undertaken MURs on
a regular basis each week. He subsequently did submit those he had obtained to
Mr Munday describing them as a sample.
As noted above, Mr O’Sullivan accepted at this hearing his approach to the patients,
which involved either visiting their home or speaking to them in the street, was
inappropriate. He had been suspended by Boots yet set out making contact with patients
of the company without any reference to Boots yet using Boots’ name and address on the
pro forma. Mr O’Sullivan’s evidence was that he had been told by Mr Munday that if the
MUR documentation could be found, then the allegation would ‘go away’. There is no
supporting evidence of any such comment by Mr Munday, and it appears that
Mr O’Sullivan’s first meeting with him was on 2 April 2012. Mr O’Sullivan had
embarked on an attempt to obtain some evidence that he could produce to the company
prior to that date as a number of the letters were dated 1 April 2012.
Mr O’Sullivan’s evidence at the hearing was that as many as 40 reviews had taken place
and notes of the discussions had been made but only on loose paper and those notes had
not been preserved. The MURs had therefore never been properly written up and
completed so should not have been charged for in any event.
In light of Mr O’Sullivan’s response to Mr Firth in the first investigating interview, the
Committee did not accept his evidence that as many as 40 review discussions had taken
place following which the paperwork had been lost. What Mr O’Sullivan could never be
able to produce was evidence that completed MURs had taken place as in 337 cases that
had not happened.
One of the patients with whom Mr O’Sullivan made contact was Patient S. The Council
produced a statement from a psychiatric nurse in relation to Patient S that recorded that
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she had a severe and enduring mental illness. She has frequent periods of depression and
has to contend with high levels of anxiety and worry. When stressed, Patient S can find it
hard to follow a conversation or, more accurately, finds it hard to find the words to
respond in conversation. Patient S nevertheless was able to make a complaint to the
police on the night that she was approached by Mr O’Sullivan and subsequently produced
a witness statement. Mr O’Sullivan stated that given the passage of time since the
interaction with Patient S, he cannot recall exactly what was said at that meeting but he
feels unable to challenge Patient S’s recollection.
It is accepted that Patient S was approached by Mr O’Sullivan on 6 April 2012 at
approximately 2000 hours. At the time she was at a bus stop waiting for a bus. It was
agreed that her exchange with Mr O’Sullivan was brief because her bus was due. She
confirmed that she knew Mr O’Sullivan professionally as she had used the Clarence
Street Boots for many years. She said that, whilst waiting for the bus, she was surprised
to see Mr O’Sullivan appear from behind the bus shelter. He held a pen with paper
attached to a clipboard. He greeted her by saying, “Hello, how are you”, and she replied,
“Very well, thanks”.
She stated that he looked at his clipboard and read and pointed at the following words:
“Some files have gone missing from the pharmacy”.
As Mr O’Sullivan accepts, that was not a truthful statement as what had gone missing, if
anything, was some notes he may have made following a discussion with her. In
cross-examination he accepted he did not tell the whole truth to Patient S about the
circumstances as to why he was making his enquiries. Patient S states that Mr O’Sullivan
then said to her, “You know me to be of good character”, and then asked if he could take
details of her name, address and phone number. He told her that Boots might want to get
in touch with her. At that point on the basis of the statements made to her by
Mr O’Sullivan, Patient S agreed to provide her details. She said that as he wrote down
the details, he changed his mind saying he “might want to get in touch with her himself.”
Patient S states that if she had known that was the case, then she would not have told him
anything about her personal information.
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It is not entirely clear why Mr O’Sullivan required that personal information as it would
be held on the pharmacy records and if Boots, on receipt of the statement, wanted to get
in touch with the patient, they would be able to do so.
Although Patient S stated that Mr O’Sullivan was not pushy in getting her details, she felt
uncomfortable about the situation. She said that she was shocked and concerned by his
approach, by his lack of confidentiality and unprofessional behaviour. Patient S was
clearly misled by Mr O’Sullivan’s comments, which, by mentioning Boots, clearly gave
her the impression that his enquiry was an official one. Mr O’Sullivan now accepts that
his statements were misleading.
The issue is, however, whether he acted dishonestly because the contact details were
required for his own use when he asked for them and whether he had deliberately misled
Patient S when he told her that Boots might need to contact her. Mr O’Sullivan clearly
wanted Patient S to sign the pro forma so it could be produced to Boots. His intention
was to pass it on to Boots, which he subsequently did. After the mention of Boots, he
almost immediately told her that he might want to contact her himself. It is the case that
he wanted the document for his own purpose as part of an attempt to persist in his denial
of the allegation he faced and to seek to persuade Boots to take what he described as
an indulgent course of action in the belief that MURs had been completed. However, his
evidence was that he believed that Boots might, on receipt of the statement, contact
Patient S.
The Committee accepts that clearly was a possibility and that Mr O’Sullivan genuinely
believed that might happen.
The exchange between Mr O’Sullivan and Patient S was clearly hurried, with
Mr O’Sullivan trying to convey information and obtain a signed pro forma document
from Patient S in a very short period of time. His approach to her was wholly
inappropriate and clearly caused the patient distress. However, taking account of all of
the evidence the Committee is not satisfied that the Council has discharged the burden
upon it to establish to the required standard that Mr O’Sullivan acted dishonestly in the
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way alleged.
The Committee accordingly find particular of allegation 10(c) not proved.
Mr O’Sullivan then completed his preparations for the reconvened disciplinary interview.
He prepared a letter dated 9 April 2012 in which he said that the allegation of MURs
claimed for by Boots from the NHS whilst he was in Clarence Street was not recorded by
him and by implication were not undertaken by him was untrue. In that letter he
suggested, amongst other things, that digital retrieval of the missing MUR file should be
undertaken before a full and fair conclusion was reached to ascertain their absence,
inadvertent or otherwise.
On 10 April 2012 Mr O’Sullivan attended the interview. At the outset he maintained his
denial, reading the 9 April 2012 letter, and producing 20 pro forma which had been
signed by patients. However, after a lunch break, Mr O’Sullivan stated:
“I will admit to the allegations and apologise for bringing the company and myself
into disrepute. I would like to say when it was implied about doing it for the
money factor, I did it to please the company. I tried to do the right thing, I know it
was not, but I tried”.
He was asked why he had falsified the numbers and he replied:
“I suppose pressure to achieve. I wanted to make it look good and please the
company is the main reason”.
He said that he had not admitted it sooner because he was worried about the
repercussions. He said that he did not know what to do and froze, which is why he did
not admit to it sooner.
When the allegation was referred to the Council, Mr O’Sullivan was written to by a case
worker seeking his response. On 10 October 2012 Mr O’Sullivan wrote stating that:
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“Although it may appear that I falsified records in relation to the completion of
337 MURs, from 13 September 2011 to 31 August 2011, I did in fact carry out
many MURs during this period but unfortunately failed to properly document
them. I was under severe pressure in my personal life at the time...”
(The hearing continued in private – see separate transcript)
He further stated that:
“I intended to follow Boots’ SOPs and intended to carry out the paperwork but it
gradually mounted up and due to personal stress, I never did get around to
properly recording the MURs conducted. Between 31 March and 7 April 2012
I tried to contact patients, many of whom I came to know well as I had worked as
a community pharmacist in the area. During the extreme cold weather around
Christmas 2010 many of the more elderly patients found themselves housebound
and I frequently delivered their prescriptions to their home. I did approach some
of these people in the street because, as I have said, they were people I was
familiar with. At no time was there any intention on my part to place my interest
above those of Boots, patients or the public. I did visit a number of patients in
their homes as they were patients on whom I had carried out MURs but had failed
to document the same. In contacting the patients, I was trying to confirm for
Boots that I had in fact carried out many more MURs than I had actually
recorded”.
The Committee noted, however, that in his evidence at this hearing, Mr O’Sullivan
accepted that he had not in fact carried out complete MURs but had at best merely made
some notes, of which no use was subsequently made.
That concludes the determination at this stage.
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DETERMINATION ON IMPAIRMENT
THE CHAIRMAN: On the basis of the facts admitted and found proved, the Committee
has now considered whether Mr O’Sullivan’s fitness to practise is currently impaired.
There was no further evidence from the Council at this stage of the proceedings but
Mrs Edwards on behalf of Mr O’Sullivan produced a number of testimonials. The
Committee also heard submissions from Ms Scarbrough on behalf of the Council and
from Mrs Edwards on behalf of Mr O’Sullivan.
The question of whether a registrant’s fitness to practise is impaired is a matter of
judgement for the Committee and not a matter of proof. Consideration of the question is
a two-step process, as required by the legislation. First it must be established that one of
the reasons for possible impairment as set out in Article 51(1) of the Pharmacy Order
2010 exists. That article provides that:
“A person’s fitness to practise shall be regarded as impaired for the purposes of
this order only by reason of...”
a) of the list is misconduct.
It is well established that for the purpose of proceedings of this nature, misconduct is
a word of general effect involving some act or omission which falls short of what would
be proper in the circumstances. It is also clear that the misconduct must be serious
misconduct. As was said in the case of Roylance v The General Medical Council [2000]
1 AC 311:
“The standard of propriety may often be found by reference to the rules and
standards ordinarily required to be followed by a medical practitioner in the
particular circumstances”.
That was a case dealing with a doctor but a similar approach is taken with regard to
pharmacists.
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In considering the question of misconduct, the Committee considered therefore the
provisions of the Standards of Conduct, Ethics and Performance issued by the General
Pharmaceutical Council. The key principle in this case is principle 6, which requires that
a pharmacist must be honest and trustworthy. That is a fundamental principle for
a pharmacist. In elaborating that principle, the Code makes clear that a pharmacist must
act with honesty and integrity to maintain public trust and confidence in the profession;
must meet expected standards of personal and professional conduct; and comply with
legal and professional requirements and accepted guidance on professional practice. The
dishonesty evidenced in relation to the submission of false claims to the NHS clearly
breaches that principle. The dishonesty was serious, repeated, and continued over
a significant period of time.
The second key principle is principle 1, which requires a pharmacist to make patients his
first concern. Amongst other things that requires a pharmacist to keep a full and accurate
record of professional services provided and to take action to protect the well-being of the
patients.
In this case as well as there being the submission of false claims, Mr O’Sullivan’s
evidence was that he held discussions with patients about their use of medicines which he
did not properly document or share with colleagues and other health professionals.
Moreover he behaved in an inappropriate way towards a number of patients and misled
one vulnerable patient into disclosing personal information, which was a cause of some
considerable distress to her.
The Committee is satisfied in relation to the facts admitted and found proved
Mr O’Sullivan’s acts and omissions set out above amount to misconduct and to serious
misconduct.
Findings of misconduct do not automatically lead to a finding of impairment and there
must be a separate consideration of that question. Case law emphasises that whether
fitness to practise is impaired must be judged at the date of the hearing before the
Committee although regard must be had to the way the person has acted or failed to act in
the past.
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There is no statutory definition of what amounts to impairment of fitness to practise.
However there is reference to fitness to practise criteria at rule 5 of the 2010 Rules, which
states at 5(1):
“The Committee must have regard to the criteria specified in paragraph 5(2)”.
That provides:
“In relation to evidence about the conduct or behaviour of a registrant which
might cast doubt upon whether the requirements as to fitness to practise are met in
relation to a registrant, the Committee must have regard to whether or not that
conduct or behaviour:
(a) presents an actual or potential risk to patients or the public;
(b) has brought or might bring the profession into disrepute;
(c) has breached one of the fundamental principles of the profession of
pharmacy; or
(d) shows the integrity of the registrant can no longer be relied upon”.
In the Committee’s judgement all four of those sub-paragraphs are engaged in this case.
The failure properly to document interactions with patients did carry with it some degree
of risk to those patients although the Committee accepts there is no evidence before it of
any significant risk. Mr O’Sullivan’s dishonesty and his inappropriate and misleading
behaviour towards patients clearly brought the profession into disrepute, breached
fundamental principles of the profession and has clearly called into question his integrity.
In the case of Cohen v General Medical Council [2008] EWHC 581 (Admin) Silber J
noted that when considering the question of impairment, the panel must give substantial
weight to the public interest including the protection of patients, the maintenance of
public confidence in the profession, and upholding proper standards of conduct and
behaviour. He further considered it to be highly relevant to consider whether the conduct
is easily remediable, whether it has been remedied, and whether it is highly unlikely to be
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repeated. However, the Committee noted that the questions asked in Cohen are not a test
in which the answers determine the question of impairment but are part of the analysing
process to be undertaken.
It is well recognised that where there has been dishonesty, that is not something which
can be easily remedied. The Committee acknowledged that Mr O’Sullivan has continued
to work since these incidents and without further complaint. However, where there has
been a character failure which has led to dishonest behaviour and in this case taking
account of Mr O’Sullivan’s response of denial and attempt to mislead investigators when
the matter came to light, the Committee could not conclude that, on the evidence it has
seen, it is highly unlikely that it would not be repeated.
Moreover in the case of CHRE v Nursing & Midwifery Council and Grant [2011], EWHC
927 (Admin) Cox J emphasised the need to take proper account of the public interest
which had been made clear in the case of Cohen. She said, at paragraph 74 of her
judgment:
“In determining whether a practitioner’s fitness to practise is impaired by reason
of misconduct, the relevant panel should generally consider not only whether the
practitioner continues to present a risk to members of the public in his or her
current role but also whether the need to uphold proper professional standards and
public confidence in the profession would be undermined if a finding of
impairment were not made in the particular circumstances”.
On the basis of the principles outlined by Cox J, Mrs Edwards indicated that
Mr O’Sullivan accepted that his fitness to practise is currently impaired.
Notwithstanding that admission, it remains a matter for the judgement of the Committee
and that judgement is that Mr O’Sullivan’s fitness to practise is currently impaired.
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DETERMINATION ON SANCTION
THE CHAIRMAN: At this stage of the proceedings, having found that Mr O’Sullivan’s
fitness to practise is currently impaired, the Committee concluded that in light of the
serious nature of the misconduct a sanction is required.
The sanctions available are limited and are set out in Article 54(2) of the Pharmacy Order
2010, which provides that if the Fitness to Practise Committee determines that the fitness
to practise of the person concerned is impaired it may, in short:
Give a warning to the person and give a direction that the details of the warning be
recorded in the Register;
Give a direction that the entry in the Register of the person concerned be
conditional upon that person complying, during such period not exceeding three
years, with such requirements as the Committee thinks fit to impose for the
protection of the public or otherwise in the public interest or in the interests of
the person concerned;
Give a direction that the entry in the Register of the person concerned be
suspended for such period not exceeding 12 months as may be specified in the
direction; or
Give a direction that the entry in the Register of the person concerned be removed.
The Committee has been assisted by consideration of the Council’s Fitness to Practise
Committee’s Indicative Sanctions Guidance, which reminds it that the purpose of a
sanction is threefold: namely, the protection of the public, the maintenance of public
confidence in the profession and the maintenance of proper standards of behaviour.
In considering the sanction the Committee exercises a discretion, and is required to
exercise that discretion in a way that is fair, reasonable and proportionate. This requires
the Committee to weigh the interests of the practitioner against the need for public
protection and, in making its decision, the Committee will have regard to the public
interest, which includes the protection of members of the public, the maintenance of
public confidence in the profession, and declaring and upholding proper standards of
conduct and performance.
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The Indicative Sanctions Guidance also states very clearly, and it has been made clear in
a number of cases before the higher courts, that the purpose of a sanction is not to punish
a practitioner, although it may have a punitive effect.
In the case of Bolton v. The Law Society [1994] 1 WLR 512, it was said:
“The reputation of the profession is more important than the fortunes of any
individual member. Membership of a profession brings many benefits, but that is
a part of the price.”
In the case of Marinovitch v. General Medical Council [2002] UKPC 36, the point was
made that:
“The Committee is entitled to give greater weight to the public interest and the
need to maintain confidence in the profession, than to the consequences to the
appellant of the imposition of the penalty.”
Those cases, which relate to other professions, apply equally to the profession of
pharmacy.
In considering the sanction appropriate in this case the Committee heard submissions
from Ms Scarbrough on behalf of the Council, who drew its attention to the relevant
sections of the Indicative Sanctions Guidance, and in considering the appropriate sanction
the Committee first considered paragraphs 7 and 8 of the Indicative Sanctions Guidance,
which provide, in non-exhaustive lists, what may amount to aggravating and mitigating
features of a case. It also considered the mitigation advanced by Mrs Edwards on behalf
of Mr O’Sullivan, including the testimonials and the reference advanced in his support.
In terms of aggravating features dishonesty is always a very serious matter. Honesty is a
fundamental principle for pharmacists. The public place a heavy reliance on pharmacists,
and any act of dishonesty must call into question their fitness to remain on the Register.
In this case the dishonesty was repeated on a regular basis as forms FP34c are submitted
monthly, and the period over which they were submitted containing false information was
approximately a year. The dishonesty in this case involved a number of breaches of trust.
Mr O’Sullivan was in a position of responsibility, being the only permanent pharmacist
employed at the store. The dishonesty was directly linked to his pharmaceutical practise.
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The false claims were submitted in the name of Boots, which damaged their reputation
and breached the trust they placed in him. As was identified in the determination on
facts, the NHS does not seek evidence in support of a claim for payment for conducting
an MUR, other than the signed declaration. Trust is placed in the pharmacy profession,
which is seriously undermined by actions such as those of Mr O’Sullivan.
Mr O’Sullivan made reference to the pressure which he felt under to achieve the target
which he had been set with regard to MURs, but accepted that his line manager was not
putting him under any direct pressure. His dishonesty did not lead to any direct and
immediate financial gain to him, but there can be little doubt that there would be a benefit
to Mr O’Sullivan. His motivation ultimately appeared to be to put himself in a good light
with Boots and enhance his reputation and standing in the organisation. That was likely
to affect pay, bonuses and prospects within the company.
Concealment of wrongdoing is also listed as an aggravating factor. When the
investigation into the false claims was instigated, not only did Mr O’Sullivan not admit
his wrongdoing but he vigorously refuted that he was responsible. As was set out in the
determination on the facts, Mr O’Sullivan wrote a letter dated 9 April 2012 in which he
said that the allegations relating to the MURs were untrue. On 31 March 2012 he wrote:
“I expect a proper and thorough investigation to be undertaken expeditiously, this
false allegation rescinded forthwith, my good name restored and sanctions
removed”.
He sought to conceal his wrongdoing and mislead the Boots investigators by claiming
that he had conducted the MURs. This involved him inappropriately contacting patients
of Boots. The effect of that contact upon the vulnerable Patient S has been set out
previously.
Mrs Edwards drew the attention of the Committee to what she submitted were mitigating
factors.
The first, which cannot be disputed, is that Mr O’Sullivan has no previous disciplinary
record, although the Committee note that his career has been a comparatively short one.
It was submitted by Mrs Edwards that the dishonesty was out of character, which is
perhaps another way of expressing that he has no previous disciplinary record. However,
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the Committee considered that the duration of the dishonesty, and his response when first
investigated, was suggestive of an attitudinal problem.
It is the case that his misconduct did not cause any actual harm to patients, although there
was some risk as a result of the failure to document discussions with patients regarding
their medicine reviews, and there was the distress caused to Patient S.
Mrs Edwards also drew the attention of the Committee to the fact that the money had
been repaid to the NHS by Boots. The fact that such a repayment has taken place is as a
result of the audit undertaken by Boots rather than any action taken by Mr O’Sullivan,
whose dishonesty meant that public funds would have been wrongfully depleted.
The Committee has already detailed Mr O’Sullivan’s response to the allegations, which
was to deny them and seek to mislead investigators. However, it is right to acknowledge
and take account of the fact that he did make full admissions to the allegations at the
outset of this hearing. He did attend and give evidence, and has continued to engage with
his Regulator.
It is also the case that there are no allegations regarding the competence of Mr O’Sullivan
as a pharmacist, and one who had achieved registration relatively recently. Testimonials
which speak of his competency as a pharmacist and also of his character have been
produced. The latter comments do, however, need to be seen in the context of the
dishonesty exhibited by him in respect of the current allegations.
Mrs Edwards also expressed on behalf of Mr O’Sullivan the shame and remorse which he
felt.
There were no particular personal circumstances drawn to the attention of the Committee
which it was suggested should be taken into account.
Mrs Edwards also submitted that Mr O’Sullivan now showed current insight. The lack of
such insight is undoubtedly an aggravating feature, and its attainment is listed as a
mitigating feature in the Indicative Sanctions Guidance.
The admissions made at the outset of the hearing could certainly be indicative of insight,
but equally may be a reflection of the reality that there is no real alternative in light of the
evidence.
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The Committee had the benefit of observing Mr O’Sullivan give evidence and be cross-
examined. In his evidence Mr O’Sullivan confirmed the content of a witness statement
prepared for the hearing. That statement contained the following reflection:
“While I acknowledge that what I did was wrong and of serious import, I entreat
this committee to view this misguided behaviour of mine as an isolated event that
will not be repeated.”
The use of the expression “misguided behaviour” did not persuade the Committee that Mr
O’Sullivan currently exhibits a significant degree of insight into the gravity of his
misconduct and the impact it has on the profession.
Turning then to the appropriate sanction in the circumstances of this case. In order to
arrive at the right conclusion the Committee adopts what is called a step-wise approach,
starting with the least restrictive sanction, considering whether that is appropriate, and
continuing until the right and appropriate sanction is reached and, having done so, to
explain why that is the case.
This approach ensures that the Committee acts in a way which is proportionate, and
ensures that a sanction imposes no greater restriction than is absolutely necessary to
achieve its objectives.
The sanction which is least restrictive is a warning. The Indicative Sanctions Guidance
provides assistance and suggests where a warning may be appropriate. In cases of
misconduct, for example, it advises that it may be appropriate where there are only minor
breaches of standards of conduct, ethics and performance.
It was not submitted on behalf of Mr O’Sullivan that a warning would be an appropriate
sanction in this case. The Committee is clear that neither the dishonesty nor the
inappropriate and misleading behaviour admitted in this case could be categorised as
minor, and therefore a warning would not be appropriate.
Given that the Committee considered a warning not to be appropriate for the misconduct,
it then went on to consider the next least restrictive sanction, which would be to impose
conditions upon Mr. O’Sullivan’s registration. Again, it was not submitted on behalf of
Mr O’Sullivan that this would be an appropriate sanction.
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The Committee considered that it would not be possible to devise any form of conditional
registration, directed to Mr. O’Sullivan’s misconduct, which would be appropriate to
maintain public confidence in the profession and adequately uphold proper standards of
conduct.
The remaining sanctions available are, therefore, suspension or removal of Mr. Sullivan’s
name from the Register.
The Indicative Sanctions Guidance suggests, in non-exhaustive lists, when these
sanctions might be appropriate. Suspension may be appropriate, it suggests, where there
is no evidence of repetition of misconduct; public confidence in the profession demands
no lesser sanction; a message needs to be sent to the profession and the public that the
conduct is unacceptable and unbefitting of a pharmacist, but the conduct falls short of
being fundamentally incompatible with continued registration.
Cases where removal from the Register may be appropriate include: where there is
dishonesty; the behaviour is fundamentally incompatible with registration; and public
confidence in the profession demands no lesser sanction.
It is clear from the case law that whilst a removal order is not inevitable following a
finding of dishonesty, members of the profession who behave dishonestly put themselves
at serious risk of receiving the most severe sanction of having his or her name removed
form the Register.
In the case of Atkinson v. GMC [2009] EWHC 2636 (Admin), Mr Justice Blake said that:
“I would accept that erasure is not necessarily inevitable and necessary in every
case where dishonest conduct by a medical practitioner has been substantiated.
There are cases where the panel, or indeed this court on appeal, have concluded in
the light of the particular elements that a lesser sanction may suffice and it is the
appropriate sanction bearing in mind the important balance of the interests of the
profession and the interests of the individual. It is likely that for such a course to
be taken, a panel would normally require compelling evidence of insight and a
number of other factors upon which it could rely that the dishonesty in question
appeared to be out of character or somewhat isolated in its duration or range, and
accordingly there was the prospect of the individual returning to practice without
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the reputation of the profession being disproportionately damaged for those
reasons.”
As was recognised in the case of Nicholas-Pillai v. General Medical Council [2009]
EWHC 1048 (Admin):
“These cases always result in the balancing of one public interest against another.
In cases of actual proven dishonesty, the balance ordinarily can be expected to fall
down on the side of maintaining public confidence in the profession by a severe
sanction against the practitioner concerned. Indeed, that sanction will often and
perfectly properly be the sanction of erasure, even in the case of a one-off instance
of dishonesty.”
In this case, having taken account of all of the matters outlined above, the Committee
concluded that Mr O’Sullivan’s conduct is fundamentally incompatible with his
remaining on the Register, and that the requirements to maintain public confidence in the
profession and uphold proper standards of behaviour require a sanction of removal.
The Committee recognise the impact that this will have upon Mr O’Sullivan, but having
taken full account of that conclude that the sanction of removal is proportionate in all of
the circumstances. That is the determination of the Committee on sanction.
(The hearing went into camera at 10.55 am and
returned into open session at 11.12 am)
DETERMINATION
THE CHAIRMAN: As has been recognised in the submissions by Mrs Edwards, the
direction that the Committee has made does not come into effect immediately; there is a
period during which an appeal can be lodged, and if it were, unless a further order is
made the order would not take effect until the appeal were finally determined. However,
Article 60 of the Pharmacy Order 2010 does provide that where a Committee has made a
direction removing a Registrant’s entry from one or more parts of the Register, it is given
the power to make an immediate suspension order.
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In this case there has been no interim order, as Mrs Edwards has submitted, but the
position now is different, in that not only has there been a finding of impairment,
arguably more importantly there have been findings of fact when the misconduct has been
clearly and fully established.
In its determination on impairment the Committee did identify a risk of repetition of the
misconduct, which although did not raise any significant risks to patient safety would
seriously damage public confidence in the profession.
The Committee consider that it would be inconsistent with its previous findings if no
order were made in this case, and that not to make an order would damage public
confidence in the profession and fail to uphold proper standards of behaviour. In those
circumstances it makes an order under Article 60 for the immediate suspension of the
name of Mr O’Sullivan from the Register. Thank you.
(The hearing concluded at 11.14 am)