High Court: First written judgment on suspension of pharmacists
The High Court, in what it described as the first written judgment on the suspension of pharmacists under the Pharmacy Act 2007 s.45, has suspended a pharmacist from practice.
On 3 September 2020, concerns about the pharmacist, A.B., were conveyed to the Pharmaceutical Society of Ireland. The court noted that the facts were not in issue, as A.B., by way of affidavit, accepted that he should not be practising as a pharmacist “for the time being.” He said that he had developed significant issues arising from mental health and that he had developed an addiction to alcohol and medication.
On 11 September 2020, the Council of the Pharmaceutical Society of Ireland, by way of remote meeting, considered A.B.’s undertaking not to practise. The council chose to apply to the court for an order suspending A.B. from the register due to the overall seriousness of the allegations. It was alleged that A.B. had dispensed the wrong product, and that he had attended while drunk, and that he sought to conceal the taking of medication by asking staff to leave the pharmacy. It was further alleged that methadone was left for patients in an alleyway or a bookie’s shop. The council considered that there was evidence of denial when confronted with wrongdoing.
A.B. voluntarily ceased to be superintendent pharmacist of the pharmacy, having stopped working there on 4 September 2020. A.B. resigned as a director of the company operating the pharmacy on 18 September 2020, and no longer holds keys or passwords.
The Pharmacy Act 2007 s.45(1) empowers the High Court to suspend the registration of a registered pharmacist against whom a complaint has been made. Mr Justice Richard Humphreys, noting Ó Ceallaigh v An Bord Altranais  4 IR 54, said that questions that might arise in other cases such as hardship to the practitioner, and the draconian nature of suspension and the need to avoid unduly lengthy suspensions were not as critical where A.B. said that he is not going to practise.
The judge accepted that informal options may be available if the Society is prepared to accept undertakings by a practitioner either to restrict practice or not to practice. “However,” he said, “at least in the pharmacy context, that has no statutory basis.” The court said that the meaningfulness of informal undertakings is diluted by their lack of enforceability, citing the judgment of Mr Justice Peter Kelly, then President of the High Court, in Teaching Council of Ireland v M.P.  3 IR 249.
The justice accepted that s.59(1) allowed a pharmacist to cancel their registration on request, but stated that option was not available where a live complaint exists, and that there was no provision for suspension of registration at the request of a practitioner without recourse to the court.
Simon Mills SC, counsel for A.B., argued that an undertaking should be preferred to an order. He submitted that A.B. should not be subjected to a draconian order if another method was available. Mr Justice Humphreys rejected this, stating that the “order isn’t in fact draconian if the practitioner isn’t going to be practicing anyway”. The court said that A.B.’s good name and reputation would be affected either way.
Counsel argued that this case concerned a health issue and, therefore, it was preferable to “respond to the respondent’s engagement”. The judge said that he did not accept this, stating in the contrary that it may be “more likely” be in A.B.’s long term interest to “have to face up the consequences”.
Counsel raised concerns on information being communicated to third parties. While he took no issue with the notion of relevant third parties being informed as to A.B.’s status, he submitted that this should be articulated in terms of an undertaking rather than suspension. The court said that this, to some extent, came down to a question of perception”, and that it was “not convinced that accepting an undertaking is really much more favourable in practice to the respondent than simply making an order for suspension.”
The judge said that the enforceability of undertakings is less convenient. The society would be coming back to the court on a contempt motion regardless of whether A.B. was suspended or gave an undertaking, if he did not abide by either process. However, only the suspension carried with it a specific statutory offence for non-compliance, in ss.31 and 32.
The judge drew attention to the “possible inflexibilities in the legislation”. He thanked Mr Mills SC for drawing attention to the fact that the Oireachtas is currently considering this area in the form of the Regulated Professions (Health and Social Care) (Amendment) Bill 2019. The judge said that while any decision is exclusively a matter for the legislature, it seemed to him that the legislative scheme could be improved specifically by allowing a practitioner to voluntarily agree to a measure which would have equivalent legal effect to a suspension, but without the need for recourse to the court for a formal order.
The judge was satisfied that a risk exists as specified in the Pharmacy Act 2007 s.45, which warranted A.B.’s suspension, and the court so ordered.
© Irish Legal News Ltd 2021