GENERAL PHARMACEUTICAL COUNCIL FITNESS TO PRACTISE ...

GENERAL PHARMACEUTICAL COUNCIL
FITNESS TO PRACTISE COMMITTEE
129 Lambeth Road, London SE1 7BT
Wednesday 5 October 2011
Chairman:
Mr Michael Simon
Committee Members:
Committee Secretary:
Mr Roy Fitzsimmons
Mrs Judith Way
Ms Kam Kandola
CASE OF:
YAQUB, Baber Raja
(Registration Number: 2040788)
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MR MARK MILLIN, Solicitor-Advocate, appeared on behalf of the General
Pharmaceutical Council.
MR KEVIN McCARTNEY, Counsel, instructed by Charles Russell Solicitors,
appeared on behalf of Mr Yaqub, who was present.
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Transcript of the shorthand notes of T A Reed & Co Ltd
Tel No: 01992 465900
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Determination 1
Determination 13
PLEASE NOTE: Copies printed from email may differ in formatting and/or page
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(The Committee resumed in camera at 9.30 am and
returned into open session at 11.39 am)
D E T E R M I N A T I O N
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THE CHAIRMAN: This is the impairment stage of proceedings brought against Mr Baber
Raja Yaqub a pharmacist first registered with the Royal Pharmaceutical Society of Great
Britain on 15 December 1992 and subsequently registered with the General Pharmaceutical
Council when it came into existence under the registration number 2040788.
At the beginning of the hearing, the registrant formally made admissions to all of the heads
of charge in the allegation. In brief, these relate to failures to maintain accurate and up-todate
controlled drugs registers for a number of different drugs, and in respect of one head
of charge, paragraph 7, Mr Yaqub was said to have supplied methadone otherwise than in
accordance with the relevant script. The first head of charge is dated February 2006 and
the last relates to December 2008. It is worthy of note that there are two distinct strands to
the allegations, one relating to controlled drugs in general (which I will refer to in future as
CDs) and one relating to methadone specifically.
By way of background in relation to the allegations, Mr Yaqub was the pharmacist in
charge of Bruntons Chemist, 240 Earls Court Road, London SW5 9AA. Yaqub Pharmacy
Ltd, which is the corporate owner of Bruntons Chemist, is owned by Mr Yaqub. He is the
superintendent and director of that organisation. At all material times he was the
pharmacist in charge of Bruntons Pharmacy. On 24 November 2008, DC Mark Smith,
Controlled Drugs Liaison Officer of the Metropolitan Police, informed the Society (which
was then the regulator) that he had visited Bruntons Chemist on 30 April 2008 and asked
Mr Yaqub to inspect the controlled drugs registers. DC Smith advised that Mr Yaqub was
unable to show him the CD registers, saying that his accountant had accidentally taken
them on 24 April 2008, along with some other documentation. DC Smith stated that
Mr Yaqub assured him that he would retrieve the registers that night and return them to the
pharmacy. DC Smith also stated that he contacted Mr Yaqub again on 1 May and 6 May
2008 but that the registers had not yet been returned.
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On 12 May 2008 Sharon Monks, Society Inspector, visited Bruntons Chemist to undertake
a routine inspection. During the inspection Ms Monks asked Mr Yaqub for the CD
registers and was informed that he did not have them as his accountant had removed them
by accident. Ms Monks believes she had seen a CD register in the basement and asked
Mr Yaqub to get it for her. She found that it was part of a register and contained many
gaps between entries and discrepancies in the running balances. Ms Monks removed the
section of the CD register that was available and she returned again to the pharmacy on
22 May 2008 and removed some further sections of the CD register that Mr Yaqub had
retrieved. On 28 August 2008 Ms Monks provided the registers to DC Smith to enable the
police to further investigate the matter.
On 17 November 2008 the police interviewed Mr Yaqub under caution. During that
interview Mr Yaqub made admissions concerning the CD registers. He stated that he had
voluntarily stopped supplying schedule 2 drugs (that is the methadone in this case)
approximately a year before.
On 24 November 2008 DC Smith also informed the Society that the police had decided not
to take legal proceedings against Mr Yaqub because (i) he had no previous warnings; (ii)
there was no evidence of unlawful supply or indeed of diversion; (iii) there was no risk to
public health involved; and (iv) he had adopted new standard operating procedures (SOPs).
The police also took into account that Mr Yaqub accepted that he had fallen behind in
maintaining the CD registers during 2006 and 2007, had left gaps in case he had missed
entries, and that not recording all supplies of drugs had led to imbalances in his records.
Further, the police took into consideration that Mr Yaqub had voluntarily stopped
dispensing the schedule 2 CDs for a year so that he could put safeguards in place to
prevent a recurrence of the situation.
On 17 December 2008 DC Smith returned the CD registers to Ms Monks together with
prescription evidence and a copy of the police interview which is in our bundle. On
7 January 2009 Ms Monks visited Bruntons Chemist to carry out a follow-up CD
inspection. At that stage, she found two missing entries for 13 and 15 December 2008
relating to Seconal capsules, which are reflected in the final head of charge in the
allegation.
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In his written evidence Mr Yaqub explained that having worked as a pharmacist for other
employers until 2006, Bruntons was the first pharmacy that he had purchased in his own
right. He took over a going concern with existing members of staff. He said this in his
statement at paragraph 10:
“The proprietors of the Pharmacy were a partnership. There was a dispute between
the partners about who the Pharmacy should be sold to. One of the effects of this
dispute was that I was not allowed to work in the Pharmacy before I purchased it.
I therefore did not get an opportunity before the purchase to understand the volume
and type of work in the Pharmacy, what level of support staff there was, the
training of those staff, how the staff worked in the Pharmacy, its procedures and the
level and type of information technology in use.
11. On day one of my ownership I was therefore up against a barrage of patients
who wanted prescriptions dispensed and with the staff... that I inherited from the
previous owners. The staff had no experience of sales or giving advice. It was
evident that most of them were employed to look after the photographic
department, which at the time was processing films. They had a poor grasp of
English and were not trained appropriately for the pharmacy counter... The overall
effect was that the staff did not work in a way that I would have liked.
12. There were other issues which I discovered when I started working at the
Pharmacy and which affected the ability of me and the other staff to operate
effectively. For example:
12.1 Bottled water was used for reconstituting antibiotics... However, there
was no system for recording when the bottle had been filled and,
consequently, no way of verifying that the water in the bottle was fresh.
12.2 The [pharmacy] dispenser... did not speak English very well.
12.3 The computer system was outdated and had no association with the
most commonly used software and hardware on the market – it had a very
slow processor and a very slow 9-pin dot-matrix printer.... The computer
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did not have a proper modem so orders had to be telephone to Colorama.
The system was stifling.
12.4 ...
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12.5 The previous owners had made no effort to comply with the new
pharmacy contract which was introduced in April 2005. None of the
guidelines for essential services had been auctioned and no clinical
governance requirements had been met.
12.6 Waste medication had not been collected for seven years and was
being stored in the basement.
12.7 ...
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12.8 There was no fire alarm and the fire extinguishers had not been tested
for 11 years.
12.9 The Pharmacy did not have any Standard Operating Procedures.
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12.10 There was no staff training on giving health advice.
12.11 The food fridge was used for storing medication.
13. The practical effect of all these issues was that the dispensing work was not
done efficiently and effectively by staff. This placed a heavy burden on me as
the pharmacist because I did not have suitable support from existing staff, and there
were no family members who could help out. I was also still managing the
aquarium shop...”
I interpose here to point out that Mr Yaqub makes reference to this earlier on in his
statement, that he owned another business which was in fact an aquarium shop at the same
time.
His statement continues:
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“… (with the staff that I had left there) whilst being the full-time pharmacist at
the Pharmacy. I was attending the aquarium store in the evening after closing the
pharmacy.
14. Once the extent of the problems became apparent, I tried to resolve the issues
and prioritised the issues which I believed were most pressing. For example, new
fridges were ordered, a new computer system (Link) was installed, new reference
books were ordered, standard operating procedures were initiated and staff were
trained on their roles from scratch. I also recruited additional members of staff
who had appropriate training and experience of working in a pharmacy.
Specifically in relation to the supply of controlled drugs from the pharmacy, Mr Yaqub
said this in his statement at paragraph 15 and onwards:
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“Almost as soon as I purchased the Pharmacy, a representative from the local Drug
Dependency Unit asked me if the Pharmacy would take on methadone patients
because the nearest pharmacy, Boots, was not taking any more patients and the
DDU said that there was a need in the neighbourhood for that service. From April
2006 we started providing services to drug misusers and had 8 patients initially.
We also started participating in a needle exchange scheme.
16. Almost immediately I started to fall behind with making entries in the CD
register and the general administration of the business suffered. For example, when
I dispensed methadone I would not make the entry immediately, intending to do it
later. I then did not complete the entry, so when the next prescription came in
I could not include it in the register because I had not entered previous supplies. It
is apparent to me now that I had bitten off more than I could chew. The problem
snowballed and I did not know who to ask to sort things out.
17. I felt afraid that I had fallen behind with the registers and I could not see how
to get back on top of it. I therefore decided in around September 2007 that we
would have to stop supplying methadone because I had realised that I would not be
able to get back on top of the records if we were also continuing to make supplies.
It was my intention not to start dispensing methadone again until I had found
a workable system for the service and had trained all the staff.
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18. Once I ceased making further supplies of methadone, I started to attempt to put
the CD registers together and to complete the missing entries using copies of
prescriptions and invoices that I had kept. I had every intention to put it all in
order. However, I accept that the entries contained within the Council’s bundle
show that the CD registers were not all up-to-date by May 2008. For example, the
CD registers still had a number of gaps which I had left where, for example, I had
put in entries of stock received and intended at a later date to put in the supplies
made to patients.”
As we indicated earlier, Mr Yaqub made what are properly described as full admissions in
his interview with the police and, indeed, within these proceedings. Mr McCartney who
appears on his behalf confirmed that Mr Yaqub accepts that the facts he has admitted
amount to the type of serious misconduct about which we must be satisfied in the first
stage of our considerations of impairment of fitness to practise. That seems to us to be
an entirely proper recognition of the nature of the failings in his clinical practice.
The oral evidence we heard from the inspector Ms Monks and from the registrant centred
on the question of the extent to which there had been remediation of that misconduct.
Ms Monks was speaking to a report from a colleague of hers in the inspectorate who
visited Bruntons Pharmacy on 24 November 2010 and who made recommendations for
additional clarity in respect of the SOPs for controlled drugs and for the supply of
methadone. Having said that there had been improvements but that Mr Yaqub was not “all
the way there”, she accepted that the deficiencies in the SOPs were about describing the
process for making a recording, and it was not suggested that the recording itself was not
being made. Ms Monks also said that the versions of the SOPs from 2010 and 2011
seemed to address this lacuna. She insisted that a couple of other points in the SOPs
needed to be clearer to satisfy her fully. She also indicated that best practice suggested that
there should be a weekly balance check on all controlled drugs and not the monthly one
referred to in the general SOP.
In his oral evidence Mr Yaqub explained that he was unable to address the issues around
the controlled drugs registers because there was so much else that needed his attention. He
expressed a clear readiness to amend the SOPs further to reflect the comments made by
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Ms Monks. He agreed that he had been registered for a substantial period of time prior to
taking on Bruntons and that he was aware of the requirements of the misuse of drugs
legislation. He also agreed that he should have prioritised the maintenance of the CD
registers. He said that he thought “a lot of things would have been done differently with
hindsight.”
As to the issue of the balance checks, he confirmed that there is a weekly check on
methadone and a monthly check on the one other controlled drug currently being
dispensed, Seconal, due to the fact that it is only being supplied on a monthly basis at
present. If the situation changed and more controlled drugs were being dispensed, as was
the case in 2006 and 2007, then he would institute weekly balance checks for all CDs.
At the time of the clinical failures he had felt there was nowhere to turn for advice, but
now he would approach the Society, the National Pharmacists Association or the Local
Practitioner Committee. He had invested a significant sum in the automated dispenser for
methadone (known as MethaMeasure) which will record electronically the dispensing of
that drug, although new supplies will have to be entered manually as before.
Given his concession on misconduct, our task at this point in the proceedings is to
determine whether or not Mr Yaqub’s fitness to practise is currently impaired. This issue,
of course, is not a simple matter but it is one for which guidance is contained in a number
of High Court decisions.
In the case of Cohen v General Medical Council [2008] EWHC (Admin) Silber J stated at
paragraph 62 and onwards:
“Any approach to the issue of whether a doctor’s fitness to practice should be
regarded as “impaired” must take account of “the need to protect the individual
patient, and the collective need to maintain confidence in the profession as well as
declaring and upholding proper standards of conduct and behaviour of the public
in their doctors and that public interest includes amongst other things the
protection of patients, maintenance of public confidence in the profession”. In my
view, at stage 2 when fitness to practice is being considered, the task of the Panel is
to take account of the misconduct of the practitioner and then to consider it in the
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light of all the other relevant factors known to them in answering whether by reason
of the doctor’s misconduct, his or her fitness to practice has been impaired…
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63. I must stress that the fact that the stage 2 is separate from stage 1 shows that it
was not intended that every case of misconduct found at stage 1 must automatically
mean that the practitioner’s fitness to practice is impaired.
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64. There must always be situations in which a Panel can properly conclude that
the act of misconduct was an isolated error on the part of a medical practitioner and
that the chance of it being repeated in the future is so remote that his or her fitness
to practice has not been impaired. Indeed the Rules have been drafted on the basis
that once the Panel has found misconduct, it has to consider as a separate and
discrete exercise whether the practitioner’s fitness to practice has been impaired…
65. Indeed I am in respectful disagreement with the decision of the Panel which
apparently concluded that it was not relevant at stage 2 to take into account the fact
that the errors of the appellant were “easily remediable”. I concluded that they did
not consider it relevant at this stage because they did not mention it in their findings
at stage 2 but they did mention it at stage 3. That fact was only considered as
significant by the Panel at a later stage when it was dealing with sanctions. It must
be highly relevant in determining if a doctor’s fitness to practice is impaired that
first his or her conduct which led to the charge is easily remediable, second that it
has been remedied and third that it is highly unlikely to be repeated. These are
matters which the Panel should have considered at stage 2 but it apparently did not
do so.”
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We remind ourselves that later authorities have adopted Silber J’s formulation, save for
emphasising that the assessment of fitness to practise must be undertaken relative to the
circumstances as they are at the date of hearing.
In the case of Cheatle v General Medical Council [2009] EWHC 645 (Admin) Cranston J
stated:
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“Impairment of fitness to practise” is a somewhat elusive concept. In her fifth
Shipman Report… Dame Janet Smith opined that its advantage was that it was
capable of embracing the range of problems which the GMC habitually
encountered, misconduct (including criminal conduct), deficient professional
performance and adverse health and determinations by other regulators. However,
it was unclear what it meant and even greater difficulties would be encountered
with the concept than with those of “serious professional misconduct” and
“seriously deficient performance”… Dame Janet helpfully set out the reasons why
a decision-maker might conclude that a doctor was unfit to practise or that his
fitness to practise was impaired. Four reasons recurred in the examples she had
examined:
“… (a) that the doctor presented a risk to patients, (b) that the doctor had
brought the profession into disrepute, (c) that the doctor had breached one
of the fundamental tenets of the profession and (d) that the doctor’s integrity
could not be relied upon.”
In CHRE v Nursing & Midwifery Council and Grant [2011] EWHC 927 (Admin) Cox J
said at paragraph 72 and onwards:
“This need to have regard to the wider public interest in determining questions of
impairment of fitness to practise was also referred to by Goldring J in R (on the
Application of Harry) v. General Medical Council [2006] EWHC 3050 (Admin)
and by Mitting J in Nicholas-Pillai, where he held that the Panel were entitled to
take into account the fact that the practitioner had contested critical allegations of
dishonest note-keeping, observing that:
‘[19] In the ordinary case such as this, the attitude of the practitioner to the
events which give rise to the specific allegations against him is, in principle,
something which can be taken into account either in his favour or against
him by the panel, both at the stage when it considers whether his fitness to
practise is impaired, and at the stage of determining what sanction should be
imposed upon him.’”
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73. Sales J also referred to the importance of the wider public interest in assessing
fitness to practise in Yeong v GMC [2009] EWHC 1923 (Admin), a case involving
a doctor’s sexual relationship with a patient. Pointing out that Cohen was
concerned with misconduct by a doctor in the form of clinical errors and
incompetence, where the question of remedial action taken by the doctor to address
his areas of weakness may be highly relevant to the question whether his fitness to
practise is currently impaired, Sales J considered that the facts of Yeong merited
a different approach. He upheld the submission of counsel for the GMC that:
‘… Where a FTPP considers that the case is one where the misconduct
consists of violating such a fundamental rule of the professional relationship
between medical practitioner and patient and thereby undermining public
confidence in the medical profession, a finding of impairment of fitness to
practise may be justified on the grounds that it is necessary to reaffirm clear
standards of professional conduct so as to maintain public confidence in the
practitioner and in the profession. In such a case, the efforts made by the
medical practitioner in question to address his behaviour for the future may
carry very much less weight than in a case where the misconduct consists of
clinical errors or incompetence.’
74. I agree with that analysis and would add this. 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.”
At paragraph 116 of her judgment, Cox J also said:
“When considering whether fitness to practise is currently impaired, the level of
insight shown by the practitioner is central to a proper determination of that issue.”
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Mr Millin for the Council submitted, in essence, that whilst there had been some level of
remediation in this case, it was incomplete, and that, bearing in mind the dicta of Grant,
a finding of impairment was “inevitable”.
In comprehensive submissions on the registrant’s behalf, Mr McCartney emphasised the
level of insight shown by Mr Yaqub. He drew a distinction with Grant on its facts and
urged us to approach the matter very much from the perspective of the cases of Cohen and
Cheatle. The combination of the passage of time, insight and remediation should, he said,
lead to a finding that Mr Yaqub’s present fitness to practise is not impaired. This case did
not involve an innate character flaw and did not relate to clinical incompetence. He
analysed the outstanding areas of concern addressed in the oral evidence and urged us to be
satisfied that these should not weigh heavily in our consideration.
He acknowledged that the registrant had obviously got himself into difficulties at the time
and had not appreciated that there were organisations to which he could turn in order to
help him out of his predicament. Mr McCartney suggested that the Committee, in finding
no impairment, could still properly consider the giving of a warning.
We have, of course, given very careful consideration to all of the evidence and everything
that has been said by both representatives. We accept that there has undoubtedly been
some remediation of the misconduct. There are more comprehensive SOPs in place.
However, we were struck by the fact that even now Mr Yaqub seems to adopt a reactive
rather than proactive approach to the controlled drugs aspect of his pharmacy practice.
Whilst we understood entirely why the Seconal is only checked on a monthly basis, we
were concerned that the relevant SOP, which should cover any reasonably predictable
eventuality, did not even now contain a reference to the need for a weekly balance on those
CDs that are dispensable frequently. Although that is not currently an issue, a thorough
and properly thought through SOP would address this issue. This raises proper concern,
both about the fullness of the remediation, without in any way questioning Mr Yaqub’s
good intentions, but also about the extent to which we can properly be satisfied that the
misconduct is “highly unlikely” to be repeated.
There did not appear to us to be any clear explanation as to why maintenance of the CD
registers was not prioritised when Mr Yaqub quite plainly knew the requirements and
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understood their importance. These are fundamental and vitally important aspects of
pharmacy practice, and we remain concerned that they existed over such an extended
period of time and that no effective remedial action was taken during that time.
Furthermore, a careful and full reading of Cohen does not seem to us to be inconsistent
with the principle enunciated by Cox J in Grant that the nature and extent of the
misconduct may lead to a finding of impairment based on the limbs of the public interest
duty other than public protection. Silber J in Cohen refers to “an isolated error on the part
of the practitioner”. Whilst, of course, this cannot be interpreted literally to encompass
only what one might call one-off lapses in professionalism, we do not consider that it
properly applies to the breadth of failures involved in this case over a period of nearly three
years and relating to so many different CDs. Silber J specifically refers to the need to take
account of “the collective need to maintain confidence in the profession as well as
declaring and upholding proper standards of conduct and behaviour” when assessing
fitness to practise.
The public view of Mr Yaqub’s misconduct would not be, in our opinion, that these were
just administrative errors but rather that the misconduct constituted serious failures in basic
pharmacy practice as required by law, not just the relevant code of ethics, and that such
failures extended over a wholly unacceptable period of time.
Further, whilst no harm in fact resulted, such inadequacies had the very real potential at all
times to become an issue of public protection. We have therefore concluded:
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(1) that despite Mr Yaqub’s commendable attempts at remediation he has not
satisfied us overall that the risk of repetition reaches the benchmark of “highly
unlikely”, and
(2) in any event, the nature and extent of the misconduct is such that a finding of
currently impaired fitness to practise is necessary to maintain the confidence of the
public in the profession and to declare and uphold proper standards of conduct and
behaviour within the profession.
That concludes our determination at this stage.
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(Later)
(The Committee went in camera at 12.59 pm and
returned into open session at 3.01 pm)
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D E T E R M I N A T I O N
THE CHAIRMAN: Having found Mr Yaqub’s fitness to practise to be impaired, we now
move to the question of the appropriate sanction, if any, to impose. We have had full
regard to the Indicative Sanctions Guidance both in terms of the process we must adopt in
reaching our conclusion on sanction and also the factors to take account of when choosing
the appropriate level of sanction.
We have borne in mind all three aspects of the public interest that are engaged in this case,
as well as the principles of fairness and proportionality.
We first considered taking no action and then a warning, but concluded that both of these
outcomes would be insufficient to meet the concerns we highlighted in our earlier
determination.
Mr McCartney submitted that our concerns would be properly and adequately addressed by
the imposition of conditions. We agree. The Indicative Sanctions Guidance identifies
a number of factors in relation to the appropriateness of the imposition of conditions of
practice and many of those are applicable to this registrant. In addition, we have taken
account of the candour with which the registrant gave his evidence, which corroborates his
level of insight and his willingness to improve his practice to a satisfactory and safe level.
The gravamen of the misconduct and the concerns giving rise to the finding of impairment
would be fully addressed through the following conditions, which will be in place for
a period of 12 months:
PR18: To make immediate contact with the Council’s inspectorate and to arrange
one additional visit (over and above the anticipated annual inspection) during the
period of these conditions, the cost of such visit to be borne by you, and to
implement any recommendations made by the inspectorate.
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PR19: To send copies, whether by post or electronically, of the controlled drugs
registers for Bruntons Pharmacy to the Head of Inspections every month.
PR21: To seek the immediate advice of the NPA in relation to your pharmacy
practice in respect of controlled drugs and, in particular, in relation to the drafting
of SOPs for controlled drugs and supply of methadone. Thereafter to send copies
of the revised SOPs to the Council within three months.
The Council is requested to monitor the registrant’s compliance with these conditions
under the new procedures.
That concludes our determination on sanction.
MR McCARTNEY: Thank you very much.
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MR MILLIN: Thank you, sir.
THE CHAIRMAN: Thank you very much for your assistance, both of you.
(The Committee adjourned at 3.05 pm)
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