Mrs Judith Way. MR MARK MILLIN, solicitor advocate, appeared on behalf of the General Pharmaceutical Council.

Transcription

1 GENERAL PHARMACEUTICAL COUNCIL FITNESS TO PRACTISE COMMITTEE 25 Canada Square, London E14 5LQ Monday 7 September 2015 Chairman: Mr Michael Simon Committee Members: Mrs Susan Howshall Mrs Judith Way Committee Secretary: Mr Mark Mallinson CASE OF: SHEETUC, Sukhdev Singh GPhC Registration No MR MARK MILLIN, solicitor advocate, appeared on behalf of the General Pharmaceutical Council. MR MARTIN HADLEY, of VHS Fletchers Solicitors, appeared on behalf of the Registrant, who was present. Transcript of the stenograph notes of T.A. Reed & Co Ltd Tel No:

2 DETERMINATION OF THE COMMITTEE ON IMPAIRMENT OF FITNESS TO PRACTISE THE CHAIRMAN: This is a principal hearing of an allegation of impaired fitness to practise by reason of misconduct, conviction and caution brought against Sukhdev Singh Sheetuc, a pharmacist first registered with the Royal Pharmaceutical Society of Great Britain in 2008, and currently registered with the General Pharmaceutical Council (the Council) under registration number The Council is represented in this case by Mr Millin, and Mr Sheetuc is present and represented by Mr Hadley. The allegation was put to Mr Sheetuc as follows - that he: 1. On 27 July 2014 was in possession of cocaine. 2. On 27 July 2014 received a police caution for the possession of cocaine. 3. On 1 October 2014 was convicted at the Central and South East Staffordshire Magistrates Court of driving with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act Failed to declare the conviction at paragraph 3 to the Registrar of the General Pharmaceutical Council within seven days. And that by reason of those matters, his fitness to practise is impaired by reason of caution, conviction and/or misconduct. Mr Sheetuc made admissions in full to the facts in the allegation, and we announce those as found proved. The background to these proceedings can be summarised in this way. On 27 July 2014 at hours the police had cause to stop Mr Sheetuc s vehicle as a result of it travelling at excess speed. Whilst the police officer was speaking with Mr Sheetuc he could smell intoxicants on his breath and could see that his eyes were reddened. He suspected that Mr Sheetuc may be under the influence of drink, and he requested a

3 roadside breath sample from him. Mr Sheetuc provided a reading which was 56, the legal limit being 35. At 8.05 hours the police officer arrested Mr Sheetuc for providing a positive breath test, and he was then subsequently conveyed to Wattling s Custody Unit where his detention was authorised. At hours the police commenced the station breath test procedure which Mr Sheetuc passed, providing a lower reading but this one of 49, still above the legal limits. Mr Sheetuc used his entitlement of the statutory option to request a specimen of blood to be taken and sent for analysis. This was done at hours the same day. The sample of blood was sent for analysis and on 4 August it was found to contain 95 milligrams of alcohol in 100 millilitres of blood, the legal limit being 80. During the course of his detention at the police station, Mr Sheetuc s personal effects were handed over to the police and, in his wallet, a single small wrap of white powder was discovered. This was analysed at the station and found to contain cocaine mixed to some degree with amphetamines. Mr Sheetuc was interviewed about the cocaine and he admitted that he had had possession of it for some months. He told the police that he had bought it from an unknown man in a public house, but he could provide little other detail. He thought better of his decision to purchase it, did not use it, but put it in his wallet with the intention of disposing of it in due course. The police decided to deal with the possession of cocaine by way of a formal police caution, which was accepted by Mr Sheetuc. As a result of the blood alcohol analysis reading that I have referred to, Mr Sheetuc was summoned to attend court on 1 October 2014 when he pleaded guilty to driving with excess alcohol. The case to the Magistrates was put on the basis that he had been drinking the night before, that is Saturday 26 July 2014 whilst attending two parties. Mr Sheetuc did not think that he was still under the influence of alcohol when he decided to drive the following morning. Other than excess speed, there are no other criticisms made by the police of his driving on that morning. We note further that, by approximately 11 am, the police considered him sober enough to drive himself home. The details of the sentence imposed by the Magistrates are contained within a memorandum of entry in their register which we have in our bundle. They are a fine

4 of 345, a victim surcharge of 34, and prosecution costs of 85. There was the mandatory disqualification from holding or obtaining a driving licence for a period of 12 months, that that disqualification could be reduced by three months if by 1 May of this year Mr Sheetuc had satisfactorily completed a course approved by the Secretary of State which will come to be known in these proceedings as a Drink Drive Rehabilitation Course. We have been told that Mr Sheetuc successfully completed the rehabilitation course. We have, we hope, reasonably assumed that, in the absence of any evidence to the contrary, Mr Sheetuc paid the full amount due in fines and other penalties within the 28 days permitted by the Magistrates. Mr Sheetuc duly reported the fact of his caution for possession of cocaine to the Council in accordance with Rule 4 of the 2010 rules, that is within seven days of accepting it. He told us in evidence that he consulted solicitors, who are known to this Committee to practise in the field of professional regulation, to assist him in this task. These solicitors provided advice and support, although Mr Sheetuc was the one who completed the Something to Declare form. However, he then scanned and ed it to his solicitors, and it was they who forwarded it in time to the Council. There was nothing in the Something to Declare form at this stage about the driving with excess alcohol allegation. This comes as no surprise to us as, at the point of its submission, the police were still awaiting the results of Mr Sheetuc s blood test, and there is no requirement in those circumstances on a Registrant to disclose this information. The duty to inform the Council under Rule 4 only arises upon conviction itself in these circumstances. Again Mr Sheetuc engaged the assistance of the same solicitors as before, although by October 2013 he was now familiar with the process. Mr Sheetuc was heavily engaged in the run-up to his wedding on 25 October His then solicitor Mr Keegan has provided us with a letter dated 14 August 2015 in which he explains that Mr Sheetuc had signed and dated the second Something to Declare form and left it with the solicitor to file with the Council. Unfortunately this did not happen due to an oversight on the part of the solicitor. Mr Sheetuc explained that he was very busy in advance of the wedding, during the wedding ceremonials, and up to the point of a further reception the week following

5 the ceremony. Thereafter he and his wife went on a two week honeymoon. This, he said, explained why it was only after returning from honeymoon, when he received a letter from the police explaining that they had disclosed information about his conviction to the Council, that he checked if his solicitors had filed the Something to Declare form. It was at this point, approximately 20 November 2014, that he discovered that they had not done so. In his evidence to us today, Mr Sheetuc explained the background to his entry to the profession and his career thus far. He has been employed by Tesco as a pharmacy manager since 2013, having previously undertaken locum work for them. He remains employed by them, and we have more than one reference which confirms that Mr Sheetuc s employers have been kept fully up to date with the criminal proceedings and those before this Committee. Mr Sheetuc s future with Tesco will be decided in light of our decision. The same applies to another employer for which Mr Sheetuc works one or two days each week to supplement his income. Mr Sheetuc expressed significant remorse for the conduct giving rise to both the conviction and caution. He also acknowledged that it does not looked good for him or for the profession, and he accepted Mr Millin s suggestion that he has brought the profession into disrepute. Mr Sheetuc went on to explain that he recognises that his conduct is that associated with younger people without much responsibility, whereas he is now married, with a mortgage to service, and a baby that is due in a few months time. He explained that drinking parties and the like are now a thing of the past for him as he takes his new responsibilities very seriously. In submissions Mr Millin urged us to take full account of the seriousness of the conduct involved. He argued that it fell within the classification of egregious as described in the case of Cheatle v General Medical Council. Mr Hadley encouraged us to take account of Mr Sheetuc s oral evidence and the specific circumstances surrounding both the conviction and caution. He prayed in aid Mr Sheetuc s insight into his responsibility for both offences and the failure to notify the Council about his conviction as required by Rule 4. The question of whether or not Mr Sheetuc s fitness to practise is currently impaired

6 is a matter for the Committee to consider by applying our judgment to the evidence before us in the context of the facts underlying the conviction, caution and misconduct; it is not a matter of proof. We begin with the requirements of Rule 5 of the General Pharmaceutical Council (Fitness to Practise and disqualification, etc, Rules) Order of Council 2010, which provides: In relation to evidence about the conduct or behaviour of the Registrant which might cast doubt on whether the requirements as to fitness to practise are met in relation to the Registrant, the Committee must have regard to whether or not that conduct or behaviour: (a) presents an actual or potential risk to patients or to the public; (b) has brought or might bring the profession of pharmacy into disrepute; (c) has breached one of the fundamental principles of the profession of pharmacy, or (d) shows that the integrity of the Registrant can no longer be relied upon. This rule of course mirrors the relevant case law, and is consonant in particular with pronouncements by Cox J in the case of Grant as to the approach to be adopted by healthcare regulators generally to the question of current impairment. We are satisfied that our focus at this stage of the proceedings is the bringing of the pharmacy profession into disrepute, and the breaching of a fundamental principle of the profession in his compliance with the law of the land. Mr Millin acknowledged that there was no argument on the grounds of patient safety, but rather that this is a public interest case. Mr Hadley was in full agreement with this. Taking the failure to notify the Council in respect of the conviction first of all, we

7 accept Mr Sheetuc s explanation for why it is that he relied on the solicitors to satisfy his duty on his behalf. He had recent experience of a similar set of circumstances, and the solicitors had indeed submitted the Something to Declare form in time. On the second occasion, Mr Sheetuc s mind was focused on his long awaited wedding and the celebrations that attend such events within his culture, and it seem to us to have been entirely reasonable for him to have relied on his solicitors in these circumstances. The wedding celebrations, followed by the two week honeymoon, do explain in our view the delay in his chasing the solicitor for confirmation. In all the specific circumstances of this case, we do not consider that his failure to notify the Council of his conviction is so serious that it can amount to misconduct. In respect of the conviction for excess alcohol, we bear in mind the views expressed by the Privy Council in the Royal College of Veterinary Surgeons v Samuel as to the need to approach the wider public interest in regulatory cases from the perspective of an informed person with knowledge of all the salient facts. This is not a case in which a Registrant has drunk to excess and then decided to go driving. Mr Sheetuc indicated that it was some eight to ten hours after his last drink before he went driving, and he did not consider himself to be still under the influence. He was unaware of the process of dissemination (or one might say metabolisation) of the alcohol that he had consumed. Further, we note that it was his speed of driving alone that caught the attention of the police and, unlike other cases that come before us, he was over the prescribed limit but not markedly so. Whilst he is surely guilty of naivety, we do not consider this to be a flagrant disregard for the law so as to render him currently impaired as a result of the conviction. We are fortified in this view by the fact that he successfully completed the drink driver rehabilitation course, and that he has rectified his naivety, and/or lack of knowledge about the effects of alcohol, such that there is unlikely to be any repetition of this conduct. Although the Council has alleged misconduct and caution in respect of the possession of the wrap of cocaine, it seems to us that the essence of the case against Mr Sheetuc is reflected by our consideration of the caution, as this encompasses fully the misconduct alleged in particular 1. Whether Mr Sheetuc bought the wrap as he told the police initially, or whether it was put unexpectedly into his hand as he has explained to the Council and to us away from the undoubtedly stressful environment

8 of the police station, is not a matter that we are required to resolve. The mischief, so to speak, is that having decided that he was not going to use the cocaine, and that he was going to dispose of it, Mr Sheetuc still had it in his possession some months later on his own account. We cannot sidestep the fact that the wrap contained a Class A drug. Trite though it is to state, pharmacists are the gatekeepers of drugs and medicines but, moreover, they are expected by the public to have the utmost respect for the laws and regulations governing all types of drugs. This very much includes in our view a heightened regard for laws governing illicit drugs, all the more so when categorised within Class A. This is one of those cases where, in our estimation of all the evidence, public confidence in the pharmacy profession, and the standards of conduct and behaviour required of those within the profession, would be undermined if we were not to find Mr Sheetuc s fitness to practise impaired as a result of his caution for possession of cocaine. That concludes the determination on impairment. DETERMINATION OF THE COMMITTEE ON SANCTION THE CHAIRMAN: We now move to the consideration of sanction in this case. We heard submissions from Mr Millin who suggested that the conduct giving rise to impairment in this case was too serious for a warning, and that conditions would be inappropriate. He suggested that a suspension order as a minimum would be required to satisfy the public interest in this case. Mr Hadley, in his thorough submissions on Mr Sheetuc s behalf, identified the mitigating factors that are present in this case. In particular, he emphasised Mr Sheetuc s full co-operation with all investigations and proceedings, both criminal and regulatory, as well as admissions and insight into his wrongdoing. He suggested that Mr Sheetuc s remorse, his putting to good use for the benefit of patients the knowledge he gained from the drink drivers rehabilitation course, and the overall change in Mr Sheetuc s personal circumstances should lead us to conclude that a warning would indeed satisfy the public interest and be a proportionate sanction in

9 this case. Mr Hadley also pointed to the positive testimonials and character references that speak highly of Mr Sheetuc as a person and as a pharmacist. As in any determination on sanction, it is proper that we should set out some fundamentals about the approach we have taken in reaching our decision which, in common with the impairment stage, involves the application of our independent professional judgment. We have of course had regard to the Council s sanctions guidance entitled Good decision-making in force from 20 July this year. As to our powers on sanction, we can take no action, give a warning, impose conditions of practice for a period not exceeding three years, suspend Mr Sheetuc s registration for a period not exceeding 12 months (with or without a review), technically suspend for 12 months in line with HK v General Pharmaceutical Council which, at the moment, continues to be good law, or give a direction that Mr Sheetuc s name be removed from the register. In the context of fitness to practise proceedings before a professional regulatory body such as the General Pharmaceutical Council, the purpose of sanction is threefold, namely: 1. The protection of the public. 2. The maintenance of public confidence in the profession. 3. The declaring and upholding of proper standards of conduct and behaviour within the profession. We have already determined at the impairment stage that it is the latter two limbs of the public interest only that are engaged in this case. There is no issue of public protection and, if it were not clear from our earlier determination, we are satisfied that the conduct giving rise to the caution is highly unlikely to be repeated. Although the object of regulatory proceedings is not to punish a Registrant for their wrongdoing, the fact that a sanction will have a punitive effect does not make such a sanction inappropriate where its purpose is otherwise the protection of one or more

10 limbs of the public interest. The Committee must also balance the consequences to Mr Sheetuc of the imposition of any particular sanction with the public interest aspects of the case. The public interest is often said to include the retention on the register whenever possible of a good pharmacist. In determining the appropriate sanction, we have to exercise a discretion. We have thus had regard to the principles of fairness, reasonableness and proportionality. We have as necessary taken account of the full range of sanctions available to us, and we have ensured that the sanction to be imposed is proportionate and reasonable in all the circumstances of the case. The application of the doctrine of proportionality can usefully be described as ensuring that a sanction imposes no greater restriction on a Registrant s ability to work in his or her chosen profession than is absolutely necessary to achieve the objective of the protection of the public interest in all its guises. Thus, in order to ensure that proportionality is achieved, we have considered the sanctions in ascending order of severity. In reaching a determination on the appropriate sanction to be imposed, we must also consider the mitigating and aggravating features of the facts found proved, any personal mitigation, and the testimonials and/or character references submitted by Mr Sheetuc. With the exception of the drug, for which Mr Sheetuc accepted the caution, being a Class A drug as opposed to any other class, there are no other obvious aggravating features to this case. As to mitigation, we take account of the fact that this is Mr Sheetuc s first appearance before this Committee, and indeed the caution was the first recordable criminal matter against him. His possession of the cocaine is conduct of a one-off nature, notwithstanding his admitted use on one occasion many years ago whilst at university and long before he became registered as a pharmacist. He has been assessed by a Council appointed expert who has concluded that there is no on-going health concern related to drug misuse or, for that matter, alcohol, and thus no impairment on any health grounds. Mr Sheetuc had not in fact used any of the cocaine on this occasion and had not sought to blame anyone else but himself for it being in his possession when found by the police. The conduct did not arise in any way connected at all with

11 his position as a pharmacist, and indeed his employers, who are fully aware of this matter, have been content to continue to employ him throughout the currency of these proceedings. We accept Mr Sheetuc s admission of shame brought upon himself and the profession, and he has demonstrated insight into the circumstances that gave rise to the conduct, the unacceptability of it, and the change in his personal circumstances that make any recurrence most unlikely. We first considered whether this was a matter that should be concluded with no further action, but it seemed to us that such instances are very rare indeed when the public interest has required a finding of impairment. We next considered a warning. This sanction does not restrict a pharmacist s practice in a way that any of the more severe sanctions do. The document good decision-making says this about circumstances when a warning may be a suitable sanction: There is a need to demonstrate to a Registrant, and more widely to the profession and the public, that the conduct or behaviour fell below acceptable standards. There is no need to take action to restrict a Registrant s right to practise, there is no continuing risk to patients or the public, and when there needs to be a public acknowledgment that the conduct was unacceptable. In the particular circumstances of this case, taking account of our assessment of Mr Sheetuc and all the mitigating factors, we have concluded that a warning would indeed be a sufficient and proportionate sanction in this case. Public confidence in the profession and the maintenance of proper standards of conduct and behaviour within the profession are in our view fully met by the finding of current impairment, coupled with a warning, when issued for a single caution for possession of an unused single small wrap of cocaine. The warning marks the unacceptability of the conduct which does indeed fall below expected standards, and also reinforces to Mr Sheetuc and to the profession that such conduct is very likely to see consequences flowing from the regulator that may be rather more significant in time and/or in effect than those that flow from criminal proceedings.

12 Having determined that a warning is the proportionate sanction, we did consider whether a higher sanction was in fact required. This is technically conditions, but they do not seem to us to be applicable to the impairment in this case despite Mr Hadley s valiant attempts to persuade us otherwise. We did consider whether public confidence demanded a suspension, but we are satisfied, having carefully adjudicated on the written and oral evidence, and having reached the very considered and circumscribed determinations that we have, that a suspension would be a disproportionate response to the particular circumstances of this case, whether or not it would result in the loss of Mr Sheetuc s current employment. This is the warning that we issue as a result: Mr Sheetuc, pharmacists more than any other profession have unique responsibilities as guardians of the safe use of drugs and access to them within the applicable laws and regulations. Any conduct, whether in your personal or professional life, that detracts from the public s confidence in your exemplary adherence to those laws and regulations brings you and the profession into disrepute. If you appear before this Committee on any future occasion for conduct of this nature, the outcome is highly likely to be far more serious