Colin Lannon v Council of the Pharmaceutical Society of Ireland

The decision of Ms Justice Egan in the case of Colin Lannon v Council of the Pharmaceutical Society of Ireland [2021 196 MCA] provides useful guidance to professional registrants in relation to the importance of demonstrating insight, should they be referred to a hearing before their regulatory body.

Background

A complaint was made to the Pharmaceutical Society of Ireland (the “PSI”) in relation to a course of dispensing of a “high tech” medication (Kaydeco) to two children, without a valid prescription, over an eight-month period between August 2017 and February 2018.

The Registrant personally dispensed the medication on one occasion during this period and was the supervising pharmacist responsible for the operations of the pharmacy at all relevant times.

Fitness to Practise Inquiry

A fitness to practise inquiry was held by the Professional Conduct Committee (the “PCC”) of the PSI. The Registrant was represented by a solicitor, who cross-examined witnesses to the Inquiry on his behalf. The Registrant did not give evidence himself due to feeling unwell, and no witnesses were called on his behalf.

Ultimately, the PCC found the Registrant guilty of poor professional performance. The PPC recommended a two-month suspension, followed by the attachment of conditions to his registration for a period of nine months.

The PCC was not persuaded that the Registrant had insight in relation to his conduct. The PCC expressly noted that no adverse inference was drawn due to the Registrant having exercised his right to deny the allegations or from his decision not to give evidence. The PPC did, however, note that nothing of substance had been put before it to explain the reasons for the Registrant’s repeated poor professional performance and expressed concern about some of the lines of argument on which the Registrant had sought to rely.

Council’s decision on sanction

In contrast to the PCC hearing, the Registrant gave evidence at the sanction hearing, answered questions from the Council and accepted responsibility for his actions. The Registrant also engaged an expert witness, who prepared a report in relation to the Registrant’s prescribing practices generally and who noted that, aside from the events which were subject of the hearing, the Registrant practised professionally at a high level.

The Council imposed the sanctions recommended by the PCC.

The Registrant subsequently applied to the High Court seeking to cancel the decision of the Council to suspend his registration. The Registrant did not seek to challenge the finding of poor professional performance or the imposition of conditions.

The Decision of the High Court

One of the grounds advanced by the Registrant as to why the suspension should be cancelled was that the Council had failed to engage with the evidence of insight presented at the sanction hearing.

The High Court noted that, before the PCC, the Registrant had put forward a positive defence, as he was entitled to do. Due to the position adopted by the Registrant, the PCC was entitled to conclude that the registrant displayed a lack of insight at that stage. It was, however, accepted in essence that, by the time of the sanctions hearing, the Registrant had demonstrated insight, including by apologising for his conduct, outlining changes to his practice and stepping down from his role as supervising pharmacist.

The High Court was, however, firmly of the view that the timing of the demonstration of insight by the Registrant was a relevant consideration when assessing the quality and weight that could be attached to such insight and, therefore, the proportionality and validity of any sanction imposed. The High Court ultimately held that the sanction of two months suspension was not disproportionate, unduly lacking in leniency or unreasonable.

Considerations for registrants subject to professional conduct hearings

This judgement underscores the delicate balance that sometimes must be reached in regulatory proceedings between defending allegations raised and an early demonstration of insight.

Inevitably, it can be more difficult for a registrant who maintains their innocence to argue they have demonstrated appropriate insight. Ultimately, however, it will often be possible to present a case on the basis that, whilst certain factual allegations may be disputed, the Registrant nonetheless acknowledges the seriousness of the conduct concerns raised and the impact such conduct may have on the public’s trust and confidence in the profession.

Should you require any assistance with any regulatory matter, please do not hesitate to contact Ciara Hanratty from the Regulatory and Professional Discipline team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.