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

___________________________

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

T A REED

& CO LTD 01992-465900

1

A

B

C

D

E

F

G

H

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:

T A REED

& CO LTD 01992-465900

2

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

3

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

4

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

5

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

6

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

7

A

B

C

D

E

F

G

H

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,

T A REED

& CO LTD 01992-465900

8

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

9

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

10

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

11

A

B

C

D

E

F

G

H

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:

T A REED

& CO LTD 01992-465900

12

A

B

C

D

E

F

G

H

“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.

_______________________

T A REED

& CO LTD 01992-465900

13

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

14

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

15

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

16

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

17

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

18

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

19

A

B

C

D

E

F

G

H

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,

T A REED

& CO LTD 01992-465900

20

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

21

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

22

A

B

C

D

E

F

G

H

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

T A REED

& CO LTD 01992-465900

23

A

B

C

D

E

F

G

H

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.

T A REED

& CO LTD 01992-465900

24

A

B

C

D

E

F

G

H

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)