In Professional Standards Authority for Health and Social Care v The General Pharmaceutical Council and Ali [2021] EWHC 1692 (Admin), the Court held that a committee had been wrong to take into account a registrant’s intention in speaking words when the allegation did not refer to the registrant’s intention.  In this insight, Yasmin Khaira looks at the case in more detail.

Background facts

Disciplinary proceedings were brought against Mr Ali, a pharmacist, by the General Pharmaceutical Council (GPhC) in respect of alleged antisemitic and/or offensive comments made by Mr Ali during a public speech at a march in 2017.

The GPhC’s Fitness to Practise Committee considered the allegations and found that the words used were not antisemitic but that they were offensive. Mr Ali also admitted that the words used were offensive. The committee found that his actions amounted to misconduct, his fitness to practise was impaired and issued him with a warning.

The appeal

The Professional Standards Authority for Health and Social Care (the Authority) appealed the decision on the basis that the committee had used the wrong approach when determining whether the words were antisemitic. The Authority argued that the committee should have considered the objective meaning of the words, rather than taking account of Mr Ali’s subjective intention and his good character. In addition, the Authority said that the committee had been incorrect in examining the individual phrases, rather than the cumulative impact of Mr Ali’s words.

The GPhC agreed that the committee had erred in their consideration of Mr Ali’s subjective intention and good character rather than the objective meaning of the words said.  Mr Ali contested the Authority’s appeal and submitted that, in any event, the sanction imposed was appropriate in all the circumstances.

The Court’s decision

The Court noted that the committee’s role was to make findings of fact in respect of the allegations. The allegations simply stated that Mr Ali had used the specified words and that those words were offensive and antisemitic.  The allegations did not, for example, refer to any ‘intention’ to cause offence or allege that Mr Ali was ‘intentionally’ antisemitic.  These types of allegation, referring to intent, would have required an assessment of Mr Ali’s intentions, the Court said.

In Mr Ali’s case, the Court held that the committee only needed to consider the meaning of the words so as to determine whether they were offensive, and whether they were antisemitic.  Mr Ali argued that there was no authoritative legal test for the approach to be taken by regulatory bodies when determining the meaning of alleged offensive language and that, as such, it was open to adopting its own approach i.e. taking into account what Mr Ali intended. The Court disagreed, stating that the role of the committee was to make findings of fact; focussing on the comments themselves not the intention behind them.

The Court said that Mr Ali’s intention and character remained relevant when considering misconduct, impairment and sanction which arise for consideration after the committee have made findings of fact on the underlying allegation.

The Court considered Mr Ali’s submission that, at the time of the comments, he was not practising as a pharmacist. However, it considered that the allegations engaged significant questions of public confidence and it is vitally important that all sections of the community are able to place trust and confidence in pharmacists.

The Court’s conclusion

The Court concluded that the committee had wrongly taken account of Mr Ali’s intention and character when assessing whether his language was objectively antisemitic; and had erroneously failed to assess whether the remarks, cumulatively, were objectively antisemitic as opposed to whether each remark in isolation was antisemitic.

The Court referred the case back to the committee for reconsideration in respect of the charge which related to the comments being antisemitic.

How Capsticks can help

We have represented numerous regulators for more than 20 years. With a large team of specialists, we help regulators to deliver the right outcomes, in the right time frame, on the right budget. Our practitioners have a vast amount of experience in drafting a wide range of allegations for our regulatory clients. We also have a large team of advocates who regularly present cases before committees and tribunals, and in the appellate courts.

For more information on any of the issues discussed in this insight, please contact Yasmin Khaira or any of your regular contacts at Capsticks.