This article discusses the role and significance of undertakings in the PSI fitness to practise process. The legal firm DAC Beachcroft outlines what undertakings are, why/when they need to be given, and the implications arising if they are not adhered to.
In previous articles, we have provided an outline of the PSI complaints process and advice on how to handle a complaint at the preliminary stage and if referred for an inquiry hearing. This article specifically addresses the role of undertakings in the complaints process and the key factors which you should consider, if a complaint is made against you, before agreeing to give an undertaking.
Undertakings are one way in which a Committee of Inquiry may deal with a complaint to the PSI which has been referred for an inquiry. Section 46 of the Pharmacy Act 2007 (the 2007 Act), provides that the Committee may, in dealing with a complaint, request the registered pharmacist or the pharmacy owner to do one or more of the following as appropriate:
Undertakings may be requested at any stage during the hearing and there is precedent also for complaints being dealt with at callovers before the Committee.
If the pharmacist or pharmacy owner agrees to give the undertaking or consent requested by the Committee, the inquiry into the complaint is considered to be completed and no finding is made against the pharmacist or pharmacy in relation to the allegations. If the pharmacist or pharmacy owner refuses to do so, however, the Committee may proceed as if the request had not been made.
Generally, the Committee will only consider requesting an undertaking where it is satisfied that, in all the circumstances of the complaint and the conduct/approach of the pharmacist/retail pharmacy business, that it is appropriate to do so — for example where the issues giving rise to the complaint are, relatively, more minor in nature and are amenable to be addressed through an appropriate form of undertaking. Similarly, the Committee will not normally request an undertaking unless it is satisfied it has a clear and full understanding of the case against the pharmacist or pharmacy.
In practice, the possibility of an undertaking or consent tends to be discussed in advance on a without prejudice basis between the pharmacist/pharmacy owner or their legal representative and the legal representative for the Registrar of the PSI. While the decision in relation to whether to request an undertaking (and the specific terms of any such undertaking) is entirely a matter for the Committee, the Registrar of the PSI will be asked for their view on the complaint being dealt with in this way. Where the Registrar is not opposed to the proposal, the Committee may be more inclined to consider it appropriate to request an undertaking or consent. Therefore, this option tends to be canvassed between the parties in advance and the application before the Committee is normally well choreographed.
Where an undertaking is given, the Committee will prepare a report for consideration by the Council of the PSI (the Council) at a formal Council meeting. The Council will note the undertaking provided to the Committee and, if the pharmacist or pharmacy owner consented to being admonished or censured as part of the undertaking given, the Council will formally admonish or censure them at this meeting. Under section 48(3) of the 2007 Act, the Council is required to take the measures in respect of the pharmacist or pharmacy owner contained in the Committee’s report and has no discretion in this regard.
In cases where the pharmacist or pharmacy owner has consented to being admonished or censured, it is possible but not automatic that the Council may give public notice of this. The Council will consider whether it is in the public interest to publish the sanction on the PSI website and in the PSI newsletter. It will also decide on whether it is in the public interest to publish the Committee’s report, and/or the transcript of the proceedings before the Committee. Both the Registrar of the PSI and the pharmacist or pharmacy owner will be given an opportunity to make written and/or oral submissions in relation to publication.
In cases where the undertaking given does not include consent to admonishment or censure, a public notice on the PSI website will only arise in quite limited circumstances as set out in the PSI’s Publications Policy. An undertaking given under section 46 will not be reflected on the PSI Register.
You should always get advice from the IPU Professional Services Team and/or a solicitor who is experienced in pharmacy fitness to practise cases at the earliest possible stage in the complaints process, and it is strongly recommended to never agree to give an undertaking or consent without first getting legal advice. After all, undertaking to not repeat the conduct complained of is tantamount to admitting that the alleged conduct did occur.
The major benefit of giving an undertaking is that a complaint may be resolved without findings being made. As noted above, the Committee may also request the pharmacist or pharmacy owner to consent to being admonished or censured by the Council. An admonishment or censure is the lowest level of sanction provided for under the 2007 Act and it does not affect the pharmacist’s right to practise. As set out above, there is a possibility that the Council may decide to publish the sanction of admonishment or censure, but this will only happen where the Council is satisfied that it is in the public interest to do so.
Careful thought should be given to the specific terms of the undertaking proposed. Even in cases where the Committee is of the view that the complaint is too serious to be dealt with by undertaking, it can be the case that, if conditions are ultimately imposed on the pharmacist as a sanction, these conditions may reflect the lines of the undertaking offered previously.
It is very important to be aware that giving an undertaking is a serious matter. If you fail to comply with an undertaking or to take any action specified in a consent given in response to a request under section 46 of the 2007 Act, this can give rise to a separate complaint to the Council. Therefore, you should be absolutely sure before giving any undertaking or consent that you will be able to comply with it. Again, you should never take this step without getting advice from the IPU Professional Services Team and/or from an experienced solicitor.
Ruth Cormican is a Solicitor and Brian Ormond is Partner in DAC Beachcroft Dublin’s Professional, Public and Regulatory Law team which is led by Gary Rice, Partner. DAC Beachcroft has advised the IPU and its members for many years and specialises in the legal aspects of pharmacy practice. For more information on any legal aspect of pharmacy practice, please contact Brian Ormond at bormond@dacbeachcroft.com or Gary Rice at grice@dacbeachcroft.com.
Related articles in the IPU Review:
The IPU Review archive is available to IPU members at ipu.ie/ipu-review > Archive Articles.
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