The regulation of private lives


The issue of professional regulation in a Registrant’s private life rears its head again.


 The extent to which professional bodies can regulate the private lives of its members has been a repeated source of challenge in the higher courts. The matter was recently revisited in R (on the application of Pitt and Tyas) v General Pharmaceutical Council ([2017] EWHC 809 (Admin)) in which two pharmacists sought permission to challenge the new Standards for Pharmacy Professionals adopted by the General Pharmaceutical Council on the basis that they went too far in seeking to regulate conduct in professionals’ private lives.

The new Standards contain nine standards that every pharmacy professional must meet. The catch, however, is contained within paragraph 6 of the introduction which states that:

The standards need to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals.”

Particular attention was drawn to Standard 6, which states “Pharmacy professionals must behave in a professional manner”. Guidance on how the standard should be applied sets out that “The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions call for appropriate behaviour at all times.” Examples include:

“People receive safe and effective care when pharmacy professionals:

  • Are polite and considerate
  • Are trustworthy and act with honesty and integrity
  • Show empathy and compassion
  • Treat people with respect and safeguard their dignity
  • Maintain appropriate personal and professional boundaries with the people they provide care to and with others.”

The Claimants sought to challenge the new Standards on the basis: they were ultra vires due to the requirement that the standards need to be met at all times; unlawful for uncertainty; and that they were contrary to Articles 8 and 10 of the European Convention on Human Rights, as set out in Schedule 1 to the Human Rights Act 1998.

The Claimants argued that the requirement the Standards be met “at all times” was ultra vires as the Council does not have the power to set standards of politeness on pharmacy professionals in their private lives, unconnected to their work. It was submitted that the new Standards, therefore, impermissibly sought to extend the definition of “misconduct” to reach into trivial matters that could have no bearing on a pharmacist’s fitness to practise.

The Court rejected this interpretation of the Standard was “simply wrong” noting they need to be interpreted “fairly and as a whole….in a way which is rooted in real life and common sense”. The new Standards are “intended to guide the conduct of pharmacy professionals in a practical way”, merely illustrating what may or may not be unacceptable conduct, not dictating that a pharmacist will breach the Standards for every trivial act in their personal lives. This approach has previously been adopted by the Courts, for example, in Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13 where Lord Toulson concluded that the decision to remove a veterinary surgeon’s name from the Register of Veterinary Surgeons as a result of criminal convictions entirely unrelated to his professional practice could not fairly stand.

Singh J noted, however, that there may be occasions outside normal working hours, and perhaps in a context which is unrelated to the professional work of a pharmacist, which may be relevant to the safe and effective care which will be provided to patients – the example of a racist Twitter tirade was provided. The Council has a broad discretionary power to set standards which are appropriate “relating to the conduct, ethics and performance expected of registrants” (Article 48 of the 2010 Order) and the new Standards could not be said to be ultra vires.

Singh J further rejected the argument that the new Standards were unlawful on the ground of uncertainty. He noted that the concept of legal certainty does not require absolute precision which would be undesirable given the context as “one cannot legislate for all circumstances in advance. There needs to be sufficient flexibility so as to protect the public interest as new factual situations arise”.

Finally the Claimants could not rely on Convention rights as, under section 7 of the HRA, claims can only be brought by “victims” of the unlawful act. They were not yet directly and personally affected by any such act. In any event, it was impossible to say the new Standards themselves were inherently incompatible with Articles 8 and 10. Whether their application to a particular case might breach those rights would be an intensely fact-sensitive assessment.

Comment

This case represents a clarification rather than an extension of the existing law. Indeed, Singh J noted that the current version of the Standards had requirements which have not been challenged as being ultra vires, void for uncertainty or incompatible with human rights, even though they could apply in a pharmacy professional’s private life. This case follows Royal College of Veterinary Surgeons v Samuel in noting that while regulated professionals should be mindful to maintain proper standards of conduct at all times clearly there are some matters which take place outside of work which will be too trivial to be considered a breach of Standards of practice. As ever the difficulty for regulatory bodies will be in concluding where the line should be drawn.


Fiona Robertson