In the recent case of Council of the Pharmaceutical Society of Ireland v A.B.  IEHC 481, Mr Justice Humphreys has considered the role of undertakings offered by a pharmacist not to practise in the context of an application by the Pharmaceutical Society of Ireland (the PSI) to the High Court to suspend the registration of a pharmacist pending the outcome of a fitness-to-practise inquiry.
Under Section 45 of the Pharmacy Act 2007 (the Act), the Council of the PSI may make an application to the High Court to make an order suspending the registration a registered pharmacist against whom a complaint has been made on an interim basis pending the outcome of the complaint against the pharmacist. Section 45, which is similar to that of the suspension of other professionals, provides that a court may make an interim suspension order where the court is satisfied 'that there is a risk to the health and safety of the public which is of such magnitude that the pharmacist's registration should be suspended'.
The considerations of the Court in these cases revolve around the severity of the risk to the public, as well as questions as to hardship to the practitioner, the draconian nature of suspensions, and the need to avoid unduly lengthy suspensions. These are well established principles set out in Ó Ceallaigh v. An Bord Altranais  IESC 21,  4 I.R. 54. In A.B., the pharmacist had accepted that they should not be practising and offered to provide an undertaking not to practise. The Court was obliged to consider the provision of an undertaking in respect of the threshold for suspension applications and whether a suspension order could still be made notwithstanding the provision of the undertaking by the pharmacist.
Mr Justice Humphreys made an order suspending the pharmacist on an interim basis under section 45 notwithstanding the undertaking offered by the registrant.
Mr Justice Humphreys identified the critical issue for consideration was whether the undertaking offered reduced the "risk to the health and safety of the public", which needed to be of "sufficient magnitude" for an order under section 45 to be made.
The Court noted that there was no statutory basis for the regulator to accept an undertaking under the Act and further noted that such undertakings cannot be enforced, as per Teaching Council of Ireland v. M.P IEHC 755,  3 I.R. 249
Mr Justice Humphreys noted a number of key points in favour of granting the order notwithstanding the undertaking, including:-
- The enforceability of the undertaking was noted to be less convenient and that, whilst there was a specific statutory offence of practising without a valid registration, no such offence existed for practising in breach of an undertaking;
- The registrant's registration would remain notwithstanding an undertaking;
- The public-facing register and information available to third parties should reflect the respondent's non-practising status and that this was more appropriately achieved by an order;
Further, the Court rejected the argument that a registrant should not be the subject of a draconian order where an alternative was available, stating that the order wasn’t draconian if the registrant wasn’t going to be practising anyway. The Court further rejected the argument that the registrant's good name and reputation would be affected by an order and that there was a need for expedition in the process, noting that the registrant's good name was also affected by an undertaking and that expedition was more pressing where an order is made.
Mr Justice Humphreys was satisfied that a risk to the public remained notwithstanding the undertaking offered, which justified an order under section 45 suspending the registrant. The Court was satisfied that an undertaking was less effective in addressing the risk than an order and the risks were not adequately mitigated by the undertaking offered.
Possible Legislative Amendments
Mr Justice Humphreys suggested that the Oireachtas could consider amendments to the relevant statutory provisions which would provide that an undertaking would have the same effect as a suspension order and would obviate the need to go to Court for a formal order. The Court further suggested that providing a statutory basis for undertakings or arrangements would allow regulators to enter enforceable voluntary agreements restricting a registrant's practice as an alternative to compulsory judicial suspension. Mr Justice Humphreys stated that any amendment would need to have equivalent provisions relating to notification, updates to registers and prohibitions on unilateral withdrawals of the undertaking in order to ensure it is effective and that a statutory offence similar to practising when suspended or unregistered may also be required.
This case highlights the role of undertakings in suspension applications and the various considerations arising where a registrant is willing to undertake not to practise on the terms of any suspension being sought. The potential legislative amendments noted by Mr Justice Humphreys would merit consideration by the Oireachtas, particularly where the Regulated Professions (Health and Social Care) (Amendment) Bill 2019, which proposes to update the governing legislation for a number of regulators, including the PSI, remains before the Oireachtas. Our article on the 2019 Bill is available here and our update of 5 October 2020 here.
For more information please contact Stephen McLoughlin or your usual contact in Beauchamps.