Three bites at the cherry
Earlier
this week, three Appeal Court judges (Lords Justice Kennedy, Chadwick
and Rix) handed down judgment in the case of Rashid Mahmood and Manal
Shamllakh. Both appellants had appealed against an earlier decision that
the Royal Pharmaceutical Society was right to prevent them taking the
registration examination again — after they had both failed it three times
between July 1996 and July 1998.
Part of the argument was that the registration examination
does not have to be taken by graduates from member states of the European
Union or from countries (Northern Ireland, Australia and New Zealand)
whose pharmacy registration bodies have reciprocal agreements with the
Society. The two appellants were educated in Pakistan and Saudi Arabia,
respectively. This is a clear victory for the Society: the rule is an
eminently pragmatic one for a self-regulating professional body to have
in place in order to protect the standards of membership. Interestingly,
the Lords, although they arrived at the same conclusion, came to it by
quite different routes, interpreting different sections of the Pharmacy
Act 1954 in different ways.
One of the most persuasive arguments comes in the
judgment from Lord Justice Rix, commenting on section 4(1) of the 1954
Pharmacy Act. This enables Byelaw 29 (“a person who fails the registration
examination at the third attempt will not normally be eligible for registration
as a pharmaceutical chemist”) to hold sway. Section 4(1) states: “Byelaws
may provide that any person who satisfies such conditions as to character
and otherwise as are prescribed by the byelaws and either holds a degree
granted in respect of pharmacy by any University in the United Kingdom
or a diploma granted in respect of pharmacy in any place outside the United
Kingdom or has passed the examinations necessary for obtaining such a
diploma shall be qualified to have his name registered.”
The critical words are “character or otherwise”.
As Lord Justice Rix put it: “I see no reason why a requirement that an
examination must be passed within three attempts should not fall within
the language of ‘conditions as to character and otherwise’. An ability
to pass an examination within three attempts, if not a matter of ‘character’
... is still relevant to the capacity of a person to perform successfully
in the practice of a profession, perhaps under conditions of considerable
stress, and in situations where errors can be injurious to the public
and possibly fatal.”
In other words, practising pharmacists do not get
three bites at the cherry when dealing with patients (often in fact they
only get one chance to get things right) and aspiring pharmacists should
not have more chances in examinations than they would in professional
life.
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