Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64

A pharmacist convicted of domestic violence was removed from the register. The Supreme Court held the Extra Division wrongly suggested a 'middle way' allowing review committees to extend suspension to reflect original misconduct gravity, but found removal disproportionate and substituted suspension.

Facts

Mr Habib Khan, a pharmacist registered in 2002 and practising in Glasgow, was referred to the General Pharmaceutical Council’s Fitness to Practise Committee in 2012 following criminal convictions arising from the breakdown of his marriage. The convictions related to three incidents of domestic violence between July 2010 and March 2012, including assaulting his wife, breaching bail conditions, threatening behaviour, property damage, and removing the children from her care. He received fines, compensation orders, and a community payback order including 180 hours of unpaid work and attendance at a domestic violence programme.

On 27 June 2013 the Committee found his fitness to practise impaired and directed that his entry on the register be removed under article 54(2)(c) of the Pharmacy Order 2010. Under article 57(2)(a), this prevented an application for restoration for five years. The Committee considered that suspension for the maximum permitted period of 12 months under article 54(2)(d) would be insufficient to mark the gravity of the misconduct.

On 10 July 2014, the Extra Division of the Inner House of the Court of Session quashed the direction and remitted the case. The Extra Division held there was a ‘middle way’ between 12 months’ suspension and removal: the original committee could indicate that suspension should be extended on review under article 54(3)(a)(ii), and the review committee would be expected to respect that indication.

Issues

The principal issue was whether the power of a review committee to extend suspension beyond the year originally directed could be exercised to reflect a conclusion that the gravity of the registrant’s misconduct demanded a longer period of suspension than the maximum one year available to the original committee.

The cross-appeal raised whether the direction for removal was disproportionate.

Arguments

The General Pharmaceutical Council, supported by the General Medical Council as first intervener, argued the question should be answered in the negative: review proceedings concern the registrant’s current fitness to practise, not reassessment of the gravity of the original misconduct.

Mr Khan, supported by the Health and Care Professions Council (second intervener) and the Advocate to the Court, defended the Extra Division’s analysis that a ‘middle way’ existed. In the alternative, Mr Khan cross-appealed that removal was disproportionate.

Judgment

Lord Wilson, with whom the other Justices agreed, allowed the appeal. The Court held that the focus of a review hearing is upon the current fitness of the registrant to resume practice, judged in light of what he has or has not achieved since the date of suspension. The Indicative Sanctions Guidance made this clear, requiring the review committee to be reassured that the registrant has appreciated the seriousness of the breach, maintained skills, and not placed the public at risk.

The Court relied on Taylor v General Medical Council [1990] 2 AC 539, which had not been cited to the Extra Division. In Taylor, Lord Bridge held:

It can never be a proper ground for the exercise of the power to extend the period of suspension that the period originally directed was insufficient to reflect the gravity of the original offence or offences.

The Court also referred to Obukofe v General Medical Council [2014] EWHC 408 (Admin), where Popplewell J emphasised that extension depends on an assessment of fitness to practise at the later stage.

The Court concluded that the Extra Division was ‘too ingenious’ and that there was no middle way. The Law Commissions’ 2014 report and Dame Janet Smith’s fifth Shipman Inquiry report further supported the conception of reviews as monitoring rehabilitation rather than revisiting original gravity.

Cross-appeal

Although appellate courts approach challenges to disciplinary sanctions with diffidence (Marinovich v General Medical Council), the Court noted that appellate powers are somewhat less inhibited following Ghosh v General Medical Council [2001] 1 WLR 1915, and a court can more readily depart from a committee’s assessment where misconduct does not relate to professional performance (Dad v General Dental Council [2000] 1 WLR 1538).

Mr Khan’s misconduct did not relate to his professional performance, no patients were at risk, he had shown genuine insight, made early admissions, expressed remorse, and taken steps to prevent recurrence. The Committee had referred only to two paragraphs from the Indicative Sanctions Guidance favouring removal but should also have considered mitigating features in paragraph 8. Removal was harsh, unnecessary, and disproportionate. The proportionate sanction was suspension, which at the time of determination should have been for one year.

The Court substituted a direction for suspension of four months (accounting for the lengthy interim suspension already served), with a review prior to expiry directed to consider any supervisor’s report, evidence of skills retention, and any other relevant matters.

Implications

The judgment confirms that, under the Pharmacy Order 2010 and similar regulatory frameworks, a review committee’s power to extend suspension is not a vehicle for revisiting whether the original sanction adequately reflected the gravity of misconduct. Review hearings focus on the registrant’s current fitness to practise and steps taken towards rehabilitation since the original direction.

The decision is directly applicable to reviews under article 54(3)(a) of the Pharmacy Order 2010 but carries persuasive authority for similar regulatory schemes, including those operated by the General Medical Council under section 35D of the Medical Act 1983 and the Health and Care Professions Council under the Health and Social Work Professions Order 2001, absent material differences.

The judgment matters to professional regulators, registrants, and practitioners advising them: original committees must impose sanctions that reflect gravity within the powers available; if 12 months’ suspension is insufficient, removal must be considered, but only where proportionate. Review committees cannot be used to circumvent the statutory cap on initial suspension periods.

The decision also reaffirms that disciplinary sanctions for misconduct unrelated to professional performance must be carefully calibrated, with full regard to mitigating factors, and that appellate courts may intervene where the sanction is excessive and disproportionate.

Verdict: The Supreme Court unanimously allowed the General Pharmaceutical Council’s appeal, recalling the Extra Division’s interlocutor and rejecting the ‘middle way’ analysis. It also allowed Mr Khan’s cross-appeal, substituting the direction for removal with a direction for suspension of four months, with a review to be conducted prior to expiry.

Source: Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64