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

A pharmacist convicted of domestic violence offences was removed from the register by the General Pharmaceutical Council. The Supreme Court held there is no 'middle way' between suspension and removal via review extensions, but found removal disproportionate and substituted suspension.

Facts

Mr Khan, a pharmacist registered in 2002 and practising in Glasgow, was convicted of three incidents of domestic violence against his wife between July 2010 and March 2012. The first incident involved kicking and punching his wife in bed. He subsequently breached bail conditions, behaved threateningly at the matrimonial home, kicked holes in walls, threatened to kill his wife’s family, and removed the couple’s children. He received fines, a compensation order, and a community payback order including supervision, unpaid work, and attendance at a domestic violence programme.

The General Pharmaceutical Council’s Fitness to Practise Committee found in June 2013 that his fitness to practise was impaired and directed that his name be removed from the register, rejecting suspension because the maximum 12-month period under article 54(2)(d) of the Pharmacy Order 2010 was deemed insufficient to mark the gravity of his misconduct. Removal under article 54(2)(c) carried a minimum five-year bar on restoration under article 57(2)(a).

The Extra Division of the Inner House quashed the direction for removal, identifying a ‘middle way’: the original committee could indicate that suspension should be extended at any later review under article 54(3)(a)(ii), and a review committee would be expected to respect that indication.

Issues

The principal issue was whether the power of a review committee to extend a suspension beyond the initial 12-month period can be exercised to reflect a conclusion that the gravity of the registrant’s original misconduct warranted a longer period of suspension than the original committee could itself have directed.

A secondary issue, raised on cross-appeal, was whether removal from the register was a disproportionate sanction for Mr Khan’s misconduct.

Arguments

The Council, supported by the General Medical Council as first intervener, submitted that the answer to the principal question was ‘no’: the role of a review committee is to assess current fitness to practise, not to revisit the adequacy of the original sanction.

The Health and Care Professions Council, as second intervener, together with the Advocate to the Court, supported the Extra Division’s analysis that the review jurisdiction could properly be used to extend suspension to reflect the original misconduct’s gravity.

Mr Khan, appearing in person, defended the Extra Division’s analysis and additionally cross-appealed, arguing that removal was disproportionate given the nature of his misconduct, which did not affect his professional performance or patient safety.

Judgment

Lord Wilson, delivering the judgment with which the other Justices agreed, allowed the Council’s appeal. The court held that the focus of a review hearing is on the current fitness of the registrant to resume practice, judged in light of what he has, or has not, achieved since the suspension. The review committee asks whether fitness to practise remains impaired.

The court relied on the Indicative Sanctions Guidance, which emphasises that reviews assess whether the registrant has appreciated the seriousness of the breach, refrained from further breaches, maintained skills, and poses no risk to the public. It also drew support from the Law Commissions’ April 2014 report and the fifth report of the Shipman Inquiry, which described review hearings as the ‘teeth’ behind sanctions other than erasure.

Critically, the court relied on Taylor v General Medical Council [1990] 2 AC 539, which the Extra Division had not been shown. 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.

Lord Wilson concluded that the Extra Division was ‘too ingenious’ and that ‘there was no middle way’. The Extra Division’s conception was alien to the generally accepted understanding of review as a vehicle for monitoring professional rehabilitation.

The Cross-Appeal

On the cross-appeal, the court accepted that appellate review of professional sanctions must be approached with diffidence (citing Marinovich), but noted that the exercise of appellate powers is less inhibited than previously (Ghosh), and that courts may more readily depart from a committee’s assessment where misconduct does not relate to professional performance (Dad v General Dental Council).

The court observed that Mr Khan’s conduct did not relate to his professional performance, no patient had been put at risk, he had shown genuine acknowledgement of fault, positive reports followed the community payback order, he had no prior disciplinary history, made open admissions, and had taken steps to prevent recurrence. The committee had itself acknowledged that removal might appear harsh. The court held removal was ‘harsh’, ‘unnecessary’ and ‘disproportionate’. The proportionate sanction was suspension, which at the time of the original determination should have been for one year.

Implications

The judgment confirms, in the context of the Pharmacy Order 2010 and by persuasive analogy for similar regulatory regimes (notably the Medical Act 1983 and the Health and Social Work Professions Order 2001), that a review committee’s power to extend suspension cannot be used to reflect dissatisfaction with the adequacy of the original sanction relative to the original misconduct. The proper focus of a review is forward-looking: whether the registrant’s fitness to practise remains impaired at the date of review, in light of the registrant’s conduct and rehabilitation since suspension.

The decision reaffirms the long-standing principle in Taylor and clarifies the boundary between the powers of original and review committees. It has practical significance for professional regulators, panellists, and registrants in health and social care professions, where similar review structures operate.

The decision also illustrates the willingness of appellate courts to interfere with a disciplinary sanction where misconduct does not relate to professional performance and where the sanction is disproportionate. The court’s substitution of a four-month suspension (reflecting the lengthy period of interim suspension already served) with a directed review, and its specific guidance to the review committee, demonstrates an appellate court’s pragmatic approach where a disproportionate sanction has been imposed.

The judgment does not displace the principle that disciplinary panels are best qualified to assess the impact of misconduct on the reputation of the profession, but emphasises that this deference is qualified, particularly where misconduct does not relate to clinical or professional performance.

Verdict: The Supreme Court unanimously allowed the Council’s appeal, recalling the Extra Division’s interlocutor and holding that a review committee cannot extend suspension to reflect the gravity of the original misconduct. The court also allowed Mr Khan’s cross-appeal, substituting the direction for removal with a direction for suspension of four months, accompanied by a direction for a review prior to expiry.

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