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Background

Mr Khan was a registered pharmacist. He was douglas-waddell1subject to disciplinary proceedings by the General Pharmaceutical Council (GPC) in relation to a number of domestic violence convictions, which the GPC’s fitness to practise committee held impaired his fitness to practise as a pharmacist by reason of his misconduct. The GPC’s fitness to practise committee decided that to suspend Mr Khan’s right to practise as a pharmacist for 12 months did not properly reflect the gravity of his conduct, and directed that he be removed from the register of pharmacists.

Mr Khan appealed the determination of the committee to the Extra Division of the Inner House of the Court of Session. The Extra Division allowed Mr Khan’s appeal on the grounds that the GPC’s fitness to practise committee had not given sufficient consideration to the option of suspending Mr Khan for 12 months and then renewing his suspension for a further 12 months if it felt that the original suspension was not sufficient a sanction.

The GPC appealed the Extra Division’s decision to the UK Supreme Court on whether it was competent to impose a further suspension as sanction. Mr Khan cross-appealed against the implicit decision of the Inner House that removal from the register had not been disproportionate. Our case preview can be found here.

Judgment

The Supreme Court allowed both the GPC’s appeal and Mr Khan’s cross-appeal unanimously on 14 December 2016, and set aside the decision of the Extra Division. Lord Wilson delivered the judgment on behalf of the court.

The Supreme Court rejected the Extra Division’s view of the purpose of the further review. The Extra Division’s opinion was that the GPC committee reviewing suspension could, once the initial period of suspension had finished, take into account the severity of the initial misconduct in deciding whether to renew suspension. In response, Lord Wilson noted in the Supreme Court’s judgment:

“The Extra Division’s conception is alien to the generally accepted conception of a review as a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation.” (paragraph 31)

The Supreme Court pointed to authority, Taylor v General Medical Council [1990] 2 AC 539, which was “unfortunately not cited” to the Extra Division. In Taylor, a doctor was suspended for one year, and upon two reviews for two further years. Counsel for the GMC argued that this was the proper period of suspension in light of the doctor’s serious misconduct. However, the Judicial Committee of the Privy Council held that it could “never be a proper ground” to extend the period of suspension on the basis that the original period of suspension did not adequately reflect the severity of the original misconduct.

The court made it clear that the purpose of the review, with the possibility of further suspension, was to determine the current fitness of the registrant to practise. The factors to be considered when determining this included whether (i) any further breaches of the profession’s standards of conduct had occurred; (ii) the registrant had kept his skills and knowledge up to date; and (iii) the public would be placed at risk by the suspension coming to an end.

Both the General Medical Council and the Health and Care Professions Council were permitted to intervene in the appeal. The judgment makes it clear that the court’s ruling on this point has wider significance for professional regulatory bodies and will be “persuasive authority” in relation to other regulators with similar statutory provisions.

The cross-appeal

The Supreme Court went on to allow Mr Khan’s cross-appeal. It acknowledged that a professional regulatory body was best placed to judge the sanction required as a result of any damage to the reputation of the profession, and, that “an appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence.”

However, the court found that the disciplinary committee’s direction for removal from the register had been “harsh”, “unnecessary” and “disproportionate”. While Mr Khan was guilty of three incidents of domestic violence, he had already received his punishment through the criminal courts and his conduct did not relate to his professional performance. Moreover, the GPC’s fitness to practise committee appeared to have failed to take account of a number of mitigating factors in terms of the GPC’s Indicative Sanctions Guidance. The court held that the proportionate sanction would have been suspension for the period of a year. The GPC’s decision to remove Mr Khan from the register was therefore quashed. In its place, the Supreme Court substituted an order for suspension, fixed at four months given that an interim suspension pending resolution of the appeal had been in place for almost three and a half years. The review committee were directed to conduct a review within that period and were invited to have particular regard to his supervisor’s report, any evidence of loss of necessary skills and generally any “relevant occurrence” since the date of the committee’s original determination.