A review of a professional suspension cannot extend it merely because the original panel thought the longest period it could impose was too short to reflect the gravity of the misconduct. The Supreme Court so held where a Glasgow pharmacist, Habib Khan, had been removed from the register after convictions arising from domestic violence. It allowed the General Pharmaceutical Council’s appeal on that point, but also allowed his cross-appeal and substituted a short further suspension for removal.
The misconduct and the committee
Mr Khan was a registered pharmacist. The disciplinary case concerned misconduct away from practice, including convictions involving domestic violence.
He admitted the misconduct, apologised, and accepted that its effect on public confidence meant his fitness was impaired. The committee accepted that he had completed the unpaid work and the programme, had learnt to communicate reasonably with his wife, and had genuinely learnt the error of his conduct. He was assessed as at low risk of re-offending. His professional performance and clinical skills were not in issue and patients were not at risk, although supervision was still continuing. Deciding impairment for itself under the Pharmacy Order 2010, the committee found that the conduct had brought pharmacy into disrepute, would shock the public, and had impaired his fitness, because any other conclusion would undermine public confidence.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The purpose of sanction was not to punish him. Suspension could not exceed 12 months. After removal he could not apply for restoration for five years. On 27 June 2013 the committee directed removal: 12 months would not mark the gravity of the conduct, and public confidence demanded nothing less, even though removal might appear harsh and that harshness might partly follow from the limited choice of sanctions. Removal does not take effect pending an appeal, but he was suspended immediately in the meantime. That interim suspension had lasted almost three and a half years by the Supreme Court hearing, and would not count towards the five years before a restoration application.
The suggested middle way
On 10 July 2014 the Extra Division of the Inner House of the Court of Session (Lord Eassie, Lord Drummond Young and Lord Wheatley) quashed the removal and sent the case back. Lord Drummond Young noted that the committee had, as the court impliedly held, reasonably concluded that suspension of no more than 12 months was insufficient. The committee had not mentioned its power, on a review, to extend a suspension for further periods of up to 12 months. The Extra Division held that there was “a middle way”, and that suspension and removal were “a false dichotomy”. It was, the court said, reasonably incidental to a 12-month suspension for the original committee to indicate that the suspension should later be extended for a further 12 months or longer. The indication would not bind the review committee, but the later committee should respect it and give reasons for any departure.
The Council appealed against the suggestion that successive suspensions could be used to bridge the gap between suspension and removal.
What a review may decide
The question was whether a review committee may extend a suspension because it concludes that the misconduct required longer than the one year the original committee could impose. Lord Wilson, with whom Lord Neuberger, Lord Reed, Lord Carnwath and Lord Hodge agreed, answered no.
The Order lists the review powers but does not say how they should be used. Evidence at a review concerns fitness at that time. The Indicative Sanctions Guidance of 13 May 2011, which applied to this case, treated a review as a check that the registrant is fit to resume practice, has appreciated the seriousness of the breach, has committed no further breach, has maintained skills and knowledge, and will not put the public at risk. The question is whether fitness remains impaired, judged by what has happened since the suspension. A review monitors rehabilitation. It is not a second chance to fix the original sanction.
The Extra Division’s approach was alien to that role. In Taylor v General Medical Council [1990] 2 AC 539, which had not been cited below, the Privy Council 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.
An extension made because suspension, rather than erasure, now seemed too lenient was wrong in principle. In Obukofe v General Medical Council [2014] EWHC 408 (Admin), Popplewell J likewise treated an extension as an assessment of current fitness, so that no question of double jeopardy arose. The Supreme Court held that the Extra Division had been too ingenious. There was no middle way, and remission on that basis was wrong. Concern about loss of skills after a suspension of more than a year, and about early applications for restoration after removal, explained the gap between the sanctions. It did not allow a review to close that gap.
Was removal proportionate?
Mr Khan cross-appealed. The Extra Division had implicitly rejected his alternative argument that removal was disproportionate in any event. An appeal court approaches a professional sanction with diffidence, because the committee is best placed to judge damage to the profession’s reputation. Even so, it may quash or substitute a direction more readily than was once the case. The question is whether removal was appropriate and necessary in the public interest, or excessive and disproportionate. Where the misconduct does not relate to professional performance, the court can more readily differ from the committee’s view of the effect on public confidence.
There were three incidents. The first and third were particularly serious, and the third involved the children. The conduct showed a gross loss of control and was intended, directly and indirectly, to hurt his wife. The fine and the community order were the punishment. No patient had been, or was likely to be, at risk. The committee had noted his acknowledgement of fault and the positive reports on the community order. Mitigating features in the guidance, to which it might usefully have referred, included no prior disciplinary history, insight, early admissions, no actual or potential harm to patients or the public, remorse, and steps to prevent recurrence. The committee itself said removal might appear harsh. The court held that it was harsh, unnecessary and disproportionate. At the time of the determination, the proportionate sanction was suspension for a year.
Verdict: The Court unanimously allowed both the Council’s appeal and Khan’s cross-appeal. A review could not extend suspension simply to increase the original sanction. Removal was disproportionate. The Court substituted four further months of suspension, taking account of time already spent suspended, and ordered a review before expiry.
Source: Habib Khan v General Pharmaceutical Council [2016] UKSC 64
