JUDGMENT
Habib Khan (Respondent) v General
Pharmaceutical Council (Appellant) (Scotland)
before
Lord Neuberger, President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
14 December 2016
Heard on 10 November 2016
Appellant Respondent
Tom Kark QC In person
Kenneth Hamer
(Instructed by General
Pharmaceutical Council,
Professionals Regulation
(Fitness to Practise))
(Assisted by Graham
Edwards)
First Intervener Second Intervener
Andrew Smith QC Jenni Richards QC
Rory Holmes
(Instructed by General
Medical Council Legal)
(Instructed by Bircham
Dyson Bell LLP)
Advocate to the Court
Kay Springham QC
Jillian Martin-Brown
(Directly Appointed)
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LORD WILSON: (with whom Lord Neuberger, Lord Reed, Lord Carnwath
and Lord Hodge agree)
A: THE ISSUE
1. The disciplinary panels of bodies which regulate professional conduct
conventionally have power to suspend a professional’s right to practise for a
specified period. They do so by directing that the entry of his (or her) name on the
professional register be suspended for the specified period. Usually that power is
accompanied by a power (but occasionally by a duty) of a panel to conduct a later
review of the suspension in order to determine whether to direct its continuation
beyond the specified period or to make some other direction. This appeal concerns
the ambit of the inquiry which, in the case of one of these disciplinary panels, should
be undertaken in the course of a review.
2. In 2002 Mr Khan was registered as a pharmacist. He practised in Glasgow.
In 2012 the General Pharmaceutical Council (“the council”), by its registrar, referred
to its Fitness to Practise Committee (“the committee”) an allegation that his fitness
to practise as a pharmacist was impaired by reason of criminal convictions which
had been recorded against him. On 27 June 2013 the committee found that the
impairment of his fitness to practise was established. When it turned to identify the
sanction which would properly reflect the gravity of the misconduct for which he
had been convicted, the committee rejected the option of suspending his right to
practise. Instead it directed that his entry in the register of pharmacists be altogether
removed. On 10 July 2014 the Extra Division of the Inner House, Court of Session,
allowed his appeal against the direction for removal. The court (comprising Lord
Eassie, Lord Drummond Young and Lord Wheatley) quashed the direction and
remitted the case to the committee for it to determine the appropriate sanction in the
light of its Opinion, which was delivered by Lord Drummond Young.
3. In the course of its Opinion the Extra Division noted that:
(a) the committee had exercised its power under article 54(2)(c) of the
Pharmacy Order 2010, SI 2010 No 231, (“the Order”), which has effect in
Scotland as well as in England and Wales, to direct “that the entry in the
Register of the person concerned be removed”;
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(b) article 57(2)(a) of the Order would disable Mr Khan from applying for
the restoration of his entry in the register before the expiry of five years from
the date of its removal;
(c) the power under article 54(2)(d) of the Order to suspend a person’s
entry in the register was limited to suspension “for such period not exceeding
12 months as may be specified in the direction”; and
(d) the committee had concluded (and, so the court impliedly held, had
reasonably concluded) that suspension of Mr Khan’s entry for no longer than
12 months would be insufficient to mark the gravity of his misconduct.
4. At that point, however, the Extra Division observed that, in considering and
rejecting the option of suspending Mr Khan’s entry in the register, the committee
had made no mention of its power under article 54(3)(a)(ii) of the Order to conduct
a review following a direction for suspension and thereupon to direct that “the
suspension of the entry be extended for such further period not exceeding 12 months
as may be specified in the direction, starting from the time when the period of
suspension would otherwise expire”. A review can be conducted at any time but will
ordinarily take place towards the end of the period of suspension; and it is usual for
a committee which imposes a period of suspension to direct that a review should
take place.
5. In relation to the power to conduct a later review, the Extra Division then
proceeded to make statements of law which precipitate the council’s appeal to this
court. It held that:
(a) there was “a middle way” between suspension for 12 months, which
the committee had considered to be insufficient, and removal, which, as it
had acknowledged, perhaps appeared harsh;
(b) those two choices therefore represented “a false dichotomy”;
(c) in the light of the power to conduct a later review, and indeed to
conduct even later reviews, it had been reasonably incidental to the original
committee’s power of suspension for 12 months for it “to indicate that it
considered that the suspension should be extended thereafter, for a further 12
months or longer as the case might be”;
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(d) although the indication of the original committee would not bind the
review committee, “it must be assumed that the later Committee will act in a
reasonable manner and will respect the decision and findings of the earlier
Committee”; and
(e) “the later Committee will be obliged to respect the indication and if it
departs from it will be expected to give reasons for doing so”.
6. So the question raised by the appeal surrounds the ambit of a review hearing
following suspension. It asks specifically: can the power of a review committee to
direct suspension beyond the year of the original suspension be so exercised as to
reflect a conclusion that the gravity of the registrant’s misconduct demanded a
longer period of suspension than that of one year which could not have been
exceeded in the direction given by the original committee?
7. To this specific question the council invites the court to answer: no.
8. This court’s conclusion will directly inform the ambit of a review following
a direction of suspension only when it is conducted under article 54(3)(a) of the
Order. But the regulatory systems relating to professions other than that of pharmacy
make similar provisions for review following suspension. If the detail of their
provisions were to disclose relevant differences from those set out in the Order, this
court’s judgment would not be applicable to them without adjustment. In the absence
of relevant differences, however, today’s judgment will carry persuasive authority
in relation to them. Recognition of its potentially wider significance has prompted
two interventions in the appeal to this court.
9. The first intervener is the General Medical Council (“the GMC”). Under
subsection (2)(b) of section 35D of the Medical Act 1983 the Medical Practitioners
Tribunal (as it is now called), upon finding that a practitioner’s fitness is impaired,
may direct that his registration shall be suspended for such period not exceeding 12
months as it may specify; under subsection (4A) the tribunal may attach a direction
that a review of the direction of suspension be conducted prior to its expiry; and
under subsection (5)(a) the tribunal which conducts the review may direct that the
period of suspension be extended, albeit not, save exceptionally, for more than 12
months at a time. The provisions for review of suspension therefore appear similar
to those in the Order. The first intervener joins the council in inviting the court to
answer the specific question: no.
10. The second intervener is the Health and Care Professions Council, which
regulates about 350,000 people in 16 different health and care professions, now
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including social workers in England. Under article 29(5)(b) of the Health and Social
Work Professions Order 2001, SI 2002 No 254, its Conduct and Competence
Committee, upon finding that a registrant’s fitness to practise is impaired, may direct
suspension of his registration for a period not exceeding one year; and under article
30(1)(a) and (5) the committee is required to review the direction prior to expiry of
the suspension and can then extend it but by no more than a year at a time. Apart
from its mandatory nature, the provisions for a review of suspension therefore
appear similar to those in the Order. The second intervener describes its approach to
the appeal as nuanced. At first it seemed almost elusive. By the end of the hearing,
however, its submission became clear, namely that the Extra Division’s analysis of
the ambit of the power of a review committee had been essentially correct; and in
this submission it was joined by the Advocate to the Court.
11. Mr Khan appears in person albeit with the considerable assistance of Mr
Edwards. He seeks to defend the Extra Division’s analysis, which he himself had
urged upon it; but, in case the council’s appeal were to succeed, he mounts a crossappeal to the effect that in any event the committee’s direction for his removal from
the register was, in the light of the nature of his misconduct to which I will now turn,
disproportionate.
B: THE MISCONDUCT
12. Mr Khan’s misconduct related to the breakdown of his marriage, which has
since been dissolved.
13. On 20 July 2010 Mr Khan kicked his wife when she was lying in bed; grabbed
her hair; punched her in the face; dragged her off the bed; and again struck her in
the face. Mr Khan was thereupon charged with having assaulted his wife and placed
on bail, conditions of which were that he should neither return to the matrimonial
home nor contact her.
14. On 8 March 2011, in breach of the conditions, he returned there and contacted
her.
15. On 13 May 2011, having pleaded guilty to the assault, Mr Khan was fined
£400, ordered to compensate his wife in the sum of £500 and admonished for the
breach of the conditions.
16. On 9 March 2012 Mr Khan returned to the home; found the door locked
against him; demanded entry; banged on the door; and shouted and swore at his wife
so as to put her in fear.
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17. On 30 March 2012 Mr Khan’s wife left their two children, aged nine and two,
at home in the care of her mother and sister while she went out. He arrived with
another relation. They tricked the wife’s sister into opening the door, whereupon he
walked in. He unhooked pictures from the wall; kicked a hole in the wall; kicked a
door; kicked over a shoe rack; swore at the sister that he was going to kill her, his
wife and the whole family; and, with that other relation, removed the children. The
police later went to his home, arrested him, recovered the children and restored them
to the care of his wife.
18. On 8 May 2012 Mr Khan pleaded guilty to having behaved threateningly and
abusively on 9 and 30 March and, on the latter occasion, to having wilfully or
recklessly damaged property belonging to his wife. On 8 June 2012 he was
sentenced for these offences to a community payback order, which comprised
supervision for 18 months and requirements to complete 180 hours of unpaid work
within six months and to attend for six months at a domestic violence programme
called “Change”.
C: THE COMMITTEE’S DETERMINATION
19. Before the committee Mr Khan admitted the misconduct set out above;
accepted that it had been wholly inappropriate; apologised for it; and acknowledged
that the effect on public confidence of it, and of the criminal convictions referable
to it, was such that his fitness to practise was impaired. The committee accepted
reports that he had diligently completed the 180 hours of unpaid work and had
successfully attended the “Change” programme, in which, in the course of cognitive
behavioural therapy, he had learnt skills which had enabled him to communicate
reasonably with his wife. The committee accepted that he had genuinely learnt the
error of his past conduct; that his social worker had assessed him as at low risk of
re-offending; that his misconduct had in no way affected his professional
performance; that his clinical skills were not in issue; and that his patients were not
at risk. It noted, however, that the period of supervision was still continuing.
20. Under article 54(1) of the Order the committee was required first to decide
for itself whether Mr Khan’s fitness to practise was impaired. In this regard it recited
Rule 5 of the General Pharmaceutical Council (Fitness to Practise and
Disqualification etc) Rules 2010 (“the Rules”), which are scheduled to the General
Pharmaceutical Council (Fitness to Practise and Disqualification etc Rules) Order
of Council 2010, SI 2010 No 1615. Rule 5 required the committee to decide whether,
in the light of his conduct, a registrant was fit to practise by having regard to four
criteria including, at para (2)(b), whether his conduct had brought the profession of
pharmacy into disrepute. The committee decided that Mr Khan’s conduct had done
so; that indeed it would shock the public; and that he had been right to acknowledge
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that it had impaired his fitness to practise because any other conclusion would
undermine public confidence in the profession.
21. The committee’s determination of the impairment of Mr Khan’s fitness to
practise enabled it to turn, under article 54(2) of the Order, to consider the
appropriate sanction. It reminded itself that the purpose was not to punish Mr Khan.
It noted the council’s submission that nothing less than either suspension or removal
of his registration would suffice. The committee observed that:
(a) it could not direct suspension for more than 12 months;
(b) following a direction for removal there could be no restoration to the
register within five years;
(c) suspension for 12 months would be insufficient to mark the gravity of
his conduct;
(d) the maintenance of public confidence demanded nothing less than
removal;
(e) removal might appear harsh; and
(f) a harsh direction might in part be a consequence of the limited choice
of sanction available to it.
22. Under article 59 of the Order a direction for removal does not take effect
pending any appeal but the committee exercised its power under article 60(2) to
direct that Mr Khan’s entry on the register “be suspended forthwith, pending the
coming into force of the direction”. The direction for removal has been under appeal
ever since so Mr Khan’s interim suspension has also continued ever since, in other
words for almost three and a half years. The period of interim suspension would not
count towards the period of five years after which Mr Khan could apply for
restoration to the register because the latter would begin only on the date of removal.
D: THE ALLEGED MIDDLE WAY
23. There is, as Mr Edwards submits, a quantum leap between the original
committee’s power of suspension which can be for no more than one year and its
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power of removal which must endure for at least five years. The council suggests
that the limit on the period of suspension, introduced in 2007 when the power to
suspend was itself introduced, in particular reflected concern that a registrant
suspended for a period longer than a year would be likely to lose his skills. It also
appears that the temporal limit on the registrant’s ability to apply for restoration to
the register following removal, also introduced in 2007, in particular reflected
concern about inappropriately early applications for restoration which were
regarded as inconsistent with the imposition of the ultimate sanction of removal.
24. The powers of the review committee following the original committee’s
direction for a registrant’s suspension are fully set out in article 54(3)(a) of the
Order. But no indication is there given about the way in which the powers should be
exercised; and in that regard only limited assistance can be derived from the Rules.
Rule 34(4) requires the representative of the council to inform the review committee
of the background to the case and the sanction previously imposed and to direct its
attention to any relevant evidence, including transcripts of previous hearings; and
paras (4) and (5) permit both parties to adduce evidence “in relation to the person
concerned’s fitness to practise”. Para (6), however, provides that, following a
direction for suspension, the review committee “must receive further evidence”
although the subject of it is not identified. It certainly seems that the reference to the
registrant’s fitness to practise relates to his fitness at the time of the review hearing.
25. Greater assistance is, however, to be collected from the Indicative Sanctions
Guidance which the Fitness to Practise Committee approved on 13 May 2011 and
which was intended to explain its approach to decision-making. Although the
guidance has now been replaced by other guidance, entitled “Good decision making:
fitness to practise hearings and sanctions guidance” and published by the council in
July 2015, it is the earlier guidance which applies to Mr Khan’s case.
26. In para 17 of the Indicative Sanctions Guidance the committee addressed
reviews of suspension. It stated:
“In some cases it may be self-evident that following a short
period of suspension, there will be no value in a review hearing.
In most cases however, where a period of suspension is
imposed the Committee will need to be reassured that the
registrant is fit to resume practice either unrestricted or with
conditions or further conditions.
The Committee will also need to satisfy itself that the registrant
has fully appreciated the seriousness of the relevant breach(es),
has not committed any further breaches of the Council’s
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Standards of conduct, ethics and performance, has maintained
his or her skills and knowledge up to date and that the public
will not be placed at risk by resumption of practice or by the
imposition of conditional registration.”
The current guidance is in similar terms.
27. The guidance therefore makes clear that the focus of a review is upon the
current fitness of the registrant to resume practice, judged in the light of what he has,
or has not, achieved since the date of the suspension. The review committee will
note the particular concerns articulated by the original committee and seek to discern
what steps, if any, the registrant has taken to allay them during the period of his
suspension. The original committee will have found that his fitness to practise was
impaired. The review committee asks: does his fitness to practise remain impaired?
28. It is worthwhile to look across at the recent work of the three UK Law
Commissions in this area. In April 2014 they published a report entitled “Regulation
of Health Care Professionals, Regulation of Social Care Professionals in England”,
Law Com No 345, Scot Law Com No 237, NILC 18 (2014), Cm 8839, together with
a draft Bill. Their work was born of public concern that professional regulation in
the health care sector across the UK, and in the social care work sector in England,
had grown piece-meal over more than a century and had become inconsistent,
incoherent and cumbersome. Their remit was to review the rules which governed
nine regulatory bodies, including the council, the GMC and the Health and Care
Professions Council; and, following extensive consultation, their recommendation
was to confine the regulatory functions of the nine bodies within a single legal
framework, set out in the draft Bill. In January 2015 the government published a
response to the report, in which it accepted most of the Commissions’
recommendations and expressed a commitment to introduce legislation in due
course. What is of interest for present purposes is that in para 9.123 of their report
the Commissions suggest that greater consistency is appropriate in the conduct of
review hearings and that, in their draft Bill, they propose the following:
“161 Review of suspension orders: disposals by fitness to
practise panel
(1) …
(2) …
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(3) If the panel determines that the registered professional’s
fitness to practise is no longer impaired, the panel –
(a) must revoke the suspension order …
(4) …
(5) If the panel determines that the registered professional’s
fitness to practise is impaired, the panel may dispose of the case
as described in any of the following subsections …”
So the proposal of the Commissions is that the review committee should ask whether
the registrant’s fitness to practise “is no longer impaired” or “is impaired”. In other
words it should address changes relevant to his impairment which have – or have not
– occurred since the date of the original committee’s direction.
29. It is also noteworthy that in the fifth report of the Shipman Inquiry, 9
December 2004, Cm 6394, Dame Janet Smith, Chairman, when referring to reviews
under section 35D(5) of the Medical Act 1983, stated at para 27.267:
“Review hearings are extremely important. They are the ‘teeth’
behind the sanctions other than erasure and should focus the
doctor’s mind on the need to undertake any necessary
remediation.”
30. The Extra Division’s conception is that a review committee has a role in
determining the sanction appropriate to the circumstances by reference to which the
original committee found that the registrant’s fitness to practise was impaired; that,
in particular where the original committee has directed suspension for one year, the
review committee can look back at those circumstances and determine whether,
although one year was the maximum period of suspension open to the original
committee, its direction was insufficient to mark their gravity; that, while that
determination falls to be made by the review committee, it should afford great
respect to any indication by the original committee that its direction was indeed
insufficient to mark their gravity; and that, if determining that the direction was
insufficient, the review committee should exercise its power of extension under
article 54(3)(a)(ii) of the Order.
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31. 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.
32. Indeed there is authority, unfortunately not cited to the Extra Division, which
expressly holds that the conception which it favoured is misplaced. It is Taylor v
General Medical Council [1990] 2 AC 539. Before the Judicial Committee of the
Privy Council was an appeal by a medical practitioner against a direction by (as it
was then called) the Professional Conduct Committee of the GMC to extend for a
second time the period of one year which had been specified in its original direction
for suspension. The doctor, who had previously received a suspended sentence of
imprisonment for making false statements in order to enable persons to obtain
passports, had been found guilty of serious professional misconduct in having
irresponsibly issued prescriptions for methadone to about 70 patients. Upon
directing suspension for one year, the committee had intimated the need for a later
review, at which the period was extended for a year and the same intimation was
given. The doctor’s appeal was brought against the direction made at the second
review, which was for extension for one further but final year. The submission of
counsel for the GMC, set out at pp 540 and 542, was that the committee must have
considered that three years was the proper period of suspension in view of the
doctor’s serious misconduct; that its initial direction for suspension could not have
been for more than a year; and that it had not been wrong for the two years to be
added at the two successive reviews.
33. By a judgment delivered by Lord Bridge of Harwich, the committee allowed
the doctor’s appeal. It held at p 545:
“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.”
And it concluded at p 547:
“… the only explanation for the committee’s decision … to
direct a third such period was that they regarded the original
decision to direct suspension instead of erasure as having been
too lenient … the direction was wrong in principle.”
34. The decision in the Taylor case has never been questioned save now,
unwittingly, by the Extra Division. Take, for example, the case of Obukofe v General
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Medical Council [2014] EWHC 408 (Admin). A medical practitioner appealed
against the direction of (as it was then called) a Fitness to Practise Panel of the GMC
to extend for one year the period, also of one year, for which he had originally been
suspended from practice. He had received suspended sentences of imprisonment
following convictions for sexual assault on two junior members of staff at the
hospital where he had worked. Popplewell J dismissed his appeal. One of the
grounds of appeal was that the direction for extension violated the principle of
double jeopardy. The judge said:
“48. This is to misunderstand the nature and effect of a
suspension which is subject to review …
49. … The imposition of a further sanction by way of an
extension of the period of suspension depends upon an
assessment of his fitness to practise at that later stage. No
question of double jeopardy arises.”
35. In summary, the Extra Division was too ingenious. There was no middle way.
It was wrong to remit the case to the committee for disposal on that basis. But Mr
Khan had argued in the alternative that, irrespective of whether that basis for
remission existed, the direction of his removal from the register was
disproportionate. He now cross-appeals against the Extra Division’s implicit
rejection of that alternative argument.
E: THE CROSS-APPEAL
36. An appellate court must approach a challenge to the sanction imposed by a
professional disciplinary committee with diffidence. In a case such as the present,
the committee’s concern is for the damage already done or likely to be done to the
reputation of the profession and it is best qualified to judge the measures required to
address it: Marinovich v General Medical Council [2002] UKPC 36, para 28. Mr
Khan is, however, entitled to point out that
(a) the exercise of appellate powers to quash a committee’s direction or to
substitute a different direction is somewhat less inhibited than previously:
Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915,
para 34;
(b) on an appeal against the sanction of removal, the question is whether
it “was appropriate and necessary in the public interest or was excessive and
disproportionate”: the Ghosh case, again para 34; and
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(c) a court can more readily depart from the committee’s assessment of
the effect on public confidence of misconduct which does not relate to
professional performance than in a case in which the misconduct relates to it:
Dad v General Dental Council [2000] 1 WLR 1538, pp 1542-1543.
37. Mr Khan was guilty of three incidents of domestic violence, of which the first
and third were particularly serious. In the third he even involved the children of the
family. His conduct betrayed a gross loss of control and his purpose was, directly
and indirectly, to hurt his wife. Mitigation on his behalf in the Sheriff Court would
have been hard to articulate. Inevitably the convictions attracted at first a significant
fine and later a substantial community penalty. There, however, lay the punishment.
The focus for the committee was different: its task, not easy, was to judge the effect
of the conduct on public confidence in the profession and to identify a sanction
proportionate to its judgement.
38. Mr Khan’s conduct did not relate to his professional performance. No patient
had been, or was likely to be, put at risk. The committee fairly recited several further
features of the case which militated against the removal of his registration, such as
his genuine acknowledgement of fault and the positive reports of his response to the
requirements of the community payback order, as set out in para 19 above.
39. Rule 31(14)(a) required the committee to have regard to the Indicative
Sanctions Guidance when determining sanction. It duly referred to para 14 of the
guidance, entitled “Cases where removal from the Register may be appropriate”,
and it picked out two of the cases there described, albeit in arrestingly general terms,
namely “Behaviour is fundamentally incompatible with registration” and “Public
confidence in the profession demands no lesser sanction”. But the committee might
also usefully have referred to para 8 of the guidance, entitled “Mitigating Features
– General” and, had it done so, it would have picked out
(a) no prior disciplinary history;
(b) genuine insight into misconduct;
(c) open admissions at an early stage;
(d) no actual or potential harm to patients or the public;
(e) genuine expression of remorse to committee; and
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(f) steps taken to prevent recurrence.
40. The committee itself acknowledged that its direction for removal might
appear harsh. It was indeed harsh. It was unnecessary. It was disproportionate. The
sanction proportionate to the disrepute into which Mr Khan’s conduct had brought,
or was likely to bring, the profession of pharmacy was suspension of his registration,
which, at the time of the committee’s determination, should no doubt have been for
a period of a year.
F: CONCLUSION
41. It was for the above reasons that, at the end of the hearing, Lord Neuberger,
the President of the court, announced its unanimous conclusion, which was that
(a) the council’s appeal should be allowed;
(b) the Extra Division’s interlocutor should be recalled;
(c) Mr Khan’s cross-appeal should also be allowed;
(d) instead of the committee’s direction for his removal from the register,
a direction for his suspension from it should be substituted;
(e) in the light of the length of his interim suspension since the date of the
committee’s direction, the period of his suspension should be four months;
(f) attached to the direction for his suspension for four months should be
a direction for a review committee to conduct a review prior to its expiry; and
(g) the review committee should be invited to have regard in particular to
any report upon him by his supervisor following the expiry of his period of
supervision; to any evidence relating to the risk that he has lost necessary
skills since the date of the committee’s determination and therefore to any
efforts on his part to retain them; and, generally, to any relevant occurrence
since that date.
