Habib Khan v General Pharmaceutical Council

A review of a professional suspension is directed to the registrant’s current fitness to practise and professional rehabilitation. It asks whether impairment remains in light of developments since the suspension.

A review committee cannot extend suspension merely because the original period was insufficient to reflect the gravity of the misconduct. Nor can an original committee use an indication about future extensions to create an intermediate sanction between suspension and removal.

An appellate court approaches a disciplinary sanction with diffidence, but removal remains subject to review for necessity and proportionality. Intervention is more readily justified where the misconduct was unrelated to professional performance.

Habib Khan v General Pharmaceutical Council concerned a pharmacist whose fitness to practise was found impaired following convictions arising from domestic violence. The Fitness to Practise Committee directed his removal from the register under the Pharmacy Order 2010 and imposed an interim suspension pending appeal.

The Extra Division of the Inner House allowed his appeal in [2014] CSIH 61. It held that successive extensions at review hearings offered a middle way between a maximum initial suspension of 12 months and removal, which prevented an application for restoration for five years. It quashed the removal direction and remitted the sanction question.

The council appealed against that analysis. Mr Khan cross-appealed on the ground that removal was unnecessary and disproportionate. The central issues were whether a review committee could extend suspension to reflect the gravity of the original misconduct and whether removal was a proportionate sanction.

1. Disposition. Lord Wilson delivered the unanimous judgment of the court. The council’s appeal and Mr Khan’s cross-appeal were allowed. The Extra Division’s interlocutor was recalled, and the direction for removal was replaced by a four-month suspension subject to review.
2. Function of a review. A review under article 54(3)(a) of the Pharmacy Order 2010 focuses on the registrant’s current fitness to resume practice. The review committee considers whether the impairment found by the original committee remains, having regard to the registrant’s insight, remediation, maintenance of skills and other developments since suspension. Its function is to monitor progress towards professional rehabilitation.
3. No middle way. A review committee cannot extend suspension because the original period was insufficient to mark the gravity of the original misconduct. An indication by the original committee that a longer aggregate suspension is desirable cannot enlarge the review committee’s statutory function. The Extra Division’s proposed middle way was therefore erroneous. Taylor v General Medical Council [1990] 2 AC 539 was followed. It established that using an extension to correct the perceived leniency of the original sanction was wrong in principle.
4. Appellate scrutiny of sanction. An appellate court should approach the specialist committee’s assessment with diffidence because the committee is ordinarily best placed to evaluate harm to the profession’s reputation. Nevertheless, the appellate power to intervene is not unduly inhibited. On an appeal against removal, the question is whether that sanction was appropriate and necessary in the public interest or excessive and disproportionate. A court may more readily depart from the committee’s assessment where the misconduct did not relate to professional performance.
5. Proportionality. The criminal proceedings had supplied the punishment. The disciplinary task was to protect public confidence through a proportionate sanction. The misconduct was serious, but it did not concern professional performance, no patient was endangered, and there was substantial mitigation, including insight, remorse, remediation and a low risk of reoffending. Removal was harsh, unnecessary and disproportionate. At the date of the committee’s determination, a 12-month suspension would have been proportionate.
6. Final order. Because the interim suspension had already continued for almost three and a half years, the substituted suspension was limited to four months. A review was directed before its expiry, with particular attention to later supervisory evidence, possible loss or maintenance of professional skills, and other relevant developments since the original determination.

1. United Kingdom Supreme Court: The council’s appeal and Mr Khan’s cross-appeal were allowed unanimously. The Extra Division’s interlocutor was recalled, and a four-month suspension with review was substituted for removal.
2. Extra Division of the Inner House: In Habib Khan v General Pharmaceutical Council [2014] CSIH 61, the court allowed Mr Khan’s appeal, quashed the removal direction and remitted the sanction question. It treated review extensions as a possible middle way between a 12-month suspension and removal, while implicitly rejecting the alternative proportionality challenge.
3. Fitness to Practise Committee: The committee found Mr Khan’s fitness to practise impaired and directed removal from the register. It also imposed an interim suspension pending appeal.