Habib Khan v General Pharmaceutical Council  UKSC 64
In this case, the Supreme Court allowed the GPhC's appeal against the Court of Session. The Supreme Court confirmed that a review committee does not have the power to direct further periods of suspension as a way of introducing a longer sanction than a substantive committee could lawfully impose.
The Registrant was convicted in 2011 and 2012 of domestic assault, breaching bail conditions, behaving threateningly and abusively and damaging his wife's property. The Registrant pleaded guilty to all matters and was subsequently sentenced to a community payback order, whereby he was required to be supervised for 18 months, complete 180 hours of unpaid work and attend a 6 month domestic violence programme.
As a result of these convictions, the Registrant was brought before the General Pharmaceutical Council's ('the GPhC') Fitness to Practise Committee ('FTPC') in 2013. The Registrant admitted misconduct and accepted that his behaviour had been inappropriate and had damaged the public's confidence in the pharmacy profession.
Although the FTPC noted that the Registrant had successfully completed the unpaid work and domestic violence programme, they found that the Registrant's conduct had brought the profession into disrepute and as such, concluded that his fitness to practise was impaired. When considering sanction, the FTPC noted that nothing less than either suspension or removal would be appropriate. The FTPC further observed that it could not direct suspension for more than 12 months and that this sanction would not justify the seriousness of the Registrant's conduct. As such, the FTPC rejected the option of suspending the Registrant and directed that he be removed from the register. Although the decision of removal may appear harsh, the FTPC determined that it was the only sanction that would ensure the maintenance of public confidence.
The Registrant successfully appealed the FTPC's decision. In upholding the Registrant's appeal, the Inner House of the Court of Session ('the Court') held that there was a "middle way" between suspension for 12 months and removal, in that the power to review a suspension order (under Article 54 (3) (a) (ii) of the Pharmacy Order 2010) could be used to impose further 12 month suspension orders.
The Court concluded that it would be for the FTPC to indicate to the committee who would later review the order ('the Review Committee') that the suspension should be extended for a further 12 months or longer. The Court emphasised that although the FTPC's decision will not be binding on later committees, the Review Committee "will act in a reasonable way and respect the decision and findings of the earlier Committee". The Court further noted that a Review Committee must also explain any reasons for departing from the FTPC's decision.
The Court quashed the FTPC's decision to remove the Registrant from the register, instead remitting the case to the FTPC for it to determine the appropriate sanction.
In light of the above, the GPHC made an appeal to Supreme Court. The Registrant sought to defend the Court's analysis; however, he also lodged a cross-appeal that in the event the GPHC's appeal was to succeed, that the FTPC's sanction was disproportionate and should be replaced with a suspension order.
The Supreme Court determined that the Court's conclusion that the Review Committee has a role in determining the FTPC's appropriate sanction was 'alien'. The Supreme Court noted that the review hearing is seen as a 'vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation'. The Supreme Court confirmed that there was 'no middle way' and that the Court had been 'too ingenious' in their application.
The Supreme Court noted that the scope of a Review Committee had been previously examined in Taylor v General Medical Council  2 AC 539 and that this authority had not been cited to the Court. In this case, the Privy Council determined that it was wrong for the Review Committee to direct a third period of suspension and that the only explanation for this was that the Review Committee regarded the original sanction (one of suspension) as too lenient. The Supreme Court further reiterated that the purpose of a Review Committee is to review a registrant's fitness to practise at the time of the review hearing. The Supreme Court made reference to the GPhC's Indicative Sanctions Guidance, noting that the purpose of the Review Committee is to ask itself whether a registrant's fitness to practise remains impaired.
The Supreme Court acknowledged that the FTPC's sanction to remove the Registrant from the register was harsh, unnecessary and disproportionate and that suspension for 12 months was proportionate.
As such, the Supreme Court held that:
- The GPhC's appeal be allowed;
- The Registrant's cross-appeal be allowed;
- The Court's interlocutor be recalled.
- The FTPC's direction for removal from the register should be replaced with a direction of suspension.
- The period of suspension should be 4 months to reflect the length of the interim suspension since the date of the FTPC's direction.
This case confirms that the role of the Review Committee is to assess a registrant's fitness to practise at the time of a review hearing and not to analyse the FTPC's original sanction choice. Although the Review Committee may impose further periods of suspension (for example if the registrant has committed further breaches), they should not impose further periods in order to create a new sanction of extended suspension and one that the FTPC were not lawfully permitted to impose.