Background

This case concerns an appeal to the Scottish Supreme Court by the General Pharmaceutical Council (“the GPhC”) of a decision of a lower court to overturn a sanction which was imposed by the GPhC on pharmacist Habib Khan.

The lower court had held that the sanction of erasure was disproportionate in the circumstances of this case, and recommended the pharmacist be suspended with a follow up review hearing.

The GPhC appealed this decision to the Supreme Court.

Fitness to Practise Inquiry

Between 2010 and 2012, pharmacist Habib Khan pleaded guilty to three incidents of domestic violence towards his wife. He was convicted of these offences.

An Inquiry was held arising from these convictions by the Fitness to Practise Committee of the GPhC (“the Committee”) in 2012, following which findings of professional misconduct were made in respect of Mr Khan. The Committee found that Mr Khan’s fitness to practise as a pharmacist was impaired by reason of his misconduct and decided to erase Mr Khan’s name from the register of pharmacists held by the GPHC.

In reaching this decision, the Committee concluded that a suspension would not be a sufficient sanction in the circumstances, because the maximum suspension permissible was a period of 12 months and commented that:

“repeated domestic violence is a crime striking at the core of professional healthcare. Pharmacists, in common with other healthcare professionals, have to be understanding, sympathetic for all patients, men, women and children, and must be publicly and privately trustworthy”.

The Committee considered that the registrant’s conduct was fundamentally incompatible with continued registration as a pharmacist and that public confidence in the profession demanded no lesser sanction than erasure.

Appeal by Mr Khan of the GPhC Decision

The decision of the Committee to strike Mr Khan’s name from the register was appealed to the Extra Division of the Court of Session in Scotland. Mr Khan argued that the sanction was disproportionately harsh. The Court allowed Mr Khan’s appeal and remitted the case back to the Committee for it to determine the appropriate sanction in light of its opinion. The Court noted that a 12-month suspension could have been imposed, with a recommendation that the suspension be extended at a future review hearing if necessary.

The Supreme Court

The GPhC appealed this decision to the Supreme Court, questioning whether a Review Committee could impose a further suspension on a registrant at a later hearing, arising from the Inquiry Committee’s conclusion that the gravity of the registrant’s misconduct demanded a longer period of suspension than the 12 months it was permitted to impose.

The Supreme Court held that it was wrong to treat the suspension as extendable. The Court held that this idea that it could be extended is alien to the generally accepted conception of a review, which is a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation. The Court confirmed that a review hearing cannot be a proper ground for exercising the power to extend a period of suspension.

Mr Khan argued that the sanction of erasure was disproportionately harsh. The Supreme Court agreed. The Supreme Court commented that a 12-month suspension would be proportionate to the disrepute into which Mr Khan had brought the pharmacy profession. The Court noted that Mr Khan’s conduct did not relate to his professional performance. The Supreme Court considered it important that no patient had been, or was likely to be, put at risk.

The highest court in Scotland has now expressly stated that in determining sanction, a relevant factor which Fitness to Practise Committees ought have regard to is whether or not the alleged conduct relates to the registrant’s professional practice.

If followed in other jurisdictions such as Ireland, this judgment may have implications for regulators, where a complaint relates to conduct primarily occurring in a registrant’s private life.

This decision is also helpful in explaining the concept and purpose of review hearings, which are not currently provided for in the current regulatory framework in Ireland.

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