A 12 month suspension was too short. Removal from the register was too severe. A “middle way” was found to ensure a further 12 month suspension was imposed. An ingenious solution? Yes. However in Khan v General Pharmaceutical Council [2016] UKSC 64 the Supreme Court held it was “too ingenious”.

Mr Khan was a registered pharmacist. He was convicted in May 2011 and June 2012 on charges relating to domestic violence. As a result of his convictions Mr Khan was referred to the Fitness to Practise Committee of the General Pharmaceutical Council.

The Committee found that his fitness to practise was impaired. It rejected the option of suspending Mr Khan for the maximum 12 months, as it considered it insufficient given the gravity of his misconduct. The Committee directed that his name be removed from the register. Mr Khan appealed.

The Inner House of the Court of Session allowed the appeal. Noting that a 12 month suspension was not sufficient, but that removal was too severe, the court identified a “middle way”. This was to order a 12 month suspension with a review hearing at the end. The Committee could indicate at the outset that the review committee should extend the suspension for a further 12 months.

The GPC appealed to the Supreme Court against the proposed “middle way”. Mr Khan cross-appealed on the basis that the Committee’s decision to remove him from the register was disproportionate.

The Supreme Court allowed both the appeal and the cross-appeal. The Inner House had been too ingenious; there was no proposed “middle way” open to the Committee. They also found that the appropriate sanction against Mr Khan was suspension for a year.

The Supreme Court described the “middle way” as “alien” to the generally accepted purpose of a review committee. That purpose is to monitor the steps taken by the practitioner towards securing professional rehabilitation. It cannot be a proper ground to extend a suspension at a review hearing on the basis that the original period of suspension did not reflect the gravity of the offence.

Turning to the cross-appeal, the Committee’s task was not to punish Mr Khan but to judge the effect on public confidence in the profession and to identify a proportionate sanction to reflect that. The convictions were not directly related to Mr Khan’s professional practice. There were also several mitigating factors which were not taken into account such as genuine insight into the misconduct and a genuine expression of remorse. The Supreme Court considered that the decision to remove Mr Khan was not only harsh, it was unnecessary and disproportionate.

This judgment is important for three reasons. First, it confirms that there is no “middle way” open to a practice committee between suspension for 12 months and erasure. Second it confirms the proper purpose of a review hearing is to monitor the steps take by the practitioner during the period of conditions or suspension. Finally, it demonstrates that, even in cases involving multiple criminal convictions, evidence of remediation, insight and remorse may be of key importance in avoiding erasure.