It is not often that professional disciplinary matters reach the UK Supreme Court, but the case of Habib Khan v General Pharmaceutical Council recently did.
This case relates to the sanctions which can be imposed by professional regulators for misconduct. The key issue was whether there is some 'middle way' between suspension for the maximum period of 12 months (with power to extend if fitness to practise is still impaired at the end of that time) and the next step up which - for many health professions - is removal from the list for a minimum of 5 years.
The Supreme Court found that there is no such 'middle way' – i.e. suspension periods cannot be extended beyond the maximum initial period of 12 months simply because the committee imposing the initial sanction did not think 12 months was sufficient.
What was the case about?
This case looked at what happens if a professional regulator thinks the maximum suspension period they are permitted to impose is not long enough but removal from the list is too harsh. This came down to the question of whether a 12 month period of suspension (the maximum which can be granted initially for many healthcare professions) can be extended at the end of that time on the basis that the original disciplinary committee did not think 12 months was long enough to mark the gravity of the misconduct.
Mr Khan was a registered pharmacist practising in Glasgow. His case came before the General Pharmaceutical Council to consider his fitness to practise after he was convicted of domestic violence offences against his wife. The General Pharmaceutical Council's Fitness to Practise Committee found that Mr Khan's fitness to practise was impaired by reason of his criminal convictions bringing the profession into disrepute.
In terms of sanction, the Fitness to Practise Committee's view was that the maximum 12 month suspension period they could impose would not adequately reflect the seriousness of what Mr Khan had done. They therefore decided to impose the ultimate sanction – i.e. removal from the register – instead.
Mr Khan appealed against the removal direction to the Scottish Court of Session (Extra Division). That Court decided that there was a 'middle way' between a 12 month suspension and removal – i.e. the Fitness to Practise Committee could indicate at the time of imposing a period of suspension that they do not think 12 months is long enough to reflect the level of misconduct and, at the end of the 12 month period, the review committee considering the suspension should respect that view and extend the period of suspension accordingly or give reasons for not doing so. In practice, this would be roundabout way of Fitness to Practise Committees being able to impose suspension periods of longer than 12 months.
The General Pharmaceutical Council disagreed with this and appealed to the Supreme Court.
What did the Supreme Court decide?
The Supreme Court agreed that there is a 'quantum leap' between suspension for up to 12 months and removal from the list.
However, it concluded that there is no 'middle way' here because the purpose of the review at the end of the initial period of suspension is to consider whether the person has taken sufficient remedial action whilst suspended to mean that their fitness to practise is no longer impaired. Review committees cannot extend the suspension purely because those who originally imposed the sanction did not think 12 months was long enough.
Putting aside the point about extending suspension periods, Mr Khan argued that the decision to remove him from the register was disproportionate. The Supreme Court considered a number of mitigating factors (e.g. genuine remorse and patients not being at any risk) and agreed with him, saying that the removal decision was 'harsh', 'unnecessary' and 'disproportionate'. In reaching this conclusion, it was highlighted that appeal courts can more readily depart from a professional disciplinary committee's assessment of how misconduct impacts on public confidence where, as in Mr Khan's case, the misconduct does not relate to professional performance.
The Supreme Court made clear that the principle of there being 'no middle way' between suspension for up to 12 months and removal from the list will apply to any professional regulatory bodies with similar provisions, including the GMC and the Health & Care Professions Council.
This case means that the 'quantum leap' between the maximum 12 month suspension period and removal still remains for pharmacists, doctors and other healthcare professions governed by similar provisions. Professional regulators will continue to have to decide between them, ensuring that whatever sanction they opt for is proportionate in all the circumstances.
This case serves as a reminder to professional regulatory panels/tribunals of the overriding principle that no sanction may be imposed which the panel or Tribunal considers is unduly harsh or disproportionate simply because the next available sanction is in the opinion of that panel/Tribunal insufficient to mark the gravity of the misconduct. If a panel finds itself in this position the balance must be exercised in favour of the registrant and the lesser sanction imposed. It can never be appropriate to impose a sanction which is considered to be disproportionate to the misconduct.
In this case the original panel proceeded in a traditional stepwise fashion and, having concluded that a 12 month suspension period would be insufficient, considered it had no option but to impose the next available sanction. In so doing they fell into error and they should have imposed the lesser sanction.
It also serves as a reminder that the function of review hearings is to review the conduct and remediation undertaken by the registrant during the period of suspension so as to be able to address the question of whether the registrant's fitness to practise is still impaired. It is not a further opportunity to review the original sanction and to extend it because of any view that it may have been unduly lenient.