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Additional periods of suspension cannot be directed to create a 'middle ground' between short term suspension and removal

05/01/2017
Habib Khan v General Pharmaceutical Council and ors [2016] UKSC 64 In this case, which has direct application to any regulatory body with the power to direct review hearings following a period of suspension, the Supreme Court has made it clear that further periods of suspension cannot be imposed by review committees solely for the purpose of bringing about a harsher sanction than is lawfully permitted within the legislative scheme.

Habib Khan v General Pharmaceutical Council and ors [2016] UKSC 64

In this case, which has direct application to any regulatory body with the power to direct review hearings following a period of suspension, the Supreme Court has made it clear that further periods of suspension cannot be imposed by review committees solely for the purpose of bringing about a harsher sanction than is lawfully permitted within the legislative scheme.

The registrant was convicted on two occasions in 2011 and 2012 of assaulting his wife, breaching bail conditions, behaving threateningly and abusively and damaging property. K was given non-custodial sentences in respect of the convictions (include attending a domestic violence programme and undertaking unpaid work).

K appeared before a Fitness to Practise Committee ('FTPC') in 2013 and admitted misconduct. The FTPC heard that he had successfully completed the domestic violence programme and unpaid work, but found that his conduct had brought the profession into disrepute and that his fitness to practise was impaired.  In deciding to remove him from the register, the FTPC observed that it could not direct suspension for more than 12 months and that 12 months' suspension would be insufficient to mark the gravity of the conduct.  The FTPC conceded that though removal may appear to be harsh, the maintenance of public confidence demanded nothing less.

K successfully appealed the FTPC's decision at first instance, with the Inner House of the Court of Session holding that the FTPC had a 'middle ground' open to it, since the power to review following a direction for suspension under Article 54(3)(a)(ii) of the Pharmacy Order 2010 could be used to impose a further order of suspension for 12 months. This could be followed by another period of suspension if necessary to reflect that a first instance sanction of 12 months suspension was insufficient (but the ultimate sanction of removal was disproportionate). 

The Court held that it would be open to a FTPC to indicate that a Committee who would later review the order and the registrant's current fitness to practise (a 'Review Committee') ought to extend the period of suspension imposed by the FTPC and that the Review Committee "will act in a reasonable manner and will respect the decision and findings of the earlier committee" and "respect the indication" or explain any departure. 

On that basis, the Court quashed the direction for removal from the register, and remitted the case to the FTPC for it to determine the appropriate sanction in light of its opinion.

The GPhC appealed to the Supreme Court, arguing that the power of the Review Committee did not extend to directing additional periods of suspension to impose a longer period of suspension than the FTPC could lawfully impose. K cross appealed, seeking to persuade the Court that if the GPhC's appeal was to succeed, the FTPC's decision on sanction was disproportionate and a sanction of suspension should be substituted.

The Supreme Court held that the Court's analysis of the legal framework which governed review hearings was "alien to the generally accepted conception of a review as a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation".  It noted that the ambit of a Review Committee's enquiry into the current fitness to practise of a registrant appearing before it, had previously been determined in Taylor v GMC [1990] 2 AC 539(which had not been considered by the Court below).  In that case that "the only explanation for the committee's decision … to direct a third [period of suspension for 12 months] was that they regarded the original decision to direct suspension instead of erasure as having been too lenient … the direction was wrong in principle".  Holding that the purpose of the power of the Review Committee to impose further periods of suspension was to reflect that the fitness to practise of the registrant remained impaired at the time of the review, despite any remediation or rehabilitation, the Supreme Court found that the lower court was "too ingenious" in its analysis.

However, the Supreme Court did find that the sanction of removal imposed by the FTPC was both unnecessary and disproportionate, and that suspension was proportionate in the circumstances. Taking into account the fact the registrant had been suspended on an interim basis since the date of the FTPC hearing (June 2013 to December 2016), the term of suspension was reduced to four months with a direction for a review to consider specifically any loss of skill or knowledge in the intervening period.

This judgment neatly illustrates the dilemma that many fitness to practise committees face, where 12 months' suspension seems too lenient, but a sanction of removal appears disproportionate. Whilst further periods of suspension (and even removal) can be directed on review (see Okpara v NMC 2016 EWHC 1058 and Obukofe v GMC 2014 EWHC 408), the role and purpose of the Review Committee is not to seek to narrow the gulf between these sanction choices, thus creating a 'removal-lite/multi-year suspension' option, but to assess impairment of fitness to practise as at the date of the review, balancing the findings of the FTPC against any evidence of remediation and rehabilitation in the intervening period.

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