Supreme Court vetoes Inner House approach to pharmacist discipline case
Court of Session judges were "too ingenious" in their disposal of an appeal by a registered pharmacist against his removal from the register following disciplinary proceedings, the UK Supreme Court held today.
Five judges unanimously allowed both an appeal by the General Pharmaceutical Council regarding its powers to conduct a review of the case of a pharmacist suspended from practice, and a cross appeal by the pharmacist, Habib Khan, from the decision of an Extra Division on Mr Khan's appeal against his removal from the register following his convictions for incidents of domestic abuse.
Mr Khan had assaulted his then wife, had later gone to her home and contacted her there in breach of bail conditions, and on further occasions had created a disturbance there and, when his wife was absent, tricked his way into the home, caused damage and a disturbance and removed their children, who were later recovered by police. For the final incident he was sentenced to a community payback order with requirements for supervision and to attend a domestic violence programme. At the time of the disciplinary proceedings he only had part of the supervision period still to serve.
The Council's Fitness to Practise Committee decided that he had brought the profession into disrepute, that its maximum power of suspension of 12 months was inadequate, and that although it might appear harsh, his name should be removed from the register (which disabled him from applying to be re-registered for at least five years).
On Mr Khan's appeal the Inner House ruled that the committee had overlooked its power to conduct a review following a direction for suspension, and then to direct that the suspension might continue for up to a further 12 months. The review committee could look back at the initial circumstances and determine whether, although one year was the maximum period of suspension open to the original committee, its direction was insufficient to mark their gravity, affording respect to any indication to that effect by the committee. The committee's view of its choices had therefore been a "false dichotomy" and the case should be remitted to it to reconsider the appropriate sanction.
Giving judgment allowing the appeal, Lord Wilson, with whom Lord Neuberger, Lord Reed, Lord Carnwath and Lord Hodge agreed, said the Division's approach 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". A House of Lords Decision, Taylor v General Medical Council (1990), had expressly ruled against this aproach but had unfortunately not been cited to the Division. It had held: "It can never be a proper ground for the exercise of the power to extend the period of suspension that the period originally directed was insufficient to reflect the gravity of the original offence or offences.”
Lord Wilson continued: "In summary, the Extra Division was too ingenious. There was no middle way. It was wrong to remit the case to the committee for disposal on that basis."
Turning to Mr Khan's cross appeal, Lord Wilson said that the committee could have had regard to certain mitigating circumstances, including Mr Khan's early admissions, the lack of potential harm to patients or the public, his genuine expressions of remorse and the steps taken to prevent a recurrence. He concluded:
"The committee itself acknowledged that its direction for removal might appear harsh. It was indeed harsh. It was unnecessary. It was disproportionate. The sanction proportionate to the disrepute into which Mr Khan’s conduct had brought, or was likely to bring, the profession of pharmacy was suspension of his registration, which, at the time of the committee’s determination, should no doubt have been for a period of a year."
Given the three and a half year interim suspension now served, a suspension of four months should now be ordered, with a direction that a review committee consider during that time Mr Khan's current skills and any other relevant matters.