Case review: Habib Khan v General Pharmaceutical Council
Habib Khan Khan v General Pharmaceutical Council UKSC  UKSC 64
When imposing sanctions at the conclusion of a fitness to practise hearing, panels must apply the principal of proportionality applying the least restrictive sanction necessary to meet the relevant regulatory goal.
It is common amongst the statutory regulators of the health professions that panels have powers to impose conditions, suspend a registrant for a period (without or without a review hearing) or erase their name from the register. Individuals who are erased from the register are precluded from applying for restoration for a period of years.
It is common that the maximum period of suspension which may be imposed is one year with the possibility that further periods of suspension may be imposed at the review hearing. In practice, the choice for panels dealing with the more serious cases has been between suspension for a period of a year or erasure – there being no middle ground.
Habib Khan v General Pharmaceutical Council (GPhC)
In this case, the Supreme Court was required to consider whether a principal panel which considered a one year suspension too lenient could, in effect, impose a longer suspension by directing that the reviewing panel would extend the suspension at the review in order to meet the seriousness of the case found proved.
Mr Habib Khan had been erased from the register of the GPhC having received two convictions for domestic violence. The panel had accepted that he had insight and had shown remorse. They accepted that he was a competent pharmacist, however they determined that public confidence in the profession would not be maintained by a suspension for one year. Having concluded that a more severe sanction was required they erased Mr Habib Khan from the register.
Mr Habib Khan appealed to the Inner House of the Court of Sessions. In their judgment it was open to the panel to achieve a suspension of longer than one year by directing that the reviewing panel should extend the initial one year period on review.
The GPhC appealed to the Supreme Court. The general importance of the issues raised by this case was reflected in the fact that both the General Medical Council (GMC) and Health and Care Professions Council (HCPC) intervened in the appeal. Mr Habib Khan cross appealed on the grounds that the sanction of erasure in his case was too severe.
Delivering judgment on 14 December 2016 the Supreme Court allowed the GPhC’s appeal and Mr Habib Khan’s cross-appeal. Citing the Privy Council decision in Taylor v General Medical Council, the Court confirmed that the function of the review hearing is to monitor the steps taken by the registrant since the principal hearing and consider whether they have professionally rehabilitated. It is not the function of the reviewing panel to revisit the adequacy of the original sanction.
In dealing with Mr Habib Khan’s cross appeal, the Court determined that erasure was too harsh a sanction in the circumstances of his case and that his suspension for a period of one year would have been appropriate. However, noting that Mr Habib Khan had been unable to practise for three years whilst his appeal was being considered, the Court substituted a suspension for a period of four months with a review. Whilst the Court did not expressly identify the legal basis for ‘discounting’ the period of suspension in that way, it is implicit in the judgment that it would be unfair not to make some allowance for the period of suspension already served.
Although Mr Habib Khan’s professional practice has not been the subject of criticism, the Court directed that the review committee should be invited to have regard to a variety of factors including ‘any evidence relating to risk that he has lost the necessary skills since the date of the committee’s determination and therefore to any efforts on his part to retain them.’
Whilst the Court’s decision with respect to the function of the review hearing reflects the established practice, their clear statement that it is not the function of the reviewing panel to revisit the adequacy of the original sanction will serve as a useful point of reference.
In many ways the Court’s decision with respect to Mr Habib Khan’s cross appeal is of more interest. In particular, the Court’s decision to discount the period of suspension to take account of the period for which he has been unable to practise because of his appeal.
Where registrants are subject to orders of suspension or erasure by disciplinary committees, they are often precluded from practising pending the outcome of any appeal by virtue of an immediate order of suspension imposed at the conclusion of the hearing. Similarly, many practitioners are subject to interim orders of suspension whilst their regulators conduct their investigation. The duration of a final order of suspension is not usually discounted to reflect those periods of suspension.
This judgment is likely to be cited as supporting the principle that lengthy periods of interim or immediate suspension ought to be taken into account when the substantive period of suspension is determined.
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