Supreme Court considers sanctions powers of professional disciplinary tribunals

In Habib Khan v General Pharmaceutical Council [2016] UKSC 64, the Supreme Court has given important guidance on the approach to be taken by professional disciplinary tribunals to the exercise of sanctions powers.

Although the Court acknowledged that this case only relates to the particular regulatory system relating to the disciplining of pharmacists, it recognised that the issues it considered were of potentially wider significance given the similar rules that exist for other regulated professions.

Key points:

• There is no "middle way" for professional disciplinary schemes that must choose between a 12 month suspension and removal from their register.
• The role of review committees in a professional discipline context is not to revisit the adequacy of original sanctions when determining whether to extend a suspension.
• Disciplinary tribunals must ensure that sanctions are proportionate to a registrant's misconduct, which will include taking into account any mitigating factors.

Background

Mr Khan had been registered as a pharmacist since 2002, practising in Glasgow. His case was referred to the Fitness to Practise Committee (the "Committee") of the General Pharmaceutical Council (the "GPC") after he pleaded guilty to three incidents of domestic violence between 2010 and 2012. On 27 June 2013, the Committee found that Mr Khan's fitness to practise was impaired by reason of his misconduct.

The Committee's determination of the impairment of Mr Khan's fitness to practise led it to consider the appropriate sanction under article 54(2) of the Pharmacy Order 2010 (the "Order"): a 12 month suspension or removal from the Register of Pharmacists (the "Register") for a period of five years. In deciding to remove him from the Register, the Committee observed that, whilst removal might appear harsh, it was appropriate given the limited choice of sanction available (ie that the Committee could not direct a suspension of longer than 12 months).

Mr Khan appealed to the Extra Division of the Court of Session in Scotland, who allowed the appeal against the direction for his removal. The Court found that the Committee had not considered its power pursuant to article 54(3) of the Order to conduct a review following a direction for suspension, which allows a review committee to extend the suspension for a further period. The Extra Division considered there to be a "middle way" between a 12 month suspension and removal from the Register, by giving a suspension for 12 months with an indication for further extension(s) thereafter. In other words, if the Committee considered a 12 month suspension insufficient, but a five year removal too harsh, they could indicate that view by requesting that a review committee take that opinion into account when deciding whether to extend the suspension.

The GPC appealed the Extra Division's decision. The appeal questioned the ambit a review committee could have in directing suspension beyond the year of the original suspension to reflect the gravity of the registrant's initial misconduct. Irrespective of whether the basis for remission existed, Mr Khan also cross-appealed the Extra Division’s implicit rejection of his argument that his removal from the register was disproportionate in the first instance.

Decision

The Supreme Court unanimously allowed both the GPC's appeal and Mr Khan’s cross-appeal.

Appeal

The Court acknowledged the "quantum leap" between the Committee's power of suspension for no more than 12 months and its power of removal which must endure for at least five years. The Court discussed the powers of the review committee as set out in article 54(3)(a) of the Order, but pointed out that limited assistance could be obtained from this as the provision does not indicate how the powers should be exercised. Nevertheless, it noted that references to a registrant's fitness to practise seem to relate solely to their fitness at the time of the review hearing.

The Court also considered the GPC 2011 Indicative Sanctions Guidance (which applied to Mr Khan's case), as well as current guidance which is in similar terms, together with the work of the three recent UK Law Commissions in this area. The relevant guidance and the Law Commissions' proposals all emphasise that the role of a review committee is to consider the fitness of the registrant to resume practise on the date of the review, judged in the light of what he has, or has not, achieved since the date of the suspension. In other words, whilst the Committee will have found that a registrant's fitness to practise was impaired, the review committee should ask whether their fitness to practise remains impaired (ie it ought to consider changes relevant to impairment which have, or have not, occurred since the Committee's decision).

The Court also considered the Privy Council decision in Taylor v General Medical Council [1990] 2 Med LR 45, which had not been cited before the Extra Division, which it said confirms that the Extra Division's interpretation was misplaced. In Taylor, the Court held that "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". As such, the Supreme Court allowed the GPC's appeal, confirming that it cannot be the function of a review committee to reconsider the adequacy of the original sanction, i.e. there was no "middle way".

Cross-Appeal

In upholding Mr Khan's cross-appeal, the Court highlighted the importance of approaching a challenge to the sanction imposed by a professional disciplinary committee with diffidence. It noted, however, that the exercise of appellate powers to quash a committee's direction is less inhibited than previously (Ghosh v General Medical Council[2001] UKPC 29, [2001] 1 WLR 1915) and that the question is whether the sanction was "appropriate and necessary in the public interest or was excessive and disproportionate". The Court also endorsed the proposition that an appellate court can more readily depart from a committee's assessment of the effect on public confidence of misconduct which does not relate to professional performance than in a case in which it does (Dad v General Dental Council [2000] 1 WLR 1538).

Emphasising that the Committee's role was to judge the effect of Mr Khan's actions on public confidence and identify a proportionate sanction (not to issue a punishment), the Court identified mitigating factors in the guidance which the Committee might usefully have referred to. On the basis of these factors, and given the Committee's acknowledgment that its sanction might appear harsh, the Court concluded that the Committee's direction was disproportionate and allowed Mr Khan's cross-appeal. The sanction proportionate to Khan's conduct was suspension of his registration, which should have been for a period of one year.

Comment

This judgment is of considerable interest for two reasons. First, it carries persuasive authority across a range of regulated professions which have similar regulatory systems where there appears to be a "quantum leap" between sanctions of suspension and removal. Disciplinary tribunals must continue to be slow to depart from express rules on sanctions, even when the choice between the available options appears stark, and must also be mindful of the distinct role of review committees. Second, this is a relatively unusual case of an appellate court reconsidering a tribunal's decision on the basis of proportionality, showing that tribunals must be careful to turn their mind to both mitigating and aggravating factors when setting a sanction.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email