What is the function of a reviewing panel in fitness to practise cases?

1 February 2017

Habib Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64

The Facts

In 2002 Mr Khan was registered as a pharmacist. On 27 June 2013, the Fitness to Practise Committee of the General Pharmaceutical Council (Scotland) (“the Committee”) found that his fitness to practise as a pharmacist was impaired by reason of the criminal convictions he received for assault, behaving threateningly and abusively and wilfully or recklessly damaging property belonging to his wife.

In considering the sanction that would properly reflect the gravity of Mr Khan’s misconduct the Committee directed that his entry in the Register of Pharmacists (“the Register”) be removed under article 54(2)(c) of the Pharmacy Order 2010 (“2010 Order”). The effect was to prevent Mr Khan from applying for restoration before the expiry of 5 years. The Committee acknowledged that this was harsh, but indicated that there was no other option, having determined that suspension, which by virtue of article 54(2)(d) of the 2010 Order cannot exceed 12 months, would have been insufficient to mark the gravity of his misconduct.

On 10 July 2014, the Extra Division of the Inner House, Court of Session (“the Extra Division”), allowed Mr Khan’s appeal against the direction for removal. The Extra Division quashed the direction and remitted the case to the Committee for it to determine the appropriate sanction in light of its Opinion.

In the course of its Opinion, the Extra Division noted, inter alia, that the Committee had rightly concluded that suspending  Mr Khan from the register would not sufficiently reflect the gravity of his misconduct. However, it observed that in considering and rejecting the option of suspending Mr Khan the Committee did not consider its power under article 54(3)(a)(ii) of the 2010 Order to conduct a review following an order of suspension. Such a review could result in the suspension being extended for a further period of up to 12 months. The Extra Division held that this power represented a “middle way” by which it was reasonably open to the Committee “to indicate that it considered that the suspension should be extended thereafter [the original 12 month period], for a further 12 months or longer as the case might be”.  Although such an indication would not be binding on the reviewing committee, the Extra Division suggested that “it must be assumed that the later Committee will act in a reasonable manner and will respect the decision and findings of the earlier Committee”.

Grounds of Appeal

The appeal to the Supreme Court, which was heard by Lords Neuberger, Wilson, Reed, Carnwath and Hodge on 10 November 2016, concerned the ambit of the inquiry that should be undertaken in the course of a review following suspension from the Register. Specifically, whether the power of a review committee to direct suspension beyond the year of the original suspension can be exercised so as to reflect a conclusion that the gravity of the registrant’s misconduct demanded a longer period of suspension than that which could lawfully have been imposed by the original committee.

Mr Khan sought to persuade the Supreme Court that the analysis of the Extra Division was correct, but if he was wrong in this respect he mounted a cross-appeal to the effect that the Committee’s direction for his removal from the Register was in any event, disproportionate.

The Supreme Court acknowledged that its conclusion would “carry persuasive authority” in relation to the regulatory systems of other professionals, many of which contain similar provisions for review of a registrant’s suspension. The wider implications prompted both the General Medical Council and the Health and Care Professions Council to intervene in the proceedings.


The Supreme Court unanimously answered the specific question posed by the appellant in the negative. It further held that Mr Khan’s cross-appeal should be allowed and directed that Mr Khan’s removal from the Register should be quashed and a direction for suspension substituted in its place.


The Supreme Court drew on both case law and guidance in reaching its decision. In particular, Lord Wilson, giving the judgement of the Court, highlighted the wording in the “Indicative Sanctions Guidance”, which he concluded “makes clear that the focus of a review is upon the current fitness of the registrant to resume practice, judged in light of what he has, or has not, achieved since the date of suspension”.

His Lordship also drew on the wording of the report entitled “Regulation of Health Care Professionals, Regulation of Social Care Professionals in England”, which was published by the three UK Law Commissions in 2014. Lord Wilson pointed out that the draft Bill published alongside the report proposed that the review committee should ask itself whether the registrant’s fitness to practise “is no longer impaired”. In other words, the focus of the inquiry is on the registrant’s fitness to practise at the date of the review and not at the date that the original direction for suspension was made.

The Supreme Court also drew attention to the judgment delivered by Lord Bridge of Harwich in Taylor v General Medical Council [1990] 2 AC 539, which was not cited to the Extra Division. In that case Lord Bridge stated:

“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 of offences.”

In allowing Mr Khan’s cross-appeal, the Supreme Court pointed to the significant mitigating features, which had in fact been accepted by the Committee. Namely that Mr Khan:

  1. Had genuinely learnt the error of his past conduct;
  2. His social worker had assessed him as at low risk of re-offending;
  3. His misconduct had in no way affected his professional performance;
  4. His clinical skills were not in issue; and
  5. His patients were not at risk.

The Court also pointed to the fact that Mr Khan’s interim suspension had already been in place for a period of 3½ years by the time the appeal was heard and that, by virtue of the wording of the 2010 Order, this would not count towards the period of 5 years after which he could apply for restoration to the Register.


The Supreme Court took the opportunity to reiterate that the purpose of a review is to ascertain whether or not the registrant’s fitness to practise is still impaired. This process does not provide an opportunity to supplement the original sanction imposed in circumstances where there is no ‘half way house’ between two sanctions.

Furthermore, the question for the Committee when determining the sanction following a finding of impairment is simply; which sanction is appropriate and proportionate to address the concerns found proven. The primary purpose of that sanction is to protect the public and not to punish the registrant.

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