Transcript of the shorthand notes of T A Reed & Co Ltd Tel No:

Transcription

1 NRAL PARMAUTIAL OUNIL ITNSS TO PRATIS OMMITT 129 Lambeth Road, London S1 7T Thursday 27 June 2013 hairman: Mr ouglas Readings ommittee Members: Mr Aamer Naeem Mrs Judith Way ommittee Secretary: Mr Mark Mallinson AS O: KAN, abib Ph Registration No: MR MARK MILLIN, solicitor advocate, appeared on behalf of the eneral Pharmaceutical ouncil. Mr Khan was present and represented himself. Transcript of the shorthand notes of T A Reed & o Ltd Tel No:

2 I N X Page etermination on impairment 1 etermination on sanction 7 etermination on interim measures 9 PLAS NOT: opies printed from may differ in formatting and/or page numbering from hard copies

3 TRMINATION O T OMMITT ON IMPAIRMNT T AIRMAN: This is the determination of the itness to Practise ommittee of the eneral Pharmaceutical ouncil in the matter of Mr abib Khan. Mr Khan has attended this hearing but has not been represented, although he has previously had advice from solicitors in Scotland. The eneral Pharmaceutical ouncil has been represented by Mr Mark Millin, solicitor advocate. The eneral Pharmaceutical ouncil ( the ouncil ) has alleged that Mr Khan s fitness to practise as a pharmacist is impaired by reason of misconduct, and by reason of a conviction, as set out in the Particulars of Allegation, as follows: That being first registered as pharmacist on 22 July 2002: 1. On 21 March 2011 you received a conviction at lasgow Sheriff ourt for assault to cause injury. 2. On 13 May 2011 you were sentenced at lasgow Sheriff ourt to: (i) a penalty fine; (ii) compensation. 3. You failed to notify the Registrar of the conviction specified at 1 within the required 7 days. 4. On 08 May 2012 you received a conviction at lasgow Sheriff ourt for: (i) (ii) 2 counts of behaving in a threatening abusive manner; wilfully or reckless damaging property belonging to another. 5. On 08 June 2012 you were sentenced at lasgow Sheriff ourt to: (i) 180 hours unpaid work; 1

4 (ii) Supervision order 18 months. 6. Your actions described at 3 above were: (i) (ii) Inappropriate and/or; ontrary to Rule 4 of the eneral Pharmaceutical ouncil (itness to Practise and isqualification etc Rules) Order of ouncil y reason of the matters set out above, [individually or cumulatively] your fitness to practise is impaired by reason of: (i) onviction, and/or; (ii) Preliminary Matter Misconduct. The ommittee agreed to the ouncil s application to delete the brackets around the numeral 1 in paragraph 3, and the words individually or cumulatively. Proof of acts Alleged Mr Khan has formally admitted all the factual allegations against him, and the ommittee has announced that it found the facts proved. Impairment of itness to Practise Mr Millin, on behalf of the ouncil, has submitted that Mr Khan s fitness to practise is impaired by reason of his conviction on 21 March 2011 of an offence of assault, and his conviction on 8 May 2012 of two counts of threatening or abusive behaviour and an offence of damage to property. 2

5 Mr Millin has provided the ommittee with a bundle of documents which include certificates of these convictions, and witness statements and notes of interview provided by Strathclyde Police. rom these documents, which the ommittee has read, it appears that Mr Khan s first offence was committed in the early hours of 20 July 2010, and was an offence of domestic violence. Mr Khan was then living with his wife at a house in ambuslang, lasgow. In the course of an argument, he kicked his wife when she was lying in bed, grabbed her by the hair and pulled her up the bed, and then held her and repeatedly punched her face, before dragging her off the bed and then striking her again in the face, with the intention of causing hurt and injury. When he was interviewed by the Police, Mr Khan denied kicking or punching his wife, but admitted that he might have slapped her. At court he at first pleaded not guilty but changed his plea, and was convicted, and was sentenced on 13 May 2011 to a fine of 400 and was ordered to pay compensation of 500. At the same time he was admonished for a breach of bail conditions which had been imposed in July 2010 which prohibited him from approaching or contacting his wife or going to the matrimonial home. The breach was committed on 8 March 2011 when he went to the matrimonial home and approached or contacted his wife by telephone and in person. This first conviction came to the ouncil s attention in ecember 2011 when Mr Khan submitted an information form. It appears from the copy of that form, which the ommittee has been shown, that Mr Khan first ticked the box which referred to a conviction but then crossed out that tick. e ticked another box referring to having accepted the admonition in Scotland. e wrote this description: Particulars of offence: omestic Assault. urther information about the offence that you wish the Ph to know about: Single incident of domestic assault following escalated argument with my wife at the time. The marriage has since dissolved. The second conviction on 8 May 2012 concerned two separate incidents. The first was on 9 March 2012 when Mr Khan again went to his wife s home and demanded entry, 3

6 repeatedly banged a door and shouted and swore so as to put his wife in a state of fear and distress. The second incident was on 30 March 2012 when Mr Khan went to his wife s home, the former matrimonial home, this time with a relation, when she was not present. They tricked their way in and shouted, swore and threatened extreme violence. Mr Khan kicked a hole in a wall and then he left, taking his two children, aged 2 and 9, with him who had been in the house with his wife s mother and sister. The Police attended at the house and then went to Mr Khan s home, and they took the children back. The Police took statements about Mr Khan s threatening behaviour and the criminal damage, and it was in the course of that enquiry that they learned about the earlier of the two incidents. Mr Khan pleaded guilty to these offences and was sentenced on 8 June 2012 to a community payback order comprising supervision for 18 months and 180 hours of unpaid work to be completed within six months. Mr Millin also alleges that Mr Khan s fitness to practise is impaired by reason of his misconduct, namely his failure to report the first of these convictions to the Registrar of the ouncil within seven days, as required by Rule 4 of the 2010 Rules. The bundle of documents includes a copy of Mr Khan s declaration form stamped as received on 12 ecember 2011, and a witness statement dated 17 August 2011 from Ms erry Rose, acting itness to Practise Manager, confirming that Mr Khan did not report this conviction within seven days. Mr Khan has given evidence to the ommittee and has said that although his solicitor suggested that his fitness to practise might not currently be impaired, he felt that the impact on public confidence in the profession must be such that he should admit his fitness to practise is impaired. e presented written submissions, which he repeated in oral evidence, explaining that he admits and regrets and apologises for his conduct. e points out that he committed the offences at the time when his marriage was breaking up. e acknowledges that his behaviour was wholly inappropriate, but says that he has learned from the course which he has completed, and there is no risk that he will ever again behave in a similar fashion. e has successfully completed a AN omestic Violence Programme which he attended as a condition of his ommunity 4

7 Payback Order between October 2012 and April e says that he has subsequently been able to negotiate amicably with his former wife, using the cognitive behavioural therapy (T) techniques which he has learned. e is now in a new stable relationship, and believes that he communicates well with his present partner. Mr Khan has presented a bundle of documents, prepared by his solicitor Mr arruthers. The bundle comprises a report on Mr Khan s omestic Violence Programme, a report from the social worker who has been supervising his ommunity Payback Order and a testimonial from a professional colleague, Mr Arif anif. The ommittee has taken into account the submissions made, and the documents. It has first considered whether the failure to report the first conviction to the ouncil within seven days constitutes misconduct within the meaning of the Pharmacy Order Whilst unsatisfactory, such behaviour is not, in the opinion of this ommittee, sufficiently serious to amount to serious professional misconduct. It falls below the standard which fellow professionals would expect, but it does not do so seriously. The ommittee therefore finds that Mr Khan s fitness to practise is not impaired by reason of misconduct. The panel has had regard to Rule 5 of the eneral Pharmaceutical ouncil (itness to Practise and isqualification etc. Rules) Order 2010 which specifies criteria for judging whether fitness to practise is impaired: (1) The ommittee must have regard to the criteria specified in paragraph (2)... when deciding, in the case of any registrant, whether or not the requirements as to fitness to practise are met in relation to that registrant. (2) In relation to evidence about the conduct or behaviour of the registrant which might cast doubt on whether the requirements as to fitness to practise are met in relation to the registrant, the ommittee must have regard to whether or not that conduct or behaviour (a) presents an actual or potential risk to patients or to the public; 5

8 (b) has brought, or might bring, the profession of pharmacy into disrepute; (c) has breached one of the fundamental principles of the profession of pharmacy; or (d) shows that the integrity of the registrant can no longer be relied upon. The ommittee has also noted the observation of Mrs Justice ox in the case of R v Nursing and Midwifery ouncil and rant [2011] W 927 (Admin). They were directed to impairment by reason of misconduct, but are relevant to a conviction case: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. The ommittee notes with concern that the convictions involved violence and were serious and repeated. onduct of this kind by any professional person must bring his profession into disrepute, and undermine public confidence in the profession. It is a principle of the profession that a pharmacist must be a caring person, and Mr Khan s behaviour towards his wife and children was violent and uncaring. e committed further offences after his first conviction, and after telling the ouncil in his declaration in ecember 2011 that it was a single incident of domestic assault. e admitted in evidence that there was some minimizing of the seriousness of his offending. e is still the subject of the supervision order which was imposed in June Although he has successfully completed a omestic Violence Programme, and has been assessed as being at low risk of re-offending, it is impossible to say that he has remedied the impairment which led to his convictions. Public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances, where there are convictions for serious, repeated domestic abuse. 6

9 The ommittee has therefore determined that Mr Khan s fitness to practise is currently impaired by reason of his convictions. or the avoidance of doubt, the ommittee s decision would have been the same if each of the convictions stood alone. TRMINATION O T OMMITT ON SANTION T AIRMAN: In considering sanction, the ommittee has borne in mind that the purpose of a sanction is not to punish the registrant but to protect the public as patients, to maintain public confidence in the profession and to declare and uphold proper standards of conduct. The ommittee notes that there is no criticism of Mr Khan s clinical skills. It recognises the effect that any sanction may have upon Mr Khan s ability to practise his profession, his reputation, earning capacity and future career. It has balanced his own interests against the interests of the public. Mr Millin submitted in his skeleton argument that public confidence in the profession demanded no lesser sanction than suspension or removal from the Register, and in oral submissions he drew attention to the provisions of the Indicative Sanctions uidance (approved on 13 May 2011) at paragraph 14 where there is a non-exhaustive list of cases where removal from the Register may be appropriate. Mr Khan s written submissions, prepared by his solicitor, proposed a warning, but Mr Khan frankly acknowledged that his behaviour was too serious. e said that he appreciated that he might not be fit to practise at present, but he asked for leniency. The ommittee accepts that there is no evidence of any continuing risk to patients, but has determined that it is not sufficient to issue a warning to Mr Khan. or the maintenance of public confidence in the profession and maintenance of standards, it is necessary to send a signal to the profession and to the general public that even in a person of previous good character, criminal convictions for domestic violence are wholly unacceptable for a pharmacist and will be visited with serious consequences. 7

10 The ommittee considers that there are no conditions that could be devised, sufficient and appropriate to address the misbehaviour in this case. It is not a case of clinical failings which could be rectified by training. The ommittee has considered whether a period of suspension would be appropriate and sufficient to restore or maintain public confidence in the profession. The ommittee considers, however, that repeated domestic violence is a crime striking at the core of professional health care. Pharmacists, in common with other health care professionals, have to be understanding, sympathetic for all patients, men, women and children, and must be publicly and privately trustworthy. omestic violence is unfortunately all too common, in all walks of life. Mr Khan s offending has not been shown to have affected his professional practice in any way. owever, the public has higher expectations of members of the health care professions as to the standards of conduct they must show. The ommittee considers that the public will be shocked by Mr Khan s behaviour and will expect it to be condemned by the profession in the strongest terms. The limit of the ommittee s power of suspension is a period of 12 months. Mr Khan is a partner in a pharmacy practice operating four pharmacies, and has explained that if he is suspended for 12 months it will have a detrimental financial effect upon the business. The ommittee is not concerned to punish him, but considers that suspension for that period would be insufficient to mark the degree of seriousness of his conduct. The ommittee considers that his conduct is fundamentally incompatible with continued registration as a pharmacist, and that public confidence in the profession demands no lesser sanction than removal from the Register. A removal order will have the effect that Mr Khan will not be able to apply for restoration to the Register for five years. The ommittee has been told by Mr Khan that if such an order is made he will probably leave the profession permanently. This would be unfortunate because there is no evidence that Mr Khan is not a good pharmacist. owever, the ommittee is not satisfied that Mr Khan will not be able to return at some time to the Register. An order of removal may appear harsh. owever, the public interest outweighs Mr Khan s personal interest, and a harsh order may, in part, be a consequence of the limited choice of sanction available to the ommittee, as Mr Justice 8

11 Simon observed in Peter Teong Tatt huah v Nursing and Midwifery ouncil [2013] W 894 (Admin), at paragraph 52 of his judgment. The ommittee is entirely convinced, having heard Mr Khan s evidence, that he has diligently completed the unpaid work requirement and the omestic Violence Programme requirement of his ommunity Payback Order, and that he has genuinely learned the error of his past behaviour, and has acquired good skills as a result of cognitive behavioural therapy. owever, the behaviour which led to the convictions, and the convictions themselves, are comparatively recent, and the supervision order is not yet terminated. Public confidence in the profession would not be restored by any lesser sanction than an order for removal. The ommittee has concluded that no sanction short of removal from the Register is proportionate or sufficient to protect the public interest, including public confidence in the profession. The ommittee therefore directs that the name of abib Khan be removed from the Register. TRMINATION O T OMMITT ON INTRIM MASURS T AIRMAN: Mr Millin has asked for us to make the interim measures under Article 60 of the Order to prevent Mr Khan from returning to practise during the 28 day period allowed for appeal and for any subsequent period of any appeal. e suggests that it would be contrary to the public interest to permit the Registrant to return to practise immediately after we have made a finding that he should be removed from the Register. e draws a distinction between those circumstances and the circumstances before this hearing during which the eneral Pharmaceutical ouncil deliberately decided not to apply for an interim order which prevented him from practising. Mr Khan has objected, that he is seriously inconvenienced. e came here, he says, unaware that interim measures might be made and, indeed, unaware that he would be given the decision today, expecting it to be delivered in writing. 9

12 We have limited sympathy for that point. The Notice of earing, at page 3 in the bundle, contains some words which should at least have told Mr Khan, if he had made some enquiries, that there was a danger of interim measures being made because the words say: Should the ommittee direct the removal or suspension of your name from the Register, it may also impose interim measures pending the direction taking effect at the end of the 28 day appeal period. This is set out in article 60 of the Pharmacy Order owever, it must be said that that wording is obscure. It is not immediately obvious what it means. We have read on to the next sentence which says: After the hearing, you will be notified in writing of the ommittee s decision, the reasons for that decision and any statutory right of appeal that may apply in your case. Those words may be positively misleading because they seem to suggest that the decision will not be given on the day but will be delivered subsequently in writing. Mr Khan says that he has agreed to work as pharmacist tomorrow and it will be difficult to find a replacement on such short notice, and it is obvious that somebody who is in a busy line of business is going to be seriously inconvenienced if he has not foreseen the need to make arrangements for the possibility that he will be removed from the Register. owever, the ommittee considers that there is a distinction between the circumstances before the hearing and the circumstances after the hearing, as Mr Millin has argued. It considers that the public interest requires interim measures to be made and that it would be incompatible, inconsistent, with the decision we have just made if we were to permit Mr Khan to return to practise tomorrow morning. The statutory test for making an order is whether it is necessary for the protection of the public, or is otherwise in the public interest, or is in the interests of the Registrant himself. 10

13 It will be seen that there are three grounds there; it is on the second of those grounds that we make this order. As I say, I have some sympathy for Mr Khan in his predicament but we are confident that he will overcome the inconvenience somehow. That concludes this hearing. 11