GENERAL PHARMACEUTICAL COUNCIL

FITNESS TO PRACTISE COMMITTEE

Maple House, Commercial Street

Birmingham

Wednesday 1 August 2012

Chairman: Mr Michael Simon

Committee Members: Mrs Jillian Alderwick

Mrs Judith Hesslewood

Committee Secretary: Ms Georgia Conrad-Leigh

CASE OF:

KHAN, Afzaal Mohammed

(Registration Number: 2048899)

DETERMINATION

__________________________

MR MARK MILLIN, Solicitor Advocate, appeared on behalf of the General

Pharmaceutical Council.

MS LOUISE STRAW, of BurtonCopeland, appeared on behalf of the respondent,

who was present.

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Transcript of the stenograph notes of T A Reed & Co Ltd

Tel No: 01992 465900

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I N D E X

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(At 1.27)

DETERMINATION ON FITNESS TO PRACTISE

THE CHAIRMAN: This is a principal hearing in respect of Mr Afzaal Mohammed Khan, a

pharmacist previously registered with the Royal Pharmaceutical Society of Great Britain,

following qualification in 1998, and now registered with the General Pharmaceutical

Council, under registration number 2048899.

Mr Khan is present at the hearing and represented by a lawyer, Ms Straw. Mr Millin

represents the Council. The allegation of impaired fitness to practise with which we are

concerned flows from Mr Khan’s conviction at the Crown Court at Bolton on 4 March 2011

of causing death by dangerous driving, driving without insurance and failing to stop after a

road accident. It is proper to record that Mr Khan pleaded guilty at the earliest opportunity

to causing the death of a pedestrian by careless driving, but there was a jury trial to consider

whether his driving constituted careless or dangerous driving, within the meanings attributed

to those two distinct offences.

On 25 March 2011 Mr Khan was sentenced to a period of 30 months’ imprisonment. He

was, unusually it seems, released under the Home Detention Curfew Programme some two

months early in April of this year, and he remains on licence until September of next year.

There were ancillary driving licence-related penalties.

For the facts underpinning the conviction we turn to the sentencing remarks of His Honour

Judge Clayson, who said this:

“Briefly, the circumstances of the offence were that at about 6.45 in the evening, on

18 October 2009, you were driving a Vauxhall Zafira car along Wash Lane, Bury

when you drove through a set of traffic lights that were showing red against you and

then collided with a pedestrian crossing the road on the far side of the junction.

There is clear evidence that you were driving at an excessive speed and that you

overtook at least one car, which was stationary at the red light, by using the second

lane to go past that car.

It is, in my judgement, clear that the reason you were driving in that manner on that

day was because you were, to a degree, rushing to Manchester Airport in order to

deliver a travel visa to your mother, who had requested that you bring that document

to her urgently as, without it, she would not be able to board the plane for Pakistan

that was leaving that evening. There is quite simply no other explanation for you

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driving as you did on that occasion. You were driving your sister’s car simply

because your own would not start. It is a fact that you had no insurance to drive that

car, but – as I said to Mr Jarvis – I accept that that default was essentially technical.

The same cannot be said, however, in respect of your failure to stop after the

accident, as you yourself acknowledge. It seems that you failed to see Mr Bennett as

he started to cross the road, but you were immediately aware that an accident had

happened as you hit him, because, amongst other things, there was a substantial

impact and your vehicle windscreen was badly damaged in the collision. You

stopped briefly some distance along the road, but then drove off. You completed

your journey to the airport, and whilst I accept that this was a decision prompted in

the main by panic, and quite clearly something that you subsequently deeply regret,

it is nonetheless a significantly aggravating feature in this case.”

The Council, whilst conceding that no issues of public protection arise in this case, argues

that we should make a finding of impairment, on the basis that Mr Khan has brought the

profession into disrepute and, as a result, public confidence in the profession would be

undermined if a finding were not made given the gravity, as well as the consequences to the

victim and his family, of the conduct that led to conviction.

Mr Millin relied principally on the case of CHRE v NMC and Grant [2011] EWHC 927

(Admin) and also the case of CHRE v GDC and Fleischmann [2005] EWHC 87 (Admin).

Mr Millin said that the Council accepted that Mr Khan had expressed genuine remorse and

some insight, and that his risk of re-offending was “at its highest, nominal”.

The case advanced on Mr Khan’s behalf is that his fitness to practise was certainly impaired

at the time of the events, and probably even until his release from custody, but that his

current licence period, which now involves only monthly appointments with his probation

service offender manager, should be viewed as equivalent to a community order rather than

a continuation of a custodial order, or indeed the treatment order that featured in the

Fleischmann case. Ms Straw argues that Mr Khan’s case can be distinguished on the

authorities, and that his experiences throughout the relevant period should lead to a finding

that he is not currently impaired.

We have reminded ourselves that a decision on current impairment – that is, as of today’s

date – is one to be reached by applying our independent judgement as a professional

disciplinary committee. Whilst there is now a significant body of case law on the approach

to be taken when considering the impairment stage of fitness to practise proceedings, it

seems to us that as this is a conviction case, and one that involves neither public protection

nor issues of dishonesty, that the proper approach is that set out by Cox J in Grant; namely,

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would the public’s confidence in the profession be undermined, if there were not to be a

finding of current impairment? There is the additional consideration of the declaring and

upholding of proper standards within the profession that is also clearly engaged in this case.

In our view, the most salient aspects of this case in relation to the impairment stage are:

1. That the death of Mr Bennett was not an accident, but was the result of a short course of

driving by Mr Khan that was excessive in speed and involved manoeuvres that were

objectively, from the jury’s verdict, dangerous.

2. For whatever reason, and with whatever attempt to explain his actions, the fact remains

that Mr Khan did not stop after the incident, and did not act in any way that the public

might justifiably expect of a professional pharmacist in the circumstances in which he

found himself.

3. There is no shying away from the fact that a sentence of immediate imprisonment for a

period of 30 months, irrespective of the technicalities of time served in custody and that

served in the community, is a substantial sentence.

In all the circumstances of this case, and especially those aspects that we have just

highlighted, it seems to us clear that public confidence in the profession and the

maintenance of standards of conduct and behaviour within the profession both call for a

finding of current impairment, given the relative proximity of Mr Khan’s conviction and

incarceration and the remaining period of time for which his sentence is yet to run.

That concludes our determination on impairment. We now move to the sanction stage.

I invite Mr Millin to address us first of all.

DETERMINATION ON SANCTION

THE CHAIRMAN: This is our determination on sanction. Having found Mr Khan’s

fitness to practise currently impaired, we have now considered what, if any, sanction to

impose.

During the course of the impairment stage, we heard oral evidence from Mr Khan which

also touched on matters relevant to our consideration on sanction. We heard

submissions both from Mr Millin and Ms Straw. Mr Millin listed those aspects of the

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case that the Council argued were aggravating features. He went on to suggest that a

sanction of suspension would be the minimum necessary to satisfy the public interest in

this case.

Ms Straw took issue with the Council’s case on some of the aggravating features, but

she conceded, quite properly in our view, that in essence, the course of dangerous

driving created a potential for harm to other road users and that harm was plainly caused

as a result. She invited us to consider carefully the mitigating features, which include:

� That this was a single isolated incident in an otherwise long and unblemished

career;

� That Mr Khan had made an open and frank admission at an early stage, having

handed himself into the police on the same day as the incident;

� That he had been sincere in his apology within the criminal proceedings, writing

directly to the victim’s partner, as well as in these proceedings; and

� That he had demonstrated full and genuine insight into the offence and its

consequences.

As in any determination on sanction, it is proper that we should set out some

fundamentals about the approach we have taken in reaching our decision which, in

common with the impairment stage, involves the application of our independent

judgement. We have, of course, had regard to the Council’s Indicative Sanctions

Guidance. As to our powers on sanction we can give a warning, impose conditions for a

period not exceeding three years, suspend the registrant’s registration for a period not

exceeding 12 months or give directions that the registrant concerned be removed from

the register.

In the context of fitness to practise proceedings before a professional regulatory body,

the purpose of the sanction is threefold: namely, (1) protection of the public; (2) the

maintenance of public confidence in the profession; and (3) the maintenance of proper

standards of conduct and behaviour within the profession.

It is plain in this case that there is no engagement of protection of the public, for the

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purpose of sanction. Although the object of regulatory proceedings is not to punish a

registrant as such, the fact that a sanction will have a punitive effect does not make such

a sanction inappropriate, where its purpose is otherwise one or more of the three listed

above. The Committee is also entitled to give greater weight to the public interest and to

the need to maintain public confidence in the profession, than to the consequences to the

registrant of the imposition of any particular sanction, although proper consideration

must be given to the registrant’s interests as well.

In determining the appropriate sanction, we have to exercise discretion and we have thus

had regard to the principle of fairness, reasonableness and proportionality. We have

taken account of the full range of sanctions available to us and sought to ensure that any

sanction imposed is both proportionate and reasonable, in all the circumstances of the

case.

In the context of proceedings before a professional regulatory body, the Privy Council

said this about the principle of proportionality in the cases of Choudhury v General

Medical Council [2000] UK PC 41 at paragraph 21:

“The application of the doctrine of proportionality is to ensure that a measure

imposes no greater restriction upon a Convention right than is absolutely

necessary in order to achieve its objective.”

The Convention right is obviously in this case the right of Mr Khan to practise in his

chosen profession, and the objectives are the protection of the public interest, in all three

guises. Thus, in order to ensure that proportionality is achieved, we have considered the

sanctions in ascending order of severity. In reaching a determination on the appropriate

sanction to be imposed, we must also consider (1) any mitigating or aggravating features

of the facts found proved; (2) the personal circumstances of the registrant and any

mitigation advanced; and (3) any testimonials and character references adduced in

support of the registrant.

We have been provided with a bundle of evidence from the Council, including the

judge’s sentencing remarks that we have alluded to already. The judge also said this

when passing sentence:

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“Apart from the facts of this accident, you are a person otherwise of impeccable

character. The references I have read about you are glowing, and I accept every

word of them. You have no previous convictions of any kind and you are a

responsible family man ordinarily and clearly you are a careful driver. You have

worked hard as a pharmacist for a number of years, thereby providing for your

family and also benefiting the community. On top of that, you have pursued

many highly commendable charitable and public-spirited activities. All of these

positive characteristics you can properly place before me today – and I give them

real weight in this difficult sentencing exercise – you are clearly deeply

remorseful and have suffered a degree of depression since the accident.”

The latter comment of the judge is wholly consistent with our own assessment of

Mr Khan’s evidence and presentation to us in today’s hearing. We are entirely satisfied

that his remorse and regret is primarily and genuinely for the harm done to the victim

and to his partner, and we acknowledge that the consequences of this short period of

ill-judged and dangerous driving will remain with him for the foreseeable future.

As to aggravating features in this case, the harm referred to in the Indicative Sanctions

Guidance is essentially directed to patients, but it is rightly conceded that harm has been

caused to an innocent member of the public outside the working environment. However,

we are not persuaded that the victim should be characterised as vulnerable, nor that

Mr Khan is responsible for the blatant disregard of the standards expected of a

pharmacist, for the same reason in both cases; namely, there was a complete absence of

any intention on Mr Khan’s part to cause any harm. His course of driving was

dangerous, but it would have been so categorised even without the impact with

Mr Bennett and his subsequent death. The only other aggravating feature in the

Committee’s view, is the one to which we and the sentencing judge already averred; that

is, the failure to stop and render some level of assistance to Mr Bennett.

As to mitigating features, we accept the submissions made by Ms Straw that, but for the

incident, Mr Khan is a man of impeccable character and he has had a substantial

unblemished career. The judge recognised, as I have already quoted, that this extended

also to his driving record which was previously unblemished. Having expressed our

opinion about the failure to stop, we indeed take account of the fact that Mr Khan

handed himself into the police station, later that evening, and did not wait to see if the

police would be able to trace him. It is also telling in our view that in his first

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conversation with the investigation police officer, as well as in response to being

cautioned on arrest, Mr Khan was obviously concerned to find out how Mr Bennett was.

We have already expressed our positive impression of Mr Khan’s insight and remorse,

and we note specifically that he wrote a letter of apology directly to Mr Bennett’s

partner in the course of the criminal proceedings.

Mr Khan is a married man of 35 years of age. He has four dependent children, the eldest

of whom is 10 and who has had continuing medical problems since birth. He has

worked as a qualified pharmacist since 1998, and most recently worked for an

internet-based company called Netchem, both before and after his prison sentence.

He has not sought during the course of this hearing to justify or excuse his actions on

18 October 2009. He is clearly a man who has reflected on those actions and who has

come to terms with all of the consequences for himself and his family that flow

therefrom.

We have seen a number of testimonials and character references from those with whom

Mr Khan has worked and from various community representatives of other faiths with

whom he has played an important role in building cross-cultural and cross-religious

harmony, in his local community. We have also read a letter from Mr Khan’s wife, and

the positive reference from his offender manager at the probation service. It seems to us

not unimportant that Mr Khan was the first prisoner at Forest Bank in the last nine years

to be permitted day release for volunteer work. Also, despite the fact that the offence for

which he was convicted was included in a schedule of offences that do not normally

form part of the early release scheme known as Home Detention Curfew, Mr Khan was

nevertheless released early on this programme.

All of the professional testimonials speak very highly of his abilities as a pharmacist,

and all the tributes to his volunteer community and charity work, spanning many years,

are glowing. We also note that Mr Khan has not been subject to an interim order in this

case.

We began our considerations with a warning, but we are satisfied that this would be

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wholly inadequate to mark the damage done to public confidence and the profession by

Mr Khan’s conviction and sentence. It was acknowledged by both parties that this is not

a case that can in any way lend itself to being dealt with by way of conditions of

practice, a sentiment with which we entirely agree. We then considered a suspension

order. Taking account of the relevant section of the Indicative Sanctions Guidance,

together with the matters that I am about to list, we have concluded that a period of

suspension is both necessary and proportionate to satisfy the public interest engaged.

The relevant matters are:

1. The limb of the public interest relating to the protection of the public is not engaged

to any extent in this case;

2. Though the consequences of Mr Khan’s actions were devastating, this was not a

course of conduct that was in any way premeditated or intended to cause harm;

3. The risk of repetition of such behaviour is as minimal as one could conceive;

4. The case is wholly distinguishable from the case of Fleischmann, both as to the class

of the offences and the public’s and the profession’s attitude thereto, as well as to the

nature of the sentence imposed, and its impact on public protection.

5. Although arguably the declaring and upholding of standards within the profession is

nominally engaged, commission of this particular offence is not likely, in the normal

course of events, ever to present itself to other registrants, such that it would be

proper or proportionate to make an example of Mr Khan, sacrificing his future for

the benefit of the wider profession.

As to the length of such order we have concluded, only after the most careful

consideration in what is an unusual and particularly taxing case, that a period of

six months suspension meets in full the public confidence aspects of this case. We

reached our decision on the type of order and the length of it, by carefully balancing the

public interest with Mr Khan’s own interests, applying proper and appropriate weight to

all the features of the case that we have identified. We did consider, as we are required

to, whether we ought to impose a sanction of removal, but in the somewhat unique

circumstances of this case, we have concluded that it would be disproportionate to do so;

not least because, in addition to the features identified above which militate against this

conviction being incompatible with continued registration, we take the view that

depriving the public long-term of such a capable and highly-regarded pharmacist would

do nothing to serve the public interest. Having concluded our view in relation to the

length of the suspension order, and the reasons for it, we are satisfied that it is not

necessary to order a review in this case.

THE CHAIRMAN: Mr Millin?

MR MILLIN: Sir, I anticipate you would have considered whether or not you think

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interim measures would be otherwise in the public interest.

THE CHAIRMAN: We have considered that only now because it is a requirement to do

so. Do you wish to argue for them?

MR MILLIN: No, Sir.

THE CHAIRMAN: Ms Straw, do you have anything to say.

MS STRAW: No, sir.

THE CHAIRMAN: We have considered carefully. Given that there is no public

protection aspect in this case, and given that there is a higher test to apply in relation to

interim measures, and interim orders generally in relation to otherwise in the public

interest aspects, we have decided that it is not necessary to make any interim measures.

So unless Mr Khan exercises his right of appeal, the suspension will come into force in

28 days from the date of the notice of the decision. Unless there are any other matters,

that concludes the hearing. Thank you for your assistance.

(Adjourned at 4.47)

GENERAL PHARMACEUTICAL COUNCIL

FITNESS TO PRACTISE COMMITTEE

Maple House, Commercial Street

Birmingham

Wednesday 1 August 2012

Chairman: Mr Michael Simon

Committee Members: Mrs Jillian Alderwick

Mrs Judith Hesslewood

Committee Secretary: Ms Georgia Conrad-Leigh

CASE OF:

KHAN, Afzaal Mohammed

(Registration Number: 2048899)

DETERMINATION

__________________________

MR MARK MILLIN, Solicitor Advocate, appeared on behalf of the General

Pharmaceutical Council.

MS LOUISE STRAW, of BurtonCopeland, appeared on behalf of the respondent,

who was present.

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Transcript of the stenograph notes of T A Reed & Co Ltd

Tel No: 01992 465900

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(At 1.27)

DETERMINATION ON FITNESS TO PRACTISE

THE CHAIRMAN: This is a principal hearing in respect of Mr Afzaal Mohammed Khan, a

pharmacist previously registered with the Royal Pharmaceutical Society of Great Britain,

following qualification in 1998, and now registered with the General Pharmaceutical

Council, under registration number 2048899.

Mr Khan is present at the hearing and represented by a lawyer, Ms Straw. Mr Millin

represents the Council. The allegation of impaired fitness to practise with which we are

concerned flows from Mr Khan’s conviction at the Crown Court at Bolton on 4 March 2011

of causing death by dangerous driving, driving without insurance and failing to stop after a

road accident. It is proper to record that Mr Khan pleaded guilty at the earliest opportunity

to causing the death of a pedestrian by careless driving, but there was a jury trial to consider

whether his driving constituted careless or dangerous driving, within the meanings attributed

to those two distinct offences.

On 25 March 2011 Mr Khan was sentenced to a period of 30 months’ imprisonment. He

was, unusually it seems, released under the Home Detention Curfew Programme some two

months early in April of this year, and he remains on licence until September of next year.

There were ancillary driving licence-related penalties.

For the facts underpinning the conviction we turn to the sentencing remarks of His Honour

Judge Clayson, who said this:

“Briefly, the circumstances of the offence were that at about 6.45 in the evening, on

18 October 2009, you were driving a Vauxhall Zafira car along Wash Lane, Bury

when you drove through a set of traffic lights that were showing red against you and

then collided with a pedestrian crossing the road on the far side of the junction.

There is clear evidence that you were driving at an excessive speed and that you

overtook at least one car, which was stationary at the red light, by using the second

lane to go past that car.

It is, in my judgement, clear that the reason you were driving in that manner on that

day was because you were, to a degree, rushing to Manchester Airport in order to

deliver a travel visa to your mother, who had requested that you bring that document

to her urgently as, without it, she would not be able to board the plane for Pakistan

that was leaving that evening. There is quite simply no other explanation for you

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driving as you did on that occasion. You were driving your sister’s car simply

because your own would not start. It is a fact that you had no insurance to drive that

car, but – as I said to Mr Jarvis – I accept that that default was essentially technical.

The same cannot be said, however, in respect of your failure to stop after the

accident, as you yourself acknowledge. It seems that you failed to see Mr Bennett as

he started to cross the road, but you were immediately aware that an accident had

happened as you hit him, because, amongst other things, there was a substantial

impact and your vehicle windscreen was badly damaged in the collision. You

stopped briefly some distance along the road, but then drove off. You completed

your journey to the airport, and whilst I accept that this was a decision prompted in

the main by panic, and quite clearly something that you subsequently deeply regret,

it is nonetheless a significantly aggravating feature in this case.”

The Council, whilst conceding that no issues of public protection arise in this case, argues

that we should make a finding of impairment, on the basis that Mr Khan has brought the

profession into disrepute and, as a result, public confidence in the profession would be

undermined if a finding were not made given the gravity, as well as the consequences to the

victim and his family, of the conduct that led to conviction.

Mr Millin relied principally on the case of CHRE v NMC and Grant [2011] EWHC 927

(Admin) and also the case of CHRE v GDC and Fleischmann [2005] EWHC 87 (Admin).

Mr Millin said that the Council accepted that Mr Khan had expressed genuine remorse and

some insight, and that his risk of re-offending was “at its highest, nominal”.

The case advanced on Mr Khan’s behalf is that his fitness to practise was certainly impaired

at the time of the events, and probably even until his release from custody, but that his

current licence period, which now involves only monthly appointments with his probation

service offender manager, should be viewed as equivalent to a community order rather than

a continuation of a custodial order, or indeed the treatment order that featured in the

Fleischmann case. Ms Straw argues that Mr Khan’s case can be distinguished on the

authorities, and that his experiences throughout the relevant period should lead to a finding

that he is not currently impaired.

We have reminded ourselves that a decision on current impairment – that is, as of today’s

date – is one to be reached by applying our independent judgement as a professional

disciplinary committee. Whilst there is now a significant body of case law on the approach

to be taken when considering the impairment stage of fitness to practise proceedings, it

seems to us that as this is a conviction case, and one that involves neither public protection

nor issues of dishonesty, that the proper approach is that set out by Cox J in Grant; namely,

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would the public’s confidence in the profession be undermined, if there were not to be a

finding of current impairment? There is the additional consideration of the declaring and

upholding of proper standards within the profession that is also clearly engaged in this case.

In our view, the most salient aspects of this case in relation to the impairment stage are:

1. That the death of Mr Bennett was not an accident, but was the result of a short course of

driving by Mr Khan that was excessive in speed and involved manoeuvres that were

objectively, from the jury’s verdict, dangerous.

2. For whatever reason, and with whatever attempt to explain his actions, the fact remains

that Mr Khan did not stop after the incident, and did not act in any way that the public

might justifiably expect of a professional pharmacist in the circumstances in which he

found himself.

3. There is no shying away from the fact that a sentence of immediate imprisonment for a

period of 30 months, irrespective of the technicalities of time served in custody and that

served in the community, is a substantial sentence.

In all the circumstances of this case, and especially those aspects that we have just

highlighted, it seems to us clear that public confidence in the profession and the

maintenance of standards of conduct and behaviour within the profession both call for a

finding of current impairment, given the relative proximity of Mr Khan’s conviction and

incarceration and the remaining period of time for which his sentence is yet to run.

That concludes our determination on impairment. We now move to the sanction stage.

I invite Mr Millin to address us first of all.

DETERMINATION ON SANCTION

THE CHAIRMAN: This is our determination on sanction. Having found Mr Khan’s

fitness to practise currently impaired, we have now considered what, if any, sanction to

impose.

During the course of the impairment stage, we heard oral evidence from Mr Khan which

also touched on matters relevant to our consideration on sanction. We heard

submissions both from Mr Millin and Ms Straw. Mr Millin listed those aspects of the

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case that the Council argued were aggravating features. He went on to suggest that a

sanction of suspension would be the minimum necessary to satisfy the public interest in

this case.

Ms Straw took issue with the Council’s case on some of the aggravating features, but

she conceded, quite properly in our view, that in essence, the course of dangerous

driving created a potential for harm to other road users and that harm was plainly caused

as a result. She invited us to consider carefully the mitigating features, which include:

� That this was a single isolated incident in an otherwise long and unblemished

career;

� That Mr Khan had made an open and frank admission at an early stage, having

handed himself into the police on the same day as the incident;

� That he had been sincere in his apology within the criminal proceedings, writing

directly to the victim’s partner, as well as in these proceedings; and

� That he had demonstrated full and genuine insight into the offence and its

consequences.

As in any determination on sanction, it is proper that we should set out some

fundamentals about the approach we have taken in reaching our decision which, in

common with the impairment stage, involves the application of our independent

judgement. We have, of course, had regard to the Council’s Indicative Sanctions

Guidance. As to our powers on sanction we can give a warning, impose conditions for a

period not exceeding three years, suspend the registrant’s registration for a period not

exceeding 12 months or give directions that the registrant concerned be removed from

the register.

In the context of fitness to practise proceedings before a professional regulatory body,

the purpose of the sanction is threefold: namely, (1) protection of the public; (2) the

maintenance of public confidence in the profession; and (3) the maintenance of proper

standards of conduct and behaviour within the profession.

It is plain in this case that there is no engagement of protection of the public, for the

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purpose of sanction. Although the object of regulatory proceedings is not to punish a

registrant as such, the fact that a sanction will have a punitive effect does not make such

a sanction inappropriate, where its purpose is otherwise one or more of the three listed

above. The Committee is also entitled to give greater weight to the public interest and to

the need to maintain public confidence in the profession, than to the consequences to the

registrant of the imposition of any particular sanction, although proper consideration

must be given to the registrant’s interests as well.

In determining the appropriate sanction, we have to exercise discretion and we have thus

had regard to the principle of fairness, reasonableness and proportionality. We have

taken account of the full range of sanctions available to us and sought to ensure that any

sanction imposed is both proportionate and reasonable, in all the circumstances of the

case.

In the context of proceedings before a professional regulatory body, the Privy Council

said this about the principle of proportionality in the cases of Choudhury v General

Medical Council [2000] UK PC 41 at paragraph 21:

“The application of the doctrine of proportionality is to ensure that a measure

imposes no greater restriction upon a Convention right than is absolutely

necessary in order to achieve its objective.”

The Convention right is obviously in this case the right of Mr Khan to practise in his

chosen profession, and the objectives are the protection of the public interest, in all three

guises. Thus, in order to ensure that proportionality is achieved, we have considered the

sanctions in ascending order of severity. In reaching a determination on the appropriate

sanction to be imposed, we must also consider (1) any mitigating or aggravating features

of the facts found proved; (2) the personal circumstances of the registrant and any

mitigation advanced; and (3) any testimonials and character references adduced in

support of the registrant.

We have been provided with a bundle of evidence from the Council, including the

judge’s sentencing remarks that we have alluded to already. The judge also said this

when passing sentence:

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“Apart from the facts of this accident, you are a person otherwise of impeccable

character. The references I have read about you are glowing, and I accept every

word of them. You have no previous convictions of any kind and you are a

responsible family man ordinarily and clearly you are a careful driver. You have

worked hard as a pharmacist for a number of years, thereby providing for your

family and also benefiting the community. On top of that, you have pursued

many highly commendable charitable and public-spirited activities. All of these

positive characteristics you can properly place before me today – and I give them

real weight in this difficult sentencing exercise – you are clearly deeply

remorseful and have suffered a degree of depression since the accident.”

The latter comment of the judge is wholly consistent with our own assessment of

Mr Khan’s evidence and presentation to us in today’s hearing. We are entirely satisfied

that his remorse and regret is primarily and genuinely for the harm done to the victim

and to his partner, and we acknowledge that the consequences of this short period of

ill-judged and dangerous driving will remain with him for the foreseeable future.

As to aggravating features in this case, the harm referred to in the Indicative Sanctions

Guidance is essentially directed to patients, but it is rightly conceded that harm has been

caused to an innocent member of the public outside the working environment. However,

we are not persuaded that the victim should be characterised as vulnerable, nor that

Mr Khan is responsible for the blatant disregard of the standards expected of a

pharmacist, for the same reason in both cases; namely, there was a complete absence of

any intention on Mr Khan’s part to cause any harm. His course of driving was

dangerous, but it would have been so categorised even without the impact with

Mr Bennett and his subsequent death. The only other aggravating feature in the

Committee’s view, is the one to which we and the sentencing judge already averred; that

is, the failure to stop and render some level of assistance to Mr Bennett.

As to mitigating features, we accept the submissions made by Ms Straw that, but for the

incident, Mr Khan is a man of impeccable character and he has had a substantial

unblemished career. The judge recognised, as I have already quoted, that this extended

also to his driving record which was previously unblemished. Having expressed our

opinion about the failure to stop, we indeed take account of the fact that Mr Khan

handed himself into the police station, later that evening, and did not wait to see if the

police would be able to trace him. It is also telling in our view that in his first

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conversation with the investigation police officer, as well as in response to being

cautioned on arrest, Mr Khan was obviously concerned to find out how Mr Bennett was.

We have already expressed our positive impression of Mr Khan’s insight and remorse,

and we note specifically that he wrote a letter of apology directly to Mr Bennett’s

partner in the course of the criminal proceedings.

Mr Khan is a married man of 35 years of age. He has four dependent children, the eldest

of whom is 10 and who has had continuing medical problems since birth. He has

worked as a qualified pharmacist since 1998, and most recently worked for an

internet-based company called Netchem, both before and after his prison sentence.

He has not sought during the course of this hearing to justify or excuse his actions on

18 October 2009. He is clearly a man who has reflected on those actions and who has

come to terms with all of the consequences for himself and his family that flow

therefrom.

We have seen a number of testimonials and character references from those with whom

Mr Khan has worked and from various community representatives of other faiths with

whom he has played an important role in building cross-cultural and cross-religious

harmony, in his local community. We have also read a letter from Mr Khan’s wife, and

the positive reference from his offender manager at the probation service. It seems to us

not unimportant that Mr Khan was the first prisoner at Forest Bank in the last nine years

to be permitted day release for volunteer work. Also, despite the fact that the offence for

which he was convicted was included in a schedule of offences that do not normally

form part of the early release scheme known as Home Detention Curfew, Mr Khan was

nevertheless released early on this programme.

All of the professional testimonials speak very highly of his abilities as a pharmacist,

and all the tributes to his volunteer community and charity work, spanning many years,

are glowing. We also note that Mr Khan has not been subject to an interim order in this

case.

We began our considerations with a warning, but we are satisfied that this would be

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wholly inadequate to mark the damage done to public confidence and the profession by

Mr Khan’s conviction and sentence. It was acknowledged by both parties that this is not

a case that can in any way lend itself to being dealt with by way of conditions of

practice, a sentiment with which we entirely agree. We then considered a suspension

order. Taking account of the relevant section of the Indicative Sanctions Guidance,

together with the matters that I am about to list, we have concluded that a period of

suspension is both necessary and proportionate to satisfy the public interest engaged.

The relevant matters are:

1. The limb of the public interest relating to the protection of the public is not engaged

to any extent in this case;

2. Though the consequences of Mr Khan’s actions were devastating, this was not a

course of conduct that was in any way premeditated or intended to cause harm;

3. The risk of repetition of such behaviour is as minimal as one could conceive;

4. The case is wholly distinguishable from the case of Fleischmann, both as to the class

of the offences and the public’s and the profession’s attitude thereto, as well as to the

nature of the sentence imposed, and its impact on public protection.

5. Although arguably the declaring and upholding of standards within the profession is

nominally engaged, commission of this particular offence is not likely, in the normal

course of events, ever to present itself to other registrants, such that it would be

proper or proportionate to make an example of Mr Khan, sacrificing his future for

the benefit of the wider profession.

As to the length of such order we have concluded, only after the most careful

consideration in what is an unusual and particularly taxing case, that a period of

six months suspension meets in full the public confidence aspects of this case. We

reached our decision on the type of order and the length of it, by carefully balancing the

public interest with Mr Khan’s own interests, applying proper and appropriate weight to

all the features of the case that we have identified. We did consider, as we are required

to, whether we ought to impose a sanction of removal, but in the somewhat unique

circumstances of this case, we have concluded that it would be disproportionate to do so;

not least because, in addition to the features identified above which militate against this

conviction being incompatible with continued registration, we take the view that

depriving the public long-term of such a capable and highly-regarded pharmacist would

do nothing to serve the public interest. Having concluded our view in relation to the

length of the suspension order, and the reasons for it, we are satisfied that it is not

necessary to order a review in this case.

THE CHAIRMAN: Mr Millin?

MR MILLIN: Sir, I anticipate you would have considered whether or not you think

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interim measures would be otherwise in the public interest.

THE CHAIRMAN: We have considered that only now because it is a requirement to do

so. Do you wish to argue for them?

MR MILLIN: No, Sir.

THE CHAIRMAN: Ms Straw, do you have anything to say.

MS STRAW: No, sir.

THE CHAIRMAN: We have considered carefully. Given that there is no public

protection aspect in this case, and given that there is a higher test to apply in relation to

interim measures, and interim orders generally in relation to otherwise in the public

interest aspects, we have decided that it is not necessary to make any interim measures.

So unless Mr Khan exercises his right of appeal, the suspension will come into force in

28 days from the date of the notice of the decision. Unless there are any other matters,

that concludes the hearing. Thank you for your assistance.

(Adjourned at 4.47)