Luthra, R (on the application of) v General Dental Council [2004] EWHC 458 (Admin)

Case No CO/3892/2003[2004] EWHC 458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27th February 2004
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF SANDEEP LUTHRAClaimant-v-
Between
GENERAL Dental COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I MAYES QC (instructed by ARLINGTONS SHARMAS) appeared for CLAIMANTMR P KOLVIN (instructed by MESSRS CAPSTICKS) appeared for DEFENDANT
J U D G M E N TFriday, 27th February 2004
[1]MR JUSTICE ELIAS: This is an appeal made pursuant to section 29 of the Dental Act 1984 against a decision of the Professional Conduct Committee of the General Dental Council, dated 16th July 2003, in which it suspended the registration of the appellant as a dentist for 6 months for serious professional misconduct.[2]The grounds of the appeal are not those which were originally advanced. They are no longer being pursued and in their place there are fresh grounds which are now being relied upon. They are as follows:
"(1) The PCC erred in law in failing to give any or any sufficient reasons for the finding of dishonesty or the findings of fact upon which it based its finding of serious professional misconduct. "(2) By its failure to provide reasons the PCC has acted in breach of its common law duty to provide reasons and/or has acted in breach of the rules of natural justice and/or has unfairly deprived the Appellant of his right to a fair trial under Article 6 of the European Convention on Human Rights."
[3]Leave is required for the appellant to advance those fresh grounds now, but I indicated that I would hear the substantive matter in any event and rule at the end on the question of leave. The background[4]It is necessary to set out in a little detail the nature of the charges and the extent to which there were matters in dispute before the panel. Essentially, there were a series of complaints, falling into three broad categories, that the appellant had made false and misleading claims to the Dental Practice Board in order to receive payments to which he was not entitled. The complaints related to three separate patients and were in respect of three separate years, 1997, 1998 and 1999 respectively. I will set out in summary form what the Tribunal had to decide in respect to each principal area of complaint. Patient 1[5]It was alleged that the appellant had applied to the Board to carry out a substantial amount of treatment which was necessary when in fact it was not. The appellant admitted that he had made the claim and that the work was not necessary, but he said that he had intended thereby to seek advice as to whether it was necessary or not. He accepted that he had acted inappropriately in filling out the form, but denied that he had either misled the Board or intended to mislead them. Patient 2[6]The allegation here was that he had claimed for work which he had not done. It was alleged that he had made a claim for treatment under Code 1444 for the particular treatment of 14 teeth, when in fact that treatment had not been carried out. His contention was that he had done the work. The panel was satisfied that he had not in respect of eight of the teeth and that he had acted dishonestly in relation to his claim, but they were not so satisfied in respect of the other six. Patient 3[7]There were a number of separate matters relating to this patient. First, it was alleged that the appellant had submitted a claim for treatment which he had not provided. This was subsequently amended to an allegation that it had not been provided when the claim was made. That was because the appellant had indicated that he had subsequently carried out the treatment. The appellant admitted that he had made the claim before the treatment was made, but denied that he was thereby intending to be misleading or to induce payment for treatment which had not been carried out.[8]Second, it was alleged that a claim had been made for treatment which had not been carried out at all. The appellant submitted that this was true, but said that it was the result of an administrative error. He said, in fact, that he had not done the specific work that had been carried out, but had done other work and had filled in the wrong code by an oversight.[9]Third, it was said that money had been claimed for work not done. This was admitted by the appellant, but he said this was also an administrative error. He had done the work on a private patient and had confused that patient with the one in respect of which he had made a claim for a fee from the Board.[10]Finally, there were certain allegations of maladministration which, for the most part, were admitted, but which would not of themselves have constituted serious professional misconduct. It will be seen that save in relation to patient 2 the appellant has admitted the facts but denied that he had any dishonest intention. His defence was, with respect to these matters, incompetence rather than dishonesty and that was made plain by his counsel in his closing submissions to the panel.[11]The position was different with respect to count 2. It is necessary to say a little more about that claim since it figured significantly in the submissions of Mr Mayes QC for the appellant. The allegation was that the appellant had claimed money for work done under Code 1444. Paragraph 14 of the scale of dental remuneration sets out standard fees for certain types of treatment.

(e) :

"Treatment of early or small carious lesions in pits and fissures of permanent or retained deciduous teeth, by the application of a fissure sealant to all pits and fissures, including, where necessary, removal of caries and insertion of composite resin and/or glass ionomer cement in the cavity. Fee per tooth..."
Then there is different fees for four different categories. One is with sealant only. The second is with insertion of composite resin. The third with insertion of glass ionomer. The final one, which is 1444, with insertion of glass ionomer followed by composite resin. That last, 1444, attracts the highest fee.[12]The patient in question was examined in detail by the Dental Officer of the Board, Mr Gordon, some eight weeks after the alleged treatment had taken place. His evidence was that he found no evidence of any restorative work at all done with respect to eight of the teeth. With respect to the other six there was a sealant and without removing the surface layer of material, or doing a radio graphic examination, the former of which would have been detrimental to the patient and the latter ethically unacceptable, he was not able to say whether the work had been done or not.[13]Some two years later the teeth were again examined by two members of the General Dental Services Appeal Panel. By then the sealant had been lost for four of the six teeth, with respect to which Mr Gordon had been unable to reach a clear view. They found no evidence of restoration to those teeth at all, nor could they find evidence of any cavity preparation with respect to any of them. They therefore concluded that no work under 1444 had been done, but that some had been done under 1441 (that is the provision of sealant only) with respect to two of the teeth. The panel did not in fact find the case against the appellant established for any of the six teeth with respect to which Mr Gordon had felt unable to make a finding adverse to the appellant. The findings[14]Prior to reaching their decision, the panel were advised by the legal adviser as follows:
"Finally, may I remind the Committee that you should give brief reasons for your decisions; that is, to explain why you have reached them. These reasons should be given at the conclusion of any stage two. You should, however, when announcing your findings of fact at the end of stage one, indicate if necessary, but only if necessary, the extent and limits of your findings of fact so that the parties will be in a position to make appropriate submissions, if this inquiry proceeds into a second stage."
I interpose to note that stage 1 is when the facts are found and stage 2 is when the panel decide whether they amount to serious professional misconduct and what the appropriate penalty should be if they do.[15]The panel made findings of fact with respect to each of the individual charges made against the appellant. As I have said, they did not find them all established, but they did find that the charges alleging dishonesty were established, save with respect to the six teeth which I have already mentioned.[16]They then heard submissions as to whether this conduct amounted to professional misconduct and they concluded that it did. They summarise the finding as follows:
"The Committee have found that you deliberately submitted false misleading claims to the Dental Practice Board. Your purpose was to receive payments to which you knew you were not entitled. All these claims were made dishonestly. Any fraud, or attempted fraud, on the NHS is serious. Moreover, you have not, in the face of overwhelming evidence from the credible witnesses called on behalf of the Council, either acknowledged your wrong-doing or expressed any regret for it. The recent warnings you have received from the GDC suggest that you have yet to recognise your professional responsibilities."
[17]They went on to note that the appellant was a successful practitioner, well regarded by patients and others, but they felt, in the circumstances, that the commission of these offences of dishonesty required that a direction be issued and, as I have indicated, they suspended the registration for 6 months.[18]Before dealing with the substance of Mr Mayes' submissions, I will briefly comment upon one of them. He says that the panel was plainly wrong in the passage to which I have just referred, to say that the appellant had expressed no regret or had failed to acknowledge any wrong-doing. Mr Mayes submits that he clearly had. He had admitted and expressed embarrassment and regret at a whole series of administrative errors and incompetencies.[19]I think there is nothing in this point. Read in context the panel plainly means that he has not expressed any remorse or shown any recognition of the fact that his conduct was dishonest and wrong, not merely incompetent. I do accept, however, that in essence the reasoning of the Tribunal is that they were persuaded by what they term "the overwhelming evidence" of a number of witnesses whom they found credible, and by implication from their findings they obviously found the appellant's account to lack credibility. Essentially the question is whether this is an adequate statement of reasons. The law[20]There is no doubt that both fairness and Article 6 require that adequate reasons for the decision should be given. As to Article 6, the Privy Council accepted in Ghoshv General Medical Council [2001] 1 W.L.R. 1915 at 1922, that Article 6 was, in principle, engaged. But, in the circumstances, it adds nothing, in my view, to the common law in any event.[21]Mr Mayes referred me to the Court of Appeal decision in English v Emery Reimbold & Strick Ltd [2002] 1 W.L.R. 2409, where the importance of giving reasons was emphasised. He submitted that it was not a sterile or technical requirement in a case of this kind, but was particularly important where the decision of the panel is taken by a majority vote because it ensures that the committee properly identify the basis on which the decisions have been reached.[22]However, there is no doubt, as Mr Mayes realistically accepted, that in the context of decisions of professional disciplinary bodies of this nature, at least given the particular procedures that they employee, it will often be unnecessary to do little, if any, more than to make the specific findings of fact with respect to each of the specific charges made, and then summarise why it is considered that these amount to gross professional misconduct. It will not generally be necessary for the panel to identify why, in reaching its findings of fact, it is thought to accept some evidence and to reject other evidence.[23]That, I think, is clear from two decisions to which I was referred in the course of argument. The first was a decision of the Privy Council in Selvanathan v General Medical Council [2001] Lloyd's Rep Med 1. That was a case where inter alia the challenge was against the findings of the Professional Conduct Committee of the GMC on the grounds that it had given inadequate reasons for its decision. The decision of the Privy Council was given by Lord Hope of Craighead, sitting with Lord Hobhouse of Woodborough and Sir Anthony Evans.[24]The submission of Mr Beloff QC for the appellant in that case had been that fairness required that the appellant should know the basis on which the committee reached their conclusions of fact. He had argued that the issue was one of considerable importance to the appellant as it affected his right to continue working as a sole practitioner. Mr Englehart, for the respondent, had submitted that the real complaint was not that reasons had not been given for the finding of serious professional misconduct, but rather that reasons had not been given for the decision to find that the disputed heads of the charge had been proved.[25]In giving the judgment of the court Lord Hope said this:
"It is plain that reasons were given in this case. The question is as to the adequacy of those reasons. "
In regard to this question, it is necessary to bear in mind the composition and nature of the Professional Conduct Committee which is constituted by the Council under the rules made under paragraph 21 of Schedule 1 to the Medical Act 1983. It is composed of medical practitioners and lay members. The only legal assistance they have is that of the Legal Assessor appointed under paragraph 7(1) of Schedule 4 to that Act, whose function under the General Medical Council (Legal Assessors) Rules 1980 (SI 1980 No 941) is to advise them on questions of law. The 1988 Practice Rules require the Committee to reach a view as a committee on the matters which they have before them for determination. No provision is made for expressions of dissent either as to the result or on matters of detail. In these circumstances it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases. "In the present case the complaint is that reasons should have been given to explain the basis upon which the Committee found against the appellant on the questions of fact raised by head 2(b). It was plain, however, from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the Committee's assessment of the appellant's credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the Committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In the circumstances their Lordships do not consider that it was necessary for reasons for this part of the Committee's decision to be given."[26]In a later decision, Gupta v General Medical Council [2001] UKPC 61, the question of adequate reasons was again considered by the Board of the Privy Council, this time consisting of Lord Steyn, Lord Hobhouse of Woodborough and Lord Roger of Earlsferry. The case concerned a female general practitioner whose husband was also a doctor, whose name had been removed from the register following a finding of serious professional misconduct. The allegation was, essentially, that she had allowed him to carry on consultations in her practice. The only indication of the conclusions of the committee in that case, on the findings of fact, which were adverse to the appellant, was this:
"Your evidence to this committee was inconsistent and by reason of our determination untruthful in many respects."
The argument advanced on her behalf was that Selvanathan should be restricted to cases where there was just a simple dispute as to fact. It was suggested that reasons for factual findings should be made where there were more complex issues in dispute.[27]Counsel had submitted that although reasons need go little further than saying that the committee had preferred the evidence of a particular witness and had rejected the evidence of another witness, at least that much should be done. This was rejected by their Lordships in the Privy Council. I will not read them out, but I refer to paragraphs 12 and 13 of their decision. I simply note in the light of those paragraphs that if it is plain from the conclusions of the panel, when considered in the light of the transcript of the evidence, what the basis of the decision is, then that suffices as adequate reasons.[28]It is, however, right to say that in the Gupta case, at paragraph 14, Lord Roger said that in some cases it may be necessary to give reasons even with respect for matters of fact. Fairness may demand this in certain circumstances.[29]Their Lordships, however, chose not to indicate what those circumstances may be, but Mr Mayes submits that this case provides such an example. He took me to a decision of Newman J in the case of Needham v The Nursing and MidwiferyCouncil [2003] EWHC 1141 (Admin). That was the case where the appellant had been found guilty of certain charges of misconduct and had been removed from the register of nurses. The charges related to a series of drug administration and patient errors.[30]The case for the appellant was essentially that the penalty was inappropriate. Without going into the facts in detail, her submission was that in large part these errors had resulted from the fact that she was subject to considerable stress at the time. It was said that she had now undertaken treatment for her stress, it was under control, and therefore there was no justification for preventing her from carrying out her job in the future.[31]The committee in that case, after indicating that they had decided to remove the name from the register, simply said this:
"In arriving at this decision the committee has listened carefully to the information put before the committee in mitigation and having taken this into account we consider that your fitness to practice on Part 12 of the Register is still impaired. "
The reasons for removal are that you have manifestly failed to promote the interests of individual patients and clients and have also failed to justify public trust and confidence." Newman J considered that the reasoning there was inadequate. He held that in circumstances where they were faced with evidence to suggest that the appellant was now fit to carry on in practice, they ought to have given their reasons as to how they weighed up and assessed that evidence.[32]Mr Mayes says that here too the determination of the Tribunal was manifestly inadequate. He submits they made no attempt to break down the different complaints and make findings in respect of each of them; they have simply lumped them all together at the real risk that they will not in fact have given them all proper consideration. The fact that they identified the separate matters when making their findings of fact and gave rulings in relation to them, does not, he submits, demonstrate that they necessarily properly and carefully applied their minds to each of these different matters.[33]He accepted that it would obviously not be appropriate to require any sophisticated or detailed analysis of the evidence, but that it was necessary at least to give some basic explanation as to what conclusions the panel had reached with respect to each of the main charges. Here professional reputation was at stake. It was not good enough to adopt a broadbrush approach to the fundamental question of dishonesty which touches the integrity of the professional man and his reputation.[34]This was particularly so since, with respect to count 2, there were technical matters to be determined. Counsel referred to the fact that there had been extensive cross-examination of the appellant both from counsel for the General Dental Council and the members of the panel itself with respect to the techniques for carrying out the work falling within Code 1444.[35]Mr Mayes accepted that in view of the Privy Council decisions, to which I have made reference, it was necessary for him to show that there were matters going beyond mere credibility with which the panel had to engage, and which required some explanation in their thought processes. Here he submitted that there were. I will deal with his submissions with respect to each of the three patients.[36]First, with respect to patient 1. He says that it was necessary for the panel at least to say something along the lines, "Notwithstanding your admissions we reject your contention that you did not intend to mislead." But I accept Mr Kolvin's submission for the respondent that this much is obvious from the way in which the case was put and the conclusion of the panel. There can be no doubt that this was the very issue with respect to patient 1. The appellant had accepted the facts, but was disputing that it was right to infer dishonesty. The very finding of the panel in respect of that matter, in my view, demonstrates that they did not accept that there was an innocent explanation. They were rejecting his evidence.[37]Patient 2: Mr Mayes submits that there were technical questions which needed to be determined here. In particular it was necessary to discover whether the panel was concluding that the appellant had misunderstood what code 1444 required, or whether he had properly understood it but failed to do any work, or done some work but not the relevant work. I do not accept that. The appellant was never here saying that he had innocently misunderstood what the code required. In truth, it is not a complicated definition.[38]His case was that he had done the relevant work. The case for the General Dental Council was that he had not, at least with respect to the eight teeth in relation to which the case was found proved. That was the evidence of Mr Gordon. The panel was not satisfied with respect to the other teeth, no doubt because the evidence to support that part of the case emerged over 2 years later. Whatever the basis for that I do not think it can properly be said, once the nature of the dispute between the parties is appreciated, that there could be any sensible misunderstanding as to the nature of the panel's finding. They simply did not believe the appellant when he said that he had done the work he had claimed to have done.[39]There were, in my view, no technical matters which affected the matter. I accept that they may have surfaced in argument as peripheral matters of that kind often will in a hearing of this nature, where professional men and women are trying their peers, but the essential issue for the panel was stark and plain.[40]Patient 3: again, with respect to the three aspects of these charges, the appellant admitted the facts but disputed that any dishonesty could be inferred from them. Again the allegations, in substance, were clear and straightforward. Essentially, they were that he had not done the work with respect to which the money was claimed, or at least, with respect to the first aspect, not at the time when it was claimed. With respect to the second aspect, namely, where he claimed that he had done some work, but not that for which he claimed, the evidence of Mr Roberts was that no work had been done at all. That was essentially the case against him.[41]Plainly, if the panel had thought that he had done some work and that he may have made a mistake as to the code which should be entered, then they would have had to reach a different result. In substance, the conclusion they reached plainly demonstrates, against the context of the issues as revealed by the papers, that this was a matter turning on credibility and they rejected the contentions of the appellant. Similarly, with respect to the final aspect, the issue is whether they could believe his account that he had innocently put in a claim for work which he had done, but for a different patient.[42]I agree with Mr Kolvin that this was, in essence, the kind of question which a jury in a criminal trial will have to determine. In essence, did they believe that he was telling the truth? Was this or may this have been an explanation for putting in that particular claim? The determination of the panel makes it plain that they did not accept that it was or may be. It was a matter going to credibility.[43]In my view Hemmings is a different case. It did not turn on credibility as such but on the exercise of a judgment as to whether it was significantly the stresses which had caused the misconduct in the first place, and if so whether the appellant could be expected to carry out work satisfactorily in the future. That was not simply a conflict of evidence which turned upon the credibility of witnesses, but required some findings of fact and evaluation of those facts in order to reach a particular conclusion. I do not think that that is akin to the situation that arises here.[44]For these reasons, and notwithstanding the attractive and cogent way in which Mr Mayes presented the argument on behalf of the appellant, I dismiss the appeal. In the circumstances it is not appropriate to give leave out of time to amend the grounds of this application. It is not necessary either for me to consider whether, had I found for the appellant, it would have been appropriate to send the matter back for further reasons or to remit it to another tribunal.[45]MR KOLVIN: My Lord, I am obliged. There is an application for costs. I do not think the costs are in dispute. The VAT exclusive sum, leaving out of the count the pennies, is £13,085. The General Dental Council is subject to special rules in relation to VAT recovery that I need not trouble my Lord with, but the effect of those rules is that we need to claim VAT at 6.89 per cent. That produces VAT of £898 and some pennies, making a total claim for costs of £13,984. I understand that is not in contention.[46]MR MAYES: My Lord, the number is not in contention and I cannot resist the application.[47]MR JUSTICE ELIAS: Thank you very much, Mr Mayes. I award costs in that sum.[48]MR MAYES: My Lord, there is another matter which I have canvassed, hypothetically, with my learned friend and it is this: your Lordship cannot give me permission to appeal from your decision, it being a second appeal. I would have to go elsewhere.

MR JUSTICE ELIAS: Yes.

[50]MR MAYES: Your Lordship will have in mind that, notwithstanding what I said about the reasons for this appeal --

MR JUSTICE ELIAS: Yes.

[52]MR MAYES: -- the Professional Conduct Committee initially said that Dr Luthra's suspension from the register would not operate for 28 days so that he could exercise his right of appeal.

MR JUSTICE ELIAS: Yes.

[54]MR MAYES: My understanding, assisted by my learned friend Mr Kolvin who practices regularly in this area, is that that was not a matter of discretion, but it is mandatory that it is always 28 days before matters start to operate. There appears to Mr Kolvin and I, as we see it, within the Act, no provision specifically for what I am about to ask your Lordship for, which is that the suspension initially imposed in July last year, and which has not yet begun to operate at all, should not operate - and I was going to ask for 28 days - while I advise my client as to his appeal. I am not saying it is going to take 28 days or anything like that, it is a matter, as I explained to my learned friend, of not saying to patients in the middle of whose treatment Dr Luthra is, "I am sorry I cannot see you on Monday, I cannot see you on Tuesday..." and the like. But this does appear to be a novel point.[55]Even if I was being granted permission to appeal by your Lordship it would, of course, not automatically operate as a stay of the decision of the Professional Conduct Committee, but it is important, in the view of both my learned friend Mr Kolvin and myself, that Dr Luthra should know exactly where he stands before he leaves the building today and that there should be no room for doubt upon it.[56]MR JUSTICE ELIAS: I am sympathetic to that in principle. What is the practice?[57]MR KOLVIN: Well, it very interesting, because until very recently these appeals went straight to the Privy Council, so the point did not arise. So, we have given consideration to this matter --[58]MR JUSTICE ELIAS: Is there a right of appeal, in any event, from this to the Court of Appeal, even with leave of the Court of Appeal or --[59]MR MAYES: No, because it would be a second appeal I would have to go to the Court of Appeal to ask for permission.[60]MR JUSTICE ELIAS: I realise that, I wondered whether you can even go to the Court of Appeal, can you?[61]MR MAYES: I think we agree that I can.[62]MR JUSTICE ELIAS: I thought that this might be the end of the line as it used to be with the Privy Council?[63]MR MAYES: I think with the Privy Council it was the end of the line because it was the Privy Council and there was nowhere else to go.[64]MR KOLVIN: There is no preclusive provision. I think I have to accept there is no preclusive provision, but I have taken instructions and given it some consideration and in an effort to assist the court our view is that you have no power to effectively stay the suspension and it takes effect immediately. In any event, I am instructed that as a matter of discretion I ought to ask you not to exercise the power if you have it.[65]But can I explain to you why we take a view there is not a power? My Lord, it breaks down into two. The first question is whether there is a power under the Dentists Act. The second point is: is there a power under the rules? Can I start with the Dentists Act which you find in my learned friend's bundle, divider 1? It should not take too long just to go through this under the Act.[66]Section 27, which you find at the front of divider 1, is entitled "Erasure or suspension of registration for crime or misconduct". 27(4) says:
"Where the Professional Conduct Committee determine under this section that a person's name shall be erased... or that his registration shall be suspended, the registrar shall serve on him a notification of the determination and of his right to appeal against it under section 29 below."
[67]So, that is the power to suspend and a notice needs to be served. Then we go to section 29. Section 29(1) says:
"Where a person is notified -- (a) under subsection (4) of section 27... he may, within twenty-eight days from the service of the notification, appeal [against that determination or direction to the relevant court]."
[68](1A) says "the relevant court" is the High Court. (3) sets out my Lord's powers: on an appeal the court may do a number of things. The first thing you can do is what you have done, which is to dismiss the appeal.

MR JUSTICE ELIAS: Yes.

[70]MR KOLVIN: (b) you can allow the appeal and (c) in the case of an appeal against a determination under section 27, substitute any other direction which could have been made or given by the Professional Conduct Committee.[71]Then section 30 deals with when determinations and directions normally take effect. Section 30(1) says:
"Where no appeal is brought against any determination... within the period... [that is within the period of 28 days] the determination or direction shall take effect at the expiry of that period. "(2) Where an appeal is so brought... the determination or direction shall not take effect until such time as the appeal is dismissed or withdrawn or is struck out for want of prosecution."
[72]So the effect was that had no appeal been brought the suspension would have kicked in after 28 days. But where an appeal is brought the suspension does not kick in until the appeal is disposed of. All the committee was doing when it said 28 days was reflecting the provision of the statute, which says that it does not kick in for 28 days. It does not have power by itself, as it were, to stay the execution of its own judgment. It merely reflects the provision of the Act.[73]The position that my Lord is in is that this appeal is now dismissed and so the suspension takes effect. You do not have power under the Act to grant some extra stay under the Act, because section 29(3)(c) sets out your powers which are to dismiss the appeal, allow it, or make any other direction which could have been made by the Professional Conduct Committee. Since the Professional Conduct Committee did not have power to stay execution of its judgment so my Lord does not under the Act.

MR JUSTICE ELIAS: The Professional Conduct Committee does not, does it?

[75]MR KOLVIN: No, it does not. All the Professional Conduct Committee can do, if it is going to take the action to suspend, is to suspend. That we get from section 27(4).[76]MR JUSTICE ELIAS: It seems a bit unfortunate, where it is not a capability with his conduct and, where the interests of patients may be adversely affected by a sudden suspension, that there is not a power to, as it were, at least suspend for a short period so that matters can be properly arranged.[77]MR KOLVIN: Yes.[78]MR MAYES: My Lord, I put it in two ways. I accept entirely what my learned friend has said.[79]MR KOLVIN: Shall I deal with the Rules? I just wanted to help you on one other point in relation to suspension, which you will find in divider 2, and these are the Professional Conduct Committee (Procedure) Rules.

MR JUSTICE ELIAS: Sorry, divider 2 of the same --

[81]MR KOLVIN: Yes, divider 2 of the same bundle, my learned friend's authorities bundle. Rule 11 sets out the procedure in misconduct cases upon proof of conviction or the facts alleged in cases relating to misconduct. There is a sequence, an intellectual sequence, the Committee has to go through in order to decide whether they are going to impose a particular penalty. Sub-paragraph 5 says:
"If the Committee determine not to postpone judgment, they shall consider and determine whether by reason of the... [matters] it shall be sufficient to direct the Registrar in accordance with section 27(1) of the Act to suspend the respondent's registration for a specified period not exceeding twelve months."
[82]So they have no inherent power under the Rules to stay the execution of their judgment. It is simply a question of, the principle legislation does stay it for 28 days and if an appeal is not lodged then it takes effect of an appeal --

MR JUSTICE ELIAS: Sorry, I am not sure I am understanding this.

[84]MR KOLVIN: Yes.[85]MR JUSTICE ELIAS: If the Committee says not to postpone judgments, they can postpone judgment after the hearing?[86]MR KOLVIN: They can take a number of steps. Step 1 is under sub-paragraph 3. They can make their findings and decide that is sufficient to conclude the case. If they decide not to do that they then must go on and consider, "Shall we postpone judgment?" Postponed judgment is effectively saying to the practitioner, go away and learn how to perform the technique or whatever it may be, and come back and convince us that particular steps have been taken.[87]If the Committee decides that this is not a case for postponing judgment, then they must decide whether it would be sufficient to suspend registration for a period not exceeding 12 months. If they decide not to do that, then there is nothing left for them, except in sub-paragraph 6; to erase the name of the respondent from the register. So they go through that intellectual process starting with the most benign penalty of effectively a declaratory judgment, and they finish with erasure. But there is no power for them to say, "You shall be suspended but it shall not take effect for a month or two while you sort out your affairs." That power just is not there.[88]MR JUSTICE ELIAS: It is rather encouraging people to put in appeals -- no, I suppose it does not matter, they have the 28 days anyway.[89]MR KOLVIN: They have 28 days anyway effectively to sort out their affairs and consider whether they are going to appeal. But what the practitioner knows is that if he appeals and the appeal fails, the suspension will then kick in, in the same way as an erasure would kick in, and he needs to make contingency plans for that potential eventuality should it arise. I do submit, and it is not a pleasure to submit, it is my view of the way that statute operates, that that is how the statute operates.[90]The next question, then, is if you do not have power under the statute, do you have power under the Rules, the Civil Procedure Rules, to stay? It may be helpful to refer my Lord to Order 52, Rule 7.

MR JUSTICE ELIAS: It might if I had the White Book?

[92]MR KOLVIN: That would be of benefit. Can I hand up my instructing solicitor's. At the bottom of page 1271, if my Lord has the same volume that I have:
"Unless - (a) the appeal court or the lower court orders otherwise... an appeal shall not operate as a stay of any order or decision of the lower court."
[93]It is an inherent power to stay a judgment, if one grants an injunction or grants a money judgment, then there is an inherent power for the court to stay that judgment. In this case, of course, all my Lord has done is to dismiss a statutory appeal. There is no judgment of my Lord's that my Lord can stay. That is how it appears to us as being the position under the Rules. It is a special sort of appeal, a statutory appeal, where my Lord is not deciding whether to stay the judgment of a lower court. There is no lower court here. There is an administrative body that has made a decision. So, we do not see the power under the Rules either.[94]The third point is, if I am wrong on either of the above points, how should my Lord exercise his discretion. As to that I make the following points: the first paragraph of text, by way of commentary to CPR 52.7, refers to the normal rule for there not to be a stay and Potter LJ is cited, although that would not be my best point, it simply happens to be the starting point.[95]The second point is that, my Lord, we do say there are no grounds to appeal here. Given that there are no grounds it would be wrong to use the possibility of an appeal as an argument for suspending the inevitable. You should really only grant a stay if you can see some point in the appeal.[96]The third point is that what is unusual about this case, of course, is that my Lord does not have power to grant permission to appeal at all. It is a matter for the Court of Appeal. Mr Luthra has had 7 months to think about this and it just would not be acceptable to stay this now for 28 days. He has had 7 months to make his contingency plans if matters go against him. The last point --[97]MR JUSTICE ELIAS: True, but difficult. In some ways difficult if you think you might win it, then you can see the awkward situation someone in his position is in: I may or may not be here on Monday.[98]MR KOLVIN: I am just trying to imagine how it would be if the worst were to happen to one of us. One could see the problems, but one would, I suppose, have to try and ensure that one was not continuing a course of treatment over the fateful day which has been in the diary for many, many months. But, of course, what has happened here is that the appeal was lodged in July on the basis that there was no evidence to support the Committee's findings at all, which was palpably absurd. No skeleton was filed with the notice of appeal as it should have been, it was down to my instructing solicitors to chase and chase and chase. Eventually --[99]MR JUSTICE ELIAS: Whatever the background, at the end of the day we are talking about the law for the moment. You say there is no power anyway, and if there is a power I should not do it.[100]MR KOLVIN: Yes, and just given the history, this reasons ground has popped up literally within the last couple of weeks and for now that reasons point, to be the foundation for a yet further delay, in the execution of this case, we say, is wrong, and that Mr Luthra must now accept the consequences. This does not prevent him going off with real expedition to the Court of Appeal, but that really is a matter for the Court of Appeal, if they can see a scintilla of error in my Lord's judgment, which frankly came from an application of very established authorities to the facts of this case.

MR JUSTICE ELIAS: Yes.

[102]MR MAYES: My Lord, I am surprised if it is said that the Court of Appeal would not have power to delay the operation of the suspension were I to persuade them that this was an appropriate case to allow an appeal. In my respectful submission, that power would come from the inherent jurisdiction of the court.[103]My Lord, the reason that the legislation stands as it does appears to be because the Dentists Act dates from a time when the Privy Council was hearing matters and things could go no further. The way in which my learned friend Mr Kolvin has explained it means that if suspension does not, in any event, without any exercise of discretion, operate for 28 days from the date of its imposition, that means that that time is being given under the procedure to allow anybody, for whatever the type of serious professional misconduct, to clear up their affairs. It is largely in relation to that that I am seeking the indulgence of the court, rather than the fact that I say, obviously, I would wish time to advise Dr Luthra before he embarks upon a further appeal.[104]My Lord, I do say that in circumstances where the allegations are matters of financial fraud on the National Health Service, where, as your Lordship will have seen from the transcript, Dr Luthra does not work in the National Health Service any more, and where there was no suggestion, as I understand it, that patients were, in relation to their oral health, put at risk, that this would be an appropriate case for your Lordship to exercise your discretion under your inherent jurisdiction. I do not see that your Lordship should have any less in this regard than the Court of Appeal, that there should be some time for him to clear up his affairs, close down his practice, tell people how things are done and not find himself exposed if he goes into his surgery on Monday morning.[105]MR JUSTICE ELIAS: I am not sure that I can have an inherent power. I think the Court of Appeal might have it, because if they grant an appeal then, as the Appeal Court, they can say that the appeal should operate as a stay.[106]MR MAYES: Yes.

MR JUSTICE ELIAS: The problem I have --

[108]MR MAYES: Is that you cannot grant me that permission.[109]MR JUSTICE ELIAS: I cannot give you permission. I have to tell you, that I would not have given you permission if I could, which compounds the situation.[110]MR MAYES: Well, it is helpful that your Lordship has said that, because then I know exactly where I stand.[111]MR JUSTICE ELIAS: I would not if I could, because I do not think the case is strong enough to warrant it in truth.[112]MR MAYES: Then I know exactly where I stand and I know that short of going rapidly to the Court of Appeal, where no doubt the matter could be argued again, Dr Luthra must now cease practice.[113]MR JUSTICE ELIAS: Yes. I am sorry, I have some sympathy, I must say, with the principle, that if there is an appeal, in circumstances where it is not that somebody has been removed from the register for good, but a temporary period which -- one may argue that it does not matter greatly whether it starts in a month's time or immediately -- I do have sympathy for the idea that maybe the 28 days to clear up after an appeal could run in the same way as it does currently from the decision of the panel.[114]MR MAYES: It is very much more in the nature of a punishment to show that the profession polices itself rather than the protection of patients, but, my Lord, I am not going to seek to argue that.

MR JUSTICE ELIAS: I see that.

[116]MR KOLVIN: My Lord, there was one other very small matter. In the background section of my Lord's judgment, my Lord read 1977, 1978 and 1979, it was 1997. Wheels of justice do grind very slowly but not that slowly. I am sure the shorthand writer will pick it up.

MR JUSTICE ELIAS: Can I thank you both very much.

[118]MR KOLVIN: Thank you, my Lord.

Cited in 6 later judgments