Hossack, R (on the application of) v The General Dental Council [2005] EWHC 880 (Admin)

Case No CO/5953/2004[2005] EWHC 880 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 25 April 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ROBERT JULIAN HOSSACKClaimant-v-
Between
THE 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 DAVID FOSKETT QC (instructed by Reynolds Porter Chamberlain) appeared for CLAIMANTMR IAN STERN (instructed by Capsticks) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under section 29 of the Dentists Act 1984 against the sanction which was imposed by the Committee of the General Dental Council whereby they decided that the appellant should be erased from the register. It is necessary to state very briefly the background and then go to the relevant statutory provisions, in particular the provisions of the relevant regulations and then come back to consider the circumstances in more detail. That way one can understand, I hope, the basis of this appeal.[2]The appellant faced two separate sets of proceedings. The first which I will call "the old proceedings" took place between 16 and 20 July 2001. At the end of those proceedings, he was found guilty of serious professional misconduct. Putting it very broadly, those proceedings involved a number of allegations relating to the appellant's relations with four dental laboratories between 1988 and 1999. Essentially he did not pay his bills when he should have done, and when payment was eventually sought (sometimes through the courts) he raised defences that the work done was poor and threatened to bring counterclaims. In the result he managed to avoid having to pay substantial portions of those bills.[3]The other heads of charge related to claims that he made to the Dental Practice Board, and involved a failure to produce relevant records and to obtain approvals for work which was done on patients. I should say that it was not suggested, as I understand it, that any of these allegations which were found established in the old proceedings indicated that the appellant was guilty of any fraudulent conduct. It was a case of frankly bad behaviour in relation to the dental technicians and a failure to keep proper records and to do preliminary work that ought to have been done in relation to the payments. There was one allegation of poor treatment of a patient, but that was found not to be proved.[4]At the end of those proceedings the Committee decided that it would postpone consideration of the appropriate sanction. The GDC has no power under its Act or regulations to impose conditions upon registration. It either has to take no action or to postpone or to suspend or to erase. It has no power to impose direct conditions if it decides to postpone. But what it does do and what it can do is to indicate to the dentist in question its concerns, and to advise him as to what he should do in order to enable those concerns to be met, and that they will expect reports on him and an indication that he has indeed done what they have suggested he should do when they come to reconsider the matter after whatever period they consider to be appropriate. In that way, they produce what is perhaps equivalent to conditions on his registration.[5]The new proceedings took place in July and then October 2004, and it was the decision on 29 October 2004 whereby the Committee directed that the appellant's name be erased from the register that has given rise to this appeal. Although they have been called the new proceedings, they in fact dealt with conduct which occurred before the old proceedings took place, that is to say before July 2001. The major difference between the new and the old was that the new related largely to allegations of poor treatment of four specific patients, and it was undoubtedly poor treatment of a serious nature, certainly in relation to two of them who had suffered considerable pain and distress as a result of the appellant's maltreatment.[6]There was, in addition, a head of charge alleging that he had failed to have professional indemnity insurance over a period of just under 18 months in all, between February 1999 and June 2001. The appellant's defence to that was to maintain he was self-insured by virtue of a property portfolio which he said that his accountant had valued at some £850,000. But he produced precious little, if any, evidence to establish that that was indeed the right value, and all that he did produce was evidence from his accountant which showed rather less than that. In any event it is clear from the good practise document that is issued by the GDC that it is regarded as very important for practitioners to have indemnity insurance, and it is clearly stated that not to do so is likely to be regarded as serious professional misconduct.[7]The old proceedings had involved errors relating to the manner in which he carried out his practice -- failure to keep proper records and his unfortunate dealings with the dental technicians. The new proceedings dealt largely with whether he was a competent dentist and his fitness in that sense to practice as such. In addition there was the insurance matter.[8]So it was that when the new proceedings were being considered, the Committee was also concerned with the postponed hearing in relation to the old proceedings. Accordingly, it was in effect dealing with both at the same time.[9]The relevant rules are to be found in the General Dental Council Professional Conduct Committee (Procedure) Rules Order of Council 1984. It is not necessary for me to go through those in any detail, merely to refer to the most relevant ones. Rule 10 is headed "Proof of the facts alleged in cases relating to conduct in misconduct cases", and paragraph (4) provides:
"If under the last foregoing paragraph the Committee determine as respects any charge, either that none of the facts alleged in the charge has been proved to their satisfaction, or that such facts as have been so proved would be insufficient to support a finding of serious professional misconduct, the Committee shall record a finding that the respondent is not guilty of such conduct in respect of the matters to which the charge relates."
[10]So the first step which the Committee has to take after hearing the evidence which the prosecutor puts before the Committee is to decide, as a result of that evidence, what facts that had been alleged in the charge are proved. It is the practice of the GDC (and indeed it is the same with the GMC) that the charge is split up into a large number of separate headings, each of which alleges a particular matter which it is considered has to be established in order to make out the serious professional misconduct which is alleged. Of course, it may be that, if a large number of different facts which are set out, some are established and some are not. It may well be that those which are not do mean that the charge of serious professional misconduct is not established. It all depends on what eventually the Committee finds as a matter of fact. But that is the first step.[11]One then comes to rule 11, which is headed "Procedure in misconduct cases upon proof of the conviction or of the facts alleged in cases relating to misconduct". Convictions are not material for the purposes of these proceedings. They are a separate ground for determining whether there should be any particular sanction. Rule 11(2) is the main rule which deals with the manner in which, following a finding of fact, the Committee should consider what then should follow. It reads as follows:
"(2) Where in a case relating to conduct the Committee have found that the facts or any of them alleged in any charge have been proved to their satisfaction (and have not on those facts recorded a finding of not guilty) the Chairman shall invite the complainant or the solicitor, as the case may be, to address the Committee and to adduce evidence as to the circumstances leading up to the facts in question, the extent to which such facts are indicative of serious professional misconduct on the part of the respondent, and as to the character and previous history of the respondent. The Chairman shall then invite the respondent to address the Committee by way of mitigation and to adduce evidence as aforesaid. The Committee shall forthwith consider and determine whether in relation to the facts found proved as aforesaid the respondent has been guilty of serious professional misconduct. If they determine that the respondent has not been guilty of such misconduct in relation to some or any of such facts they shall record a finding to that effect."
[12]Rule 11 then continues in paragraphs (3), (4), (5) and (6) to set out the steps in relation to sanction that the Committee can take if they are satisfied that the respondent has been guilty of serious professional misconduct. As I have already indicated, those steps are:(1) to conclude the case, that is to say to take no specific action;(2) to postpone judgment;(3) to suspend; and(4) to erase.[13]Going back to 11(2), the language is capable of being somewhat misleading inasmuch as it refers to evidence in relation to the character and previous history of the respondent, and appears to indicate that that is material to be taken into account at the stage when the decision is made whether the facts found proved amount to serious professional misconduct. 11(2) goes on to make clear that that sort of material can be considered in relation to sanction, and that indeed is obvious. The problem arises because under that rule the question of whether the facts amount to serious professional misconduct, and, if they do, what should be the sanction, are to be dealt with at one and the same time. That led to confusion when the Privy Council considered the same rule, which is rule 28, which applied to the GMC. I say the same rule, it is for all intents and purposes -- although it is divided into(1) and(2) -- in precisely the same terms as rule 11(2) for the dentists.[14]The decision of the Privy Council that gave rise to the problem was Silver v GMC [2003] UKPC 33. That appeared to indicate that matters relevant to mitigation, previous good character and so on could be taken into account in deciding whether the facts that were established amounted to serious professional misconduct. So it was that the Court of Appeal have recently given helpful guidance on this matter in Campbell v GMC [2005] EWCA Civ 250. This point was specifically dealt with. At paragraph 19 of the judgment given by

Judge LJ as the judgment of the court, this is said:

"The phrase in rule 28(1) most likely to produce confusion on first reading is "the character and previous history of the practitioner" set in the context of arguments and evidence relating to "serious professional misconduct"
. This is a difficulty only if it is assumed that character and previous history can never be relevant to the question whether the practitioner is guilty of serious professional misconduct. In truth evidence which may be relevant both to this issue and, if proved, mitigation, may overlap. Thus, the professional history of the practitioner may support a finding of serious professional misconduct on the basis that he has previously been found to have committed an identical professional error. This may not have been regarded as serious professional misconduct on the first or previous occasion, but the "history" may lead the Committee to conclude that on this occasion it does, just because the conduct in question was repeated. Without the previous history an acquittal would be appropriate. In a different context, the error under consideration may need to be examined in the context of a dedicated practitioner working in isolation and under huge pressure of, say, an epidemic. Such circumstances may be relevant to the question whether he should be found guilty of serious professional misconduct. It may indeed provide mitigation of circumstances, unrelated to penalty. If notwithstanding this evidence the case is proved, then precisely the same circumstances may also be relevant to mitigation of penalty. 20. In short, the same facts may on occasion impact both on the question whether the practitioner's conduct amounted to serious professional misconduct, and on the appropriate consequential sanction. Nevertheless, although the same evidence may be relevant on both questions, it does not follow that they cease to be distinct issues requiring separate determination. 21. Notwithstanding some potential difficulties with the language of the rules, as a general proposition it would be surprising if rules governing the disciplinary procedures for the medical professional were to achieve the somewhat startling result that the question whether a practitioner was guilty of serious professional misconduct could be influenced by matters of personal mitigation which went to the appropriate disposal of the complaint. It is in our view elementary that any evidence considered by the Committee should be relevant evidence. Mitigation arising from the circumstances in which the practitioner found himself or herself may be relevant to the level of culpability: once serious professional misconduct is proved, personal mitigation will be relevant to possible penalty. In our judgment, these are distinct issues, to be determined separately, on the basis of evidence relevant to them."[15]In the light of that decision of the Court of Appeal, Mr Foskett submits that it is important that the Committee in any case is advised that there is indeed that distinction to be drawn and that they have to have regard to the material evidence, and only to the material evidence, relating to each stage. Of course, as the court pointed out, there may be in certain circumstances a degree of overlap. I am bound to say that, generally speaking, it seems likely that past misconduct is more likely to be relevant to consideration whether the proved facts amount to serious professional misconduct because the Committee is then entitled to look to see how the practitioner has behaved in the past, whereas past good conduct is unlikely to be able to affect the seriousness of the subsequent conduct. It is true that past good conduct will mean that there is nothing to add to the findings that are made in the relevant proceedings, that is to say nothing to the detriment of the practitioner, but equally it is unlikely that it will translate what is otherwise to be regarded as something serious into something not serious.[16]The rules deal specifically with the situation that applies where there is a postponement of judgment coupled with new proceedings, and where both are being dealt with as would likely be the case at the same time. The relevant rule is rule 16. Paragraph (1) deals with the procedure relating to how the Committee should go about convening a hearing and dealing with a hearing on a postponement. Paragraph (2) deals with the situation where there is also a new charge. It provides as follows:
"At any resumed proceedings any new charge alleged against the respondent in accordance with these Rules shall first be dealt with in accordance with such rules of Rules 8 to 10, and so much of Rule 11 as may be applicable and if the Committee determine neither to conclude the case nor to postpone judgment in respect of any such new charge, the Committee may apply paragraphs (5) and (6) of Rule 11 simultaneously to the new charge and the charge in respect of which they had postponed judgment."
[17]I am told by counsel that this is the first case so far as they are aware -- indeed so far as anyone is aware -- in which rule 16(2) and the appropriate advice which should be given by the legal assessor in relation to rule 16(2) has had to be considered. It is perhaps not as perfectly drafted as one might hope; indeed the same can be said of rule 11(2) in particular as well. But it seems to me that the purpose behind it is clear enough. It is obvious that once the facts are found on the new charge, the Committee is entitled to have regard to past conduct and therefore to have regard to the findings that were made and which led to the old proceedings. Those are likely to be highly material in deciding, first, whether there has been serious professional misconduct at all, but secondly and particularly, and in the context of this case importantly, in relation to what is the appropriate sanction to be imposed. It is obvious that the whole of a practitioner's misconduct must be taken into account by the Committee when it is to reach a decision after having heard the new charge and has to consider the postponed old charge.[18]Accordingly, what 16(2) is intended to provide is that, having had regard to the old as well as to the new, the Committee will decide whether on the whole of the offending behaviour it is appropriate nonetheless not to interfere with registration, but either to take no action or to postpone. If it does decide that either of those courses are appropriate, then inevitably it will decide to do that in relation to the new, and the old can be dealt with in the same way. It perhaps matters not in those circumstances whether there is a formal postponement (if that is what is decided) of the old; all that matters is that the offending will be dealt with by a means which does not affect the practitioner's registration.[19]If, on the other hand, having had regard to the whole of the offending behaviour as shown in the old and in the new, the Committee decides that the only possible sanction is either suspension or erasure, then it will inevitably decide that there should be no further postponement and that the sanction should be as I have indicated. Hence the requirement that they have at least the discretion to deal with the two simultaneously. It is put in the form of a discretion, but the reality is that it would be surprising indeed if at the same time as either suspending or erasing, the Committee decided to postpone. The two simply would not sit together. Accordingly, having decided on the whole of the offending that suspension or erasure was appropriate, it would be wrong to postpone the earlier one because the more serious penalty would effectively mean that the lesser was subsumed within it, and that, as I see it, is the thinking behind what has become rule 16(2).[20]When dealing with mitigation it is equally obvious that the Committee will have regard not only to the facts of the old charge, but also to what the practitioner has done since the postponement took place because the practitioner will in virtually all cases have been told by the Committee when they postpone what he should do or what steps he should take to persuade the Committee in due course that they should not take any more serious steps against him. The whole purpose of postponement is that he has hanging over him the prospect of being brought back before the Committee and an adverse decision then being made if he has not taken steps to show that he has addressed whatever wrongdoing led to the finding of serious professional misconduct. The obvious example is a serious error in treatment which the Committee decides does not merit the sanctions of either suspension or erasure, but shows that the practitioner needs some retraining in order to bring his competence up to a proper standard. I have no doubt in such a case the Committee would give that indication and tell the practitioner what sort of steps he should take. If he does not take those or if the report upon him is unfavourable, then the Committee may decide that they have got to impose a more severe sanction. The same applies to any misconduct.[21]It seems to me that the purpose behind 16(2) is indeed reflected in the language used and it is not in the least difficult to see how the language can be construed to achieve that result. The Committee will first deal with the new charge in accordance with the rules. That means: find the facts, decide whether on those facts coupled with consideration of previous conduct, including the matters which gave rise to the old proceedings, serious professional misconduct has been made out; and if it has, decide, having regard to that past misconduct and the present misconduct and any mitigating circumstances, including steps taken since the postponement in reaching the decision, what is the appropriate sanction. If it decides on anything short of suspension or erasure, then it will not need to deal with both together. But in reality, postponement or no action -- certainly postponement -- will be likely to be considered in relation to both. In fact, when one thinks about it, since there was in this case a division which could readily be drawn between the old and the new -- the old relating to conduct of this appellant's practice and his relationship with dental technicians; the new relating to competence and treatment -- it may well be that the Committee could decide, for example, to require matters which were specifically related to the conduct of his practice in relation to his competence to be specifically addressed. Thus it might be that there were slightly different terms imposed in relation to the postponement on each. Equally, it could decide, for example, that on the old, no further action need be taken and so they could effectively be disposed of; whilst on the new there was a need for further action which could be dealt with by way of postponement. One can see that there is scope for a different course to be adopted short of affecting registration. If registration is to be affected either by suspension or by erasure, then it becomes illogical to distinguish between the two for the obvious reasons that I have already indicated.[22]At the hearing, the Committee was concerned to receive the appropriate advice as to the way in which they should approach their task. Accordingly, the legal assessor very sensibly sought submissions from counsel. In fact, counsel then appearing for the appellant and Mr Stern (who appeared then as he appears now for the GDC), agreed between themselves and the assessor the appropriate directions that should be made and the appropriate approach to 16(2). That advice was given to the Committee just before it retired to consider what sanctions should be imposed.[23]It is, I think, desirable that I should set out the material parts of that advice, which was supplemented by an aide-memoir which was handed to the Committee. That aide-memoir set out the steps which were appropriate. Effectively, the advice in open session elaborated on those steps. What the legal assessor said was this:
"I shall now attempt to explain what I understand to be the combined effect of those rules [the relevant part of rules 11 and 16(2)]. For this purpose let me hand out an aide-memoire as to the decision-making task ahead of you. You have read the rules. In this aide-memoir I use two particular terms: the old (which means the resumed) charge, which was initially decided in December 2001 and has been postponed on a number of occasions since; and the new charge which is the collection of charges you have just determined yesterday. That is a basic distinction between the old and the new charge. Your first task is, bearing in mind the facts of the new charge and the previous history that is referred to expressly in 11.2 (that, of course, includes the history of the old charge), you have to decide the question: is Mr Hossack guilty of serious professional misconduct? If your answer to that is no, then the new charge ceases to be any part of your consideration. You are then in a position of determining how to deal with the resumed charge, which started back in 2001. Is everybody happy with stage one?"
Then it is noted "(agreed)". Pausing there, there was the two-stage exercise to be carried out. The Committee had to decide in accordance with 11(2) whether there was serious professional misconduct established by the findings of fact, and secondly what should be the sanctions. In his submissions Mr Gaisford, who was appearing on behalf of the appellant, had not seriously contended, indeed had not contended at all, that the findings of fact made should not amount to serious professional misconduct. It was apparent and obvious that there could be only one finding resulting from the combination of the old charge and the new that this amounted to serious professional misconduct, and indeed the appeal has not sought to challenge that.[24]Going back to the advice, we now get to what is the important part of it. The legal assessor went on in letter F:
"If you decide that he is guilty of serious professional misconduct, then you start into the flow of decisions in sub paragraphs 11.3, 11.4, 11.5 and 11.6. Is it sufficient, you ask yourselves, to conclude the case on the new charge? (That is 11.3) If it is, then you conclude the new charge. You put the new charge aside. You then deal with the old charge separately. Do you follow? If you say no, it is not sufficient to conclude the new charge, you proceed to the next stage. Is it sufficient to postpone judgment on the new charge? If yes, then you deal with the new charge in that way, put that aside and then look back at what started in 2001. If it is not sufficient to postpone, you then get to the question of suspension. We then get into the power contained in 16.2 about simultaneous disposal. Is it sufficient to suspend? This is the important bit: 'In arriving at that decision it is permissible to consider the penalty on the old charge at the same time' [That is a quotation from the aide-memoir]. Up until this point, you have considered the old charge as part of the previous history, but you have not been involved with determining the penalty or disposal of that. Do you follow? (Agreed) If the answer is yes, then you impose one suspension simultaneously on both the new and the old charges. If you reach that conclusion, or you have reached rather 11.5 and you are not satisfied with suspension, then 11.6 leaves you with no option. You are then obliged to erase. You will do so imposing one penalty simultaneously on both the new and the old charges. THE CHAIRMAN: I find it very clear and very helpful indeed. Having discussed this with counsel, counsel are in agreement? MR GAISFORD: Yes, indeed."
The legal assessor then went on to give advice as to the meaning of serious professional misconduct.[25]Mr Gaisford added just before the Committee retired, this observation:
"I do not go beyond what has already been said. As I understand what has already been said, the position is this: on the authorities and in line with the Committee's usual practice, all I ask at this stage -- and indeed am entitled to ask for at this stage -- is some basic explanation of conclusions reached on any matters going towards any finding of serious professional misconduct. That is what I think the learned legal assessor has just indicated. That is all I ask for prospectively at this stage."
[26]Before the Committee retired, Mr Gaisford had put forward substantial material in mitigation. That included a consideration of what had been done by the appellant since the suspension had been ordered in 2001. Mr Stern had referred and taken the Committee to the previous material and had gone through what the Committee had said in July 2001 and then in July 2003 when the matter had been further considered following the original postponement when it was decided by the Committee that they would yet again postpone the determination. In July 2001 the Chairman had informed the appellant that the Committee would, on the resumed hearing of the case, expect him to be able to demonstrate attendance at the post-graduate course, and would further expect him to be able to demonstrate the continuance of a proper professional relationship with dental laboratories, and that he should also be able to provide evidence of working appropriately with the Dental Practice Board and of maintaining satisfactory clinical and financial records.[27]Shortly before the resumed hearing, he would be required to furnish the Council with the names of professional colleagues, including his post-graduate dental dean and the dental laboratories which he had been using to whom it might apply for information concerning his conduct in the interim, and the steps he had taken to comply with the Committee's recommendations. There was a preliminary further hearing on 3 February 2003. The appellant had been ill; he had I think suffered an accident which had injured his back and so he had been unable either to practice for a time or to undertake the steps which had been required of him, and so it was that the Committee adjourned the matter until the summer of 2003.[28]At the resumed hearing in July 2003, the Chairman announced the Committee's determination in these terms (I summarise). The Committee had noted the actions he had taken to remedy the deficiencies but was disappointed at the level of his compliance within the terms of the original determination, and would have expected a more wholehearted commitment to participation in courses on periodontal diagnoses, treatment, planning and dental materials, and there was a lack of satisfactory relationships with dental laboratories. In those circumstances the Committee had decided not to conclude the case but to postpone judgment for a further period of 12 months. The Committee urged him in the meantime to continue the mentoring arrangement with the General Professional Training Adviser for the Eastern Deanery (his practice being in Suffolk) and reminded him that his conduct should not fall behind the high standard expected of a member of his profession. It was thus clearly going to be important for the Committee independently of the new material to consider how he had measured up to what was expected of him. Mr Stern then went through in some detail the matters which had been established in the old proceedings and there was put before the Committee the material which related to the steps that he had taken to seek to comply with the observations and requirements of the Committee in 2001. It is fair to say that there was an indication in those reports, which have been produced before me, that he had indeed begun to make progress. However, it was by no means a picture which showed that he had done everything that he should have done. There were various letters dated early July put before the Committee from his General Professional Training Adviser. He was described as having taken a major step forward in his attitude and that he was now prepared to accept some things were not right. He had excellent rapport with the patients and he had loyal support from his nurse/receptionist -- he was a single practitioner. The letter concluded in these terms. However, the Deanery meeting also highlighted the challenges that Mr Hossack has faced over the year, some that he has satisfactorily overcome, but some that he has yet to address. The major issue for those supporting Mr Hossack has been the way that most of the changes have been the reaction to pressure, rather than being proactive in nature."[29]He went on to recommend a further period of supervision. I should say that these reports of course did not take into account -- because they could not since there had been no findings by then -- of the new charge and of the matters that had been established in relation to it. There was then a letter from a Mr Seppings, who is described as a Returning and Retaining Adviser, who had visited to inspect Mr Hossack on occasions at his practice. He said that he had been encouraged by improvement in his practice and by his attitude in recent meetings. When he first met Mr Hossack he seemed resentful and gave the impression that he felt he had been unfairly treated and did not seem to be motivated to improve himself. But recently he had seemed to accept that his behaviour fell short of what was acceptable and had shown a willingness to take steps to improve. Mr Seppings went on:
"Mr Hossack said at the meeting at the deanery on 8 June 2004 that he was considering taking the MFGDP [which is as I understand it a qualification for which examination is required to be passed]. It is my opinion that whilst this is a laudable ambition, Mr Hossack does not realise the standard required for this and will be better served attempting to meet the BDA practice accreditation, the peer review or audit project or something more achievable at the present moment."
[30]He went on to say that he was pleased that he was considering working in a multi-dentist practice. He said that, although the appellant had undertaken a considerable amount of continuing professional development activities, this had been, as it seemed to him, in a large part reactive rather than proactive. He stated: "I remain concerned as to Mr Hossack's potential at present for self-directed learning once the GDC/Deanery supervision is removed".[31]He went on to say that the appellant seemed to be slowly challenging his attitude and accepting that this previous conduct was unacceptable and that he needed to change. He had residual concerns as to whether the appellant fully understood the standards required in terms of continual professional development and best practice, and also the apparent lack at times of a proactive approach to development. That, although indicating that there were encouraging signs, can hardly be said to have been ringing support of Mr Hossack as someone who should be allowed, despite everything, to continue in practice as a dentist. Again, of course that was written without taking into account the matters which were dealt with in the new charge.[32]Then there was a lengthy letter from the Director of Post-Graduate Dental Education which set out in some detail the history of the various meetings and supervisory activities taken in respect of the appellant, and concluded:
"There is no doubt that Mr Hossack has undertaken many hours of continuing professional development, and at all the meetings and discussions we have had with him, we have always stressed that it is not counting hours that is important, but how the learning is applied to practice and its impact on patient care. He agreed that he has made changes to his practice, however it is disappointing that he did not present any audit projects as we suggested. This would have provided valuable evidence of change."
She concluded that it was important that he continued to have some form of mentoring or support mechanism in place to enable him to maintain the continuing improvement that he had demonstrated to date.[33]There was, in addition, an unfortunate statement from a director of one of the dental technicians with whom Mr Hossack dealt for some time, indicating that by February 2002 the amount that he owed the laboratory had risen to just over £5,000, and they had great difficulty in securing payment, although it seems that eventually the debts were cleared. But they decided they did not want to accept any further work from him, and one of the reasons given was that the quality of the impressions they received from him were poor and often they had to send them back. This made it difficult for them to produce good quality work for him. That was hardly an indication that he had put right the concerns which the Committee had had about his relationship with dental technicians. All that material was before the Committee, and Mr Gaisford in his mitigation referred in some detail, as one would expect, to those matters in submitting that it was not necessary for the Committee either to suspend or to erase.[34]Mr Gaisford concluded his submissions in mitigation with a plea to the Committee to postpone the proceedings yet again to enable the appellant to progress, as the letters indicated that he would, in the steps to remedy any defects or inefficiencies which had been identified.[35]I now come to the decision made by the Committee and the reasons given for reaching their conclusion. I should say before going to it that the main complaint made by Mr Foskett against the advice is that it was, as he put it, too mechanistic, in that all it did was to indicate the steps which could be taken in accordance with 16(2) combined with 11, and it did not make clear as it ought to have done that the Committee was not only entitled to, but should, take account of the positive matters which I have referred to: his positive reaction to what was required under the suspension in deciding in due course what was the appropriate mitigation. A failure to inform the Committee of that was a serious omission from the advice, and, he submits, as we shall see when coming to the Committee's reasons, there is good cause to believe that the Committee did not take on board and did not fully take into account the importance of those mitigating factors in deciding what should be done in relation to the new charges and indeed the old charges.[36]The determination was introduced in these words by the Chairman:
"The Committee has taken into account all that has been said on your behalf including the mitigation. It has noted carefully the testimonials produced on your behalf. The Committee is conscious of the passage of time since these offences were committed. Pursuant to Rule 16.2 of the General Dental Council (Professional Conduct Committee) Procedure Rules 1984, the Committee has taken account of the GDC postponed judgment against you given in July 2001 and the evidence of subsequent changes to your practice and the CPD you have undertaken. The procedure followed was in accordance with the advice of the legal assessor, which itself was agreed by both counsel."
[37]The Committee then went on to deal with and to explain why they had reached the conclusions of fact that they had and how seriously they viewed the conduct as demonstrated by the facts that they had found. This has led Mr Foskett to submit that it is apparent that the Committee, when looking at subsequent changes to the practice and the CPT, as they say they have done, was relating it to the stage of considering whether serious professional misconduct was established, and not to the stage at which they ought to have considered it, namely dealing with mitigation; or at least it is far from clear and there is a real risk that they did not properly apply it when considering what was the appropriate sanction.[38]He submits that the Committee would have been led into error because the way in which the advice was given suggested that the consideration of the past charges should impinge upon the decision in relation to serious professional misconduct, but not upon the sanction which ultimately should be imposed.[39]Mr Stern submits that whatever may or may not have been said by the Committee, the one thing that was clear was that they had before them all the material which was put forward as mitigation, and clearly must have had regard to that in the context of mitigation. Nothing was said in the advice given to them by the legal assessor which in any way suggested that what Mr Gaisford had put before them in the bundle which included details of what he had done since the postponement should be disregarded, or should not be taken into account in deciding what was the appropriate sanction. Indeed, it was Mr Gaisford's submission that, based upon that mitigation, the appropriate sanction was indeed further postponement rather than any form of suspension or erasure.[40]Accordingly, submits Mr Stern, it is quite impossible to suggest that the Committee was in any way misled by the guidance which was given into failing to give proper weight to, or consideration of, the mitigating material at the right stage and in the right way.[41]The Committee then went on to indicate why it took a serious view of the matters. It noted that the appellant's treatment of four patients had been seriously deficient in many clinical aspects; that there were failures to carry out necessary treatment; very poor standards of some treatments, especially root canal treatments and crown preparations; a failure to carry out adequate clinical or radiographic examinations; failure to diagnose and treat caries; failure to carry out adequately scaling and polishing and periodontal treatment; and failures to complete treatment, leaving cotton wool in the pulp chamber of a number of separate crown teeth. The Committee was satisfied that at least two of the patients suffered unnecessary pain and discomfort.[42]It is plain from that -- and the observations cannot be criticised -- that the failures in respect of treatment were indeed serious. There was poor record keeping, and the Committee noted that the evidence given by the four witnesses who spoke of the poor treatment was convincing and credible, and often supported by verifiable evidence, whereas the appellant's evidence was unconvincing, evasive and on occasions untruthful. The Committee was concerned by his lack of insight, which is not at all surprising having regard to his failure to admit to any of the shortcomings which were proved against him.[43]The Committee pointed out that they took very seriously that he was not adequately indemnified, and the document maintaining standards pointed out, as I have already said, that a lack of adequate indemnity cover would almost certainly lead to a charge of serious professional misconduct. The Committee went on:
"Taking all these factors into account the Committee has found you guilty of serious professional misconduct. The Committee recognises that the directions imposed under rule 11 do not have any punitive purpose. Their purpose is to protect the public, maintain public confidence in the profession and maintain proper standards of behaviour by dental practitioners. It is on this basis the Committee has made its determination."
[44]They then went on to consider the various options open to them, starting as they had to from the least, that is to say taking no action, through to the most serious. They decided, having indicated that they had gone through that exercise that, in their view, the gravity of the charges was such that for the protection of the public, no lesser direction than erasure would suffice. They so ordered in the exercise of their power under Rule 16(2).[45]Quite apart from his complaints about the advice that was given and that it may have misled the Committee into failing properly to evaluate the mitigating circumstances when considering sanction, the reasons given by the Committee do not, as they should have done, deal with those mitigating circumstances; or more importantly, explain why the Committee, despite the existence of those, had decided as they did that erasure was necessary. The only reference to the change of the appellant's practice was in the introduction which I have already read, and they did not in any way return to that. They really did not explain, submits Mr Foskett, why they decided that the only option for them was erasure. They simply went through the various options and indicated that the lesser ones were not, in their view, appropriate.[46]It is, of course, necessary for a body such as the Committee of the GDC to give reasons for reaching their conclusions. Those reasons need not be lengthy, and all that is required is that they tell the practitioner why it has been decided that his conduct was such as required the imposition of whatever sanction was imposed, so that he can know whether he has, apart from anything else, a possible appeal and also so that he is aware that they have dealt with the matters of substance which have been put before them. I am putting the matter very broadly. There is much learning on the issue of reasons. It does not seem to me that it is necessary to go into them in any detail at all. That is the conclusion that is reached.[47]decision will be considered on its own circumstances and the court has deplored in many cases the nitpicking approach, as it has been put, to reasons of bodies such as this. That is not to say, of course, that the court will not regard the duty to give reasons as important. But it will look at the matter realistically and will bear in mind that the reasons are being given to someone who has been at the hearing, who knows what issues were regarded as important and who knows what material was put before the Committee. It seems to me that in this case it was apparent that the Committee had received all the necessary material and had been informed by Mr Gaisford of the significance of that material. There is no suggestion, and can be no suggestion from the manner in which the advice was given by the legal assessor, that the Committee should not have regard to all that material. Indeed, the introduction was an overview of the approach that the Committee had adopted in reaching their conclusions, namely that they had regard (among other things) to the evidence of subsequent changes to his practice and to the CPD, and all the matters that were put before it in mitigation.[48]If the Committee have decided and have given good reasons for deciding that the conduct was too serious to merit a lesser penalty, it does not seem to me that it is necessary for it to spell out in terms why it has rejected the matters in mitigation. It becomes obvious from the exposition of the seriousness of the matters proved why they have overridden all the matters that otherwise might have been persuasive in mitigation to produce a lesser result.[49]It is not as if it was not known whether they considered it. They had read the material. Indeed, they had adjourned for a considerable period to enable them to read the material. There had been questions asked of the appellant when he gave his evidence by the Committee which were directed specifically at the steps that he had taken since the previous hearing. It is right to say that those steps, as I have already indicated when going through them, did not mean, sadly, that the Committee could be persuaded that he had shown that he had done everything that he ought to have done, and that his attitude had changed sufficiently to justify the belief that in the future all would be well.[50]Furthermore, the new charge was serious indeed. Mr Foskett suggested that the appellant had been prejudiced by the delay and by the fact that all matters had not been considered at one and the same time. It seems to me that, if that had indeed happened and there had been no mitigation available at all as a result of what he had done since it would be impossible to believe that the Committee would in 2001 have done other than erase. The combination of misconduct was so serious that such a penalty would have been, in my view, all but inevitable.[51]As it turned out, the delay in dealing with the new charge could only have worked, paradoxically perhaps, to the benefit of the appellant because it did enable him to show the Committee that he had put aside his previous shortcomings and was making a real effort for the future. Having said that, it seems to me that the decision of the Committee was not only one which they were entitled to reach, but one which has not been shown to have been flawed in any way by a failure to have regard to a material factor, or by the giving of inadequate reasons. This is a conclusion which was in all the circumstances if not inevitable, at least one which I can not conceivably say was wrong. In those circumstances, this appeal must be dismissed.[52]MR STERN: My Lord, I do apply for costs. It is set out in the skeleton and I understand that a statement of costs has been submitted to the court. I hope your Lordship has a copy.

MR JUSTICE COLLINS: The total is £21,000-odd?

[54]MR STERN: That is the total of the respondent's costs. I do not know if your Lordship has seen the respondent's. You will see that it is half that amount, if you are assessing the reasonableness of it.[55]MR JUSTICE COLLINS: The other side is roughly double. That does not necessarily -- the appellant always can be expected to be somewhat larger because of course he has the conduct of producing the material. But I take your point.[56]MR STERN: It is merely as a guidance.

MR JUSTICE COLLINS: The first thing is, Mr Foskett, can you resist the costs in principle?

[58]MR FOSKETT: My Lord, I do not think I can in the light of your Lordship's ruling.

MR JUSTICE COLLINS: I do not think you can, but if you wish to, I will hear any arguments.

[60]MR FOSKETT: I do not think that I could. So, in principle, my Lord -- although I am not terribly good on matters of argument on costs --[61]MR JUSTICE COLLINS: You are not the only one. I find it very difficult, particularly where there are substantial amounts involved.[62]MR FOSKETT: Yes, is this not a case for detailed assessment?[63]MR JUSTICE COLLINS: My general reaction is to say, where there are substantial amounts involved, that I really ought to think in terms of a detailed assessment because it is very difficult for me without(a) having the detailed knowledge of what are the sort (inaudible) and(b) to have any further detail as to the hours that really are established as satisfactory to reach any but really a palm tree approach to the matter. So unless either of you seek to persuade me strongly otherwise -- although I appreciate it can create extra costs, but there is also the scope for agreement -- I think I am inclined to think in terms of a detailed assessment. Mr Stern, if you do want to try to persuade me to the contrary, please do.[64]MR STERN: Would your Lordship give me one moment?

MR JUSTICE COLLINS: Yes.

[66]MR STERN: I am being asked to seek to.[67]MR JUSTICE COLLINS: Very well. It is best that I think he seeks first, and then you can reply.[68]MR STERN: I can take it extremely briefly. I am looking at the general rule which is that the court should make summary assessment -- less than a day. I know you Lordship knows that, but I am just drawing it to your attention.[69]MR JUSTICE COLLINS: Let us have a look at the hours. The rates, I do not imagine, are disputed, are they? The rates claimed per hour?[70]MR STERN: My Lord, I cannot speak for my learned friend, but looking at the rates in his assessment, I think he might find that difficult.[71]MR JUSTICE COLLINS: He says £150 per hour for grade C; you say £156. He puts grade A at £250 and you say only £177.[72]MR FOSKETT: If I can just help out. I do not think there is any quibble in principle with the rates. It is just, if I have to argue this and do the best I can --

MR JUSTICE COLLINS: Just tell me which are your main points.

[74]MR FOSKETT: It seems that two grade A fee earners are involved in this, and that, as your Lordship will appreciate, ups the overall --

MR JUSTICE COLLINS: I take that point.

[76]MR FOSKETT: My Lord, one can look at individual items and say: this looks a bit high.

MR JUSTICE COLLINS: This is always the problem.

[78]MR FOSKETT: There is no suggestion of any kind of overloading for the purpose of overloading --[79]MR JUSTICE COLLINS: I would not suggest that. What is "Other work not covered above", Mr Stern?[80]MR STERN: My Lord, as I understand it that is internal discussions between lawyers as to the preparation of the case and internal research required of the case. That is as I understand it.[81]MR JUSTICE COLLINS: So you have not done as well as Mr Foskett on the hearing, but you got the same on advice.[82]MR STERN: I was pointing that out in the luncheon adjournment. I appreciate the difficulty that there is clearly with the case. It is not the usual one-day case.[83]MR JUSTICE COLLINS: That is the thing. What is hoped in that rule is that it will keep the costs down. Mind you, it was not as bad as one I had which was a claim for £60,000 where there had been no hearing at all. It was on an acknowledgment of service and a renewed application which actually was never pursued, and I am bound to say I thought it was somewhat excessive.[84]MR STERN: Obviously, I am going to have to speak to my clerks.[85]MR JUSTICE COLLINS: I have no doubt you can get the vibes of my reluctance because I really do not have a feel for this, and nor does, I suspect, any judge unless they have only just been appointed and have some experience. Even then one has to get to some extent the feel of the case. All right, I have it, but there are a lot of bundles here. I am not sure that they were all necessarily required, but the problem is that if an appellant produces a lot of bundles, then the other side has to at least look through them.[86]MR STERN: Would your Lordship give me one more moment?

MR JUSTICE COLLINS: Yes.

[88]MR STERN: My Lord, I think we can go with your Lordship's suggestion.

MR JUSTICE COLLINS: You recognise the problems.

[90]MR STERN: I do.[91]MR JUSTICE COLLINS: I think that is right. As I say, it may well be that you will be able to agree and I hope you will be able to agree. After all, there are two firms of solicitors who are not unaware of litigation and of the costs. They will know what a taxing judge is likely to think.[92]MR STERN: My Lord, I am absolutely sure they will be able to agree.[93]MR JUSTICE COLLINS: You can hope with a judge. You do not have so much hope with a Taxing Judge. Thank you both, very much, for your assistance.