Shiekh, R (on the application of) v General Dental Council [2007] EWHC 2972 (Admin)

Case No CO/10616/2006[2007] EWHC 2972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 9th November 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF SHIEKHClaimantv
Between
GENERAL DENTAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr I Winter QC and Mr A McCullough (instructed by Hempsons) appeared for ClaimantMr D Bradly (instructed by the GDC) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE DAVIS: This is an application to the court brought by claim form issued under Part 8 of the Rules and dated 19th December 2006. By this claim, the claimant, a dental surgeon called Mr Shiekh, seeks to challenge the decision of a Panel of the General Dental Council made on 21st November 2006 whereby it was decided that Mr Shiekh be suspended for a period of 18 months on an interim basis pending the final substantive hearing of complaint proceedings against him. There was subsequently a review under the relevant rules and on 17th May 2007 another Panel decided that it was necessary for the order for suspension of Mr Shiekh's registration to continue for the remaining period of the term.[2]As it happens, the substantive hearing is due to take place before a Committee in the course of next week. It is a matter of the greatest regret, and through absolutely no fault of either party, that the Administrative Court has not been able to secure a hearing of this particular matter until today, that is to say in the course of November 2007. It has been said before that challenges to interim orders of this kind should be sought to be accommodated by the courts, for obvious reasons, within a reasonably quick time frame; and that has not happened here. It has had the further unfortunate consequence for the claimant that he has felt constrained to abandon one of the arguments he would have wished to have run because, had he continued to run it, the estimated length of hearing would have been a day and (as he was told) he would not in those circumstances have secured any hearing by even now, November 2007. That also is a very unsatisfactory position for a claimant to find himself in. I should also add that it might be wondered why, given that the substantive hearing is going to take place in the next few days, there is any further purpose in my hearing this particular challenge. However, both parties desired me to do so and I can understand why they have desired me to do so. In any event, I do not see why they should be deprived of a judicial ruling just because the court system itself has been so slow in providing a hearing date.[3]Shortly put, the background is this. Mr Shiekh is a dentist who has long practised in the Nottingham area. He had a number of dentists working with his practice on a self-employed basis, they accounting to Mr Shiekh for a percentage of their earnings and he making the practice facilities available to them. The evidence would suggest that the practice he supervised was a very large and very profitable one. However, in the course of operating that practice, as it transpired, certain associates were making false claims for expenses on travelling matters. I need not go into the details of that: suffice it to say that ultimately this resulted in criminal proceedings being brought against Mr Shiekh. Conspiracy to defraud was alleged.[4]There was a trial of a very lengthy nature in the Northampton Crown Court. Some weeks into the trial, it appears that the evidence may not have been going altogether as the prosecution might have planned. In due course, at all events, Mr Shiekh offered a plea of guilty on the indictment, a basis of plea being proffered. Part of the basis of that plea was that so far as the associates' benefits were concerned, Mr Shiekh had failed adequately to police the requirement in respect of the travel claims by certain of those associates. (It is, of course, accepted that he, Mr Shiekh, stood to receive a percentage of the travel claims made by those associates). Various other matters were advanced in the basis of plea and, amongst other things, it was also said that from 1998 he had insisted that the associates completed the appropriate travel before a claim could be made. It should be said that on the face of the indictment the period of the conspiracy was between 1994 and 2000.[5]When he came to sentence Mr Shiekh, the judge (Judge Alexander QC) made a number of observations about the case. The judge rightly emphasised that, notwithstanding the basis of plea put forward and notwithstanding the various points of mitigation put forward, here there was sustained dishonesty: there was a conspiracy to defraud.

The judge also, however, said in terms:

"I consider it unlikely that you would indulge in making dishonest claims in the future."
In the event, the judge imposed a sentence of imprisonment, suspended for a period of time, and also made certain financial and costs orders. The actual sentence was 12 months' imprisonment and that was suspended for a period of 18 months. Mr Shiekh did in fact seek to appeal against that sentence but his application for permission to appeal was rejected by the Court of Appeal (Criminal Division) on 11th January 2007.[6]In the light of the conviction, proceedings were then commenced by the General Dental Council. It might, I suppose, have been possible for the General Dental Council to commence proceedings even had Mr Shiekh not been convicted; but at all events these proceedings were commenced in the light of his having been convicted. The matter was then placed before an Interim Hearings Panel of the General Dental Council and it is the decision of that Panel of 21st November 2006 which prompted the present claim.[7]It is necessary to refer to the provisions of the Dentists Act 1984 as amended, in particular section 32. At section 32(4) this is said:
"(4) Where a Committee are satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the person's registration to be suspended or to be made subject to conditions, the Committee may make -- (a) an order that his registration in the register shall be suspended during such period not exceeding 18 months as may be specified in the order (an 'interim suspension order'); or (b) an order that his registration shall be conditional on his compliance, during such period not exceeding 18 months as may be specified in the order, with such conditions so specified as the Committee think fit to impose (an 'order for interim conditional registration')."
Section 32(5) then makes provision for the Committee having a power to review an interim suspension order or an order for interim conditional registration; and subsection (6) also gives power to the Committee with regard to an interim suspension order or order for interim conditional registration that has been made.[8]Provision is made for extension of periods of suspension, amongst other things, the power being conferred on the court in such case. Then at subsection (12) this is provided:
"Where an interim order has effect under any provision of this section, the court may -- (a) in the case of an interim suspension order, terminate the suspension, (b) in the case of an order for interim conditional registration, revoke the order or revoke, vary or add to any condition imposed by the order, (c) in either case, substitute for the period specified in the order (or in an order extending it) some other period which could have been specified in the order (or in the order extending it) when it was made . . . "
[9]The relationship between that power conferred on the court and the power conferred on the Committee itself to review is not altogether clear from the structure of the section. It also may be noted that the court's statutory power in the case of an interim suspension order is that it may terminate the suspension or, under subsection (12)(c) shorten it or extend it. But there is no power conferred on the court to quash any interim suspension order made. Quite why that is so is unexplained: but there it is.[10]I heard some argument as to the nature of the approach that the court should adopt on an application of the kind made to me under section 32(12). It seems to me, given what the statute says, that this is an original jurisdiction conferred on the court; and it seems to me also that I should be guided by the comments of Arden LJ in the case of GMC v Hiew [2007] 1 WLR 2007 and, in particular, the discussion found in paragraphs 26 and 32 of her judgment. I was also referred to certain other earlier authorities which in some cases had indicated that the approach of the court in this context might equate to that of a judicial review approach. But it seems to me that that is not right and the court's approach is more open ended than that. The court has to approach the task by reference to its powers under section 32(12) as a matter of original jurisdiction. At the same time, it seems to me that in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence.[11]It is important to note that in this case it has at all times been accepted that Mr Shiekh poses no direct risk to the safety of the public. It has never been said that he does. There has also never been any challenge at all to his own competence and diligence as a dentist. Many testimonials have been put in with regard to him. It is further to be noted that there have been no adverse complaint of any kind since either 1998 or 2000 with regard to the conduct of his practice, let alone his conduct as a dentist in terms of actually treating patients.[12]In their determination, the Panel referred to the conviction of Mr Shiekh for the offence of conspiracy to defraud. They also referred to aspects of the sentencing remarks of Judge Alexander QC. The Panel then went on to say this:
"We accept your submissions that Mr Shiekh poses no direct risk to the safety of the public. We have balanced Mr Shiekh's interests against the damage which his actions have done to the reputation of, and public confidence in, the profession. Our conclusion is that it is necessary to affect his registration through an interim order. We have considered whether any set of conditions would properly address those public interest concerns, but have decided that that would not be possible or sufficient in all the circumstances of this case. Accordingly, we have determined that the only appropriate and proportionate outcome is to make an order for interim suspension of Mr Shiekh's registration for a period of 18 months, effective from today. This interim order will be reviewed in 6 months time."
[13]When the matter came up for review pursuant to the provisions of section 32, that particular Panel noted that it was accepted by both sides that neither the protection of the public nor the interests of Mr Shiekh were relevant to their considerations. That Panel then went on to consider the conviction of Mr Shiekh and said this:
"In the light of these matters the Committee has decided the issue for its consideration today is whether it is necessary in the public interest to maintain the interim order. The Committee has concluded that public confidence in the profession and the reputation of the profession would be damaged if there were no interim order in this case . . . "
The Panel also expressly decided that it would not be sufficient to impose conditions as no condition would address the fundamental issue of the public interest, as it was said.[14]On behalf of Mr Shiekh, Mr Winter QC says that the decision reached by the Panel simply cannot and should not be sustained and this court should terminate the interim suspension. It is common ground between Mr Winter and Mr Bradly, who appears on behalf of the General Dental Council, that for the purposes of section 32(4) the only relevant statutory test which applies here in this particular case is that which relates to the public interest. It is agreed, and has always been agreed, that interim suspension was neither sought nor could be justified by reference to considerations of what is necessary for the protection of the public or what was in the interests of the practitioner concerned.[15]As a matter of strict language, no grammatical interpolation of the word "necessary" falls to be applied to the phrase "or is otherwise in the public interest". But that is not the end of the matter because it does seem to me that if "the public interest" is to be invoked in this context, under the statute, then that, to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability. I think it is of some note in this context that the statute was amended, as I gather, to introduce a power to impose interim suspension or conditions where it was in the public interest in the aftermath of the Shipman case. It seems to have been the case that the General Dental Council, and indeed the General Medical Council, did not feel the need for such a public interest power before that happened; although Mr Bradly did make the point that it may be that they simply had been prepared to tolerate a not very satisfactory position.[16]At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter, that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest. I do not use the words "an exceptional case" because such language is easily capable of being twisted and exploited in subsequent cases; but I do think, as I say, it is likely to be a relatively rare case. Ultimately, of course, all these things have to be decided on the facts of each particular case.[17]Mr Winter makes two other initial which seem to me to have a degree of validity. First, he submitted that where a Panel is making an interim suspension order, that carries at least the implication that that Panel is taking it that a suspension order is very likely to be made at the final hearing. Mr Bradly agreed, pointing out that that was more or less inherent in a power to suspend on an interim basis. As Mr Bradly rightly acknowledged, however, it would be a very unfortunate matter indeed for a dentist to find himself on an interim basis the subject of a suspension order and then, when the full facts and evidence and mitigation are deployed at the substantive hearing, it is then decided that a suspension order is not in fact warranted: but, as he submitted, that risk was inherent in the nature of interim powers.[18]The second general point made by Mr Winter is that an interim suspension order does have the effect, in the ordinary case, of depriving an individual practitioner of showing that in that period he otherwise has conducted himself well and competently and so, as it were, enhanced his prospects in front of the Panel undertaking the final hearing. As to that last point, that has considerably less force in the circumstances of this particular case because, as it would appear, Mr Shiekh has been in a position indirectly to carry on his business of running dental practices (even though not himself practising) and it also cannot be said that he will be deprived of his livelihood by reason of the interim suspension order in fact made: although that is not a point alluded to by either Panel in their decisions.[19]In attacking the decision that was made in this particular case by each Panel, Mr Winter makes the following further points. He points out that full reparation in financial terms has since been made by Mr Shiekh to the tune of many hundreds of thousands of pounds. Further, he has since, and indeed after his conviction, been entrusted by the relevant local Trust with a large multi-million pound contract, that indicating that that particular Trust is perfectly prepared to put large sums of money his way and has every confidence in him, notwithstanding his conviction. Then Mr Winter points out that no member of the public has raised any complaint against Mr Shiekh. He further points out that the conviction relates to matters which are over eight years old and, as I have said, there has been no suggestion of any further wrongdoing: on the contrary, Judge Alexander's expressed finding was that further wrongdoing was unlikely.[20]Mr Winter did also, as part of his argument, seek to address what I might call the merits relating to the conviction. I have to say that those points did not particularly impress me. I certainly bear in mind the basis of plea; but it remains the case that Mr Shiekh, a professional man, engaged in a sustained fraud over a lengthy period of time, and it is also of importance that the fraud related to the conduct of his dental practice -- it was not a fraud which had no relation at all to the conduct of his practice. Mr Winter did also draw attention to the fact that Mr Shiekh is, as I have said, carrying on in an important way the provision of dental services in the Nottingham area, and indeed he suggests that there is, as it were, a dependence on Mr Shiekh in that particular area.[21]For his part, Mr Bradly emphasised, amongst other things, the following points. He emphasised the question of public perception and public confidence and made the point that a specialist Panel of this kind is particularly well equipped to deal with issues like that. He emphasised that this was a large scale fraud relating to the conduct of a dentist's practice. He further pointed out that this particular practitioner, Mr Shiekh, would not in the event be deprived of his livelihood by virtue of an interim suspension order made. So far as the lapse of time is concerned, he says that that is to be explained by the existence of the civil proceedings and criminal proceedings. As to the fact that the Primary Care Trust has been prepared to put a very large contract in the way of Mr Shiekh since conviction, Mr Bradly says that it cannot be known in precisely what circumstances this happened.[22]Mr Bradly accepted that he did not go so far as to say that the only proper order that could be made by the Panel was one of interim suspension. He said, however, that that was a proper order that could be made and that this court should have respect for a decision of a specialist Panel in this context; and he submitted that a specialist Panel of this kind could well assess the impact on the public perception and public confidence in view of a conviction of this nature.[23]The difficulty I have in this particular case is trying to get a purchase on why it was that each Panel thought that interim suspension was needed. This was not a case of ongoing or future risk or anything like that. Many of the points that the Panel made might well have been apposite (I say nothing more than that) if one was considering at the final hearing why suspension was needed. But what is difficult to grasp, certainly from the reasons that were given by the Panels so far as there were reasons, is their assessment that suspension was needed on an interim basis. If it is to be the case that the justification was that of public perception and public confidence, then one might have thought that that could be reflected by an appropriate decision by the Panel, if so minded, at the final hearing when all the facts had been fully explored, all the mitigation fully advanced and the position finally assessed at that stage. If it be the case, therefore, that it was proper to judge that a conviction of this kind did require suspension to reflect public concerns then it can be said that that could appropriately be done at that final stage.[24]I raised this point several times with Mr Bradly in argument and I am bound to say it did not seem to me that any clear principled answer was given. This is not a criticism of Mr Bradly: he was simply seeking to justify the decision that these Panels had given. It is not at all clear to me, all the same, from the reasons of the Panel and it is not at all clear to me, exercising my own mind on the matter, why interim suspension, on public interest grounds, was called for in this particular case. True it is that this was a very serious matter in respect of which Mr Shiekh was convicted. But there were a number of other matters which told potentially against interim suspension, not least the delay, the reparation and the fact that he has conducted himself well in the interim.[25]It seems to me in all the circumstances, and exercising my own jurisdiction by reference to section 32(10) that, as I decide, it is right that I should terminate the suspension: because in my view interim suspension was not and is not called for in this case. That is my decision. However, I would just emphasise (because of what I think is the tactical position of both parties) that I decide this case on the footing that suspension on an interim basis was not called for. Whether suspension is called for at the final hearing is, as it seems to me, a different matter which should be decided by the Panel then hearing the case in the light of all the arguments and evidence put before it.[26]Accordingly, for the reasons I have given, this application succeeds.[27]MR WINTER: Might I invite my learned junior to deal with the question of costs.[28]MR MCCULLOUGH: My Lord, the claimant does seek the costs of this application.

MR JUSTICE DAVIS: In principle, Mr Bradly, do you oppose that?

[30]MR BRADLY: My Lord, I cannot.[31]MR MCCULLOUGH: My Lord, that gives rise to the question of the quantum of those costs.[32]MR JUSTICE DAVIS: I have seen your schedule of costs. You want as much as £42,000.[33]MR MCCULLOUGH: My Lord, that is what appears on the schedule. My primary application is not that your Lordship should make a summary assessment.[34]MR JUSTICE DAVIS: I certainly would not do so. If such a sum is being talked about I will leave it to detailed assessment.[35]MR MCCULLOUGH: That is the order we respectfully invite you to make.

MR JUSTICE DAVIS: Would you object to that, Mr Bradly?

[37]MR BRADLY: My Lord, no.[38]MR JUSTICE DAVIS: It seems to me that such a large amount should be looked at by a costs judge. I am due to go to Cardiff on Monday for several weeks. In the circumstances of my judgment, do you require an urgent approved transcript?[39]MR BRADLY: My Lord, no.[40]MR JUSTICE DAVIS: I think because of my reasoning -- and I appreciate neither of you could have known what it would be -- I imagine people have been making notes. I say nothing about whether my judgment will be referred to at the hearing, I have no objection to it. The fact of my decision will be enough.[41]MR WINTER: If it were possible for there to be an unapproved judgment. Is that possible?

MR JUSTICE DAVIS: I am afraid I do not give liberty to use those.

[43]MR WINTER: I would not want to place inconvenience on the court. It is the fact of the decision.[44]MR JUSTICE DAVIS: Because of the way I have reasoned it, I do not think it is likely to be of much relevance. In that case the transcript can come in the usual way. Just before I rise, I will be raising with the Administrative Court Office the question of the fact that it took so long to come on. Thank you both very much indeed.

Cited in 25 later judgments

and 16 more of the most senior