Hutchinson v General Dental Council [2008] EWHC 2896 (Admin)

[2008] EWHC 2896 (Admin)

Case No CO/3619/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/11/2008

Before

MR JUSTICE BLAIR

Between

ALAN HUTCHINSONAppellant

GENERAL DENTAL COUNCILRespondent

Mr Robert Francis QC & Mr Simon Cridland (instructed by Eastwoods Solicitors) for Appellant

Ms Jenni Richards (instructed by Capsticks) for Respondent

Hearing Hearing dates: 13 & 14 November 2008

Judgment

[1]The appellant, Dr Alan Hutchinson, has practised as a dentist in Batley, West Yorkshire since qualifying in 1977. Following a 4 day hearing between 2 and 5 April 2007 before the Professional Conduct Committee (PCC) of the General Dental Council, charges brought against him in respect of various hygiene related matters were found proved, his fitness to practise was found to be impaired, and an order for erasure was made. He appeals to this Court under section 29 Dentists Act 1984 on the grounds that the bringing of certain of the charges against him amounted to an abuse of process, that certain of the charges had not been proved against him, and in respect of the sanction of erasure. I am told that this was the first case decided under the General Dental Council (Fitness to Practise) Rules 2006, and the parties have raised a number of points of principle as to the evidential approach to be taken by the PCC under the new rules.

[2]The PCC consisted of five members, being three dental members and two lay members. The chair was a dental member. At the hearing before the Committee, all charges were in dispute, and all were found proved, but on appeal a number are no longer disputed. The nature of the case against the appellant was as follows.

[3]It was alleged that from 1978 to March 2006 he routinely did not wear gloves and wash his hands when treating patients (heads of charge 2(a) and (b)). That is now accepted. It was alleged that from about February 1990 to March 2006 he used on occasion dental instruments (excavators and carvers) to clean his fingernails and ears and then replaced those instruments alongside sterilised instruments so that they were liable to be used on a patient without themselves being sterilised (heads of charge 2(c) and (d)). That was and is strongly denied. It was alleged that over that period he regularly replaced used dental burrs back with sterile burrs so they were liable to be used on patients without being sterilised (heads of charge 2(e) and (f)), and again that is denied. It was alleged that between 1983 and 15 April 1999 he saw a particular patient and her family (Patient A) and did not wear gloves unless specifically asked and did not wash his hands when seeing her and her family (heads of charge 5(a) and (b)). On 15 April 1999 he refused to wear gloves despite a request from Patient A to do so, and was flippant when she expressed concerns in respect of hygiene on 21 April 1999 (heads of charge 6(a) and (b), and 7(a) and (b). All matters relating to Patient A are now admitted. Finally, it was alleged that he urinated into the dental sink in his surgery on 9 March 2006 and saw the subsequent patient without wearing gloves and without washing his hands (heads of charge 10(a), (b) and (c)). That was and is strongly denied too.

[4]In determining the sanction, the PCC noted that cross-infection control is at the very heart of the ethics of dentistry and its safe practice. It is of course common ground that good hygiene is a crucial part of good dentistry, and the appellant accepts that the sanction of erasure was appropriate on the charges that the PCC found proved. The essence of this appeal on the matters which remain subject to challenge is that there was no sufficient evidence on which the PCC could have found those charges proved. In that regard the legal basis on which the PCC approached the evidence is also impugned.

The statutory framework

[5]Section 29(1)(b) of the Dentists Act 1984 (as amended) provides that a decision of a Practice Committee of the General Dental Council (the PCC is such a Practice Committee) for erasure, suspension or conditions made under section 27B or 27C of the 1984 Act is an appealable decision. The decision in the appellant’s case was made under section 27B of the 1984 Act. Appeals are to the High Court (section 29(1D)(c) of the 1984 Act). By section 29(3) on an appeal the Court may(a) dismiss the appeal,

(b) allow the appeal and quash the decision,

(d) remit the case back to the PCC.

[6]Paragraph 22.3 of the Practice Direction to CPR Pt 52 provides that appeals under section 29 of the 1984 Act will be by way of a re-hearing. CPR Pt 52 rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court was(a) wrong, or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. Procedural irregularity is not relied upon as a ground of appeal. What is said is that the decision of the PCC was wrong.

[7]The approach to be taken on an appeal from a statutory healthcare regulator such as the GMC or GDC was considered by the Court of Appeal in Meadow v General Medical Council

[2007] QB 462

. At paragraph 128, Auld LJ pointed out that by CPR r 52.11(2) the norm for both a review and a rehearing is that oral evidence is not received on the appeal, nor evidence not before the lower court. (There was no application on the present appeal to adduce additional evidence not before the PCC.) He continued:

“But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May L.J. at paragraph 96 [in E.I. Dupont de Nemours & Co v. ST Dupont (Note) [2006] 1 WLR 2793, paras 92-98] ‘give to the decision of the lower court the weight that it deserves’. This elasticity of meaning in the word re-hearing in CPR 52.11 should clearly apply also to the same word in the Practice Direction. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal, was, as provided by CPR 52.3(a) “wrong”, and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 “any inference of fact which it considers justified on the evidence”.”

[8]Auld LJ expressed his conclusion in para 197:

“… it is plain from the authorities that the court must have in mind and give such weight, as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

[9]Similarly, in Threlfall v General Optical Council

[2004] EWHC 2683 (Admin)

, a case decided a few years previously, Mr

Justice Stanley Burnton having noted that the appeal before him was by way of rehearing said:

“Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, one important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court Judge lacks … This Court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practice, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more …”

[10]Finally, as regards sanction, the correct approach for the Court on an appeal has recently been considered by the Court of Appeal in Raschid v General Medical Council

[2007] 1 WLR 1460

in which Laws LJ said at para 19, “As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel”. The above are the principles upon which I proceed in deciding whether the decision of the PCC was wrong, as contended for by the appellant.

The appellant’s case

[11]On this appeal, Mr Robert Francis QC who has appeared for the appellant places the charges against him into three groups. As to the first, the appellant now accepts his failure routinely to wear gloves and to wash his hands between treating patients, and he accepts the charges relating to Patient A. The second relates to the use of dental instruments for cleaning his fingernails and ears. Mr Francis submits that these charges should have been stayed as an abuse of process. Alternatively as regards these charges and also those relating to urination in the surgery sink, he submits that the PCC misapplied the standard of proof, and the result was manifestly wrong on the evidence. In response, Ms Jenni Richards for the respondent General Dental Council submits that a stay would have been wrong, that there was no misdirection, and that the PCC having heard the evidence was best placed to decide the factual issues which arise in this case.

[12]In oral argument, Mr Francis did not press as a discrete ground of challenge a point that is raised in the appellant’s written submissions, namely that the PCC failed to give proper reasons for its findings as to the charges it held were proved. In my judgment, he was right not to do so. There are many cases, but it is sufficient to cite R. ex. p. Luthra v. GDC

[2004] EWHC 458 (Admin)

which was also an appeal under s.29. Having pointed out that adequate reasons for a decision must be given, Elias J. said that, “… in the context of decisions of professional disciplinary bodies of this nature … 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”. In my view, the Committee’s reasoning was in itself adequate, and the question I have to decide is whether it was or was not wrong.

Abuse of process

[13]The hearing before the PCC on 2 April 2007 began with an application on behalf of the appellant contending that all the charges against him (with the exception of the March 2006 ones relating to urination in the surgery sink) constituted an abuse of process on the grounds of delay. It was not part of the appellant’s case that there was fault on the part of the complainant or the General Dental Council. Following submissions on behalf of the Council, the legal adviser to the PCC gave advice to the Committee about the relevant legal principles. He mentioned Attorney General’s Reference (No 1 of 1990)

[1992] 1 QB 631

, and drew attention to the passage in Archbold which sets out the test as it would now be applied in a criminal case. This is taken from R v S

[2006] EWCA Crim 756

para 21 where the Court of Appeal held that the correct approach for a judge to whom an application for a stay of abuse of process on the ground of delay is made, is to bear in mind the following principles:(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;

(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;

(iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;

(iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate directions from the judge;

(v) If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted. There is no complaint by the appellant as to the advice thus given. Having been so advised, the Committee retired, and returned with a decision refusing the application, stating in its reasons that it was not satisfied that the delay was such that the appellant would suffer serious prejudice to the extent that no fair trial of the issues could take place.

[14]In the context of disciplinary proceedings, it has been held that “to stay proceedings on the ground of abuse of process is a rare step only to be taken in exceptional circumstances” (Haikel v GMC

[2002] UKPC 37

at para 15). On the face of it therefore, the PCC was right to refuse this application. In the event, the present appeal is brought only in respect of the Committee’s refusal to stay charges 2(c) and (d) as an abuse of process. These are the charges that from about February 1990 to March 2006 the appellant used on occasion dental instruments to clean his fingernails and ears and then replaced those instruments alongside sterilised instruments so that they were liable to be used on a patient without themselves being sterilised.

[15]The appellant criticises the Committee’s decision not to stay these charges out on four main grounds. His first point is that in its decision, the Committee noted that it had been informed by counsel for the GDC that, except in relation to the April 1999 and March 2006 matters, the charges related to a course of general conduct leading up to 2006, and that it would therefore in any case be dealing with recent issues. This Mr Francis QC submits, did not transpire to be the case. However Ms Richards points to oral evidence given by Susan Mitchell (a dental nurse) to the effect that the alleged course of conduct happened throughout the period in question. Another nurse called Claire Pygott described in her oral evidence the alleged behaviour as having taken place throughout her work at the surgery. It is true as Mr Francis points out that in questions from the panel, Ms Mitchell said that it happened regularly rather than occasionally, but could not put a number on it. Pressed, she said more than three occasions. However this was a matter of comment for closing submissions—important though the point is, and I shall come back to it, the point goes to the weight of the evidence, rather than its scope. I accept Ms Richards’ submissions that the Committee was not misinformed in this respect.

[16]The appellant’s second point of criticism is that the Committee expressed the view that it was in the public interest for these serious allegations to be considered and determined. Mr Francis submits that this was mistaken, in that the public interest in having these matters determined cannot outweigh the overriding requirement that delay must not have rendered a fair hearing impossible. In this I agree with him, but there is no reason to suppose that the Committee took a different view. On the contrary, it identified the correct test, and made it clear both at the beginning and at the end of the decision that this was the test which it had applied.

[17]The second and third criticisms can be considered together. It is submitted that the Committee was wrong to reject the contention put to them that the vagueness of the charges in itself led to the appellant being prejudiced, and that the unfairness can be discerned in the evidence. As Mr Francis puts it, it is one thing to charge a practitioner with what he did over the previous few months, but quite another to do so by reference to “occasions” during a sixteen year period. A charge framed in this way deprives the practitioner of the opportunity to recall specific circumstances in his defence, by reference for example to records. He is limited, it is submitted, to a generic denial, and that is the background against which the issue of delay needs to be considered.

[18]I would accept that there was a considerable degree of vagueness in the charge. I would also accept that such vagueness is in principle undesirable, though Ms Richards tells me that charges framed in this way are not unusual before professional conduct committees—perhaps some forms of behaviour in this context renders charges framed in this manner inevitable. It is further to be noted in the present case that however vague the charges were in terms of timing, they were explicit in terms of the behaviour alleged. It is obvious that even occasional instances of the kind alleged would be completely unacceptable. I agree with her that it did not render a fair hearing impossible, and that a fair hearing did in fact ensue.

[19]Given that a stay on grounds of abuse of process will be rare, the important thing in cases like this, in my judgment, is that the tribunal should reach its findings on the evidence with possible prejudice to the practitioner caused by factors such as delay and lack of specificity firmly in mind. To take the analogy of a criminal trial, on facts like these an express direction to the jury as to the necessity to guard against the potential prejudice caused by delay would be essential. In the present circumstances, I consider that the Committee was right to reject the abuse of process application, and go onto consider the charges on the merits.

Standard of proof

[20]Appreciating the difficulties of upsetting the decision of a professional body on findings of fact for the reasons identified in the passages from cases like Meadows and Threlfall that I have quoted above, the appellant’s second ground of appeal gave prominence to the standard of proof applied by the PCC. The standard, it was submitted, was wrongly applied, and the consequent findings unsafe on the evidence before the PCC. As I have already noted, the hearing proceeded under what were then the new General Dental Council (Fitness to Practise) Rules 2006, of which the parties were of course very well aware at the time. Rule 57 (“Evidence”) sub-rule (1) provides that a Practice Committee may in the course of the proceedings receive oral, documentary or other evidence that is admissible in civil proceedings in the appropriate court in that part of the United Kingdom in which the hearing takes place. Rule 57(4) provides that, “It shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities”. The purpose of these changes was, I was told by Mr Francis QC who has great experience in this field, to approximate the proceedings before the tribunal to civil rather than criminal proceedings for the purposes of hearsay, the reception of witness statements as evidence in chief, and so forth. It was not, he submitted, obviously rightly, intended in any way to dilute the very great care with which a tribunal must consider whether the evidence establishes the charges which have been made against the practitioner concerned, nor was there any suggestion before the PCC that it did.

[21]Counsel helpfully cited recent case law beginning with the well known dictum of Lord Nicholls in Inre H (Minors)

[1996] AC 563

at 586 in which the higher Courts have sought to resolve the question of how particularly serious allegations are accommodated within the civil standard of proof. In the present case, the relevant passage from Lord Nicholls’ judgment was read to the PCC in closing submissions, and the Committee was advised that it would be helpful to them in reaching their conclusions. Citing for present purposes just part of it (p586D-E):

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”

[22]That passage has recently been the subject of further guidance from the House of Lords In re B (Children)

[2008] UKHL 35

and In re Doherty

[2008] UKHL 33

, though these decisions of course came well after the hearing in this matter. In the former case, at para 15 Lord Hoffmann agreeing with Baroness Hale said that, “Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities”.

[23]In the latter case, Lord Carswell (para 28) said that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, “finite and unvarying”. Matters such as the inherent unlikelihood of the occurrence, the seriousness of the allegation, and the seriousness of consequences:

“… are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.”

[24]In IndependentPolice Complaints Commission v Hayman

[2008] EWHC 2191 (Admin)

, Mitting J said that the last sentence laid down the true proposition of law adding that, “Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction”.

[25]Turning to the facts of the present case in the light of these principles, there are two groups of charge in respect of which the appellant seeks to challenge the PCC’s findings of fact. The first which I have already discussed in the context of the abuse of process challenge alleged that from about February 1990 to March 2006 he used on occasion dental instruments (excavators and carvers) to clean his fingernails and ears and then replaced those instruments alongside sterilised instruments so that they were liable to be used on a patient without themselves being sterilised (charges 2(c) and (d)). Over that period it was also alleged that he regularly replaced used dental burrs back with sterile burrs so they were liable to be used on patients without being sterilised (charges 2(e) and (f)). The second alleged that he urinated into the dental sink in his surgery on 9 March 2006, and saw the subsequent patient without wearing gloves and without washing his hands (charges 10(a), (b) and (c)).

[26]Before considering the evidence in relation to these two groups of charges however, I agree with Miss Richards that it is important to bear in mind the evidence overall. Some of the charges are not appealed against, though as I pointed out in argument, the charges relating to Patient A have to be seen against the fact that this patient continued to use the appellant’s services as dentist for herself and family. However charges 2 (a) and (b) are more general. The fact is that the appellant did not routinely wear gloves when providing clinical treatment to patients, and did not routinely wash his hands between treating patients. Whether or not one goes as far as counsel does in submitting that the evidence overall clearly established that the appellant had a cavalier attitude at best to issues of patient safety, hygiene and cross-infection, the PCC clearly had to consider the charges against the totality of the evidence before it.

The evidence relating to charges 2(c), (d), (e) and (f)

(c) , (d), (e) and (f)

[27]The first witness to testify as to the appellant’s misuse of dental instruments was Susan Mitchell, who was an unqualified dental nurse who had worked at the practice for some years. In her statements, she said that she had seen the appellant use the excavators to clean his fingernails, and sometimes his ears, and afterwards put the instruments back on the tray with the sterilised instruments. It was put to her that it was “wholly incredible” to suggest that someone would poke a sharp instrument into his ear, and she said “but he did”. A crucial issue (as indeed the questions from the Panel made clear) was when and how often she said that this occurred. In her later statement, she said that it happened “fairly regularly”. In her oral evidence, she said that she had seen him do it two or three times. She could not remember exact dates.

[28]Claire Pygott is also a dental nurse. In her statement of 13 March 2006 which had been prompted by the alleged “urination” incident, she made no mention of the misuse of dental instruments. She did so in her later statements however saying, “I felt I could not say anything at the time, as Mr Hutchinson is quite intimidating, but after the incident which happened in March 2006 I felt I had to take some action”. She gave oral evidence to the PCC over two days, though it is right to say that another witness was interposed. She was cross-examined at length about these allegations, and it was put to her that the reality at each stage was that she had made things up. She denied this. Timing was dealt with later in her evidence, when she said she saw it happen “a few times in probably a week”. The appellant’s case is that this was not a credible account, since she had not raised what was on any view extraordinary behaviour with anyone else in the practice. She responded to the effect that “at the end of the day he made me feel that I should be grateful that I had a job there”. The appellant’s case was that she had been motivated by spite, having herself being subjected to a disciplinary complaint instigated by the appellant a few days before the alleged “urination” incident. She denied this, saying that she took it as “constructive criticism”. She was subject to extensive questioning from the Panel. Asked whether she had tried to remove the instruments which the appellant had used to clean nails and ears, she said “Yes, I retrieved an instrument whenever it was possible but at times it was not always possible because the tray was at his side”.

[29]In his evidence to the Committee, the appellant explained his practise in relation to sterilised burrs. He absolutely denied ever cleaning his fingernails or poking his ears with dental instruments. He said that he thought the nurses could have been mistaken, and in questioning by the Panel said that he was at a loss as to what they could have been mistaken about.

[30]As regards the use of dirty burrs on patients, in other words charges 2 (e) and (f), as well as the evidence of Claire Pygott, there was evidence from another nurse called Zoe Griffiths. In her statement dated 8 May 2006 and 24 January 2007, she said that when she assisted the appellant, she would often see him use the drill on patients and then put used burrs back on the stand with the sterilised burrs. She also gave oral evidence, and explained that though she mainly worked as dental nurse for the other partner, from time to time she worked for the appellant. She gave a relatively full account of how the appellant put the dirty burrs where the clean burrs were. In cross-examination her credibility was attacked on the basis that this would raise a serious risk of cross-infection, yet she did not raise the issue with the practice.

[31]In his oral evidence, the appellant gave a detailed explanation of how he dealt with burrs when seeing patients. He denied ever having placed used burrs back onto the clean burrs stand.

The evidence relating to charges 10(a), (b) and (c)

(a) , (b) and (c)

[32]The “urination” incident differed from the others in that it was both recent, and had led to immediate action being taken. In terms of detail, it is the most specific of the charges, leaving aside those relating to Patient A. The nurse who was working with the appellant at the start of the afternoon surgery on 9 March 2006 was Claire Pygott, and I have already mentioned that the veracity of her evidence is challenged by the appellant on the ground that she herself was under a disciplinary cloud at the time. The appellant also relies on the fact that her evidence as to this incident was a matter of inference from what she saw, and then smelled, when entering the surgery.

[33]But in short, in her statements and her oral evidence, she said that she was in no doubt that he had been urinating in the surgery’s sink. Afterwards, and this was not in dispute, she went to see the practice manager, Joann Farnsworth, who said that the incident had to be documented in writing. It was this alleged incident which ultimately led to the appellant facing the Professional Conduct Committee.

[34]In her oral evidence, she confirmed that she had worked with the appellant for 16 years. She claimed that their working relationship was good. In cross-examination, she accepted that the patient who was waiting to be seen that afternoon was a retired police officer. It was put to her that since she had just been in the surgery, there was not time for the alleged incident to take place. However she said that there was. She accepted that the appellant would have known that there would be a very serious risk of her seeing him urinating. She said that when she walked up behind him, he was tucking himself back in his trousers. When she went to the sink, she smelt urine. It was not, she said, the smell of x-ray fluid. She said she was shocked and appalled, and that her initial reaction was, shall I call the patient through? That she said is what she did. She did not clean the sink up until after the patient had left. In her case, not surprisingly, the questioning by the Panel was very extensive. Much of it related to this incident.

[35]Joanne Farnsworth is a qualified dental nurse who worked as Practice Manager. Claire Pygott complained to her very shortly after the incident, and she dealt with the subsequent meeting held within the Practice to investigate the allegation. In her oral evidence, she accepted that she didn’t particularly like the appellant. Lastly, the GDC called an expert witness. He expressed the opinion that x-ray processing fluids can have a similar smell to urine, but accepted that he was not an expert in relation to odours.

[36]The appellant gave his explanation of what had happened both in a statement, and in his oral evidence. Miss Richards relies on the fact that his statement of 18 May 2007 is to the effect that the alleged odour could be due to a residue of x-ray developer fluid. His oral evidence was to the effect that he did in fact clean the x-ray machine over lunchtime, and disposed of the fluid down the sink. He explained the disciplinary issues he had with Claire Pygott, though he also said that they got on well. He denied entirely that he had urinated as alleged. Again, in addition to his examination in chief, which was relatively lengthy on this issues, as well as cross-examination, the Panel themselves questioned the appellant as to the alleged incident.

Closing speeches and the advice given to the PCC

[37]Following the evidence, counsel addressed the Panel. The appellant was represented by Mr Simon Cridland, and the GDC by Miss Richards. She began by drawing the Panel’s attention to Lord Nicholls’s remarks in Re H, and other references in the transcript make it clear that the relevance of that passage was emphasised not only by counsel but by the legal assessor even prior to giving his formal advice at the close.

[38]Mr Cridland advanced to the PCC the same arguments in substance as to the evidence that Mr Francis QC has advanced on this appeal. He submitted that the evidence on charge 2 was vague and uncertain. It was, he submitted, incredible and full of contradictions. He attacked the credibility of the witnesses called by the GDC. As regards the incident involving urination, to take the summary in the submissions of Mr Francis QC, there was no direct evidence. Claire Pygott had only inferred that this was what had happened. The movements of the appellant were consistent with him tidying things up, rather than urinating. To have urinated in the sink would have been suicidal. The allegation followed the beginning of disciplinary action against Pygott a couple of days earlier. All these allegations, it was submitted, are inherently very unlikely in the case of a professional dentist.

[39]The legal assessor then advised the Committee as to the civil standard of proof. He referred to InRe H and in particular the speech of Lord Nicholls, and invited the Committee to take copies of the case with them when they retired. He reminded the Committee that the inherent probability or improbability of an event was a matter that it should consider when deciding whether, on balance, the event had occurred. Counsel was asked whether there were any points that they would like to make as to the advice given, and answered negatively. It has been accepted by the appellant on this appeal that the advice given was proper advice. By then it was late afternoon, and the Committee indicated that it would not give its findings of fact before 11 o’clock the next day.

The Committee’s findings of fact

[40]The findings of fact were announced by the Committee by reference to the numbered charges (in some case subject to minor amendment). The Committee went on to give some “amplification”. It said, “in relation to head of charge 2 (c) the Committee is satisfied that on a number of occasions Mr Hutchinson did use dental instruments to clean his fingernails and ears, and replaced those instruments on a tray alongside sterilised instruments. The Committee therefore accepted the evidence of Claire Pygottt and Susan Mitchell on this issue. However, the Committee is satisfied that these events were occasional rather then frequent.”

[41]In relation to head of charge 10, “the Committee reminded itself of the guidance given by Lord Nicholls in the case of Re H and others (minors)

[1996] AC563

and the legal advice given by the legal advisor prior to retiring. The Committee was satisfied when applying the civil standard of proof that Mr Hutchinson did urinate in the sink and on this issue preferred and accepted the evidence of Claire Pygott.”

Conclusions on the appeal

[42]The appellant’s submissions maybe summarised as follows. As to charge 2, it is said that the Committee plainly misdirected itself. The matters the subject of this charge were matters that it was inherently unlikely that a trained dentist would do. The Committee had, it was submitted, omitted to take account of In Re H as regards this head of charge. Having fundamentally misdirected itself as to the standard of proof, it upheld these charges on vague and inadequate evidence. As regards charge 10 where In re H is explicitly referred to by the Committee, it was submitted that for the various reasons I have alluded to above when discussing the detailed evidence, the evidence was an insufficient basis for the finding that was made.

[43]The GDC for its part submits that there was no reason to treat charge 2 as “inherently improbable”. In any event, it is submitted that the Committee’s findings satisfied the approach set out by Lord Carswell In Re Doherty which I have set out above. As to the substance of the charges, it is submitted that the witnesses called by the GDC were subject to extensive cross-examination, that there was nothing incredible about their evidence, that explanations had been given for the fact that issues had not been raised in the past, and that Committee was entitled to accept their evidence in preference to that of the appellant.

[44]The conclusions I have reached on the appeal are as follows. I begin with charge 2. The first point to notice is that the Committee is only recorded as giving amplification on charge 2(c). Nothing specifically is said about the other heads of charge, or the evidence of Zoe Griffiths. There is nothing, as Mr Francis QC points out, about In Re H, and the words used in relation to charge 10 might suggest, and he says does suggest, that the PCC only took the guidance given in that case into account in relation to that head of charge, despite the fact that in terms of inherent improbability there appears little to choose between the charges in this respect. But as I have said above, Lord Nicholls’ dictum now needs to be read in the light of In re B (Children) and In re Doherty. The Committee clearly had the importance of looking at the allegations with the greatest care well in mind. I do not think that there was a misapplication of the standard of proof in this case.

[45]However there are other issues that impact on the safeness of the Committee’s findings in this respect. It will be recalled that it stated that it “accepted the evidence of Claire Pygottt and Susan Mitchell on this issue”. But it goes on to state, “However, the Committee is satisfied that these events were occasional rather then frequent”. By implication therefore, it must have rejected the evidence of Claire Pygott as to the frequency on which the matters alleged took place. There was no documentary or other evidence supporting these allegations. Here, it is important to take account of the possible prejudice to the practitioner caused by factors such as delay and lack of specificity that I have referred to above in the context of abuse of process. Mr Francis QC took me carefully through the totality of the evidence as it relates to these charges, and it is appears to me that the case against the appellant on these charges was a weak one. In my view, it fell below the required standard of proof on the balance of probabilities. On that basis, rather than on the basis of misdirection, I am satisfied that the PCC’s findings on charges 2(c), (d), (e) and (f) were wrong, and must be quashed.

[46]However the position appears to me to be different in relation to charge 10. Here, there was no lack of specificity in the allegation, and no question of delay. There had been a complaint made immediately, and it was documented. In somewhat different language to that used in relation to count 2(c), the Committee stated that it “preferred and accepted the evidence of Claire Pygott” to that of the appellant. There is no room for an argument based on misdirection as to the standard of proof because in the case of these charges, the Committee referred expressly to In Re H, so it was explicitly proceeding on the basis that the more serious the allegation, the stronger should be the evidence to establish it on the balance of probability. The Committee had to decide between two different accounts, and decide whether it accepted the evidence of the dentist or that of the nurse. It concluded that it accepted that of the nurse. Applying Meadow, this is clearly a case in which the Tribunal has had the benefit, which the Court has not, of hearing and seeing the witnesses on both sides. On charges which turn on credibility, that appears to me to be conclusive. In the result, I do not consider that its decision as to the facts was wrong.

[47]The appeal as to the factual findings will therefore be allowed, but only in part. Neither party addressed me at any length in their oral submissions on the question of sanction. I shall remit the matter to the PCC to reconsider sanction in the light of this decision, and hear counsel (to whose assistance I am grateful) on the appropriate form of order.