Davey v General Dental Council [2015] EWHC 3594 (Admin)

Case No CO/2372/2015[2015] EWHC 3594 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 December 2015
Before
MR JUSTICE TURNER
Between
JONATHAN DAVEYClaimantGENERAL DENTAL COUNCILDefendant
JUDGMENT

INTRODUCTION

[1]The Appellant is a clinical dental technician. On 30 April 2015, the Professional Conduct Committee (“PCC”) of the General Dental Council (“GDC”) suspended him from the dental care professionals register for twelve months. The Appellant appeals against that decision to this court.

LAW AND PROCEDURE

[2]The appeal is brought under section 36S of the Dentists Act 1984. By the application of CPR 52.11, it proceeds by way of review rather than a re-hearing. The parties are agreed that the central question is whether or not the decision of the PCC was wrong.[3]In approaching this issue, the court must factor in a due level of respect for the PCC’s decision in relation to sanctions the principal purpose of which is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice (see Raschid v GMC [2007] EWCA Civ 46).

BACKGROUND

[4]As a clinical dental technician, the appellant was entitled to provide only such treatment as fell within the “Scope of Practice” document produced by the GDC. In particular, he was prohibited from fitting dentures to patients who had some remaining natural teeth unless they had been referred to him by a dentist.[5]Between July 2013 and January 2014 the Appellant treated a patient in breach of the Scope of Practice. She had some remaining natural teeth but had not been referred to the appellant by a dentist. Despite this, the appellant saw her many times and knew throughout that he should not be doing this.[6]On 30 January 2014 the patient made a formal complaint about the Appellant in consequence of which the GDC asked him to provide all original full records relating to her. The appellant tried to cover up inadequate record keeping by submitting records which he had written up after the date of the GDC’s request thereby deliberately and dishonestly creating a false impression of good practice. Two months later the original, deficient records were submitted to the GDC by the Appellant’s solicitors.

FINDINGS

[7]The appellant faced allegations falling into four categories. Two related to treating his patient outside his scope of practice and keeping inadequate records. These he admitted. The other two related to dishonestly submitting non-contemporaneous records and thereby failing to cooperate with the GDC investigation. These he denied.[8]The PCC heard the evidence and found the allegations of dishonesty to have been proved. I have been referred to the relevant parts of the transcript which reveal that the Appellant had gone to some lengths to cover up his fabrication by using different pens to make it look as though the relevant entries had been made at different times. In the light of this, it was next to impossible for the Appellant to sustain his assertion that his motive in producing them was merely to provide a full picture of what was going on at the time.[9]No appeal has been brought against the PCC’s findings of fact and it is conceded that the appellant’s fitness to practise was impaired by his misconduct. The sole challenge is directed against the sanction imposed which was to suspend him from the dental care professionals register for twelve months.

GUIDANCE

[10]On 6th April 2015 “Guidance for the Professional Conduct Committee, including Indicative Sanctions Guidance” was published by the GDC.[11]The Guidance provide: “7 - Sanctions 7.1 The PCC may impose a sanction when it determines that the dental professional’s fitness to practise is currently impaired. Sanctions are intended to protect the public interest, which includes:• the protection of patients, colleagues and the wider public from the risk of harm;• maintaining public confidence in the dental professions;• protecting the reputation of the dental professions and;• declaring and upholding appropriate standards of conduct and competence among dental professionals… 7.3 When determining the appropriate sanction in a case, the panel should commence their consideration of sanction with the least restrictive. If the least restrictive sanction is, in the panel’s judgement, insufficient, it should move to consider the next sanction, and so on until it reaches the appropriate sanction. 7.4 The sanctions available to the Committee are:• to issue a reprimand;• to make an order imposing conditions with which the registrant must comply for a specified period not exceeding three years;• to direct that the dental professional’s registration be suspended for a specified period not exceeding twelve months; or• to direct that the person’s name be erased from the register. 7.5 The sanction chosen should be always be the least severe sanction which deals adequately with the identified issues whilst protecting the public interest (see 7.1 above). Having established the sanction they are minded to apply, the Committee should also consider the next most severe sanction to satisfy themselves that the sanction they are minded to apply is appropriate. 7.6 The Committee must give reasons for discounting the sanctions it rejects. For example, if the panel directs that a dental professional’s registration be suspended, it should give reasons why neither a reprimand nor conditions were appropriate. It is good practice for panels to explain in their determination why it is not necessary to impose the next most severe sanction to that which they are minded to apply.• the protection of patients, colleagues and the wider public from the risk of harm;• maintaining public confidence in the dental professions;• protecting the reputation of the dental professions and;• declaring and upholding appropriate standards of conduct and competence among dental professionals…• to issue a reprimand;• to make an order imposing conditions with which the registrant must comply for a specified period not exceeding three years;• to direct that the dental professional’s registration be suspended for a specified period not exceeding twelve months; or• to direct that the person’s name be erased from the register.[12]Further provisions of the Guidance relevant to this appeal include the following: “41 A dental professional must not undertake work that is outside of their scope of practice. 42 In cases involving breaches of a registrant’s scope of practice where the public may have been misled, but there are no aggravating features or evidence of harm to patients, the PCC may consider that there is no issue of current impairment and that it would be sufficient to close an isolated and unrepeated case. 43 Each case must be considered on its individual merits but factors which the PCC may wish to take into account when looking at disposal include:• the efforts made by the dental professional to comply with the Standards Guidance and other relevant guidance;• the level of professional responsibility and reasoning applied by the dental professional;• the likelihood of repetition; and• any remediation undertaken. Dishonesty 52 Patients, employers, colleagues and the public should be able to rely on a dental professional’s integrity. Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession. Examples of dishonesty in professional practice include, but are not limited to:• …• falsifying and/or improperly amending patient records;• … 53 Dishonesty is serious even when it does not involve direct harm to patients (for example defrauding the NHS or providing misleading information) because it can undermine public confidence in the profession. The Privy Council has emphasised that “Health Authorities must be able to place complete reliance on the integrity of practitioners and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole”. 54 The High Court has also held that, when considering impairment, a panel is entitled to take into account the way in which a registrant has conducted his or her defence and any dishonesty therein.”• the efforts made by the dental professional to comply with the Standards Guidance and other relevant guidance;• the level of professional responsibility and reasoning applied by the dental professional;• the likelihood of repetition; and• any remediation undertaken.• …• falsifying and/or improperly amending patient records;• …

THE REASONING OF THE PCC

[13]The PCC articulated its decision on sanction as follows: “Given the serious nature of your misconduct which included dishonesty, the Committee concluded that it would be insufficient and inappropriate to conclude this case by taking no action. For the same reasons the Committee determined that it would be inappropriate to conclude this case with a reprimand. The Committee considered that a reprimand would not be sufficient to uphold public confidence in the profession or convey the seriousness of your misconduct. The Committee next considered the imposition of a suspension of your registration. Whilst the Committee was mindful that where there has been a finding of dishonesty erasure would normally be appropriate, the Committee identified the following factors in your case which it considered placed it into a residual category of exceptional cases where erasure was not necessary. These factors are the following: i. There was no financial loss or actual harm to any patient. ii. Your dishonesty was relatively short lived in that having submitted non-contemporaneous notes in March 2014, you thereafter submitted the original notes through your solicitor in June 2014; and iii. The allegation of dishonesty against you resulted from your voluntary admission that the notes which you had submitted to the GDC in March 2014 were not contemporaneous. For these reasons the Committee considered that in this particular case erasure would be disproportionate and that a period of suspension would be sufficient. In considering the length of suspension, the Committee considered the maximum length of suspension of 12 months was necessary, given the seriousness of the misconduct, the need to mark its gravity and the need to uphold public confidence in the profession and declare and uphold proper standards of conduct and behaviour.” i. There was no financial loss or actual harm to any patient. ii. Your dishonesty was relatively short lived in that having submitted non-contemporaneous notes in March 2014, you thereafter submitted the original notes through your solicitor in June 2014; and iii. The allegation of dishonesty against you resulted from your voluntary admission that the notes which you had submitted to the GDC in March 2014 were not contemporaneous.

THE GROUNDS OF APPEAL

[14]There are four grounds of appeal, the first two of which can properly be taken together. Grounds One And Two Ground 1 – The Professional Conduct Committee erred in law as it directed itself that in cases of dishonesty erasure would normally be appropriate and it should consider whether there were exceptional circumstances such that erasure was not necessary. Ground 2 – The Professional Conduct Committee thereby failed properly to adopt the correct approach to the question of sanction by considering the least restrictive sanction first and only moving to a more restrictive sanction if it was satisfied that a lesser sanction was not appropriate.[15]The Appellant relies upon the case of Giele v GMC [2006] 1 W.L.R. 942 in which the court found that that the PCC had approached the issue of sanctions from the wrong end by adopting the position that there should be erasure unless exceptional circumstances existed. The appeal was therefore allowed. Collins J held at paragraph 26:
“The panel had to approach the question of sanctions starting with the least severe. It was not a question of deciding whether erasure was wrong but whether it was right for the misconduct in question after considering any lesser sanction. Furthermore, it was wrong to ask whether there were exceptional circumstances to avoid erasure. Exceptional circumstances would only avoid the possibility of erasure. That is not surprising since what is exceptional will depend on the facts of a particular case. But in my judgment it was in this case and will in most cases be unhelpful to talk in terms of exceptional circumstances. The panel must look at the misconduct and the mitigation and decide what sanction is appropriate…”
[16]In the light of these observations, the PCC’s reference in this case to “exceptional cases where erasure was not necessary” was infelicitous but I am not satisfied that it renders its decision wrong. The PCC correctly considered, in turn, the sanctions available to it in ascending order of severity and stopped at the sanction of suspension. The later reference to the more serious sanction of erasure was not, metaphorically speaking, a stepping down from the top of the staircase but merely part of the reasoning behind the choice not to ascend to the next step.[17]In Giele, the PCC reached the top of the stairs and remained there on the basis that exceptional circumstances would have to be made out to permit it to descend. This was clearly wrong and flew in the face of the Guidance. Here, in contrast, the PCC proceeded up the staircase and stopped when it reached the appropriate level of sanction. It is to be noted that paragraph 7.5 of the Guidance specifically provides that “having established the sanction they are minded to apply, the Committee should also consider the next most severe sanction to satisfy themselves that the sanction they are minded to apply is appropriate.” Thus, although it might be said that the PCC’s reference to exceptional circumstances in this case was, in the words of Collins J, “unhelpful” it was not fatal.[18]I pause to observe that it is important that the implementation of the stepwise approach should be viewed as a matter of substance and not merely of form. Its clear purpose is to ensure that the sanction chosen will always be the least severe sanction which deals adequately with the identified issues whilst protecting the public interest. In this case, it is abundantly clear from the way in which the PCC approached the issue of sanction that it had the substantive priorities of the stepwise approach firmly in mind. Ground Three Ground 3 – The Professional Conduct Committee thereby failed properly to consider:a. Any alternative to 12 months suspension.b. The appropriate length of any period of suspension.[19]The Appellant argues that by moving down from erasure to suspension the PCC was effectively fettering its discretion as to the length of any suspension imposed thereafter and was thus virtually bound to alight upon the period of twelve months as the appropriate period.[20]This contention falls at the first hurdle. In the context of my finding that the PCC did not, in fact, ascend to the top step only to come down again, there is no basis upon which this ground of appeal can be sustained.[21]In any event, having reached the conclusion that the appropriate sanction was suspension, the PCC considered quite separately the proper length thereof. Its reasoning was clear:
“For these reasons the Committee considered that in this particular case erasure would be disproportionate and that a period of suspension would be sufficient. In considering the length of suspension, the Committee considered the maximum length of suspension of 12 months was necessary, given the seriousness of the misconduct, the need to mark its gravity and the need to uphold public confidence in the profession and declare and uphold proper standards of conduct and behaviour.”
[22]There is nothing in this approach which begins to suggest that, having decided on suspension, the PCC thereafter considered that assessing the length thereof was to be achieved by merely following the path to a foregone conclusion. In fact, the opposite is true. Ground Four Ground 4 – The imposition of a period of suspension for 12 months was in any event disproportionate.[23]To the extent that this ground is parasitic upon the Appellant’s criticism of the PCC’s application of the stepwise approach it must fall with grounds one and two.[24]It fares no better as a freestanding point. All of the mitigating factors to which the Appellant points were expressly identified by the PCC in its decision. Bearing in mind the emphasis which is placed on the respect which the appellate court should owe to the decision of the PCC on sanctions (as identified in Raschid), this court should be slow to overturn a reasoned and logically consistent decision such as the one reached in this case.[25]The Guidance rightly records that dishonesty is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession. The decided cases demonstrate that erasure will be a frequent consequence of a finding of dishonesty albeit with each case to be decided on its own facts. As Mitting J observed in Nicholas-Pillai v GMC [2009] EWHC 1048 Admin at paragraph 27: These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty.[26]In all the circumstances, I am entirely satisfied that the Appellant has nothing to complain about under this ground.

CONCLUSION

[27]The decision of the PCC relating to sanction and the reasoning behind it were entirely appropriate and the Appellant has no legitimate grounds upon which successfully to challenge them. Accordingly, this appeal is dismissed.

Cited in 1 later judgment