Al-Nahar v General Dental Council [2015] EWHC 513 (Admin)

Case No CO/4013/2014[2015] EWHC 513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 19 February 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HOLMAN
Between
AL-NAHARAppellantv
Between
GENERAL DENTAL COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss V Tanchel (instructed by Abrahams Dresden LLP) appeared for AppellantMr I Stern QC (instructed by Capsticks) appeared for Respondents
J U D G M E N T
[1]MR JUSTICE HOLMAN: Mr Zuhair Shamil Hassan Al-Nahar is a dentist. He is currently aged 52. At a lengthy hearing during 2014, the Professional Conduct Committee of the General Dental Council made a range of findings against him and concluded as a result that his fitness to practise is impaired. They went on to consider sanction and decided that his name should be erased from the register.[2]This is Mr Al-Nahar's statutory appeal against that decision of erasure. It is important to stress that there is no appeal against any of the findings that the Professional Conduct Committee reached, and this appeal is limited to sanction. Further, the realistic submission of Miss Vivienne Tanchel, who appears on behalf of Mr Al-Nahar, is that the realistic choice for the Professional Conduct Committee was between the sanction of suspension or the sanction of erasure. She strongly submits, however, that suspension was a sufficient and the proportionate sanction in this case, and that erasure was not proportionate and not justified.[3]In this case, Mr Al-Nahar had had an apparently unblemished record as a well respected dentist for very many years before the events in question. As I have said, he is now aged 52. If erasure remains, then the earliest when he can apply for reinstatement is five years after the date of the erasure, which was in July 2014. It is submitted that by then he will be close to retirement and not able realistically to resume practice. So whatever the outcome, the case is undoubtedly one of great professional and personal tragedy.[4]My task, however, is to consider the essential facts and circumstances of the case, and the reasons and reasoning of the Professional Conduct Committee, to see whether their reasons and decision are wrong. If they are wrong, then clearly the decision must be set aside. If I am unable to conclude that they are wrong, then the decision must stand, even if another constitution of the Professional Conduct Committee might have reached a different conclusion.[5]One difficulty in this appeal has been, and is, that although there is no appeal from the findings themselves, Mr Al-Nahar himself continues to deny many of the facts found, and in particular denies the findings of dishonesty, to which I will shortly refer.[6]The fact finding hearing lasted many days. He himself was not represented throughout the oral hearing. He only attended some parts of the hearing and did not himself give oral evidence. After the Professional Conduct Committee had made their findings as to the facts, he did address them, as of course he was fully entitled to do, on the question of sanction and outcome. At that point, it is clear from his address that he was denying a number of the facts that had been found. Miss Tanchel today faces the difficulty that her client's instructions remain that many of the facts as found did not occur, but at the same time she has to frame her submissions on the basis that they did occur as found.[7]The triggering event for this whole case was a referral by an insurance company called HSA Simply Health Group. These are insurers who provide a form of dental insurance and a "dental plan" whereby, in return for paying regular premiums, the insured can reclaim from HSA Simply Health Group the cost of those categories of dental treatment in relation to which the insured has insured himself.[8]It is clear that there came a time when HSA Simply Health Group became suspicious and concerned as to the quality of treatment being provided by Mr Al-Nahar and also as to the reliability, and in some cases the integrity, of his record keeping. In the upshot, there were no less than 66 charges before the Professional Conduct Committee. These related altogether to 14 different patients, all of them insured with HSA Simply Health Group. In the event, the Professional Conduct Committee found 56 charges proved. Many of these concerned inadequate or inappropriate clinical treatment of seven of the 14 patients. Many other of the charges remitted to inadequate record keeping in relation to the 14 patients.[9]So quite apart from the charges of dishonesty, to which I will in a moment refer, there was clearly here a considerable catalogue of proved findings of a range of clinical failings and a range of inadequate record keeping in relation to a quite considerable number of patients. That was, perhaps, serious in itself. But in addition, the Professional Conduct Committee found proved three discrete charges of Mr Al-Nahar making dishonest statements on the patients' insurance claim forms. In the case of patient 1, there was a dishonest statement on a claim form signed on 25 July 2007 that Mr Al-Nahar had extracted a tooth which he had not in fact extracted. In the case of patient 14, there was a dishonest statement in a claim form dated 21 January 2008 that Mr Al-Nahar had performed root canal treatment, which he had not in fact performed. In the case of patient 2, there was a dishonest statement on a form dated 11 February 2009 that Mr Al-Nahar had extracted a tooth which he had not in fact extracted. It follows that these allegations of dishonesty, which amount to a form of insurance fraud, involved three different patients and spanned a total period of over 18 months between July 2007 and February 2009.[10]I have been shown a representative form, namely that relating to patient 1. On the top side of the form, there is a declaration purportedly signed by the patient, which states inter alia:
"I declare all information provided and questions answered on this claim form and any attached documents are, to the best of my knowledge, truthful, accurate and complete."
There is no proof that the signature purporting to be the signature of the patient on that side of the form is in fact his signature, although equally there was no allegation that it was not his genuine signature.[11]The reverse side of the form requires to be filled in by the dentist. At its foot it is signed:
"I declare that the dental treatment set out above has been completed by Z Al-Nahar of this dental practice and that the details provided by the practice are in every respect accurate and complete."
That purports to be signed by Mr Al-Nahar and it has not been suggested to me today that he did not indeed sign that and the other similar forms. Within the body of the reverse page, there is a clear reference to extraction of the upper left eight tooth on 25 July 2007. That is the treatment which was not in fact given, and so that information was simply untrue and false.[12]As well as those three allegations of dishonesty in relation to completing and signing the insurance claim forms, there was an additional allegation of dishonesty, which related to Mr Al-Nahar's participation in the underlying investigation itself. It was found proved that he had instructed solicitors, who for a period acted on his behalf, to write a letter representing that certain documents had already been sent to the solicitors acting for the General Dental Council, when in fact he knew that those documents had not been sent. Whilst I do not minimise the gravity even of that matter, it was clearly in a separate compartment, as it were, from the dishonesty in Mr Al-Nahar's involvement with his patients and the making of false insurance claims.[13]Insurance fraud is always serious, whatever form it takes, for apart from the dishonesty involved, it of course has the inevitable effect of pushing up premiums and the cost of insurance to the public generally. But in relation to these particular frauds it does seem to me that the point also needs to be faced up to that Mr Al-Nahar ran the risk, at any rate, of implicating his patients in the fraud. I do not for one moment suggest that any of the patients were knowingly signing an untruthful document. It may indeed be that, in common with many of us, they merely signed the piece of paper that was put in front of them at the place indicated. But the fact is that by permitting a patient to sign on the front page that the information provided on the form was to the best of his knowledge truthful, accurate and complete, when Mr Al-Nahar knew that statements on the reverse of the form were not true, he clearly ran the risk of drawing his patient into some subsequent inquiry.[14]Today, consistent with her instructions that there was no dishonesty, Miss Vivienne Tanchel has of course said that the inaccurate information may have been the product merely of mistake, but that cannot lie with the findings as found by the Professional Conduct Committee. In this context, dishonesty must mean deliberation.[15]So that is the essential background. As is well known, there is a hierarchy of sanctions that the General Dental Council may apply. These are, in ascending order and in summary, taking no action; a reprimand; conditions of practice; suspension; or erasure. It is very fundamental that the Professional Conduct Committee must consider each of those sanctions in turn in ascending order of gravity. In this particular case, however, it was frankly obvious that taking no action or a reprimand was simply not proportionate to the gravity of the matter. It was suggested to them by Mr Ian Stern QC, who appeared then, as now, on behalf of the General Dental Council, that effectively they had to exercise a discretion between suspension or erasure. Miss Tanchel today has agreed that those two sanctions were the only realistic sanctions in this case.[16]In their reasons, the Professional Conduct Committee said the following, and I am reading from transcript day 10/5, now bundle page 443:
"The Committee takes a serious view of your dishonesty, which goes to the heart of public confidence in the profession and the need to uphold proper standards. The dishonesty found proved in this case was persistent and involved you claiming on a number of occasions for work that you had not carried out. Furthermore, you made representations via your solicitors to the GDC which you knew to be false, dishonest and misleading. The Committee considers that you have sought to frustrate the GDC's investigating process, which is designed to safeguard the interests of patient and to maintain high standards in the profession."
Pausing there, the committee referred to the dishonesty being "persistent" and on "a number of occasions". To be accurate, there were three occasions, namely the occasions to which I have referred, in July 2007, January 2008 and February 2009, but that period as a whole does in my view justify the use of the word "persistent".[17]Reading on, the committee said:
"The Committee has grave concerns about your lack of insight into the shortcomings identified in this case. The Committee is not satisfied that you have learned from your mistakes, as you claim. You have not shown sufficient understanding of the seriousness and importance of the matters which underline the charges. In its judgment, and on the basis of all the evidence, as well as your lack of insight, the Committee has concluded that there is a significant risk of repetition."
[18]Miss Tanchel submits that in that passage, and indeed generally in their reasons, the Professional Conduct Committee failed to have any or any sufficient regard to a report made by Mr Raj Raja Rayan, the Associate Dean of Postgraduate Dentistry at London Deanery, dated 2 May 2012. In that report, Mr Raja Rayan describes the participation of Mr Al-Nahar in a number of courses and refers to:
"The insight he has demonstrated which you will read from his reflective commentaries. He also undertook a 'significant event analysis' in the past on the events that have brought him before you."
Mr Raja Rayan went on to say that Mr Al-Nahar had undertaken two audits with the support of a mentor, that he had had no direction from the GDC as to what remedy is required, and that he had attended under his own initiative at the Deanery. Mr Raja Rayan said that Mr Al-Nahar had attended under his own volition some 18 months previously and visited them several times since then; he had filled in his PDP and attended most of the courses he had committed himself to; and that he had completed his reflection on those courses, which did not highlight to Mr Raja Rayan any major deficiencies in his understanding.[19]So Miss Tanchel submits that in expressing their grave concerns about lack of insight, the Professional Conduct Committee were overlooking or attaching insufficient weight to that view and report from Mr Raja Rayan. The difficulty, albeit that it may be regarded as something of a Catch-22, is that Mr Al-Nahar was still so resolutely denying much of what the committee had found. They had found that he had made the large number of clinical failings and failures to keep adequate records, and they had found that he had been dishonest in relation to the three insurance claims and also in his dealings with the solicitors for the GDC. But, as is quite clear from his own closing oral submissions to them, before they considered sanction, Mr Al-Nahar was not accepting much of the wrongdoing, and in particular not accepting the dishonesty. Inevitably in that situation, the Professional Conduct Committee would have to have had grave concerns about lack of insight, as they had found he had done the acts complained of, and yet he was still not, even at the most basic level, admitting that he had done them.[20]I continue quoting from their reasons:
"Taking all these factors into account and also having regard to the need to maintain public confidence in the profession and declare and uphold proper standards conduct and behaviour, the Committee has determined that your fitness to practice is currently impaired by reason of your misconduct."
[21]The committee then went on to consider sanction. They recognised that Mr Al-Nahar had "suffered greatly over the last five years". They took into account a range of testimonials that had been submitted by him, and the fact that he had been practising for 30 years without any disciplinary proceedings against him. They said, however, that throughout their deliberations they had had to keep in mind the GDC's "Guidance for the Professional Conduct Committee", and the general principles that it must apply in considering what sanction, if any, is to be imposed. These included the need to protect patients and the public interest. The public interest included not only the protection of patients, but also the maintenance of public confidence in, and the reputation of, the profession and its regulatory process. They continued:
"The Committee has also had regard to the principle of proportionality, weighing the interests of the public with your own interests. It has borne in mind that it should impose the least restrictive sanction which is sufficient for the protection of the public and is in the public interest. It is mindful that the purpose of a sanction is not to be punitive, although that may be its effect."
[22]The committee then correctly considered the range of possible sanctions in ascending order, as I have already described. They concluded (and this is not challenged by Miss Tanchel) that conditions of practice would not be a sufficient sanction in the present case. They then turned to consider the sanction of suspension and said:
"The Committee then considered whether it should impose a period of suspension. It has borne in mind all the mitigation submitted on your behalf, including the supportive testimonials and your long career as a dentist. The Committee has found you to be dishonest; this is in breach of one of the fundamental tenets of the dental profession, namely to be trustworthy. You signed declarations which you knew to be false and instructed solicitors to make represents which you knew were untrue. The Committee has grave concerns about your lack of insight into the matters found proved against you. You have continued to blame others rather than acknowledge fault."
They then quoted from paragraph 42(e) of the GDC's "Guidance for the Professional Conduct Committee", to which I will shortly refer. They then continued:
"In conclusion, the Committee is satisfied that to suspend your registration would not be sufficient to protect the public, uphold proper standards and maintain public confidence in the dental profession."
[23]Having at that point ruled out suspension, there was indeed only one available sanction left, namely erasure. The committee dealt with that as follows:
"The Committee has concluded that your misconduct as a whole is so serious that it is fundamentally incompatible with you remaining on the dentist's register. Accordingly, the Committee has determined that the only appropriate and proportionate sanction in this case is that of erasure. The Committee has taken into account the impact of such a direction on your own interests, bearing in mind the points you have made regarding your need to secure your livelihood and your career and the inconvenience to your patients in making alternative arrangements for their treatment. However, in the light of the serious nature of the findings against you, the Committee considers that the need to protect patients and the public interest clearly outweighs your own interests in this matter."
So the sanction and outcome of erasure followed.[24]It is at this point appropriate that I make specific reference to the GDC "Guidance for the Professional Conduct Committee". Under a general heading "Erasure", that provides at paragraph 42 as follows:
"In the circumstances outlined in the guidance given below, a decision not to erase will require careful justification. That said, the commentary under each heading cannot cover every situation, and each case must be forward on its own merits. The following guidance highlights behaviours which are so damaging to a registrant's fitness to practice and to public confidence in dental professionals that erasure should be considered to be the appropriate outcome..."
There is then a list from (a) to (j) under headings which include serious abuse of the clinical relationship, other serious abuse of the privileged position enjoyed by registered professionals, deliberately or recklessly causing serious avoidable harm to patients, and a range of other matters. At (e), these include "dishonesty". The guidance states:
"Patients, employers, colleagues and others have a right to rely on registrants' integrity. Important choices about treatment options and significant financial decisions can be made on the basis not only of registrants' skill, but also of their honesty. Dishonesty, particularly when associated with professional practice, is highly damaging to a registrant's fitness to practise and public confidence in dental professionals."
That was the short passage which the Professional Conduct Committee quoted in the passage of their reasons that I have quoted above.[25]Miss Tanchel realistically accepts that the most formidable difficulty in the way of her and her client's case is the findings of dishonesty, but it does need to be emphasised that this was not a case about dishonesty alone. As I have said, there were over 50 findings which did not relate to dishonesty but related to inadequate or inappropriate clinical treatment and/or inadequate record keeping. So this is a case which had and has to be viewed as a whole, and not solely a case about dishonesty.[26]In the course of her very cogent submissions today, the overall burden of Miss Tanchel's argument is that the sanction of suspension would have sufficed. In the first instance, a suspension operates for a period of one year, but at the end of that year the Professional Conduct Committee can review the position and circumstances then prevailing and can maintain the suspension for a further period. On the other hand, the sanction of erasure cannot be reconsidered by the Professional Conduct Committee until five years have elapsed from the date of erasure. So Miss Tanchel submits that suspension would have been a sufficient sanction to prevent Mr Al-Nahar from practising for as long as is necessary for the safety and protection of patients and the integrity of the profession, but would not suffer the defect of being an absolute block on any practice for a minimum period of five years. She submits that erasure "is the sanction of last resort, and must only be imposed where all the other alternatives are sufficient to protect the public interest." With that I agree. It is quite clear from their reasons and approach that the Professional Conduct Committee themselves were indeed treating it as the sanction of last resort.[27]Miss Tanchel then submits that the sanction of erasure in this case is disproportionate. She says:
"His removal from the dentists' register at this late stage of his career creates a very real likelihood that he will never return to practice, because by the time that the five year period has elapsed and he is eligible to apply for restoration to the dentists' register, he will be close to retirement age. The sanction imposed by the Committee is therefore tantamount to a permanent prohibition. This flies in the face of the requirement of proportionality. Further, the fact that the legislation provides for the possibility of restoration clearly indicates that it was envisaged that even those who have been removed should have an opportunity to return to practice in some circumstances. The appellant will not have that opportunity and therefore the sanction imposed is unduly harsh and disproportionate to the gravity of the conduct."
The difficulty with that submission is that it involves that whereas erasure may be appropriate for a younger practitioner, it in some way becomes inappropriate for the older practitioner who is closer to retirement. Whilst I accept that the sanction of erasure in an older practitioner may have the effect that the person never practises again, that cannot in my view be a justification for not erasing the registrant if it is otherwise requisite to do so. Indeed, it might be said that the older the practitioner, and the more experienced he is, then the more grave it is that he has made the errors and displayed the dishonesty found in this case.[28]Miss Tanchel then submits that the Committee:
"... failed to give adequate consideration to the GDC guidance for the Professional Conduct Committee, as it did not set out why a suspension would not adequately protect the public interest."
In my view, that submission involves something of a counsel of perfection. The committee clearly said that in their view suspension is not sufficient to protect the public, uphold proper standards and maintain public confidence in the dental profession, and those conclusions do not need elaboration, the more so when they immediately carry on to say that:
"Your misconduct as a whole is so serious that it is fundamentally incompatible with remaining on the register."
[29]Next Miss Tanchel makes her submission and complaint that the Professional Conduct Committee failed to give sufficient consideration or weight to the courses that Mr Al-Nahar had undertaken and his engagement with the Dental Deanery. I have already referred to that matter above.[30]Finally, she submits that Mr Al-Nahar has in any event changed his practice and no longer undertakes work which is funded by insurers. She submits:
"It is submitted that these changes to his practice significantly limit any future risk of harm to the public such that the ultimate sanction of removal from the dentists' register is not necessary."
I am afraid that in my view if a dentist commits not one but three insurance frauds of this kind over a 18-month period, it is just too lame later to say, "Well, I no longer undertake any insurance work so the opportunity for committing those frauds will not arise again."[31]As I said near the outset of this judgment, my task and duty on an appeal such as this is to consider whether the reasons and/or decision of the Professional Conduct Committee are wrong. I have to say that after giving most careful consideration during the course of today to their reasons and their decision, and to everything that Miss Tanchel has so cogently said, I am quite unable to conclude that either any part of their reasons or their ultimate decision of erasure are wrong. For that reason, this appeal must be dismissed. MR JUSTICE HOLMAN: Are there any matters that now arise? MR STERN: My Lord, there's an application for costs. Could I hand in an amended summary assessment schedule. MR JUSTICE HOLMAN: I think I saw one. MR STERN: Yes, this is an amended one, my Lord. MR JUSTICE HOLMAN: Yes, I know, but is it amending it up or down? MR STERN: Down. MR JUSTICE HOLMAN: Well that's a move in the right direction, isn't it. MR STERN: Well it depends for whom it is a move for. In any event, my learned friend has seen the amended one and as I understand it she accepts in principle that her client should pay the costs, and that that sum of £10,745.02 is a reasonable sum. MR JUSTICE HOLMAN: Is that right? All right, well then Mr Stern, will you and Miss Tanchel fashion an order which first of all with the usual preambles records that the appeal has been dismissed and then orders that the appellant must pay the costs of the General Dental Council of and incidental to this appeal summarily assessed (by consent) in the sum of £10,745.02. MR STERN: Yes my Lord. MR JUSTICE HOLMAN: If you really want the 2p. I mean, at a certain point these things can really look unbelievably petty on a court order. Don't you think we might round it down? £10,745. MR STERN: Yes. MR JUSTICE HOLMAN: Very well. MR STERN: The schedule is there -- MR JUSTICE HOLMAN: I know it's arrived at arithmetically, but when you start thinking about an order, it's too stupid to be talking about 2p in over £10,000 worth of costs. Mr Stern, is there anything else now that you wish to raise or say? MR STERN: No thank you, my Lord. MR JUSTICE HOLMAN: Miss Tanchel? PROSECUTION COUNSEL: No thank you, my Lord. MR JUSTICE HOLMAN: All right, well I'm very grateful to you, Miss Tanchel, and I'm sorry you go away without success. As I said at the outset this morning, Mr Al-Nahar, and indeed I also said at the outset of the judgment, these are incredibly sad situations and I can assure you that I get no pleasure or satisfaction whatsoever to have a day like today. As a judge, I find them very, very painful. I do a lot of very difficult work, removing people's children from them, deciding that life support should be turned off and all sorts of things like that, but one of the most painful things of all is the situations where professional people who have had long, decent careers find themselves in this situation, and I am very, very sad about it. But I have explained why I cannot say that they were wrong, and they are the primary decision maker. So I am afraid you will just have to live with it. All right, well thank you all very much indeed.