“the pursuit by the Council of their over-arching objective involves the pursuit of the following objectives - (a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Act; and (c) to promote and maintain proper professional standards and conduct for members of those professions.”
“a Person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of: - (a) misconduct…”
“6.1.2. You must treat colleagues fairly and with respect, in all situations and all forms of interaction and communication. You must not bully, harass, or unfairly discriminate against them. … 9.1: You must ensure that your conduct, both at work and in your Personal life, justifies patients’ trust in you and the public’s trust in the dental profession. 9.1.1: You must treat all team members, other colleagues and members of the public fairly, with dignity and in line with the law. 9.2: You must protect patients and colleagues from risks posed by your health, conduct or performance.”
“Suspension 6.21 If the PCC finds that the withdrawal of registration is necessary but that it does not need to last the five-year term that would be the minimum period for erasure, it may suspend the Registrant. Suspension prevents the Registrant from practising as a dental professional for the length of the Suspension Order. … 6.23 The PCC must decide whether the suspension will be lifted automatically at the end of its term or whether it would be subject to a review hearing. This must be made clear in the determination. If a review hearing is to take place, the PCC should indicate what, if any, information it would expect the registrant to be able to provide at the review hearing (for example, evidence of the successful outcome of any retraining that the dental professional has undertaken). 6.24 If the suspension is reviewed at the end of the given period, the PCC can: • renew the suspension (for up to 12 months). • impose conditions on registration. • allow the registrant to return to unrestricted practice. The registrant will be notified of the continuation of, or any changes to, the Order. … 6.28 Suspension is appropriate for more serious cases and may be appropriate when all or some of the following factors are present (this list is not exhaustive): • there is evidence of repetition of the behaviour. • the Registrant has not shown insight and/or poses a significant risk of repeating the behaviour. • patients’ interests would be insufficiently protected by a lesser sanction. • public confidence in the profession would be insufficiently protected by a lesser sanction. • there is no evidence of harmful deep-seated personality or professional attitudinal problems (which might make erasure the appropriate order). … Erasure 6.30 The ability to erase exists because certain behaviours are so damaging to a registrant’s fitness to practise and to public confidence in the dental profession that removal of their professional status is the only appropriate outcome. Erasure is the most severe sanction that can be applied by the PCC and should be used only where there is no other means of protecting the public and/or maintaining confidence in the profession. Erasure from the register is not intended to last for a particular or specified term of time. However, a registrant may apply for restoration only after the expiry of five years from the date of erasure. … 6.34 Erasure will be appropriate when the behaviour is fundamentally incompatible with being a dental professional: any of the following factors, or a combination of them, may point to such a conclusion: • serious departure(s) from the relevant professional standards. • where serious harm to patients or other Persons has occurred, either deliberately or through incompetence. • where a continuing risk of serious harm to patients or other Persons is identified. • the abuse of a position of trust or violation of the rights of patients, particularly if involving vulnerable Persons. • convictions or findings of a sexual nature, including involvement in any form of child pornography. • serious dishonesty, particularly where persistent or covered up. • a persistent lack of insight into the seriousness of actions or their consequences.”
“58 This was undoubtedly a sexual misconduct case. Such cases are inherently serious, such that they may well lead to erasure, even for a first-time offender with a good clinical record. Often, maintaining public confidence in the profession and upholding high standards of behaviour by stamping out unacceptable behaviour of this kind will require erasure in a sexual misconduct case. 59 Where the victim is a colleague rather than a patient, severe sanctions in such cases are generally necessary, in addition, to protect and uphold the dignity of workers in the profession and to protect their freedom to work without being molested. The victims are usually women. 60 This was therefore always a case in which the potential for erasure loomed large, even though the appellant had a good record and had not previously offended in this or any other way. Both parties realistically recognised that in their submissions to the tribunal. 61 In other parts of the world where the culture is different, and in some isolated sectors in this country, there is still a culture which regards such behaviour as acceptable. That is completely wrong and now regularly proclaimed to be so. The days are gone when mainstream discourse was in any way split on the issue of sexual misconduct, particularly in the workplace. The mainstream in our society, reflected in our law, is now that there is virtual zero tolerance of such behaviour. 62 In the criminal law, where personal mitigation counts for more than in this disciplinary jurisdiction, the law encourages judges to give offenders a second chance by imposing alternatives to immediate custody, such as a suspended sentence or a community penalty. Justice is tempered with mercy. That is more difficult in this jurisdiction because the nature of the sanction is not punitive but protective of the profession and the public. To justify the second chance, it has to be weighed not just against the risk that giving it may create more victims should he fail to take it. It also has to be weighed against the risk that public confidence in the profession will be undermined.”
“78 On balance, it seems to me likely that a reasonable, informed member of the public might well not take a harsher view than did the GMC of the pathetic and disgusting sexual pestering of the kind that occurred in this case. There are some who would regard erasure as appropriate; that would represent almost a complete zero tolerance approach to sexual harassment, which would mean that any transgression, even from a first-time offender, would nearly always lead to erasure. 79 In our system of justice, the law jealously guards the rights of women workers to protection against predatory, ignorant men who feel entitled to prey on female colleagues in the way that this doctor did; but our system is not so inflexible that every transgression of this kind must be met with erasure. This appellant’s conduct was not at the very bottom of the scale; it was very serious, but it was not anywhere near the top of that scale. The mitigation, for what it was worth, was there. No patient’s safety was endangered. The appellant was of previous good character. He had some insight into his offending behaviour, although it was given slight weight and came late. He had a long record of unblemished service, which included about two and a half years after the second incident without any further offending.”
“1. On a date unknown between1 February 2020 and on or around5 March 2020 you: a) Placed your legs either side of Person 1’s legs b) Placed your hands on Person 1’s thighs 2. Your conduct in respect of charge 1 above was: a) Inappropriate b) Sexually motivated 3. On or around6 March 2020 you put your arms around Person 1 4. Your conduct in respect of charge 3 above was: a) Inappropriate b) Sexually motivated 5. On or around5 April 2020 you: a) Massaged Person 2’s shoulders and/or back b) Hugged Person 2 c) Touched and/or squeezed Person 2’s breast 6. Your conduct in respect of charge 5 above was: a) Inappropriate b) Sexually motivated 7. On or around25 July 2020 you: a) Squeezed Person 3’s arms b) Rubbed Person 3’s arms 8. Your conduct in respect of charge 7 above was: a) Inappropriate b) Sexually motivated”. a) Placed your legs either side of Person 1’s legs b) Placed your hands on Person 1’s thighs a) Inappropriate b) Sexually motivated a) Inappropriate b) Sexually motivated a) Massaged Person 2’s shoulders and/or back b) Hugged Person 2 c) Touched and/or squeezed Person 2’s breast a) Inappropriate b) Sexually motivated a) Squeezed Person 3’s arms b) Rubbed Person 3’s arms a) Inappropriate b) Sexually motivated”
“I have always accepted acting unprofessionally and thus fully accept in putting myself in a compromising position, in terms of the massage I gave to a colleague. I accept this was inappropriate and I should never have done so. I also accepted this in my SMDEC disciplinary appeal in September 2020. I acknowledge that the Committee has made findings against me, but they are limited to a short period and I can assure the Committee that going forward I will ensure that my conduct is such that there can be no such allegations again; I will not put myself in such a position where such allegations can be made. I am also willing to take further courses on professionalism and any other courses or remedial work the GDC recommends and advises me of. This ordeal has been …. life changing. It has caused me to reflect on, not only how I speak and interact with others, but also how it may be perceived - something I did not do before, because of my generally friendly, outgoing, humble and genuine nature - something spoken by many colleagues in their testimonials and statements concerning myself. I did not feel able to express these points in the last occasion the Committee sat, due to my shock at the Determination and findings and because this severely impacted my mental health, however I should be most grateful if the Committee could take them into account now, ahead of its deliberations on impairment and sanction in this case.”
“Mr Micklewright submitted that the appropriate and proportionate sanction for this particular case will be one of erasure. Ms Felix submitted that the registrant had worked at a number of practices without any issues with anyone else. The proportionate sanction would be one of conditions. It would be in the public interest for a good clinician to be able to continue to serve the public. Alternatively she invited the Committee to impose a sanction of suspension.”
“Every sexual misconduct case does not need to automatically result in erasure, as the Committee’s decision relies on proportionality and judgement. She invited the Committee to consider the case on a spectrum of seriousness. She submitted that all matters found proved, apart from your touching of Person 2’s breast, could all be considered to be at the lower end of the spectrum. With regard to your touching of Person 2’s breast, she submitted that it was important to acknowledge the context in which this happened. The touching occurred after you had massaged and hugged Person 2, and, therefore, the Committee should consider whether you had mis-read the signs given by Person 2. Ms Felix submitted that this would bring it down to the lower end of the spectrum, and it could not be regarded as an abuse of permission. Furthermore there has been no repetition of the conduct since, and therefore no evidence that it will occur in the future. At the hearing today, Ms Felix made further submissions regarding the signed statement you provided to the Committee today. She submitted that your conduct was wholly out of character and at the time of the allegations your marriage was breaking up. She submitted that the Committee may wish to consider this background and also that there would be a significant impact on your financial situation if you were not able to work. She highlighted to the Committee that you would also be willing to undertake a Professional Boundaries because if the Committee was minded for you to undertake such a course. In response, Mr Micklewright submitted that the Professional Boundaries course is readily available to dental practitioners and that you have not undertaken one to date. In response to the impact on your personal and financial situation, he submitted that this should be of a secondary consideration for the Committee at the sanction staged as referenced in the case of Bolton v Law Society…”
“The Committee then considered whether your fitness to practise is currently impaired by reason of your misconduct. The Committee was mindful of its role to protect the public interest, which includes the need to maintain proper standards of conduct among dental professionals, and to protect the public, which would include any future work colleagues, from risk of harm. The Committee considered the evidence you have provided regarding your remediation. It acknowledged that attitudinal and behavioural failings are difficult to remediate, although not impossible. It also acknowledged the positive testimonials that have been provided on your behalf. However, when considering the evidence you have provided regarding the courses undertaken, the Committee noted that the majority of these were not relevant to the conduct it has found proved in this case. In particular, the Committee noted that you have not provided any written reflective statement regarding your conduct or the impact it has on your role as a dental professional and the public confidence in the profession The Committee considered that without this there was insufficient evidence that you have changed your attitude or behaviour. The Committee concluded, therefore, that you have shown limited insight into your actions and that your behaviour has not been fully remediated. It therefore determined that there is a risk that you could repeat the misconduct and that a finding of impairment is necessary in the interest of public protection. The Committee also determined that a finding of impairment was necessary in the wider public interest to maintain public confidence in the profession, upholding the reputation of the dental profession and uphold proper standards of conduct and behaviour. … It has been found proved that you have engaged in sexually motivated and inappropriate conduct towards three junior work colleagues and to date have shown limited insight into these serious failings. The Committee concluded that a reasonable and informed member of the public, fully aware of the facts of the case, would lose confidence in the profession and the dental regulator if a finding of impairment were not made in the circumstances of this case. The Committee therefore determined that your fitness to practise is currently impaired by reason of your misconduct.”
“The Committee next considered what sanction, if any, to impose on your registration. It recognised that the purpose of a sanction is not to be punitive although it may have that effect. The Committee applied the principle of proportionality balancing your interest with the public interest. It also took into account the Practice Committee Guidance. The Committee considered the mitigating and aggravating factors in this case as outlined at paragraphs 5.17 and 5.18 of the Practice Committee Guidance. The mitigating factors in this case include: • Evidence of good conduct following the incident in question, particularly any remedial action (although this was limited); • Evidence of previous good character; • Evidence of remorse shown and insight (albeit limited); • Evidence of steps taken to avoid a repetition (albeit limited). The aggravating factors in this case include: • Actual harm, both mentally and physically, to work colleagues; • Breach of trust between junior and more senior members of staff; • The involvement of vulnerable individuals (the three junior work colleagues); • Misconduct repeated over a period of time; • Lack of insight.”
“The Committee concluded that misconduct of this nature could not be adequately addressed by way of a reprimand. It cannot be said to be at the lower end of the spectrum of misconduct and the Committee has determined that you have shown limited insight into your failings. The Committee considered that the public and the public interest would not be sufficiently protected by the imposition of such a sanction. The Committee therefore determined that a reprimand would be inappropriate and inadequate.” • Evidence of good conduct following the incident in question, particularly any remedial action (although this was limited); • Evidence of previous good character; • Evidence of remorse shown and insight (albeit limited); • Evidence of steps taken to avoid a repetition (albeit limited). • Actual harm, both mentally and physically, to work colleagues; • Breach of trust between junior and more senior members of staff; • The involvement of vulnerable individuals (the three junior work colleagues); • Misconduct repeated over a period of time; • Lack of insight.”
“The Committee considered whether a conditions of practice order would be appropriate. The Committee noted that you have been subject to IOC conditions for the previous two years and no concerns have arisen regarding your compliance. The Committee had sight of these conditions but noted that they were general in nature and did not specifically address the conduct found proved in this case. Furthermore, the Committee considered that it would be difficult to formulate conditions to address the attitudinal and behavioural failings in this case. The Committee also considered that you have failed to show full insight into your behaviour. The Committee was of the view, therefore, that conditions would neither be workable nor appropriate to address the seriousness of the misconduct it has found.”
“The Committee then considered whether an order of suspension would be appropriate to mark the nature and severity of the misconduct. It noted in the Practice Committee Guidance that suspension is appropriate for more serious cases when: • There is evidence of repetition of the behaviour; • The registrant has not shown full insight and poses a significant risk of repeating the behaviour; • Public confidence in the profession would be insufficiently protected by a lesser sanction; The Committee considered that these considerations were relevant in this case. The Committee determined that a period of suspension was appropriate and proportionate to mark the seriousness of your misconduct. In deciding on this sanction, the Committee noted the option of erasure but determined that such a step would be disproportionate. … The Committee also accepted that this case could be considered to be at the lower end of the spectrum of seriousness for cases involving sexual misconduct. Furthermore, the Committee determined that there is no evidence that you have a harmful deep-seated personality or professional attitudinal problems, which might make erasure the appropriate order. Accordingly, having had regard to all of the evidence, the Committee has determined to direct that your registration be suspended for a period of five months. The Committee is satisfied that this period of time is sufficient to mark the nature and extent of your misconduct, to protect the public, uphold professional standards and to maintain public confidence in the profession. In addition, the Committee considers that this will give you the sufficient time to develop further insight into your behaviour and fully remediate your misconduct. The Committee noted the impact that this would have on your financial situation and bore in mind the principle of proportionality. However, it considered that this was outweighed by the public interest in appropriately reflecting the seriousness of your behaviour …which involved inappropriate behaviour and sexual misconduct towards junior work colleagues. The Committee also directs that the suspension order be reviewed before its expiry. You will be informed of the date and time of that resumed hearing. That Committee will consider what action it should take in relation to your registration. The reviewing Committee may be assisted if it received your detailed written reflections on your misconduct and further evidence of your remediation regarding professional boundaries.”
“The Committee is satisfied that an immediate order of suspension is necessary for the protection of the public and is otherwise in the public interest. The Committee concluded that given the nature of its findings and its reasons for the substantive order of suspension in your case, it is necessary to direct that an immediate order of suspension be imposed on both of these grounds. The Committee considered that, given its findings, if an immediate order was not made in the circumstances, there would be a risk to public safety and public confidence in the profession would be undermined. The effect of this direction is that your registration will be suspended immediately. Unless you exercise your right of appeal, the substantive order of suspension will come into effect 28 days from the date on which notice of this decision is deemed to have been served on you. Should you exercise your right of appeal, this immediate order for suspension will remain in place until the resolution of any appeal.”
“Found Proved Person 1 told the Committee that your legs were really close to hers and that you were in her personal space. She stated that there was no clinical reason for you to do this. In your evidence you deny this charge entirely on the basis of your usual practice and state that the events in this charge did not happen. The Committee considered all the evidence before it and preferred Person 1’s evidence. It noted that her oral evidence was broadly in line with her written statement and found her evidence to be reliable and credible. The Committee considered that working in a dental clinic is such that you and Person 1 would have been in greater proximity and on the balance of probabilities finds that this may have included you placing your legs either side of Person 1 on her chair. You have provided no independent memory of that day and have given evidence of your usual practice which would not have made this possible. The Committee accepts on this particular day that this incident had occurred and that your chair moved in close proximity to Person 1’s and led to you placing your legs either side of Person 1’s legs. It considered that the allegations made by Person 1 are not the sort that are capable of arising from a misunderstanding and that there is no credible evidence before the Committee she had a motive to lie. Accordingly, the Committee finds this charge proved. The Committee was also satisfied that there is no evidence of Person 1’s account being contaminated. It notes that other than Person 1’s report of the events to a work colleague at the practice on6 March 2020 , Person 1 did not discuss what had happened to her to Person 2 and 3 until31 July 2022 .”
“The Committee considered this charge separately and having considered all of the evidence carefully the Committee finds that Person 1 was clear and consistent in her evidence and finds that you placed your hands on her thighs.”
“Found Not Proved The Committee has already found in Charge 2.a above not proved in that it did not consider your conduct in placing your legs on either side of Person 1 to be inappropriate. It therefore did not consider it necessary to consider that element in this charge. The Committee went on to consider the second element, placing your hands on Person 1’s thighs. Whilst finding that you placed your hands on Person 1’s thighs which was considered inappropriate and recognises that Person 2 felt uncomfortable, it could not be satisfied on the balance of probabilities that your conduct in placing your hands on her thighs was sexually motivated. The Committee heard that the touching of Person 1’s thighs wasmomentaryand cannot be satisfied there was sexual motivation albeit inappropriate.”
“Found Proved The Committee considered that putting your arms around Person 1 which was uninvited and unwarranted, and particularly at the workplace, is inappropriate.”
“12. I also recall on numerous occasions when working with the Registrant and on more than one shift, he would stand uncomfortably close to me in the corridor when we left the SMDEC Surgery whilst x-rays were being taken...for safety reasons both the dentist and the dental nurse are required to leave the room and so we go and stand in the corridor... ... 14. The Registrant would stand right next to me even though there was plenty of space for him to stand further away from me in the corridor....”
“Q: And you say – presumably the first time he stood close to you, you felt uncomfortable. A: Yes Q. So the next time you probably felt uncomfortable too on your account, did you? A. Yes Q. So on the third occasion why did you not move yourself a little further down the corridor. A. I think I used to stand in the diary of surgery 6, room 6, just because you can still see directly into the room. Q. But if you were uncomfortable with him why did you not move further away? A. I have not got an answer for that.”
“Q: and it is done by this remote control? A: it is, yes, the thing that we can see on the wall. Q: if we look at photograph 2, we can see that it has got a lead A: yes Q: how may times did he stand too close to you in the corridor? A: I would not be able to say a number specifically. It was a few times. Q okay. But we can see, can we not, that whoever has got remote control in their hand cannot go any further than the remote control where will that them go, right? A: Right Q So you go out of the room first? A: yes: Whilst possibly ambiguous, in the context of the sequence of questions being asked, in my judgment the word “taken” appears to refer to the act of operating the remote control, rather than the act of physically taking the remote control out into the corridor. A: yes Q: how may times did he stand too close to you in the corridor? A: Right Q So you go out of the room first? A: yes: Then in answer to Committee questions, Person 1 said: “Q...who picked up the remote and who pressed the button...? A...I would have picked up the remote and stood outside the surgery and then the dentist would press the button. Q. So --- A. Or the clinician Q. Would you hold the remote and the dentist would then just press the button with a finger, or would they just take --- A. No they would just press the button with their finger.”
“Q. When I was asking you questions about taking X-rays, you told me that it was the dentist who went out with the remote control. A. Yes, or the nurse. Whoever. It is not unusual for the nurse to collect it whilst the dentist is positioning the patient’s head and the collimator. Q. It is just that when I asked you specifically, you did not say that. You said it was the dentist. A. Yes, the dentist can take the remote as well. If it was me I usually take it out. Q. But, you see Person 1, when I was asking you questions you told us it was the dentist, not “it could be either of us”
“Admitted and Found Proved The Committee found Person 2’s evidence to be a little confused at times and that her memory of events may have been impacted due to the passage of time. It was clear that Person 2, remembering back to the events was upsetting for her. However, it still found Person 2 to be a credible witness. The Committee took into account your admission to this charge but notes that it is disputed to whether it was your invitation or Person 2’s invitation to go into the SMDEC surgery. In Person 2’s evidence she stated that you had invited her to the SMDEC room to show her something and not to carry out a massage on her. Person 2 was not expecting a massage from you and that it came as a surprise to her. In your evidence you stated that Person 2 was going to the SMDEC surgery knowing that she was going to have a massage from you. The Committee heard during Person 2’s evidence that as she entered the SMDEC surgery she had sat on the chair back to front. She stated that she sat the other way and believed that the back of the chair was at her front. Person 2 stated that she does not normally sit in a chair back to front, but on this occasion she did. Person 2 remembered leaning forward as the pressure of the massage increased. The Committee considered that the way Person 2 sat on the chair is an unusual way to sit if she did not know what was going to happen. Person 2 sat on the chair knowing that she was going to get a massage because her back would have been exposed for it to be massaged. The Committee could not be sure on the balance of probabilities that she did not consent to the massage, or led you to believe that she had consented.”
“Found Proved In Person 2’s evidence she stated that after you carried out the massage on her neck and shoulders, you proceeded to hug her from behind. In your evidence you accepted that there was a hug albeit brief and was initiated by Person 2. You stated that after the massage Person 2 hugged you, thanked you and told you that her pain had improved. The Committee was persuaded by Person 2’s evidence.It finds that she had a clear recollection about this incident. Subsequent to this incident the Committee notes that Person 2 made an early report of what had occurred to Person 4. Person 2 had informed Person 4 of what had happened shortly after in their car journey home together. Their conversation was later followed by sending text messages to each other which stated …”
“Found Proved In Person 2’s evidence she stated that you brought your arm around the front of her body and then squeezed her breast. She stated that the squeezing stopped when she said words to the effect of “I didn’t realise that’s what we were doing?”
“Admitted in respect of 5.a only and otherwise Found Proved in its entirety The Committee considered that your conduct in charges 5.a, 5.b and 5.c namely: massaging Person 2’s back and shoulders, hugging her and touching/squeezing her breast is clearly inappropriate. It therefore finds this charge proved.”
“Found Proved in relation to charge 5.b and 5.c only The Committee notes that Person 2 made a disclosure to Person 4 that same afternoon on5 April 2020 about the events that had occurred that day. WhatsApp messages were exchanged between Person 2 and Person 4 which supported the account that was given by Person 2 during her oral evidence. The Committee considered that your conduct was clearly inappropriate and sexually motivated and was supported by the reported conversation between Person 2 and Person 4. You started off massaging Person 2 (which the Committee has found not to be sexually motivated albeit inappropriate), which then led to you hugging her and touching/squeezing her breast. The Committee considered that there was a clear emerging pattern of conduct demonstrating overt sexual interest towards Person 2. Your actions, namely the hug and touching/squeezing of the breast were of an overly affectionate nature and extended beyond a greeting or expected interaction between work colleagues. The Committee finds that your conduct in relation to 5.b and 5.c was sexually motivated. Found not proved in relation to 5.a The Committee has found proved in Charge 5.a above that on the balance of probabilities you massaged Person 2’s shoulders and/or back which she had consented to. Whilst it was admitted by you and found proved by the Committee to be inappropriate, it did not find evidence that your conduct was sexually motivated.”
“Found Proved in its entirety Person 3 in her evidence stated that she was in the decontamination room when you came in and rubbed/squeezed your hands along her upper arms. She explained that it felt ‘weird’. In your evidence you told the Committee that you wanted to see if she would want to be included in a selfie with you and that you tapped her arms rather than squeezing/rubbing as described. The Committee found Person 3’s evidence to be straightforward and matter of fact. She was clear and had a good recollection of the events. The Committee was also satisfied that the account it heard from Person 3 is the independent recall and there is no contamination in respect of that recall in terms of any conversation with others. It accepted her evidence and found her to be a credible witness. The Committee considered that Person 3 knew the nature and distinction of the touch that you undertook compared to the touch someone experiences when getting their attention. The Committee did not find your evidence credible. It would not have been necessary to touch Person 3 at all to ask if she wished to take part in a selfie. It is a small room and your appearance at the doorway could easily have attracted her attention. This was also in the middle of the covid pandemic when social distancing and avoidance of contact was required. It considered that the allegation made by Person 3 is not the sort that is capable of arising from a misunderstanding and that there is no credible evidence before the Committee she had a motive to lie. Accordingly, the Committee finds this charge proved.”
“Found Proved The Committee considered that you squeezing and rubbing Person 3’s upper arms which was uninvited and unwarranted, and particularly at the workplace, is inappropriate.”
“Found Proved The Committee heard from Person 3 that you asked her “Do you like that?” after you had rubbed and squeezed her upper arms. It considered that this comment along with the rubbing and squeezing of Person 3’s upper arms was personal and signalled personal attraction. Asking Person 3 “Do you like that?” hassexual overtones and your purpose was to express sexual interest in Person 3 and therefore your conduct in Charge 7 was sexually motivated. Accordingly, it finds this charge proved.”
“(6) If a Practice Committee determine that a person's fitness to practise as a dentist is impaired, they may, if they consider it appropriate, direct— (a) (subject to subsection (7)) that the person's name shall be erased from the register; (b) that his registration in the register shall be suspended during such period not exceeding twelve months as may be specified in the direction; (c) that his registration in the register shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such conditions specified in the direction as the Practice Committee think fit to impose for the protection of the public or in his interests; or (d) that he shall be reprimanded in connection with any conduct or action of his which was the subject of the allegation.”
“27C – Resumed hearings (1) Where a Practice Committee have given a direction under section 27B(6)(b) or subsection (2)(d) or (3) of this section that a person's registration should be suspended, they may direct— (a) that the suspension shall be terminated; (b) that the current period of suspension shall be extended for such further period, specified in the direction and not exceeding twelve months, beginning with the date on which it would otherwise expire; (c) that the suspension shall be terminated and the person's registration in the register shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such conditions specified in the direction as the Practice Committee think fit to impose for the protection of the public or in his interests; or (d) that the person's registration in the register shall be suspended indefinitely, if— (i) the period of suspension will, on the date on which the direction takes effect, have lasted for at least two years, and (ii) the direction is made not more than two months before the date on which the period of suspension would otherwise expire.”
“(a) dismiss the appeal, (b) allow the appeal and quash the decision appealed against (c) substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee, the Professional Performance Committee or (as the case may be) the Health Committee, or (d) remit the case to the Professional Conduct Committee, the Professional Performance Committee or (as the case may be) the Health Committee to dispose of the case under section 24, 27B, 27C or 28 in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.”
“29A.— Taking effect of directions for erasure, suspension, conditional registration etc. (1) This section applies to— (a) a direction for erasure given by the Professional Conduct Committee under section 24(3); (b) a direction for erasure, suspension, conditional registration or variation of or addition to the conditions of registration given by a Practice Committee under section 27B or 27C; and (c) a direction for conditional registration given by the Professional Conduct Committee under section 28(6)(b). (2) A direction to which this section applies shall take effect— (a) where no appeal under section 29 is brought against the decision giving the direction within the period of time specified in subsection (1B) of that section, on the expiry of that period; (b) where such an appeal is brought but is withdrawn or struck out for want of prosecution, on the withdrawal or striking out of the appeal; or (c) where such an appeal is brought and is not withdrawn or struck out for want of prosecution, on the dismissal of the appeal. (4) In this section – (a) a reference to a direction for suspension includes a reference to a direction extending a period of suspension and a direction for indefinite suspension.”
“30. Orders for immediate suspension and immediate conditional registration (1) On giving a direction for erasure or for suspension under section 24(3), section 27B(6)(a) or (b) or section 27C(2)(d) or (3) in respect of any person, the Practice Committee giving the direction, if satisfied that to do so is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of that person, may order that his registration shall be suspended forthwith in accordance with this section. (2) [deals with immediate conditional registration] (3) Where, on the giving of a direction, an order under subsection (1) or (2) is made in respect of a person, his registration in the register shall, subject to subsection (6), be suspended or made conditional, as the case may be, from the time when the order is made until the time when— (a) the direction takes effect in accordance with section 29A; (b) an appeal under section 29 against the decision giving the direction is determined under section 29(3)(b) or (c); or (c) following a decision on appeal to remit the case to a Practice Committee, the Practice Committee dispose of the case. (4) Where a Practice Committee make an order under subsection (1) or (2), the registrar shall forthwith serve on the person in respect of whom it is made notification of the order and of his right to make an application under subsection (7) … (7) A person in respect of whom an order under subsection (1) or (2) is made may apply to the court for an order terminating any suspension imposed under subsection (1) or any conditional registration imposed under subsection (2), and the decision of the court on any such application shall be final. (8) In subsection (7) “the court” — (...) (c) in the case of any other person, means the High Court in England and Wales.”
“(3) Where any such direction as is mentioned in section 27C(1)(b)4, (c) or (d), (2)(b) or (d), (3) or (5)(c) is given while a person's registration is subject to conditions or suspended by virtue of a direction under this Part, his registration shall continue to be conditional or suspended throughout any period which may intervene between the time when (but for this subsection) his registration would cease to be conditional or suspended, as the case may be, and the time when— (a) the direction takes effect in accordance with section 29A; (b) an appeal under section 29 against the decision giving the direction is determined under section 29(3)(b) or (c); or (c) following a decision on appeal to remit the case to a Practice Committee, the Practice Committee dispose of the case. (4) If, on the determination of an appeal under section 29, a direction extending the current period of suspension or conditional registration for a further period takes effect after the time when (but for subsection (3)) the current period of suspension or conditional registration would have ended, that further period shall be treated as having started to run at that time.”
“6.27. A Suspension Order takes effect 28 days from the date the notification of the decision is served on the registrant (there is a statutory appeal period of 28 days). The PCC should therefore consider whether it is necessary, in order to protect patients and members of the public, to impose an immediate suspension in addition to the substantive order (see paragraphs 6.35- 6.38) … 6.37 When the PCC imposes suspension or erasure, it may also impose immediate suspension. This means that the registrant is suspended straightaway. The registrant is subject to the immediate suspension until either the appeal period expires or until any appeal is disposed of. If the sanction is not changed on appeal, the substantive suspension or erasure then comes into effect.”
“…I said at the beginning that the Fitness to Practise Panel's decision, given on13 September 2005 , was that Dr Ghosh would be suspended from practice for 12 months. I was dismayed to learn from Miss Rose that the effect of sections 38 and 40 of the Act of 1983 is that the period of suspension so far, pursuant to the order for immediate suspension under section 38(1), does not count towards the 12 months' suspension ordered by the Fitness to Practise Panel. This is in contrast to, for example, appeals by convicted prisoners to the Court of Appeal (Criminal Division) where time spent in custody pending appeal normally counts, though the court has a discretion (rather rarely exercised) to disallow it. If it is indeed the case that where a doctor, whose immediate suspension under section 38(1) has been ordered and who appeals to the High Court against the order for suspension imposed by the Fitness to Practise Panel, may be adding several months (or in this case, because of the unfortunate length of time it has taken to list the case, a year) to the period of suspension ordered by the Panel, this ought to be made widely known. Those responsible for keeping the provisions of the Medical Act under review ought perhaps to consider whether it should be made a matter of discretion either in the Fitness to Practise Panel or in this court, or both, as to whether the period of suspension, served pursuant to section 38(1), should count towards the substantive period of suspension ordered by the Panel. Unfortunately I do not have any power to do anything about it in this case.”
“44. I should note that in its determination the Committee also imposed an interim suspension order on Ms Kamberova pending the hearing of this appeal, the effect of which is that if I had dismissed the appeal today without more Ms Kamberova would have served a period of suspension of 12 months from today's date even though she has been suspended ever since the Committee's determination and, as appears from above, even before that date. 45. In these circumstances, the Committee when redetermining the issue of sanction which I remit for them to determine, should have regard both to the period of interim suspension before the Committee's determination in December 2015, and the period of suspension pending this appeal. It would be unfortunate if the effect of Ms Kamberova’s success on appeal on the issue of sanction was to increase the overall length of the period of suspension.”
“The rules also have the unfortunate consequence that time on suspension between the determination of sanction and the outcome of any appeal does not count towards the overall period of suspension. This means that the maximum of 12 months is often little more than fiction. An attempt is then made to counterbalance the unfairness of that rule which sets a price on appealing. The doctor can apply to this court to lift the temporary suspension until the appeal is heard. That would be well and good if it did not take several months for such an application to be determined.”
“32. If a nurse wishes to appeal against a decision of the Nursing and Midwifery Council, an interim period of suspension is imposed, ending upon the resolution of the appeal or a period of 18 months, whichever is earlier. If the appeal is unsuccessful, the interim suspension is followed by the original sanction, which might be 12 months suspension (as in the present case). 33. While accepting that the rationale underlying such an approach includes the need to protect the public, we consider that there may be an appearance of unfairness, for two reasons. First, time spent on interim suspension does not count towards the period of suspension ultimately imposed as a sanction; and secondly, a nurse with a valid appeal point may be discouraged from making an appeal on the view that doing so would simply prolong the unwanted absence from work. We note that in other areas of the law, where an interim sanction is imposed pending the completion of procedural steps, it is usual to have the interim period count towards the period of the final sanction, provided first, that the two are similar in nature and secondly, that the interim period is not taken into account when the final sanction is imposed. The underlying principle is that reasonable procedural steps taken by a party, such as a right of appeal, should not have an effect on the total sanction that is imposed. 34. To counter these concerns, the Nursing and Midwifery Council might wish to consider altering the relevant part of the decision letter (page 28 in the present case) to make it clear (i) that the period of interim suspension would not exceed 18 months (unless there was an extension); and also (ii) that in terms of articles 30 and 31 ofThe Nursing and Midwifery Order 2001 it is always open to a nurse during suspension to seek review of interim and substantive suspension orders, on the basis of such additional information thought to be relevant and appropriate. For example, the nurse might rely on the completion of a training course undertaken following upon the disciplinary hearing and decision. In that way, a nurse previously thought to have demonstrated a lack of certain skills, or a lack of insight into her situation, might be able to persuade the committee that she had developed the skills or acquired a greater appreciation of her circumstances; that she had achieved what the professional tribunals refer to as "remediation"; and that there was no need for further suspension. 35. Consideration might also be given to the question whether time spent on interim suspension should count towards any period of suspension imposed as a sanction.”
“No deduction should be made from the period of suspension in respect of time spent pursuing this appeal. The statutory structure did not envisage any such deduction and it was not for the court to innovate on the terms of the 2001 Order. An interim order and a final sanction had different purposes and the distinction between the two should not be blurred by deducting from the final suspension any period arising from an interim order. The invitation of the court in Burton to consider whether there was a need for amendment of the equivalent disciplinary scheme for nurses and midwives had not been taken up. In any event it could not be said that the panel’s decision was plainly wrong when it could not have known, when imposing the sanction, whether its decision would be appealed or, if so, how long it would take for the appeal to be determined.”
“Finally, we are not persuaded that it is open to us to reduce the length of the suspension to take account of the time taken for the appeal to be determined. Article 29(11)(b) of the 2001 Order is clear that where an appeal has been taken, no order by the panel takes effect until the appeal has been disposed of. Taken on its own, that provision affords a protection to a practitioner who decides to challenge the sanction that a panel has imposed. Where, however, the imposition of a suspension order under article 29 is accompanied by the making of an interim suspension order under article 31, the prospect arises of an aggregate period of suspension significantly in excess of 12 months.”
“22. Under article 59 of the Order a direction for removal does not take effect pending any appeal but the committee exercised its power under article 60(2) to direct that Mr Khan’s entry on the register “be suspended forthwith, pending the coming into force of the direction”
“There was a period, I understand, between July 2009 and February 2010 when the Interim Orders Panel had suspended the Appellant, having regard to the disciplinary complaints outstanding against him, although I was told that little was known about the reasons for this and that, in any event, there had been no evidence before the Panel in December 2010 as to why that earlier period of suspension had been imposed. Ordinarily, it was submitted, it would be right to assume that the Interim Orders Panel was concerned with different criteria from those later addressed by the Fitness to Practise Panel. It would be concerned with its own perception as to any risk in the intermediate period, rather than with imposing a sanction for the reasons taken into account by the later Panel. It would be undoubtedly right that the suspension it imposed should be borne in mind as part of the background circumstances, but it would certainly be inappropriate to regard it as analogous to a period of imprisonment served while on remand (which would normally be deducted from any custodial term imposed by the sentencing court).”
“99. As a statement of general approach this is wrong and misleading. Insofar as the purpose of the sanction is to punish the practitioner or deter him from repetition of the conduct in question, it is a matter of common fairness that account should be taken of the punitive and deterrent effect of having already been deprived of the ability topractice for a period under temporary suspension orders. To that extent there is a direct analogy with sentencing for criminal conduct in which time spent in prison on remand is automatically credited against the sentence imposed for the offence. 100. It may also be appropriate to take into account periods of interim suspension insofar as the sanction is intended to mark the gravity of the offence so as to send a message to the profession and to the public. If, for example, there were a contrite practitioner with full insight into misconduct which was sufficiently serious to warrant suspension, the necessary message could be sent to the profession and the public by the tribunal making clear that the gravity of the misconduct needed to be marked by a suspension of a stated length; but that in fairness to the practitioner, he should be allowed to return to practice immediately, or within a lesser period, by reason of his already having been deprived of the ability to do so in the period prior to the imposition of the sanction. Messages depend upon the terms in which they are sent, and tribunals ought to be able to frame their decisions in language which enables the appropriate message to be sent whilst ensuring fairness to the practitioner in question. 101. However where, or insofar as, the suspension is required to return the practitioner to fitness to practise, and/or to mitigate the risk of further commission of the misconduct, and/or for the continued protection of the public from harm, periods of interim suspension may have little or no relevance. In those cases the length of suspension is tailored to what is necessary for the removal of impairment, removal of risk of repetition, and maintaining the safety of the public. Time already spent suspended from practice has no direct bearing on the length of a suspension which is necessary to achieve these objectives. To give credit for time away from practice under interim suspension orders in such cases would be likely to undermine those objectives in protecting the public from harm, promoting professional standards in the profession and promoting and maintaining trust in the profession. 102. This is consistent with the decision of Dingemans J, as he then was, in Kamberova v Nursing and Midwifery Council[2016] EWHC 2995 (Admin) and his reasoning at [36] and [40]. We were referred to the remarks made by Eady J in Ujam v. General Medical Council[2012] EWHC 683 (Admin) at [5] and Silber J in Abdul-Razzack v General Pharmaceutical Council[2016] EWHC 1204 (Admin) at [84]-[85]. They were saying no more than the particular purposes of professional sanctions mean that there is no universal analogy with periods of imprisonment served on remand. That point is well made. It does not mean, however, that time spent suspended under interim orders should generally be ignored, and it may be required to be taken into account in favour of the practitioner within the framework of the sanctioning objectives in the ways I have suggested.”
“The default position on the “taking effect” of the suspension direction 24. The next question is: when does any suspension direction take effect? Another slightly different question is when does it start? I raise the verbal difference here because, as will be seen, it will become important.”
“25. It is clear from this section that the default position is that the “taking effect” of any suspension is automatically delayed by the 28 day appeal period during which the Appellant has the right to appeal. If the dentist does enter a notice of appeal then the default position is that the start of the suspension is delayed further until the end of the appeal. Thus, without another order by the PCC, any dentist can continue practising as a dentist, despite the suspension direction, for 28 days after the PCC’s decision and if the dentist enters a notice of appeal, the taking effect of the suspension is further delayed for an indeterminate period until the appeal is withdrawn or heard.”
“The PCC’s power to impose an immediate start to the suspension 26. In addition to the default position, the PCC has power to start the suspension immediately. I use that word intentionally. This is contained in S.30 of the DA84 …”
“Taking effect of the suspension direction 37. S.29A determines when the S.27B suspension direction usually takes effect. The plain and grammatical meaning of the words “this section applies to” indicate that it applies to directions for suspensions because these are specifically listed in subsection (1). The words “shall take effect” are mandatory. The timing of the taking effect is different in each of the three subsections. If there is no appeal, the taking effect is the end of the 28 days appeal period. If there is an appeal, the taking effect is the withdrawal, striking out or dismissal. What this section does is set the default date for the direction to suspend to take effect. What the section does not do is expressly state how it interacts with S.30 in relation to the duration of the suspension nor does it set any start date, a term to which I will refer below. Parliament could have made it clear how S.29A would interact with S.30 in relation to duration but did not do so in this section. Immediate suspension 38. S.30 creates a “taking effect” date for the suspension which is different from the default date. In my judgment the plain grammatical meaning of the words in S.30 is as follows. Subsection (1) makes it plain that the power granted to the PCC under S.30 only arises“on giving a direction for … suspension”.Thus the S.30 power is parasitic on the S.27B direction for suspension. That is wholly logical because the need for immediate suspension can only arise after the PCC has heard the evidence and carefully measured and analysed the evidence, found misconduct, found impairment of fitness to practise, then carefully assessed the relevant sanctions and expressly chosen suspension and the duration thereof. Once the suspension direction is made, the threshold for making a different “taking effect” date from the default one is partly opened. Then, to grant the S.30 order, the PCC must be “satisfied that to do so is necessary”
“until the time when “(a) the direction takes effect in accordance with section 29A; (b) an appeal under Section 29 …is determined under section 29(3)(b) or (c); or …”
“The relevance of the judgment in Ujam to the issues I have to decide is that if time spent on interim suspension has some relevance to the determination of the final sanction then time spent on immediate suspension after the final sanction cannot be irrelevant to the duration of the final sanction.”
“The reliance on this obiter dicta does not take the Respondent’s arguments forwards with any substance in my judgment. Firstly, the matter was not fully argued before the Court of Session. Secondly, interpretation of the relevant acts was not addressed. I respectfully agree that the direction for suspension can and should include words to the effect that any immediate order of suspension should be set off against the duration of the direction for suspension.”
“92. The problem which has been identified is the effect of an immediate suspension order when an appeal is dismissed. If the GDC’s interpretation of the Sections is correct, for this Appellant, he will have served 4.5 months of suspension already and will then have to serve another 9 months if the appeal is dismissed. That is a total of 13.5 months. In my judgment, such an interpretation breaches the statutory ban on any suspension being over 12 months and is in effect a punishment for appealing which is contrary to established principle. The effects of the interaction of the Sections does not permit for a longer duration of suspension. Parliament fixed the maximum duration in S.27B(6)(b) of 12 months and did not legislate for that to be ignored or breached by the interaction between Sections 29A and 30. The latter are subservient to the former. I consider that the GDC’s interpretation of the Sections drives a coach and horses through the statutory 12 month maximum on the PCC’s power to impose suspensions which cannot have been the intention of Parliament. 93. I consider that GDC’s interpretation of the Sections is unfair to the Appellant. It effectively increases the PCC’s carefully measured and titrated sanction just because he has appealed. I do not consider that professional conduct and standards are maintained by such an approach, which results in registrants considering that they are being treated unfairly in relation to appeals because their sanction is increased by the very act of appealing. Therefore, I consider that this interpretation is contrary to one of the main objectives of the Act. Furthermore, in my judgment it is contrary to natural justice to penalise an appellant just for the act of appealing (not the substance of the appeal), when the right to appeal is provided by statute. 94. Taking into account the wording of the Sections, the purpose of the Act, the context and the objectives of the Act, the consequences of the various possible constructions and the case law, in my judgment there is a difference between the words “takes effect” and “start”
“So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary.”