QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SANDEEP LUTHRA||(CLAIMANT)|
|GENERAL DENTAL COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P KOLVIN (instructed by MESSRS CAPSTICKS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(1) The PCC erred in law in failing to give any or any sufficient reasons for the finding of dishonesty or the findings of fact upon which it based its finding of serious professional misconduct.
"(2) By its failure to provide reasons the PCC has acted in breach of its common law duty to provide reasons and/or has acted in breach of the rules of natural justice and/or has unfairly deprived the Appellant of his right to a fair trial under Article 6 of the European Convention on Human Rights."
"Treatment of early or small carious lesions in pits and fissures of permanent or retained deciduous teeth, by the application of a fissure sealant to all pits and fissures, including, where necessary, removal of caries and insertion of composite resin and/or glass ionomer cement in the cavity. Fee per tooth..."
Then there is different fees for four different categories. One is with sealant only. The second is with insertion of composite resin. The third with insertion of glass ionomer. The final one, which is 1444, with insertion of glass ionomer followed by composite resin. That last, 1444, attracts the highest fee.
"Finally, may I remind the Committee that you should give brief reasons for your decisions; that is, to explain why you have reached them. These reasons should be given at the conclusion of any stage two. You should, however, when announcing your findings of fact at the end of stage one, indicate if necessary, but only if necessary, the extent and limits of your findings of fact so that the parties will be in a position to make appropriate submissions, if this inquiry proceeds into a second stage."
I interpose to note that stage 1 is when the facts are found and stage 2 is when the panel decide whether they amount to serious professional misconduct and what the appropriate penalty should be if they do.
"The Committee have found that you deliberately submitted false misleading claims to the Dental Practice Board. Your purpose was to receive payments to which you knew you were not entitled. All these claims were made dishonestly. Any fraud, or attempted fraud, on the NHS is serious. Moreover, you have not, in the face of overwhelming evidence from the credible witnesses called on behalf of the Council, either acknowledged your wrong-doing or expressed any regret for it. The recent warnings you have received from the GDC suggest that you have yet to recognise your professional responsibilities."
"It is plain that reasons were given in this case. The question is as to the adequacy of those reasons.
"In regard to this question, it is necessary to bear in mind the composition and nature of the Professional Conduct Committee which is constituted by the Council under the rules made under paragraph 21 of Schedule 1 to the Medical Act 1983. It is composed of medical practitioners and lay members. The only legal assistance they have is that of the Legal Assessor appointed under paragraph 7(1) of Schedule 4 to that Act, whose function under the General Medical Council (Legal Assessors) Rules 1980 (SI 1980 No 941) is to advise them on questions of law. The 1988 Practice Rules require the Committee to reach a view as a committee on the matters which they have before them for determination. No provision is made for expressions of dissent either as to the result or on matters of detail. In these circumstances it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases.
"In the present case the complaint is that reasons should have been given to explain the basis upon which the Committee found against the appellant on the questions of fact raised by head 2(b). It was plain, however, from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the Committee's assessment of the appellant's credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the Committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In the circumstances their Lordships do not consider that it was necessary for reasons for this part of the Committee's decision to be given."
"Your evidence to this committee was inconsistent and by reason of our determination untruthful in many respects."
The argument advanced on her behalf was that Selvanathan should be restricted to cases where there was just a simple dispute as to fact. It was suggested that reasons for factual findings should be made where there were more complex issues in dispute.
"In arriving at this decision the committee has listened carefully to the information put before the committee in mitigation and having taken this into account we consider that your fitness to practice on Part 12 of the Register is still impaired.
"The reasons for removal are that you have manifestly failed to promote the interests of individual patients and clients and have also failed to justify public trust and confidence."
Newman J considered that the reasoning there was inadequate. He held that in circumstances where they were faced with evidence to suggest that the appellant was now fit to carry on in practice, they ought to have given their reasons as to how they weighed up and assessed that evidence.
"Where the Professional Conduct Committee determine under this section that a person's name shall be erased... or that his registration shall be suspended, the registrar shall serve on him a notification of the determination and of his right to appeal against it under section 29 below."
"Where a person is notified --
(a) under subsection (4) of section 27... he may, within twenty-eight days from the service of the notification, appeal [against that determination or direction to the relevant court]."
"Where no appeal is brought against any determination... within the period... [that is within the period of 28 days] the determination or direction shall take effect at the expiry of that period.
"(2) Where an appeal is so brought... the determination or direction shall not take effect until such time as the appeal is dismissed or withdrawn or is struck out for want of prosecution."
"If the Committee determine not to postpone judgment, they shall consider and determine whether by reason of the... [matters] it shall be sufficient to direct the Registrar in accordance with section 27(1) of the Act to suspend the respondent's registration for a specified period not exceeding twelve months."
(a) the appeal court or the lower court orders otherwise... an appeal shall not operate as a stay of any order or decision of the lower court."