QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ROBERT JULIAN HOSSACK||(CLAIMANT)|
|THE GENERAL DENTAL COUNCIL||(DEFENDANT)|
Computer-Aided Transcript of the Stenograph Notes of
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MR DAVID FOSKETT QC (instructed by Reynolds Porter Chamberlain) appeared on behalf of the CLAIMANT
MR IAN STERN (instructed by Capsticks) appeared on behalf of the DEFENDANT
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"If under the last foregoing paragraph the Committee determine as respects any charge, either that none of the facts alleged in the charge has been proved to their satisfaction, or that such facts as have been so proved would be insufficient to support a finding of serious professional misconduct, the Committee shall record a finding that the respondent is not guilty of such conduct in respect of the matters to which the charge relates."
"(2) Where in a case relating to conduct the Committee have found that the facts or any of them alleged in any charge have been proved to their satisfaction (and have not on those facts recorded a finding of not guilty) the Chairman shall invite the complainant or the solicitor, as the case may be, to address the Committee and to adduce evidence as to the circumstances leading up to the facts in question, the extent to which such facts are indicative of serious professional misconduct on the part of the respondent, and as to the character and previous history of the respondent. The Chairman shall then invite the respondent to address the Committee by way of mitigation and to adduce evidence as aforesaid. The Committee shall forthwith consider and determine whether in relation to the facts found proved as aforesaid the respondent has been guilty of serious professional misconduct. If they determine that the respondent has not been guilty of such misconduct in relation to some or any of such facts they shall record a finding to that effect."
"The phrase in rule 28(1) most likely to produce confusion on first reading is "the character and previous history of the practitioner" set in the context of arguments and evidence relating to "serious professional misconduct". This is a difficulty only if it is assumed that character and previous history can never be relevant to the question whether the practitioner is guilty of serious professional misconduct. In truth evidence which may be relevant both to this issue and, if proved, mitigation, may overlap. Thus, the professional history of the practitioner may support a finding of serious professional misconduct on the basis that he has previously been found to have committed an identical professional error. This may not have been regarded as serious professional misconduct on the first or previous occasion, but the "history" may lead the Committee to conclude that on this occasion it does, just because the conduct in question was repeated. Without the previous history an acquittal would be appropriate. In a different context, the error under consideration may need to be examined in the context of a dedicated practitioner working in isolation and under huge pressure of, say, an epidemic. Such circumstances may be relevant to the question whether he should be found guilty of serious professional misconduct. It may indeed provide mitigation of circumstances, unrelated to penalty. If notwithstanding this evidence the case is proved, then precisely the same circumstances may also be relevant to mitigation of penalty.
20. In short, the same facts may on occasion impact both on the question whether the practitioner's conduct amounted to serious professional misconduct, and on the appropriate consequential sanction. Nevertheless, although the same evidence may be relevant on both questions, it does not follow that they cease to be distinct issues requiring separate determination.
21. Notwithstanding some potential difficulties with the language of the rules, as a general proposition it would be surprising if rules governing the disciplinary procedures for the medical professional were to achieve the somewhat startling result that the question whether a practitioner was guilty of serious professional misconduct could be influenced by matters of personal mitigation which went to the appropriate disposal of the complaint. It is in our view elementary that any evidence considered by the Committee should be relevant evidence. Mitigation arising from the circumstances in which the practitioner found himself or herself may be relevant to the level of culpability: once serious professional misconduct is proved, personal mitigation will be relevant to possible penalty. In our judgment, these are distinct issues, to be determined separately, on the basis of evidence relevant to them."
"At any resumed proceedings any new charge alleged against the respondent in accordance with these Rules shall first be dealt with in accordance with such rules of Rules 8 to 10, and so much of Rule 11 as may be applicable and if the Committee determine neither to conclude the case nor to postpone judgment in respect of any such new charge, the Committee may apply paragraphs (5) and (6) of Rule 11 simultaneously to the new charge and the charge in respect of which they had postponed judgment."
"I shall now attempt to explain what I understand to be the combined effect of those rules [the relevant part of rules 11 and 16(2)]. For this purpose let me hand out an aide-memoire as to the decision-making task ahead of you. You have read the rules. In this aide-memoir I use two particular terms: the old (which means the resumed) charge, which was initially decided in December 2001 and has been postponed on a number of occasions since; and the new charge which is the collection of charges you have just determined yesterday. That is a basic distinction between the old and the new charge.
Your first task is, bearing in mind the facts of the new charge and the previous history that is referred to expressly in 11.2 (that, of course, includes the history of the old charge), you have to decide the question: is Mr Hossack guilty of serious professional misconduct? If your answer to that is no, then the new charge ceases to be any part of your consideration. You are then in a position of determining how to deal with the resumed charge, which started back in 2001. Is everybody happy with stage one?"
Then it is noted "(agreed)". Pausing there, there was the two-stage exercise to be carried out. The Committee had to decide in accordance with 11(2) whether there was serious professional misconduct established by the findings of fact, and secondly what should be the sanctions. In his submissions Mr Gaisford, who was appearing on behalf of the appellant, had not seriously contended, indeed had not contended at all, that the findings of fact made should not amount to serious professional misconduct. It was apparent and obvious that there could be only one finding resulting from the combination of the old charge and the new that this amounted to serious professional misconduct, and indeed the appeal has not sought to challenge that.
"If you decide that he is guilty of serious professional misconduct, then you start into the flow of decisions in sub paragraphs 11.3, 11.4, 11.5 and 11.6. Is it sufficient, you ask yourselves, to conclude the case on the new charge? (That is 11.3) If it is, then you conclude the new charge. You put the new charge aside. You then deal with the old charge separately. Do you follow? If you say no, it is not sufficient to conclude the new charge, you proceed to the next stage. Is it sufficient to postpone judgment on the new charge? If yes, then you deal with the new charge in that way, put that aside and then look back at what started in 2001. If it is not sufficient to postpone, you then get to the question of suspension. We then get into the power contained in 16.2 about simultaneous disposal. Is it sufficient to suspend? This is the important bit: 'In arriving at that decision it is permissible to consider the penalty on the old charge at the same time' [That is a quotation from the aide-memoir]. Up until this point, you have considered the old charge as part of the previous history, but you have not been involved with determining the penalty or disposal of that. Do you follow? (Agreed) If the answer is yes, then you impose one suspension simultaneously on both the new and the old charges. If you reach that conclusion, or you have reached rather 11.5 and you are not satisfied with suspension, then 11.6 leaves you with no option. You are then obliged to erase. You will do so imposing one penalty simultaneously on both the new and the old charges.
THE CHAIRMAN: I find it very clear and very helpful indeed. Having discussed this with counsel, counsel are in agreement?
MR GAISFORD: Yes, indeed."
The legal assessor then went on to give advice as to the meaning of serious professional misconduct.
"I do not go beyond what has already been said. As I understand what has already been said, the position is this: on the authorities and in line with the Committee's usual practice, all I ask at this stage -- and indeed am entitled to ask for at this stage -- is some basic explanation of conclusions reached on any matters going towards any finding of serious professional misconduct. That is what I think the learned legal assessor has just indicated. That is all I ask for prospectively at this stage."
However, the Deanery meeting also highlighted the challenges that Mr Hossack has faced over the year, some that he has satisfactorily overcome, but some that he has yet to address. The major issue for those supporting Mr Hossack has been the way that most of the changes have been the reaction to pressure, rather than being proactive in nature."
"Mr Hossack said at the meeting at the deanery on 8 June 2004 that he was considering taking the MFGDP [which is as I understand it a qualification for which examination is required to be passed]. It is my opinion that whilst this is a laudable ambition, Mr Hossack does not realise the standard required for this and will be better served attempting to meet the BDA practice accreditation, the peer review or audit project or something more achievable at the present moment."
"I remain concerned as to Mr Hossack's potential at present for self-directed learning once the GDC/Deanery supervision is removed".
"There is no doubt that Mr Hossack has undertaken many hours of continuing professional development, and at all the meetings and discussions we have had with him, we have always stressed that it is not counting hours that is important, but how the learning is applied to practice and its impact on patient care. He agreed that he has made changes to his practice, however it is disappointing that he did not present any audit projects as we suggested. This would have provided valuable evidence of change."
She concluded that it was important that he continued to have some form of mentoring or support mechanism in place to enable him to maintain the continuing improvement that he had demonstrated to date.
"The Committee has taken into account all that has been said on your behalf including the mitigation. It has noted carefully the testimonials produced on your behalf. The Committee is conscious of the passage of time since these offences were committed. Pursuant to Rule 16.2 of the General Dental Council (Professional Conduct Committee) Procedure Rules 1984, the Committee has taken account of the GDC postponed judgment against you given in July 2001 and the evidence of subsequent changes to your practice and the CPD you have undertaken. The procedure followed was in accordance with the advice of the legal assessor, which itself was agreed by both counsel."
"Taking all these factors into account the Committee has found you guilty of serious professional misconduct. The Committee recognises that the directions imposed under rule 11 do not have any punitive purpose. Their purpose is to protect the public, maintain public confidence in the profession and maintain proper standards of behaviour by dental practitioners. It is on this basis the Committee has made its determination."