QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Council for the Regulation of Healthcare Professionals
|- and -
|General Dental Council
Iain Ralph Marshall
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Hockton (instructed by Radcliffes le Brasseur) for Iain Ralph Marshall
The General Dental Council did not attend and was not represented
Crown Copyright ©
Mr Justice Hodge :
"Mr Marshall, in reaching its determination the Committee has paid very careful regard to the facts found proved against you, which show deficiencies in the standards of care you provided to 9 patients over the period from 1985 – 2001. The particular failings which have been identified in your practice include:
- Failure to perform and note periodontal examinations, to provide treatment for advanced periodontal disease, and to provide advice on oral hygiene;
- Inadequate use of radiography;
- Very poor standards of root canal treatments;
- Failure to diagnose and treat caries;
- Provision of inappropriate treatment;
- Provision of defective crown and bridge work;
- Failure to inform one patient of a root perforation, and another patient of a fractured instrument left inside a root canal;
- Inadequate record keeping;
- Failure to explain to patients the nature of the contract under which they are being treated;
- Failure to provide adequate treatment plans; and
- Not always wearing gloves when treating patients."
"In reaching its conclusions, the Committee found your testimony to be somewhat unreliable and self-justifying. It has preferred the evidence of the patients and the expert witnesses Dr Deery and Mr Emery, over your testimony and that of Mr McPhillips.
Your failures to provide an adequate standard of care were apparent in so many basic aspects of dentistry, and took place over such a lengthy period, that the Committee can only view them as extremely serious. Because of your failings, the oral health of these patients suffered. Their serious dental decay or periodontal disease should have been identified and treated while they were under your care, but your inaction over many years amounted to serious neglect of their needs. In all the respects identified above you failed to meet the standards required of you as a member of the dental profession. Taking all the matters of your conduct into account, the Committee has found you guilty of Serious Professional Misconduct.
The Committee is concerned by the lack of insight you have shown into your failings in this case. You should be in no doubt that your conduct has fallen far short of the standard expected of a member of the dental profession.
The Committee recognises that 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. The Committee has made its determination on that basis. In considering sanction the Committee has taken into account all the mitigation which has been presented on your behalf.
The Committee has considered each of the options available to it in turn. It has borne in mind the need for proportionality in its decision, balancing your interests against the need to maintain public confidence in the dental profession, the broader public interest, and the need to maintain high standards of behaviour by dental practitioners.
The extensive and serious findings mean, in the judgement of the Committee, that to conclude with an admonition would be inadequate. The Committee carefully considered whether postponement would be an appropriate and proportionate sanction, and decided that this would not be sufficient to protect the public interest. The Committee then considered whether suspension would be an appropriate and proportionate sanction and concluded that this was the case. Accordingly the Committee has concluded that, for the protection of the public, your registration should be suspended for a period of 12 months.
The Committee has directed the Registrar to suspend the name of Iain Ralph Marshall from the Register. The effect of the foregoing direction is that unless you exercise your right of appeal your name will be suspended from the Dentists Register for a period of 12 months, beginning 28 days from this date.
The dental authorities in New Zealand will be informed of this determination. That concludes this case."
The Statutory Framework
"(2) The general functions of the Council are
a) To promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3)… and by their committees and offices / officers
b) To promote best practice in the performance of their functions
c) To formulate principles relating to good professional self regulation, and to encourage regulatory bodies to conform to them, and
d) To promote cooperation between regulatory bodies; and between them or any of them, and other bodies performing corresponding functions. "
"(4) If the council considers that-(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or (b) a relevant decision falling within subsection (2) should not have been made, and that it would be desirable for the protection of members of the public for the council to take action under this section, the council may refer the case to the relevant court… …
(7) If the council does so refer a case-(a) the case is to be treated by the court to which it has been referred as an appeal by the council against the relevant decision (even though the council was not a party to the proceedings resulting in the relevant decision), and (b) the body which made the relevant decision is to be a respondent… …
(8) The court may-(a) dismiss the appeal, (b) allow the appeal and quash the relevant decision, (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and may make such order as to costs… as it thinks fit."
"(1) Every appeal will be limited to a review of the decision of the lower court unless…
(a) a practice direction makes different provision for a particularly category of appeal; or
(b) the Court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing.
(2) Unless it orders otherwise, the Appeal Court will not receive
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) the Appeal Court will allow an appeal where the decision of the lower court was
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court
(4) the Appeal Court may draw any inference of fact which it considers justified on the evidence".
The Reference and the Court's Approach
"(71) If the Court decides the decision as to penalty was 'wrong' it must allow the appeal and quash the relevant decision, in accordance with CPR R52.11(3)(a) and Section 29(8)(b) of the Act. It can then substitute its own decision under Section 29(8)(c) or remit the case under Section 29(8)(d).
(72) It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the Disciplinary Tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the Disciplinary Tribunal with directions as how to proceed pursuant to CPR R52.11(3)(b) and Section 29(8)(d) of the Act".
The Reasons Issue
"Their Lordships consider that in practice, reasons should now always be given by the Professional Conduct Committee for the determination under Rule 29(2) whether or not they find the practitioner to have been guilty of serious professional misconduct and their decision on the question of penalty. Fairness requires this to be done, so that the losing party can decide in an informed fashion whether or not to accept the decision or to appeal against it… It is plain that reasons were given in this case. The question is as to the adequacy of those reasons."
And at page 14:
"In these circumstances it is not expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation for the basis of their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases."
"the provision of a right of appeal and the judicial character of the body point to an obligation to give reasons… There is nothing in the Act nor the Rules requiring reasons not to be given and no grounds of policy or public interest justifying such restraint. In the light of the character of the Committee and the framework in which they operate, it seems to their Lordships that there is an obligation on the Committee to give at least a short statement for the reasons of their decisions."
"The task of the Disciplinary Tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court in the cases referred is to consider whether the Disciplinary Tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty".
"Lastly I mention that there is a further practical reason why disciplinary committees should give adequate reasons for their decisions, and that is to enable the Council for the Regulation of Healthcare Professionals to consider whether to exercise its powers under Section 29 of the 2002 Act".
Adequacy of Reasons
"a) After patient A stopped being treated by Mr Marshall she was found to have a perforated root (pages 135, 179). She has suffered from problems since root treatment was provided by Mr Marshall (pages 134-135). She was also found to have significant evidence of periodontal disease, and to need replacement of 5 restorations (pages 177-178).
b) Patient B (who was aged 5 when she started seeing Mr Marshall) was found on 26th February 2002 to have a lot of decay, to require 17 fillings and to have poor contouring and contacts on all of her 7 existing restorations (pages 149, 180-181, and page 1093).
c) Patient C, who was found to have chronic adult periodontitis in December 2001, was not aware that she had any gum problems whilst she was a patient of Mr Marshall (page 188).
d) Patient D, aged 14 upon first attending Mr Marshall in August 1985, required replacement of all 10 restorations, and re-root canal treatment to eleven teeth (pages 933-939). This extensive remedial treatment was provided over a 2 ˝ year period. Also, in October 2001 she was identified as having a piece of fractured instrument inside her tooth, but had never been informed of this by Mr Marshall notwithstanding that she had told him that it was sore (page 198). Patient D's evidence was that when restorative work was suggested in 2001/2002 she went along with it because by then she was in constant pain and her teeth were fracturing and literally falling to bits (page 201).
e) Patient E was found, in March 2002, to have chronic adult periodontitis (page 102) about which he was unaware (page 212). There was bone loss and a need for specialist treatment. Five teeth ultimately needed to be extracted (page 104).
f) Patient F was found on 28 August 2001 to have caries in 5 teeth (page 106 and see findings of PCC attached). Also to have generalised calculus inflammation, plaque, possible staining, pocketing and probably increased bone loss (page 106), and to have suffered a perforation of the root during root canal treatment in 1999 (page 360).
g) Patient G was found on 5 March 2002 to have chronic adult periodontitis (page 108). Her evidence was that gum disease was never mentioned to her by Mr Marshall (page 373) and that she was really shocked when she discovered that she had severe periodontitis (page 390) and was in fear that she might be losing her teeth (page 392).
h) It was plain from the evidence of the patients that they liked and trusted Mr Marshall, and by reason of that did not consider consulting alternative dentists for a second opinion (see eg page 203, pages 376-377).
i) The expert evidence in relation to the use of Chemfil was that it should not be used for large occlusal or moderate to large occlusal biting surfaces, or for multi-surface restorations (page 226). However, in respect of several patients, it had been used in such situations (eg page 230, page 352).
j) Generally, in relation to periodontal disease such as that found in the patients the subjects of the charges, Dr Deery's evidence was that this would have been apparent on radiographs and upon examination, but that in respect of these patients there was no evidence of control of the disease or improvement whilst the patients were under Mr Marshall's care (pages 358-359)."
i) Mr Marshall's testimony was somewhat unreliable and self justifying.
ii) Mr Marshall's failure to provide an adequate standard of care was apparent in so many basic aspects of dentistry, and took place over such a lengthy period, that the PCC could only view them as extremely serious.
iii) Because of his failings, the oral health of his patients suffered. Their serious dental decay or periodontal disease should have been identified and treated while they were under his care, but his inaction over many years amounted to serious neglect of their needs.
iv) He showed lack of insight into his failings in this case.
"17. 1) The extent to which Mr Marshall's actions caused or could have caused direct or indirect harm
2) The extent to which Mr Marshall would continue to be a risk to patients if he returns to practice without assessment and retraining to ensure that he is fit to practice; and
3) Maintaining the reputation of the profession and public confidence in regulation".
"18. The mitigation submitted by Mr Marshall's counsel provided no assurance about public protection. Whilst he might now be practising in different circumstances, there was no evidence that he was himself changed so that he is fit to practice. On the contrary, there was evidence of lack of insight. Similarly, the testimonials submitted on his behalf provided no reassurance".