England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/03/2015

Mrs Justice Patterson:

Introduction

1. On 8 July 2014 the Professional Conduct Committee (PCC) of the General Dental Council determined that the appellant's fitness to practise was impaired by reason of her misconduct and ordered that she be erased from the register of dentists.
2. The appellant challenges the decision on the basis that the PCC applied a disproportionate sanction in ordering that she be erased from the register.

Legal and Policy Framework

3. Section 29 of the Dentists Act 1984 governs an appeal from a decision on the part of the PCC to erase a dentist from the register. Section 29(3) of the 1984 Act provides:

"(a) that the appeal be dismissed;

(b) that the appeal be allowed and that the determination or direction appealed against be quashed;

…

(d) that the case be remitted to the Professional Conduct Committee, the Health Committee or the Continuing Professional Development Committee to dispose of the case under section 27 or 28 above or under Schedule 3A to this Act in accordance with the directions of the Judicial Committee."

4. CPR 52.11.2 provides that:

"(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court."

5. The question for the court hearing the appeal pursuant to CPR 52.11 is whether or not the decision on the part of the PCC was:

"(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

6. In the case of Odes v General Medical Coucil [2010] EWHC 552 (Admin) at [91] Hickinbottom J said:

"Second, as I have already stressed, the Panel being a professional disciplinary tribunal, their judgment in relation to matters bearing upon the profession is worthy of considerable respect (see Paragraph 17 above). This is particularly so in relation to findings in respect of sanction, which peculiarly requires professional judgment, which Parliament has assigned the GMC to deal with through professional panels. This court is therefore slow to interfere with a sanction imposed by a panel of the GMC, and will do so only where the panel's decision is "clearly inappropriate" (see the cases cited above in Paragraph 14, especially Cheatle at [15] and [35])."

7. The approach to sanctions was summarised in Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [33] where Cranston J said:

"The seminal decision on sanction is Bolton v Law Society [1994] 1 WLR 512, where Sir Thomas Bingham MR endorsed the principle that it would require a very strong case to interfere with a sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct. That a sanction might seem harsh, but nonetheless be appropriate, could be explained by the primary objects of sanctions imposed by disciplinary committees. One object was to ensure that the offender did not repeat the offence; the other, indeed the fundamental, objective was to maintain the standing of the profession (at pp 518-9)."

8. In terms of dealing with the attitude and insight of the registrant Cox J gave guidance in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Grant [2011] EWHC 927 (Admin) at [72] where she said:

"This need to have regard to the wider public interest in determining questions of impairment of fitness to practise was also referred to by Goldring J in R (on the Application of Harry) v. General Medical Council [2006] EWHC 3050 (Admin) and by Mitting J in Nicholas-Pillai, where he held that the Panel were entitled to take into account the fact that the practitioner had contested critical allegations of dishonest note-keeping, observing that:

"[19] In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him."

9. The policy guidance at the time of the hearing in July 2014 was contained in a document entitled 'Guidance for the Professional Conduct Committee November 2009 Version 5^[1]'. Material parts of that are contained within the section headed 'Public Protection and Proportionality':

"9. However, the Professional Conduct Committee must also protect the public. The PCC should:

protect a registrant's patients and colleagues from the risk of harm; and

safeguard public confidence in registered dental professionals generally.

10. The PCC should, in all cases, have regard to the requirements of public protection and the principle of proportionality in applying this guidance. Dealing with a case fairly, justly and efficiently includes:

dealing with a case in ways which are proportionate to the complexity of the issues and the resources of the parties;

seeking flexibility in proceedings wherever possible;

ensuring that all parties have been given an opportunity to participate fully in the proceedings;

using the Practice Committee's knowledge and experience effectively; and

avoiding delay, as far as possible."

Then there is a section of the advice dealing with possible outcomes. In relation to that paragraph 27 reads:

"When considering possible outcomes the Committee should consider directing the least serious sanctions first."

Each of the sanctions is then considered. Erasure is dealt with in paragraphs 40 to 42:

"40. The ability to erase exists because certain behaviours are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that removal of their professional status is the appropriate outcome. Erasure is imposed in order to protect the public and maintain its confidence in the profession as a whole. In this respect erasure is not principally a punitive measure, although it may have the secondary effect of being so. Prior to erasure being considered, all other available sanctions should be discussed to ensure that the case is being considered bearing in mind the principles of proportionality.

…

42. In the circumstances outlined in the guidance given below, a decision not to erase would require careful justification. That said, the commentary under each heading cannot cover every situation and each case must be considered on its own merits. The following guidance highlights behaviours which are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that erasure should be considered to be the appropriate outcome:

…

f. Failure to maintain professional knowledge and competence in areas relevant to the registrant's practice

A commitment to continuous development of knowledge and competence is an essential aspect of professional life. A registrant who is proven to have neglected this responsibility should not be permitted to continue to put patients' well-being and safety at risk."

Factual Background

10. The appellant arrived in the United Kingdom from Romania in November 2010. The first post that she held was in an NHS practice in Devon. The uncontested evidence before the committee showed:

a) That the appellant was in post from 6 April 2011 until 21 April 2011;

b) The appellant had been placed on the NHS Performers' List in March 2011 with conditions relating to a personal development plan (PDP) for General Dental Council (GDC) core areas, a retest of English language skills and an approved mentor;

c) She was suspended from her post as a result of numerous concerns (including record keeping, x-rays, concerns expressed by dental nurses) about her practice (there had been six complaints in seven days);

d) From May 2011 the NHS advised the appellant to refrain from practice and she undertook not to practise in the NHS;

e) At a performance panel hearing in October 2011 it was found that she had been given inadequate induction and training in a number of respects but her clinical performance was nevertheless inadequate;

f) The appellant was contingently removed from the NHS Performers' List, required to work with her local Deanery to produce a PDP to include record keeping, radiography, awareness of NHS procedures and treatment planning;

g) She was told that she would need to be supervised in practice.

11. On 27 March 2012 the appellant emailed Mr Harris at the Devon PCT informing him that she would not work in the NHS but was on her way to becoming an associate in a private dental practice. The two made telephone contact and Mr Harris gave the appellant full details of the London Deanery (as she had now moved to London), how she could email it to make an appointment to discuss the development of her PDP and, if the London Deanery was not convenient, that she could approach the East of England Deanery. Mr Harris asked for confirmation that the appellant would be contacting the Deanery and providing the PCT with a copy of an agreed PDP.
12. The appellant had an introductory meeting in April 2012 but took the matter no further until March 2014.
13. In December 2012 the NHS removed the appellant from the Devon Performers' List.
14. The Associate Dean at the London Dental Education and Training, Health Education North West London wrote to the PCC hearing that the appellant had attended an introductory meeting with Mr Rayan on 16 April 2012, had had a meeting with Mrs Jones on 17 March 2014 on PDP development, had delivered a PDP on 19 March 2014 and on 25 June 2014 had had a meeting with Mr Raj Majithia (on PDP and reflection review). The Associate Dean was happy that she was making reasonable progress since March 2014 but was concerned, and told the appellant, that her reflective writing was not adequate.
15. The PCC found:

"In light of the PCT's intervention, the need for you to remediate your practice was identified as early as October 2011. The Committee has taken into account the remediation you have undertaken since then, namely your PDP and the evidence of your continuing professional development (CPD). The Committee also considered your oral evidence in which you addressed the efforts you have made to ensure that you can now practice appropriately.

The Committee took into account the initial lack of understanding on your part with regard to what the PCT required of you in terms of a PDP. However, it notes the email correspondence between you and Mr Harris in March 2012, in which he advised you to contact a local deanery with the aim of developing a PDP to identify and meet learning objectives in: record keeping, practical use of radiographs, NHS procedures and claims, and treatment planning. Following this advice, you took very little action of your own accord. It was Mr Harris who eventually contacted the London Deanery on your behalf, as you were living back in London at that time. While you attended an appointment at the London Deanery on 16 April 2012, for assistance with developing a PDP, the Committee noted that you made little progress. You failed to engage with the personal development process, only making contact with the London Deanery again on 17 March 2014."

16. The appellant was asked questions by the panel during the PCC hearing. The chairman asked, "how would you feel picking up a high speed drill and working on a patient tomorrow, say, for example" the appellant replied "I will not have any fear". The case before the PCC concerned the appellant's treatment of two patients: Patient 1 who was treated between 18 February 2012 and 15 May 2012 and Patient 2 who was treated between 11 December 2011 and 15 May 2012. The panel found that the allegations of misconduct were made out on the facts of the case:

"Your standard of care and treatment for both patients fell below that reasonably expected of a dental practitioner in that:

You did not carry out sufficient diagnostic assessments during their initial appointments, which included failing to carry out Basic Periodontal Examinations;

You did not take any radiographs for Patient 1 and the radiographs you took for Patient 2 were inappropriate, as they failed to include the relevant teeth; and

You did not undertake sufficient treatment planning for either patient.

Further, in the case of Patient 1, you attempted to provide dental treatment in unsuitable environments, namely in a McDonalds restaurant and in the hallway outside of a dental practice. In Patient 2's case, you provided a poor standard of treatment in respect of his bridgework and provided him with antibiotics without labelling or instructions.

You did not complete the treatment of either of these patients, nor did you refer them to another practitioner for the completion of their treatment. While the Committee took into account your evidence about the difficulties you encountered in progressing with the treatment of those patients, it found that you should have made arrangements to ensure the continuity of their care.

In addition to the treatment failings, you failed to provide an adequate standard of record keeping for Patient 1 and Patient 2. These included:

making notes in their dental records in pencil, instead of indelible ink;

recording insufficient information in respect of the patients' presenting conditions and those initial examinations that you did carry out at their first appointments;

recording insufficient information in respect of the treatment provided, which in Patient 2's case included your failure to record the local anaesthetic administered, the diagnosis and reason for prescribing antibiotics on 23 December 2011, and the justification for, or report on, the radiographs you did take."

17. As a result the committee determined that the appellant's clinical practice had fallen far below the expected standards in a number of aspects. Misconduct was made out.
18. On the issue of impairment the committee concluded:

"The PDP before the Committee today is dated 28 December 2013 and in its view, the contents show that you have only undertaken the minimum effort required over a short period of time. Further, it was not satisfied by your evidence that you have benefited from the CPD that you have undertaken as part of your personal development. The Committee considered your reflective writing, along with the answers you gave in evidence and was not persuaded that you truly understand how to reflect effectively on your practice.

The Committee was also concerned about the lack of insight you have demonstrated throughout this hearing. In its opinion, you have repeatedly sought to blame others and a series of misfortunes for many of your clinical failings. You remain confident that you are a good dentist and you told the Committee that you would be able to cope if you were permitted to return to practise 'tomorrow'. However, it was clear to the Committee from your answers in evidence that you still have only a very basic understanding of fundamental aspects of dentistry, such as Basic Periodontal Examinations, radiography and record keeping. The Committee was also concerned about your failure to appreciate the seriousness of your clinical failings, particularly in relation to antibiotics. You seemed unaware of why it was inappropriate to provide Patient 2 with antibiotics that had been prescribed for your own use, and without knowing the purpose for which the patient intended to use the drugs.

The Committee has not seen or heard any evidence to show that you have genuinely begun the process of remediation. It considered that you have no insight into the deficiencies that have been identified in your practice and until you develop such insight you will not be able to address them. In view of the outstanding concerns that remain, the Committee concluded that you would be unable to practise safely as a dentist without restriction on your practice or at all. It also concluded that public confidence in the dental profession would be undermined if a finding of impairment were not made in the circumstances of this case. The Committee has therefore determined that your fitness to practise is currently impaired."

19. On sanction the committee took into account the Guidance for the Professional Conduct Committee (November 2009), considered the range of sanctions starting with the least serious and applied the principle of proportionality balancing public interest against the appellant's own interest.
20. The committee continued:

"The Committee considered whether to impose conditions on your registration. It took into account that any conditions imposed would have to be clear, workable and achievable. The Committee has found your knowledge and clinical skills to be lacking in basic elements of dentistry. It therefore decided that the level of supervision that would be required in your case would need to be extensive. In its view, for conditions to be workable in these circumstances, a practitioner would require a sufficient level of insight and would also have to demonstrate a willingness to comply with the requirements set by the PCT, that you would comply with conditions of practice. The Committee therefore determined that it could not formulate any workable conditions to protect the public adequately.

The Committee went on to consider whether to suspend your registration. In October 2011, you were required by the PCT to take remedial action, but the evidence before this Committee today is that you did virtually nothing in almost three years, until shortly before this hearing. The Committee noted that you do not entirely agree with the concerns raised about your practice in Tavistock, but it is clear from the findings made in this case that there are serious deficiencies in your clinical knowledge and practice, which you have failed to address.

The Committee has taken into account that you have been unable to practise since your treatment of Patient 1 and Patient 2 and therefore have been unable to provide practical evidence. However, you have not provided any evidence to demonstrate any real learning at all. The Committee therefore decided that it had no confidence that you would do anything further during a period of suspension to address the matters raised in this case. For these reasons, the Committee was not satisfied that a period of suspension would produce any improvement in your practice.

In reaching its decision, the Committee took into account the consequences for you in removing your ability to practise as a dentist. However, it considered that the need to maintain public confidence and uphold standards within the dental profession outweighed your own interests.

In all the circumstances, the Committee has determined that the only appropriate and proportionate sanction is to erase your name from the Dentists Register."

The Appeal Hearing

21. The appellant had been legally represented during the disciplinary hearing before the PCC. She then changed her legal representation for the appeal and her new lawyers submitted grounds of appeal and a skeleton argument on 3 August 2014. From 18 February 2015 she informed the Court that she would henceforth be representing herself. She did so in the hearing before me and spoke to and relied upon the same grounds that had been lodged as the grounds of appeal.
22. The appellant accepts that the PCC approached their task in the proper way by considering the least serious sanction first and then progressing up the scale. The appellant contends that she had engaged with the Deanery in March 2014 because she wanted help. She had understood that the cases of Patient 1 and Patient 2 had not gone appropriately. She had not carried out any NHS dentistry after 22 April 2011. She contends that she did not have to comply with the requirements of the performance hearing in October 2011 as she was not going to perform any NHS dentistry. As a result the PCC were wrong to conclude that she would not comply with conditions if they were imposed on her registration.
23. Further, if the PCC had imposed suspension as a result of the treatment of Patient 1 and Patient 2 she would have done everything possible to ensure that she could remediate those failings by undertaking further continuing professional development, reflective learning and the PCC were wrong to take into account the findings of the hearing in October 2011. For reasons explained she did not need to comply with the PCT conditions.
24. On erasure the appellant submitted that the sanction was wrong in the circumstances. The reason that she had not complied with the requirements of the earlier hearing was because she had no need to do so as she was not carrying out any NHS work.
25. The respondent submits that the PCC may take into account evidence from the NHS performers hearing. In fact, it was introduced with the agreement of the appellant's counsel at the impairment stage of the process before the PCC. It became relevant after the panel had determined the facts. It was plainly relevant at that stage because the appellant's attitude in response to criticism was highly relevant as to whether she was impaired at the time of the PCC hearing and relevant also to deliberations on remediation and whether that was likely to be successful.
26. It was a critical part of the respondent's case before the PCC that the appellant lacked insight. It is evident from the transcripts of the hearing that the appellant's counsel conceded that there were issues of insight albeit the extent of the lack of insight was disputed.
27. The respondent submits further that the evidence and findings of the PCT performers hearing in October 2011 was highly relevant to issues of impairment and sanction. In fact Mr Harris on behalf of NHS Devon had written to the appellant on 13 May 2011 saying that, "the concerns about your performance are such that the PCT would advise that in the meantime you refrain from practice." He asked further whether the appellant could confirm, by return, that:

i) She was not currently practising dentistry either privately or within the NHS; and

ii) That she had no current plans to practise dentistry within the NHS.

The respondent submits that the committee were entitled to take into account what the appellant had done after leaving work in Devon in April 2011 to determine whether they were dealing with a responsible practitioner. It was material that she had been called back to the Devon practice after she had left to make notes of the treatment that she had administered. Without that, the practice had no notes of the treatment that the appellant had given. The performers panel accepted that the appellant was not adequately supported in the Devon practice but were clear that the appellant's technical skills were plainly deficient.

28. The respondent relies upon the extent of the appellant's failings throughout the period of her practice, in particular, that she attempted dental treatment in McDonald's restaurant and in a hallway, that she provided patients with antibiotics which had been prescribed for her own use and that she failed to take radiographs of the relevant parts of the mouth. In short there was a wealth of evidence to suggest that the appellant had poor technical skills and had repeatedly shown an unwillingness to accept help that was offered to her as evidenced by her response to the requirement to get a PDP.
29. The PCC had evaluated the approach to sanctions correctly. The example given under paragraph 42(f) of the Guidance for PCC pointed clearly in the direction of erasure. The committee had heard at considerable length from the appellant at the fact-finding stage of the hearing and then subsequently at the impairment and sanctions stage. They were in a good position to make a judgment about her. It cannot be concluded that the PCC was wrong.

Discussion and Conclusions

30. The appellant does not dispute any of the facts found by the PCC. Her issue is with the second stage of the PCC process. In particular, whether it was wrong to take into account the evidence before the performance panel held on 25 October 2011 and the conclusions of that panel. The appellant contends that it is irrelevant because that deals only with NHS practice. She did not carry out any further NHS work nor had any intention to do so.
31. I cannot accept that submission. The letter of Mr Harris dated 13 May 2011 is clear in its terms. The PCT advised that the appellant refrain from practice. There was no qualification to that advice. It clearly applied to both private and NHS work. Consistent with that was the undertaking which Mr Harris sought from the appellant that she was not currently practising dentistry either privately or under the NHS.
32. The appellant's attitude to Mr Harris's request and her subsequent conduct was clearly relevant to the appellant's insight into work that she carried out and the adequacy of that work. Concerns about her technical competence have arisen very shortly after she started work in Devon. Those concerns applied to her dentistry skills across the board.
33. After the performance panel hearing Adrian Jacobs, the Interim Responsible Officer for NHS Devon, wrote to the appellant on 26 October with the outcome of the performance panel. That letter said:

"I am writing today to inform you of the outcome of the Performance Panel that was held on 25^th October 2011. The Performance Panel considered the evidence given by the Investigating Officer and your submissions and reached the following conclusions:

That your induction to the dental practice in Tavistock was completely inadequate and there was insufficient training offered in NHS procedures and use of the computer software. The panel also agreed that you were set an unrealistic target of 8,000 units of dental activity in your first year.

Despite the inadequacy of your induction, the panel felt your clinical performance did not reach the required standard for NHS practice in the following areas:

Record keeping

Practical use of radiography

NHS procedures and claims

Treatment planning

The Panel reached the conclusion that you should be contingently removed from the Performers' List for NHS Devon with immediate effect, and you must not return to clinical practice until you have met the following conditions:

The Panel requires you to produce a certificate of membership of the original dental protection organisation within a period of 10 days from receipt of this letter

That you work with the Deanery to develop a Professional Development Plan to identify and meet learning objectives in the area listed above.

To assist in this process, the PCT will designate an Assistant Medical Director who together with the Deanery will appoint an Educational Supervisor who will work with you to develop the Personal Development Plan. I also require that any future employer will be required to nominate a workplace supervisor to oversee the implementation of your Personal Development Plan.

The PCT will require regular (at least three monthly) reports on your progress. When the Assistant Medical Director and Educational Supervisor are satisfied that the action plan has been completed, the PCT will consider the case for removal of these conditions, or your circumstances will be reviews in 12 months."

34. It is clear from that letter that the appellant was to be contingently removed from the Performers' List for NHS Devon and was not to return to clinical practice until she had, amongst other things, worked with the Deanery to develop a PDP to identify and meet learning objectives. To assist with that there was to be an Assistant Medical Director and an Educational Supervisor to work with her. The PCT required regular reports on her progress.
35. The appellant was reminded of those requirements and the importance of a PDP when Mr Harris contacted her again on 28 March 2012. The PCC panel was interested in what she had done about her PDP. She was asked questions by the PCC members about her efforts and the extent that she had followed up personal development requirements of her practice. The panel conclusion was that the appellant failed to engage with the personal development process, only making contact again with the London Deanery on 17 March 2014. They were, in my judgment, quite entitled to come to that conclusion given the long time between the two appointments that the appellant had with the deanery, the comment on her reflective writing and her response to questions during the PCC hearing.
36. Further, their conclusion was highly relevant as to the commitment of the appellant to engage with appropriate professional standards of dentistry for the protection of the public. Her failure to engage adequately with the PDP process is clearly relevant to the appropriate sanction to be applied. The inability of the appellant to participate fully and responsibly in the process of remediation meant that the committee was entitled to conclude that she was unable to practise safely as a dentist without any restriction on her practice or at all.
37. In considering the range of sanctions the appellant accepts that the committee followed the correct escalating analysis starting with the least serious sanction and working up in seriousness through to the issue of erasure.
38. In my judgment, the committee had ample evidence to conclude that they were dealing with a registrant whose attitude to criticism and defects in her practice together with her response to offers to help her over a period of some years showed that she had little insight into her problems. Against that background, the committee were entitled to conclude that they could not be confident that the public would be protected by an approach less than erasure.
39. Under the guidance relied upon by the committee, example (f), which is a failure to maintain professional knowledge and competence in areas relevant to the registrant's practice, applied to the appellant's case. The guidance indicates that if that example is apposite a decision not to erase would require careful justification. There was nothing available for the committee by way of contrary evidence, especially as they were in a position to make their own judgement on the appellant, having seen her give evidence and be cross-examined over a protracted period of time in the hearing before them to come to the conclusion that she should not be erased from the register.
40. The PCC were in the best position to make the judgement as to sanction after the hearing which had taken place before it. They directed themselves correctly and took into account relevant considerations. It cannot be said that their decision was wrong. Due deference should be given to their decision. Accordingly this appeal is dismissed.
41. I invite submissions on the final order and costs.

Note 1   The Claimant produced in her Reply a copy of a draft Guidance Note which will replace the 2009 version but which has not yet been adopted and was not in place at the time of the hearing by the PCC.    [Back]