QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
1 Bridge Street West, Manchester M60 9DJ
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| MR. HOLGER T. HELD
- and -
THE GENERAL DENTAL COUNCIL
Ms Cassandra Scarbrough
(employed barrister with Capsticks LLP, Solicitors) for the Respondent
Hearing date: 3 February 2015
Judgment circulated in draft: 9 February 2015
HIS HONOUR JUDGE STEPHEN DAVIES
SITTING AS A JUDGE OF THE HIGH COURT
HTML VERSION OF JUDGMENT CIRCULATED IN DRAFT: 9 FEBRUARY 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
His Honour Judge Stephen Davies.
His Honour Judge Stephen Davies:
"(a) The hearing was conducted contrary to the rules of natural justice in that my failure to attend and give oral evidence counted against me;
(b) The committee failed to deal with the evidential points raised and failed to properly challenge Mr Viles, instead deciding to simply dismiss my version as unreliable;
(c) That the refusal to accept that the decision was not safe in light of the schedules relating to 15 patients which were discounted against me;
(d) That the decision was disproportionate and a lesser sanction is appropriate."
The relevant legal principles applicable to this appeal
"16. The approach to an appeal pursuant to s.29 of the Dentists Act 1984 can be summarised as follows:(1) An appeal pursuant to s.29 of the Dentists Act 1984 is by way of rehearing (CPR Part 52, PD 22.3).(2) The Court has the power(a) to dismiss the appeal,(b) to allow the appeal and quash the decision appealed against,(c) to substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or(d) to remit the case to the Professional Conduct Committee to dispose of the case in accordance with the directions of the court (Dentist Act 1984, s.29(3)).(3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity, in the proceedings before the lower tribunal (CPR Part 52.11).
17. The general principles applicable to an appeal against a decision of professional Disciplinary Committee of this sort can be summarised as follows:(1) The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;(2) The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;(3) The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;(4) Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;(5) Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair.(See the helpful summary of the authorities by Langstaff J in Bhatt v GDC  EWHC 783 (Admin), in particular at para. ).
18. As regards a challenge to the sanction imposed, the Court will normally accord even more respect to the tribunal of first instance (Raschid & Fatani v GDC  EWCA Civ 46, at para. )".
Ground (a) the decision to proceed in Mr Held's absence
"A defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond."
"The European Court of Human Rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, had voluntarily chosen not to attend, and the trial has continued" .
(1) The substantive hearing was originally listed to commence on 19 February 2014, but on that date Mr Held's then instructed counsel successfully applied for an adjournment on the basis that, as a result of a breakdown in communications with his previous legal team, Mr Held needed more time to obtain evidence to contest the allegation that he had been practising as a dentist in the relevant period. The evidence which Mr Held anticipated obtaining included witness statements relevant to the vital issue as to whether or not he had indeed provided dental treatment to the 41 patients over the period in question. The PCC granted the adjournment, but with evident reluctance, stating:"The Committee considers that you have acted in a dilatory if not negligent manner in your approach to preparing yourself for this case. The Committee has extreme concerns about your failure to engage with your regulator and those representing you Nevertheless, the Committee considers that it would not be fair to proceed to consider the case today without the benefit of the evidence you say you can call in your defence to answer the allegations against you."
(2) The GDC, both before and after that adjournment, had repeatedly requested the relevant patient records from Mr Held, on the basis that they were obviously important in establishing whether or not Mr Held or the locum dentist had treated the 41 patients in question. There was no suggestion on behalf of Mr Held that he was unable to obtain them, nor that he would be unable to disclose them anyway due to patient confidentiality. Instead there was no substantive response to these requests, and the records were simply not produced.
(3) On 16 May 2014 Mr Held's solicitors formally withdrew representation on the basis of his lack of financial means.
(4) Nothing more was heard from Mr Held until at 7:39 hrs on the first day of the hearing, 27 May 2014, he emailed the PCC, copied to Capsticks, then as now the GDC's solicitors, enclosing the defence letter and an attached schedule, and stating:"Please find attached documents for consideration. However, as I am not well enough to attend I am going to see a doctor. Let me know if you request an attest."
(5) Whilst I shall need to refer to the substance of the defence letter later, for present purposes it suffices to note that it was dated 26 May 2014 (i.e. the day before it was sent), and that in it Mr Held explained that he had been unable to fund continued legal representation, or to persuade his intended witnesses to co-operate with him, so that:"As a result it is not possible for me to adduce contemporaneous witness evidence and/or attend the Fitness to Practice Hearing with representation, which causes me significant difficulty".
"I appreciate that in the absence of my attendance at and/or representation at the [hearing] the [PCC] may direct that the matter be heard and determined notwithstanding my non-attendance and/or representation. Accordingly I would ask that if the Committee determine that the [hearing] goes ahead in my absence that the following submissions and attachments to this letter be considered on my part in respect of the Committee's consideration of the charge."The letter then set out, over 6 pages, his defence to the charge brought against him, including some representations in relation to sanction.
"In all of the circumstances the Committee was satisfied that it was fair and in the public interest to proceed with the matter in Mr Held's absence."
(1) The PCC could be satisfied that Mr Held was fully aware of the need, as made clear at the previous hearing, to obtain evidence to support his case, and that despite efforts he had been unable to do so, nor was he suggesting that he would be in a position to do so either at all or within any reasonable timeframe.
(2) The PCC could be satisfied that he had already decided, before any question of illness arose, that he would not be legally represented at the hearing nor would he attend personally to present his case. He was not suggesting that he either intended, or would be in a position, to attend, whether personally or with legal representation, either at all or within any reasonable timeframe.
(3) The PCC could be satisfied that, in anticipation of the PCC deciding to proceed in his absence, he had prepared his case to put before it in his absence, by way of a detailed defence letter. There was no suggestion in the defence letter that he had been hampered or inhibited in any way, whether due to pressure of time or illness or otherwise, from setting out his case in the manner and level of detail that he wished to do.
(4) Even if the email could be read as a request for an adjournment on the grounds of ill-health, there was no supporting medical evidence, and Mr Held did not provide any such evidence, either within the timescale of the hearing below (and because the hearing was scheduled to begin on 27 May and resume on 29 May he would have had time to do so, had he seen a doctor on 27 May). Nor, it should be noted, did he provide any such evidence for this appeal. At the hearing before me Ms Scarbrough drew my attention to a series of e-mails sent by Capsticks to Mr Held on 27 May 2013, which: (a) explained that the GDC would be inviting the PCC to proceed in his absence, and that he was entitled to make any further representations to the PCC at any stage; (b) subsequently, informed him of the decision to proceed in his absence; (c) finally, informed him that the hearing would resume on 29 May 2013 and that he could then attend or make further representations, including representations on sanction, which would be brought to the attention of the PCC.
(Although not raised as a separate ground of appeal, I had wondered at one stage whether or not it could be said that the PCC ought to have afforded Mr Held the opportunity to make further representations as regards sanction once it had determined the allegations against him, as had been suggested was appropriate by the Divisional Court (Rose LJ and Elias J) in the case of Brabazon-Drenning v UK Central Council for Nursing, Midwifery and Health Visiting, 31 October 2000 (unrep.), but on reflection it seems to me no such question arises in this case, in circumstances where:(i) Mr Held had made submissions on sanction, albeit brief, in his defence letter;(ii) Mr Held was given the clearest advice as to his entitlement to make further submissions on sanction once he knew that the hearing was proceeding in his absence;(iii) Even now on this appeal Mr Held has advanced no particular matters in relation to sanction which, he might have argued, the PCC could not have known about and thus did not have the opportunity of taking into account when reaching its decision on that issue.)
(5) The PCC was entitled to reach its decision on the footing that it could and would proceed having regard to the contents of the defence letter, which could be (and was) used to test the GDC case, both in questions of its witness Mr Viles and in its deliberations.
(6) The PCC was entitled to have regard to the wider public interest in having this matter resolved without further undue delay, in particular having regard to the previous history, to the inconvenience to the witness (this being his second attendance), and to the cost of adjourning.
The reception of fresh evidence
"Unless it orders otherwise, the appeal court will not receive:
(i) oral evidence;
(ii) evidence which was not before the lower court."
"first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
"22.Transview has to obtain this court's permission to adduce fresh evidence on the appeal and to make consequential amendments to its grounds of appeal: see CPR 52.11(2). That permission should only be granted if, in accordance with the overriding objective, it is just to admit evidence on appeal which was not produced at trial. The party bringing forward more evidence on an appeal must have a very good reason for not having obtained it in time to use at the trial. It is usually too late, after the trial is over, to produce evidence to an appellate court, which is not itself equipped to try or to re-try cases.
23. In the exercise of its discretion to admit fresh evidence the court has to consider carefully all the relevant factors, such as whether the evidence could, by reasonable efforts, have been obtained for use at the trial; whether the fresh evidence is apparently credible; and whether, if given, it would probably have an important influence on the outcome of the case. The interests of the parties and of the public in fostering finality in litigation are significant. The parties have suffered the considerable stress and expense of one trial. The reception of new evidence on appeal usually leads to a re-trial, which should only be allowed if imperative in the interests of justice. As Hale LJ said in Hertfordshire Investments Ltd v. Bubb  1 WLR 2318 at 2324C" .It is in the interests of every litigant and the system as a whole that there should be an end to litigation. People should put their full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed."
Ground (b) (i) failure to deal with the matters raised in the defence letter; (ii) failure properly to challenge Mr Viles' evidence; (iii) dismissal of Mr Held's version as unreliable because not contained in a witness statement or confirmed by oral evidence
"The committee has taken into account all the evidence presented to it. It has accepted the advice of the legal adviser.
In addition to the documentary evidence placed before it, the committee was assisted by the oral evidence of James Viles, a business processing manager with the National Health Service Dental Services (NHS DS), with responsibility for ensuring that FP17 forms are processed in compliance with the relevant regulations and directions.
The committee has reminded itself that the burden of proving the heads of charge lies solely with the GDC. The standard of proof is the balance of probabilities.
The committee has seen the NHS dental services patient payment schedules relating to 41 patients, treatment for which payment was claimed from the NHS between 31 May and 12 July 2013 under Mr Held's practice address and performer number. The evidence that has been made available to the committee therefore indicates that Mr Held practised dentistry during the period that he was not indemnified.
The committee has discounted the schedules relating to 15 patients after noting Mr Held's contention in his letter dated 26 May 2014 that those claims were made in error, which was verified by Mr Viles.
Following corroboration by Mr Viles that 15 of the patient claims were cancelled there remained 26 patients whose treatment was completed under Mr Held's performance number.
The committee has noted that Mr Held denies having completed the treatment for these patients. He states in his letter that he suffered whiplash during the time that he was not indemnified and that a colleague carried out the treatments to the 26 patients.
Mr Held's letter is an unsworn statement. The information he has provided raised questions that the committee would have sought to explore with him had he been present. Mr Held has provided no supporting evidence for his claims, despite it being suggested by the committee in February that it would be helpful and in his interest to gather such evidence in time for the rescheduled hearing. Mr Held has not provided any patient records, medical evidence to demonstrate that he suffered whiplash, or statements from anyone at the practice to verify his version of events.
The committee noted the document provided by Mr Held listing the patient and further treatment details including the dentist he alleges completed it. However the committee notes that he has produced it without any indication as to its provenance or reliability.
On the basis of the evidence of the patient payment schedules which detail the FP17 records, the start and completion dates and Mr Held's performance number under which the claims were made, on the face of the facts, Mr Held was the treating dentist for the 26 patients.
The committee is satisfied that the GDC has discharged the burden upon it to prove that Mr Held practised dentistry when he was not indemnified. Mr Held has provided no corroboration or supporting evidence for his version of events."
(a) The PCC made it clear that even if the defence letter had been in the form of a signed witness statement it would have raised questions which it would have wanted to explore with him had he been present. Thus the fact that the defence letter was not in the form of a witness statement was not held against him, it was the fact that its content raised questions which could not be addressed in consequence of Dr Held's voluntary absence which told against him.
(2) The PCC also made it clear that what told against Mr Held was his failure to provide supporting evidence, not in the form of a merely confirmatory witness statement from himself, but the patient records, medical evidence to confirm his account of his whiplash injury, and witness statements from others to confirm his account. The same point was made in relation to the schedule attached to the defence letter; what was significant was not that it was not attached to a signed witness statement but the absence of evidence as to its origin and reliability.
(a) It is clear from [p114] that they were invited by the GDC and agreed that it was appropriate for Mr Viles to be given the opportunity to read and consider the defence letter and schedule, and make appropriate enquiries, in advance of giving evidence, so that he could address the points made in evidence. It is clear that the PCC was being asked and agreed to adopt this course on the basis that this would be in Mr Held's interests, in the absence of cross-examination from Mr Held, because if Mr Viles accepted some or all of what was said in the defence letter he would be better placed to say so and give his reasons having first had the opportunity to read and consider its content. I should emphasise that since there was no acute conflict of evidence as between Mr Viles and Mr Held, nor any suggestion or reason for believing that Mr Viles had any reason to harm Mr Held, there was no reason to think that advance disclosure of the defence letter might in some way prejudice Mr Held by giving Mr Viles opportunity in advance to think of some false explanations to answer the points made in the defence letter.
(b) Mr Viles was asked supplemental questions by Ms Scarbrough for the GDC in relation to matters raised in the defence letter, and he gave evidence in response in a way which was conspicuously fair and balanced. One example is at [p124A-B] where he accepted that it was possible for there to be two dentists at one practice treating the same patient on different occasions during the same course of treatment, and that in such a case the practice would have to decide which performer number to use when making its electronic payment submission. Another example is that when he was asked about the 15 patients where the payment claim had been withdrawn he was perfectly willing to volunteer that he had been able in the time afforded him to confirm that this was indeed the case; although Mr Held has submitted that his failure to discover and make reference to this previously should have counted against his credibility overall, there appears to me to be no basis whatsoever for such an argument.
(c) Finally, it is also clear that having heard that evidence the PCC then withdrew to consider that evidence, before returning to ask further questions of Mr Viles itself. All three members of the PCC asked questions, all of which were pertinent to the matters raised in the defence statement.
Ground (c) the decision was not safe given the PCC's discounting of the case in relation to the 15 withdrawn patients
Ground (d) sanction
"The committee noted Mr Held's previous history with the GDC. He was issued with letters of advice on 20 September 2006, 18 June 2010, and a written warning on 18 June 2010. On 14 June 2011 Mr Held appeared before the PCC in relation to other matters, and his registration was made subject to conditions for a period of 24 months. On 31 May 2013 a PCC review hearing took place and the conditions were lifted. The committee noted that each advice letter and warning highlighted the importance of familiarity with and adherence to standards guidance. The committee noted that on the day of the review hearing Mr Held was not indemnified.
Mr Held has continued to disregard the standards that apply to him as a dentist.
In deciding whether to impose a sanction the committee had regard to the "Guidance to the PCC" document dated November 2009. It has borne in mind the importance of the principle of proportionality.
The committee first considered whether to conclude this case with no further action, but it determined that this would be wholly inadequate in the light of the seriousness of the misconduct found.
The committee next considered whether to conclude the case with a reprimand but determined that the seriousness of the matters and the lack of evidence of insight and remediation rendered a reprimand inadequate.
The committee next considered whether to impose conditions practice on Mr Held's registration for a specified period. However, in the light of the nature of Mr Held's misconduct, by acting contrary to his professional standards, the committee determined that conditions would be unworkable, inappropriate and would not serve to safeguard the public.
The committee next considered whether to impose a period of suspension upon Mr Held's registration. The committee bore in mind that Mr Held sought to shift responsibility onto others rather than own up to his actions. It noted that paragraph 40i of the PCC Guidance cites failure to maintain appropriate indemnity or otherwise ensure adequate protection for patients as grounds for erasure.
The committee therefore concluded that suspending Mr Held's registration would be insufficient and that the appropriate and proportionate response that would serve to safeguard patients would be to raise Mr Held's name from the dentist's register."
(1) The PCC was plainly entitled to be informed about, and to have regard to, Mr Held's previous disciplinary history. Rule 20(1)(a) of the Rules expressly provides that the GDC should address the PCC on the defendant's history. There is no suggestion that the PCC had regard to the history save to the extent which it expressly noted to be relevant, in particular his knowledge of the importance of adhering to the relevant standards guidance, and that as a result of its determination Mr Held had continued to disregard those standards. It is not in dispute that the relevant publication, Standards for Dental Professionals, published 20 May 2005, expressly requires dentists to ensure that they are protected against claims from patients at all times.
(2) The PCC consciously approached the question of sanction by reference to the relevant Guidance for the PCC, dated November 2009. Applying that guidance they noted the need to have regard to the principle of proportionality. They also followed the guidance by considering the appropriateness of the least serious sanction first.
(3) The PCC was plainly entitled to conclude that the options of taking no action or a reprimand were inadequate given the seriousness and lack of evidence of insight and remediation. It was also plainly entitled to conclude that imposing conditions would be unworkable, inappropriate and would not serve the aim of safeguarding the public.
(4) In my view the only two realistic options were suspension or erasure. When determining that suspension was inappropriate the PCC was entitled to have regard to paragraph 42 of the guidance, which identified 10 particular circumstances where "a decision not to erase would require careful justification". They include, at (i):"Failure to maintain appropriate indemnity or otherwise ensure adequate protection for patientsRegistrants should not practise without making sure that they are covered by adequate indemnity in the event of patients making a claim against them. Such behaviour could leave patients seriously disadvantaged."The PCC was also entitled, given its determination, to take into account that Mr Held had sought to blame others within the practice rather than accept his own responsibility.
"23. [The Dentists Act 1984] was amended in certain respects by the Dentists Act 1984 (Amendment) Order 2005 / 2011. These amendments included a new section 26A, which introduces a statutory requirement for insurance cover. It provides that a registered dentist must be covered by adequate and appropriate insurance throughout the period during which he is registered in the register. Failure to comply with these requirements may lead to the name of the dentist being erased from the register. We were advised that agreement as to the terms of the rules to be made under this section had not yet been reached and, accordingly, the section has not yet been brought into force. Nonetheless, the fact that Parliament has considered it appropriate to introduce legislation making the requirement for insurance a statutory requirement is indicative of how seriously the matter is taken."