Case No: CO/2965/2014
Neutral Citation Number: [2015] EWHC 669 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER

Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ

Date judgment handed down: 12 March 2015 

Before :

HIS HONOUR JUDGE STEPHEN DAVIES 
SITTING AS A JUDGE OF THE HIGH COURT

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Between :

	MR. HOLGER T. HELD	Appellant	
	
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THE GENERAL DENTAL COUNCIL	
Respondent	

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The Appellant appeared in person 
Ms Cassandra Scarbrough 
(employed barrister with Capsticks LLP, Solicitors) for the Respondent

Hearing date: 3 February 2015
Judgment circulated in draft: 9 February 2015
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JUDGMENT
His Honour Judge Stephen Davies.

His Honour Judge Stephen Davies: 
Introduction

1.	This is an appeal brought by the Appellant, Mr. Holger Held, under s.29 of the Dentists Act 1984 against a determination of the Professional Conduct Committee (“PCC”) of the Respondent, the General Dental Council (“GDC”) on 29 May 2014 that his fitness to practise as a dentist was impaired by misconduct, namely the practise of dentistry whilst not holding professional indemnity insurance cover (“PI insurance”) between 31 May and 11 July 2013, and that the appropriate sanction was that his name should be erased from the register of dentists.  

2.	In short, the GDC alleged that Mr Held had treated 41 patients at his dental practice in Blackburn, Lancashire over the relevant period, and that this was demonstrated by the fact that applications for payment for the dental treatment provided had been submitted electronically to the requisite body, NHS Dental Services (“NHS-DS”) in respect of those 41 patients, identifying Mr Held as the “performer” of the dental treatment. 

3.	Mr Held did not attend the hearing before the PCC held on 27 and 29 May 2014, in circumstances which I shall have to consider, but did submit a lengthy letter dated 26 May 2014 in which he set out his defence to the allegations (“the defence letter”).  When the sole witness called by the GDC, a Mr James Viles of NHS-DS, was asked to address the content of the defence letter, he accepted that the claim in respect of 15 of the 41 patients had been subsequently withdrawn by the practice.  In its determination the PCC proceeded to discount the allegation as regards those 15, but found proved the allegation as regards the remaining 26, in circumstances where: (a) they were satisfied, and Mr Held did not dispute, that he did not hold PI insurance over the relevant period; (b) they did not accept Mr Held’s explanation in his defence letter that the dental treatment in relation to all of the patients had in fact been provided by another dentist, who he had brought in as a locum to provide cover because he was unable to work, having suffered a “whiplash” injury (“the locum dentist”).    

4.	The grounds of appeal, as set out in paragraph 5 of Mr Held’s witness statement which accompanied his appeal notice are as follows:
“(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.” 

5.	Although not clear from the wording of ground (a), Mr Held is contending that the PCC ought not to have proceeded in his absence.  This was made reasonably clear in paragraphs 6 and 7 of his witness statement, and thus did not take the GDC by surprise.  The actual complaint in ground (a) that his failure to attend and give evidence unfairly prejudiced him is more conveniently dealt with as part of ground (b). 

6.	In support of his appeal Mr Held also sought to adduce witness statements from 9 of his patients who formed part of the cohort of 26 which the PCC found had been treated by him within the relevant period.  The admission of this fresh evidence was opposed by the GDC and after hearing argument, I refused Mr Held permission to rely on those statements, indicating that I would set out my reasons in my substantive judgment.

7.	For the reasons I give below, my decision is that the appeal fails on all grounds and must be dismissed.

The relevant legal principles applicable to this appeal

8.	In Wasu v General Dental Council [2013] EWHC 3782 (Admin) at [16 - 18] Haddon-Cave J provided a very helpful summary of the law, the appellate jurisdiction and the relevant approach, which I repeat and gratefully adopt:

“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 [2011] EWHC 783 (Admin), in particular at para. [9]).

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 [2007] EWCA Civ 46, at para. [19])”.
   
9.	The reasons for the particular approach of the appellate court as regards appeals against decisions in relation to sanction emerge from the decision in Raschid.  First, the PCC has to have regard to the public interest and the profession's reputation as a whole, not just to the individual circumstances of the doctor.  Second, because of this and because of its specialist nature the PCC has especial expertise in making judgments in relation to sanction.  Therefore, although the appellate court does not defer to the PCC, it should accord its decisions in relation to sanction appropriate respect, and the court should not interfere unless it is satisfied that the decision was inappropriate in all of the circumstances. 

Ground (a) – the decision to proceed in Mr Held’s absence

10.	I deal with this ground before giving my reasons for refusing Mr Held permission to rely on fresh evidence, because if Mr Held had succeeded on this ground the case would have needed to be remitted to the PCC anyway, where Mr Held would have been entitled to rely upon the fresh evidence.

11.	The PCC enjoys a statutory, discretionary power to proceed in the absence of a practitioner if all reasonable efforts have been made to send notification of the hearing to him: rule 54 of the Respondent’s Fitness to Practise Rules Order of Council 2006 (“the Rules”).  Mr Held does not dispute that he was notified of the hearing. 

12.	In relation to criminal proceedings, authoritative guidance was given by the Court of Appeal in R v Hayward [2001] Q.B. 862, approved on appeal by the House of Lords (under the title R v Jones [2003] 1 A.C. 1).  That guidance has since been adopted and applied in professional disciplinary proceedings; see the decision of the Privy Council in Tait v Royal College of Veterinary Surgeons [2003] UKPC 34.  

13.	As appears from the speech of Lord Bingham in R v Jones the existence of the discretion to proceed in the absence of a defendant is ‘well established’ but “to be exercised with great caution and with close regard to the overall fairness of the proceedings” [6].  Further :

“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.”[6]

“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” [9].

14.	Ms Scarbrough helpfully referred me to the case of McDaid v Nursing and Midwifery Council [2013] EWHC 586 (Admin), where Eder J considered a point relevant to the question of the overall fairness of the proceedings where conducted in the absence of the defendant.  Having considered the authorities he accepted [43] that the tribunal was under an obligation to ensure that the hearing is as fair as circumstances permit, and that this included a duty “during the giving of evidence by the [regulator’s] witnesses to take reasonable steps to expose weaknesses in the [regulator’s] case advanced by the regulator and to make such points on behalf of the absent defendant as the evidence permitted”.  However, he found that this did not include a duty on the tribunal to cross-examine witnesses in the same way as a defendant, whether in person or through an advocate, might do [44].  I respectfully agree with and adopt those conclusions.      

15.	The relevant circumstances in which the PCC decided to proceed in the absence of Mr Held may be summarised as follows:

(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”.   
	He continued:
	“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.

16.	It is clear from the transcript of the hearing on that day [pp108-112] that the PCC considered the email and the defence letter, and had the benefit of detailed submissions on behalf of the GDC (from Ms Scarbrough, who also represented the GDC below) as well as legal advice from the legal assessor to the PCC, that it was specifically referred to R v Jones and to Tait, and that after taking time for deliberation it decided to proceed in Mr Held’s absence.  It gave its reasons subsequently [pp.138-139], from which it is apparent that: (a) it had regard to what had transpired at the previous hearing; (b) it noted (as was the case) that Mr Held had made no request for an adjournment.  It stated that:
“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.” 

17.	In my judgment the PCC cannot be criticised for not treating the email and the defence letter as a request for an adjournment.  It is apparent from the letter that Mr Held had already decided on the previous day not to attend, and the letter made no reference to any illness preventing his attendance.  Although at the hearing before me Mr Held stated that he had always intended to attend, and would have done so but for his illness, that is clearly not what the letter says.  Mr Held admitted to me, as is apparent in any event from its drafting style, that the defence letter had been drafted either by, or with the benefit of input from, a lawyer, although he did not clearly explain precisely when or in what circumstances it had been drafted.  The letter was, however, clearly leaving it to the PCC to decide whether or not to proceed in his absence, and the email did not invite the PCC to adjourn.  Mr Held gave no explanation as to nature and onset of his illness, nor as to why it left him unable to attend.  He gave no indication as to when he was going to see a doctor.  Although the reference to “attest” can reasonably be read as meaning some form of certificate from the doctor, the email did not state in terms that he was going to obtain such a document or send it to the PCC, so that the email cannot be read as him seeking an adjournment on that basis.     

18.	Of course the PCC still had to decide whether or not to proceed in Mr Held’s absence, whether or not the email and defence letter could be read as a request for an adjournment, and it is apparent that it did consider that question and that it decided it, as it was required to do, by reference to considerations of fairness and the public interest.  

19.	In my judgment the decision to proceed in his absence cannot be faulted, having regard to the following factors:

(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.

20.	In my view what really happened here, as Mr Held tacitly admitted in his oral submissions before me, was that he took a conscious decision not to attend, in circumstances where for whatever reason he had obtained no hard evidence to support his case, and decided instead to submit the defence letter to the PCC, the contents of which he hoped and expected would be sufficient to lead to the charge against him being dismissed.  The reason he now challenges the PCC’s decision on appeal is because he is aggrieved that this tactic has backfired on him but that does not, in my judgment, entitle him to have the hearing below re-opened.  I thus dismiss this ground of appeal.

The reception of fresh evidence

21.	Even though this is a re-hearing as opposed to a review, nonetheless CPR 52.11(2) applies, and provides that:
“Unless it orders otherwise, the appeal court will not receive:
(i)	oral evidence;
(ii)	evidence which was not before the lower court.”

22.	As appears from the commentary to that rule in the White Book 2014, it is well-established that whilst the principles as set out in the older authorities, particularly Ladd v Marshall [1954], are still not only relevant but “of powerful persuasive authority” (Sharab v Al-Saud [2009] EWCA Civ 353 at [52]), nonetheless they are not the sole guiding principles, and the court’s fundamental obligation is to give effect to the overriding objective of doing justice.

23.	As is well known, it was said in Ladd v Marshall that in order to justify receiving fresh evidence three conditions must be satisfied: 
	“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.”

24.	The immediate and fundamental difficulty facing Mr Held is that he simply cannot show that the evidence from these patients could not have been obtained with reasonable diligence for use at the PCC hearing.  He could have been in no doubt, not least because of what transpired at the previous hearing when he had legal representation, of the need to obtain witness evidence to prove his factual case that it was the locum dentist not he who had treated these patients.  He has produced no evidence to show that what he was able to do in short order post the hearing (the hearing concluded on 29 May 2014 and the statements are all dated 25 June 2014) could not have been done before the hearing.  In my judgment that is a very significant factor militating against admission, because even on a re-hearing an appellate court ought not normally receive evidence which could and should have been adduced at the hearing below.

25.	Mr Held’s only explanation for not doing so is that he had not wanted to disturb his patients by contacting them asking for statements before the PCC hearing.  Even if that is so, and I am bound to say that any dentist facing a serious charge such as this with the benefit of legal representation and advice could in my view have been in no doubt as to the importance of obtaining this evidence, that does not provide an adequate explanation for now allowing him to do what he had previously, for good reason or bad, decided not to do.

26.	There are two further reasons why I refuse permission to adduce this fresh evidence.

27.	The first is that whilst I am prepared to accept that the statements may well have had an important influence on the result of the case, and that they appear on their face to be apparently credible, it would not be just to allow Mr Held selectively to deploy these statements without at the same time having taken any steps to obtain or disclose the patient records relating to these patients over the period in question.  I have already referred to the repeated requests made by Capsticks in the proceedings below for these documents and the absence of any response.  It is also the case that these requests were repeated in the course of this appeal and, indeed, that the initial hearing date of the appeal in October 2014 was adjourned by consent to allow further time for Mr Held to address those requests, again however without producing any substantive response.

28.	Before me, when pressed, Mr Held advanced two explanations.  The first was that he did not believe that the patient records would show who treated the particular patients in question.  However that is not only a very surprising assertion, but is also one only made for the first time at the hearing, and one which the GDC would, understandably, want to verify for itself.  The second was that he did not believe that he was entitled to disclose these records without breaching his professional duty of confidentiality.  However: (1) there can be no dispute but that with the patients’ consent the records could be disclosed, and patients who were prepared to give witness statements would not obviously have any reason to object to their relevant records being disclosed, even if on a limited (and, if necessary, suitably redacted) basis; (2) Mr Held had never previously asserted this as a reason, and there is no evidence that he ever held this belief previously or was advised to this effect; (3) if he had given this as a reason, I am satisfied that it would have been open to the GDC, or to the PCC, and in any event to this court, to have taken appropriate steps to obtain these records, again so far as necessary subject to the imposition of appropriate safeguards in terms of protecting legitimate concerns regarding patient confidentiality.

29.	The end result, I am satisfied, is that it would not be fair to allow Mr Held to deploy these witness statements without having also disclosed, or co-operated to enable production of, the underlying patient records.  That is particularly so when unless the appeal hearing was adjourned, and the witnesses invited to attend the adjourned hearing, the GDC would have no opportunity to test the reliability of these witness statements, which may represent the evidence which these patients would actually give in court, or which may not.

30.	That brings me onto my final reason, which is the impact of admitting these statements.  In addition to seeking to cross-examine (if necessary) these patients with the benefit of advance sight of their patient records, the GDC has also made contact with the locum dentist and obtained a witness statement from him which, although rightly not put before me prior to or at the hearing, I am told contradicts the account which Mr Held puts forward, supported by the 9 patient witness statements.  In my judgment it is quite clear that if I was to allow this fresh evidence to be adduced, the only just way of dealing with matters would be to remit the case to the PCC for it to hold a fresh hearing at which these matters could properly be tested.  It would be quite inappropriate for this appellate court to allow itself to become, effectively, the first instance fact finding tribunal.  

31.	However there is strong authority against admitting fresh evidence on appeal where the inevitable result would be to have to remit for a fresh hearing unless it is imperative to do so in the interests of justice.  In the case of Transview Properties v City Site Properties [2009] EWCA Civ 1255 Mummery LJ said this:

“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 [2000] 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.”    

32.	Here, whilst recognising therefore and having due regard to the serious impact of the decision in this case on Mr Held, that cannot in itself be sufficient reason for admitting the fresh evidence and, on proper analysis, no sufficient reason for so doing has been shown.

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  

33.	The PCC’s determination in relation to the allegation that Mr Held practised dentistry at the relevant time is short and succinct, and can therefore be set out in full:   

	“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.”

34.	It will immediately be seen that the PCC made express reference to what it rightly identified as the gist of Mr Held’s version of events as advanced in the defence letter.  I am unable to accept that the PCC did not deal with the matters raised in the defence letter.  Mr Held has not identified any significant matters which he had raised in the defence letter but with which the PCC did not deal.  In any event, it is not incumbent on a tribunal such as the PCC to make extensive reference in its determination to each and every individual fact and matter raised by a defendant, whether in written submissions, written evidence or oral evidence, and to have to give a detailed explanation as to which facts and matters it accepted, which it did not, and its reasons for so doing.  The determination shows quite clearly in my judgment that the PCC engaged with the defence letter and rejected Mr Held’s case, giving adequate reasons, and any criticism of it for not doing more is quite misconceived in my judgment.     

35.	It will also immediately be seen that although the PCC referred, correctly, to the defence letter being an “unsworn statement”, that was not a stated reason, let alone the only reason, for rejecting his version of events.  Thus:

(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.  

35.	For completeness, I should say that even if the PCC had held it against him that the defence letter was not in the form of a witness statement, I am unable to accept Mr Held’s argument that the PCC can be criticised for not giving him the opportunity to rectify the omission.  Given the history to which I have already referred, if Mr Held chose not to put his account in a witness statement that was entirely his own decision and the PCC was not obliged to give him the opportunity to do so before having regard to that fact in assessing the rival contentions.

36.	Finally, reference to the transcript of the proceedings before the PCC demonstrates quite clearly that the PCC more than adequately discharged its obligation to test the GDC’s case and, in particular, to test Mr Viles’ evidence.  Thus:

(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.  

37.	In his witness statement, at paragraph 11, Mr Held complained that no-one specifically asked Mr Viles to deal with the point, raised by him in his defence letter, that here there had simply been an error, because the dental nurse working alongside the locum dentist had failed, through inadvertence, to amend the performer details on the practice electronic records to show that the dental treatment in question had been undertaken by the locum dentist rather than by Mr Held.  Whilst I do accept that it does not appear that anyone asked Mr Viles that question in those precise terms, nonetheless: (a) it is clear that Mr Viles was asked, and answered, questions which enabled the PCC to evaluate whether or not that was likely to be a credible explanation when assessed against all of the other relevant evidence and considerations; (b) it is also clear from the evidence which Mr Viles gave that any answer which he might have given to such a question would have been no more than mere speculation, because he had no direct dealings or involvement with Mr Held or his practice and, hence, could not possibly have said anything more than that it was a possiblility.

38.	For these reasons I dismiss the challenge under ground (b).

Ground (c) – the decision was not safe given the PCC’s discounting of the case in relation to the 15 withdrawn patients

39.	It is apparent from the determination that the PCC did indeed discount the allegation as regards these 15 patients, on the basis that Mr Viles had accepted that the claims for these patients had been withdrawn by Mr Held’s practice after their original submission.

40.	It is Mr Held’s case that there is a logical inconsistency between the PCC’s discounting of the 15 patients and its acceptance of the GDC’s case in relation to the remaining 26.  However he did not articulate any explanation as to the nature of this logical inconsistency in his witness statement and, when I asked him to explain it to me at the hearing, he was unable to do so.

41.	That is because in my view there is no such logical inconsistency.  It appears to me that Mr Held assumes that because Mr Viles accepted that the claims as regards these 15 patients had been withdrawn, he also accepted, and thus the PCC was also bound to accept, and did accept, his explanation for the withdrawals, which was that the treatment of those patients had been undertaken by the locum dentist.  I am prepared to accept that if Mr Viles had indeed accepted, or the only logical reason for his acceptance was, that the claims had been withdrawn for that reason, then that might have cast some doubt on the GDC’s case that the treatment of the remaining 26 patients, carried out over a similar period, had also been undertaken by Mr Held.  However, in my judgment that was not what Mr Viles did say, nor was it the only logical reason for his acceptance of the withdrawal or, indeed, for the withdrawal itself.  

42.	In fact, as is apparent from reading Mr Viles’ evidence, all that he was able to say [p.126] was that a request had been made for these claims to be withdrawn, which was acted upon with the result that they were deleted.  He was specifically asked by the chairman [p.131] whether he was able to explain or comment upon Mr Held’s explanation for the withdrawal of the 15, and was unable to do so.  It follows, in my judgment, that neither Mr Viles’ evidence, nor the acceptance by the PCC that these claims had been made “in error”, assists Mr Held, because it is not apparent from the evidence nor a necessary logical conclusion that they were withdrawn because the treatment had been undertaken by the locum dentist rather than by Mr Held.

43.	It is also worth noting that Mr Held’s explanation as to why these claims were withdrawn was, and still is, far from satisfactory, and has varied over time.  In his defence letter he said that the locum dentist had his own individual performer letter from the outset, but had to obtain a new one after transferring to work in Mr Held’s practice, which he did on 20 June 2013.  The explanation he gave however for the withdrawal was not to do with the lack of the relevant performer number.  It was that these 15 patients had been accepted as patients before 31 May 2013 and treated by the locum dentist after that date, but because they had not signed a consent letter in the terms required by the locum dentist’s PI insurer they were treated privately and, for that reason, once it was appreciated that a claim could not be made on the NHS for private treatment, the claim was withdrawn.  In his evidence Mr Viles had identified two apparent errors with Mr Held’s account.  The first [p.127-128] was that a dentist would only ever have one performer number, which would not be changed simply because he transferred from one area to another, and that what had happened on 20 June 2013 was not that the locum dentist had been given a new performer number, but that he was registered as a performer in relation to Mr Held’s practice.  The second [p.131] was that Mr Held’s account in his defence letter, that the 15 patients had begun their course of treatment before 31 May 2013 under Mr Held, was inconsistent with the schedule also produced by Mr Held, which showed that all had started their course of treatment after 31 May 2013.  

44.	In my judgment the PCC was fully entitled to conclude that Mr Held’s explanation as to why the claim was withdrawn did not make sense, and that the credibility of his account was compromised by these errors.  I have no doubt that these matters would have been among the matters which the PCC said that it would have wanted to explore with Mr Held, had he attended the hearing.  In the absence of a credible explanation, and having regard to all of the circumstances of the case, it was plainly entitled to reach the conclusion which it did.

45.	In his witness statement in support of his appeal Mr Held gave the same explanation as to why the 15 had been withdrawn.  However when I asked him about the two matters raised by Mr Viles, first he accepted that in fact the locum dentist had not had a performer number prior to 20 June 2013, but claimed that the locum dentist had falsely claimed that he had, and it was not until subsequently that the true position was discovered.  He accepted however that there was no reference to this in his defence letter or witness statement.  Second, he said that the reason why the claims were withdrawn was not because the patients had not signed the letter of consent required by the PI insurers, but because without a valid performer number the practice could not claim against the NHS-DS for treatment provided by the locum dentist, and that it was as a result of this coming to light that the claims had been withdrawn.   Again, that was a new explanation.  Third, he was unable to explain why the 15 had been withdrawn on the basis, according to him, that they all related to dental treatment undertaken by the locum dentist after 31 May 2013, where the schedule showed that no treatment had been conducted before that date, whereas the remaining 26 included exactly the same type of claim (see for example patient 3 on the schedule).  Moreover, even where some of the 26 were cases where treatment had been begun before 31 May 2013 but completed after that date, if those patients had also all been treated by the locum dentist after 31 May 2013, as Mr Held claimed, then no claims for any treatment made after 31 May 2013 but before 20 June 2013 should have been made.  All of this demonstrates, in my judgment, that the PCC’s rejection of Mr Held’s explanation as advanced in his defence letter cannot, putting it at its lowest, be shown to have been wrong.

46.	Finally, and for completeness, even if I was wrong in the above conclusion, and that the PCC ought to have found that the reason for the withdrawal was that the locum dentist had treated the 15, that does not in my view necessarily compel the conclusion that it should have reached the same conclusion as regards the remaining 26.  In my judgment it would have been perfectly entitled to conclude on all of the evidence and material before it that the reason for the withdrawal of the 15, but not the withdrawal of the 26, was that the 15 had been treated by the locum dentist but that the 26 had not.  That, after all, would have been more consistent with Mr Held appreciating that he was not entitled to claim against the NHS for work undertaken by the locum dentist at a time when he did not have a performer number.  Otherwise, on his version of events, he would still have been making claims as regards the 26 for work done by the locum dentist from 31 May 2013 to 20 June 2013 on that self-same illegitimate basis.   

47.	For all of these reasons I reject the appeal under ground (c).

Ground (d) – sanction

48.	In its determination on sanction, the PCC said as follows:

“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.”

49.	In my view no error of approach is discernible from this determination.  Thus:

(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 patients
Registrants 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.

50.	Ms Scarbrough also referred me to the decision of the Extra Division, Inner House, Court of Session in Dr David Kerr Black [2013] HCJAC 39, where the court had to consider an appeal against erasure brought by a dentist who had practised as such without PI insurance.  Although the facts were different and, in particular, the length of the period in question was dramatically longer than the period in question in this case, there is one part of the judgment which is of some relevance to the question I have to determine.   

“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.” 

51.	Whilst the position, as I was advised, is that the amendments were not in force as at June or July 2013 either, I accept that it is nonetheless a relevant factor in assessing the seriousness with which the PCC was entitled to view Mr Held’s conduct in this case.

52.	In my view the PCC’s decision that suspension would be insufficient, and that only erasure would be appropriate and proportionate to safeguard patients, was one which cannot be said by an appellate court to have been inappropriate.  That is particularly so bearing in mind the factors identified in Raschid, namely the PCC’s obligation to have regard to the public interest and the profession's reputation as a whole, not just to the individual circumstances of the doctor, and the PCC’s special expertise in making judgments on this issue.  Whilst I accept that a decision to suspend rather than to erase was a decision which another PCC might have come to, particularly perhaps if Mr Held had been in a position to demonstrate his appreciation of the seriousness of his misconduct, and his genuine determination and ability not to repeat that conduct, this court cannot properly interfere with the decision to erase.  

53.	In the circumstances, the appeal on this ground must fail as well.

Conclusion

54.	The appeal is dismissed.  

55.	I would like to express my appreciation for the moderation with which Mr Held presented his appeal, for the assistance I received from Capsticks in the preparation of the appeal bundle, and for the detailed skeleton argument and helpful oral submissions from Ms Scarbrough.