CO/878/2016 
Neutral Citation Number: [2016] EWHC 1803 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT

 The Courthouse
 1 Oxford Row
 Leeds
West Yorkshire
LS1 3BG  

Thursday, 21st April 2016
 
B e f o r e: 

MR JUSTICE KERR

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Between: 
PROFESSOR NINIAN PECKITT
Appellant

v 

GENERAL DENTAL COUNCIL
Respondent 
 
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Digital Audio Transcript of  
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The Claimant appeared in Person

Ms Eloise Power (instructed by Capsticks Solicitors LLP) appeared on behalf of the Defendant

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J U D G M E N T
MR JUSTICE KERR:

1.	I have before me an appeal by Professor Peckitt, who has ably represented himself.  He is a maxilla-facial surgeon, who appeals against a decision of the General Dental Council's (the GDC’s) Professional Conduct Committee (PCC), which on 22 January 2016 decided that his fitness to practise as a dentist was impaired by reason of two matters.

2.	The first was a prior ruling by the Medical Practice Tribunal Service (MPTS) of the General Medical Council (GMC) erasing his name from the medical register.  The second matter was certain instances of misconduct constituting dishonesty.  The PCC decided in consequence that Professor Peckitt's name should be erased from the Dental Register.

3.	He attempted in 2015 to appeal the decision of the MPTS erasing his name from the medical register but that appeal foundered on procedural grounds and was not able to proceed.  Accordingly, his name remains erased from the medical register.

4.	Professor Peckitt is a surgeon of considerable experience, who in the past had been shortlisted for an award.  In February 2012, as was later alleged but strongly denied by Professor Peckitt, he was said to have punched a patient in the face in the course of an operation to reduce a fracture to the left zygomatic complex.  The following month, in March 2012, as was later alleged but again denied by Professor Peckitt, he was said to have misconducted himself at an out-patient clinic due to a dispute about information technology (IT), without ensuring suitable arrangements were made for his patients.

5.	In consequence of those allegations, the matter came before the MPTS panel, which on 20 April 2015 concluded that the misconduct was made out, at least in relation to the "punching action" which was found to be "totally inappropriate".  The MPTS panel regarded Professor Peckitt as having "a complete lack of insight" and as having made no attempts at remediation.  It decided to impose the sanction of erasure, to take effect 28 days later with an immediate suspension order in the meantime.  As I have said, an appeal again that decision is not able to proceed and it stands.

6.	While the matter was pending, before the MPTS panel made its decision, the GDC became aware of the allegations and disciplinary process under the regime of the GMC.  Correspondence and exchanges about the interaction of the two regimes between Professor Peckitt and the GDC took place prior to the MPTS panel decision.  While the matter remained pending before the MPTS panel, the GDC investigatory body did not and rightly did not, under the relevant rules impose any interim suspension on Professor Peckitt.

7.	In the course of those exchanges, during the period of a month or so before the MPTS panel’s decision, Professor Peckitt sent certain emails to the GMC and others, not copied to the GDC, which included statements that later became the subject of the second charge of misconduct I have mentioned.

8.	The emails included statements to the following effect (quoting words that subsequently became the subject of the second charge): "the GDC has been critical of the GMC and its departure from procedure"; "the GDC has overruled the GMC ..."; "the GDC has been highly critical of the GMC"; "the competence and lack of probity of the GMC has been condemned by the GDC"; "GMC actions to date have been seriously criticised by the GDC ruling"; "referral of this case to the GDC has resulted in the GMC being severely criticised by the GDC".  Those emailed statements were all sent during March and April 2015, the last one on 10 April  2015, less than two weeks before the MPTS panel’s decision.

9.	As a result of that decision, the PCC of the GDC was convened to consider the issue of Professor Peckitt's fitness to practise, which had already been raised under the relevant rules.  Without going into detail, an investigating committee conducts an investigation decides whether there is a case to answer or not.  In the present case it had decided that there was.  Hence the matter came before the PCC and charges were brought.

10.	The charges fell into two parts.  The first was an allegation under section 27(2)(g) of the Dentists Act 1984 that Professor Peckitt's Fitness to Practise was impaired by reason of the determination of the MPTS.  The second was a charge under section 27(2)(a) of the same Act, that his fitness to practise was impaired by reason of misconduct, the alleged misconduct being the making of the emailed statements I have quoted, which were said to be dishonest in that he knew they were untrue or deliberately closed his eyes to the fact that they were untrue.

11.	At the hearing before the PCC, Professor Peckitt, as was his right, chose not to attend but instead sent emails during the hearing, which were placed before the members of the PCC in un‑redacted form in accordance with what is termed a Thornycroft direction.  He made a number of objections, including an objection to the jurisdiction of the GDC to deal with the matter at all, on the basis that the allegations related to maxillo-facial surgery, a medical specialism and hence (he said) outside the GDC's jurisdiction.  He had argued the converse in the previous proceedings before the MPTS.

12.	The decision of the PCC was, in short, that his fitness to practise was impaired and his name should be erased from the dental register.  In making that decision, it found proved the first charge that the MPTS panel had its turn found his fitness to practise impaired and directed his name be erased from the medical register; and found proved that he had made the five statements mentioned; that they were inaccurate, misleading and untrue and that he knew they were untrue and thus had acted dishonestly.

13.	Specifically, the findings included the following:
 
"[The PCC] concluded, based on all the evidence before it, that Professor Peckitt was aware of the untruthful nature of the statements that he made on multiple occasions …. ."

14.	So far as the MPTS panel's findings were concerned, the PCC apprehended that they "had the potential to place patients at unwarranted risk of harm".  In relation to insight, the PCC stated that Professor Peckitt appeared to have: 
"... no appreciation ... of the seriousness of his blatant and wilful disregard of the standards placed upon by him on his regulators."

15.	The PCC considered, in accordance with the relevant guidance, the question of sanction by beginning with the least serious option available under the rules; and after ruling that out, going on to consider the next most serious sanction, and so on, in ascending order of gravity.  Having ruled out all but the most serious – erasure – the PCC determined that it was the only appropriate sanction: because Professor Peckitt's behaviour had been "fundamentally incompatible with him being a registered dental professional".

16.	As Ms Power (for the GDC) pointed out by reference to the transcript of the determination, the PCC reached the conclusion that erasure was the only appropriate sanction in relation to each of the two charges separately.  It did not only reach that conclusion by cumulating them.  In the usual way, there was an immediate order of suspension.  It is against the decision that his name be erased from the dental register that Professor Peckitt appeals.

17.	Under section 29 of the Dentists Act 1984, my powers are (section 29(3)) to dismiss the appeal, to allow the appeal and quash the decision, to substitute a different decision within the range that could have been imposed by the PCC, or to remit the case back.

18.	I have considered the matter in accordance with what is said in paragraph 19.12 (of the relevant Practice Direction CPR PD52.D), which is that I should consider the appeal on the written evidence.  I have not heard, and have not been asked to hear, any oral evidence.

19.	I am required to allow the appeal if, as provided by CPR 52.11(3), the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in proceedings below.

20.	Appeals such as this have been the subject of many decisions in this court and on appeal to the Court of Appeal.  The governing principles are set out in many places.  For convenience, I will take a recent formulation, that of Mostyn J in Khan v GMC [2015] EWHC 301 (Admin), who in turn drew on what Laws LJ had said in Raschid v General Medical Council [2007] 1 WLR 1460.

21.	I quote from paragraph 11 of Mostyn J's judgment as follows:  
"(i) I can only overturn the decision ... if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity...
(ii) In determining whether the decision was wrong, I must pay close regard to the special expertise of the [tribunal] to make the required judgment. 
(iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession and the protection of the public rather than the punishment of the doctor.
(iv)  The High Court will correct material errors of fact and of law and it will exercise a judgment, although distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case. 
(v) Where the appeal is against a sanction, my decision must not constitute an exercise in resentencing or the substitution of one view of the merits for another."

22.	Where dishonesty is made out, there is ample support in the case law for the proposition that dishonesty combined with a lack of insight will very frequently lead to the conclusion that nothing short of erasure is likely to be appropriate; see, for example, Khan v GMC, per Mostyn J at paragraph 6; Tait v Royal College of Veterinary Surgeons [2003] UKPC 34, paragraph 13; and Sullivan J (as he then was) in R (Farah) v GMC [2008] EWHC 731 (Admin), which involved theft and forgery of prescription forms to obtain drugs (at paragraph 21).

23.	The PCC was also referred, as was I, to the judgment of Mostyn J in Kirschner v GDC [2015] EWHC 1377, in which the meaning of dishonesty and the proper approach to that concept was helpfully set out by reference to prior case law, in terms that are materially the same as those derived from the well‑known criminal case of Ghosh.

24.	It is not disputed that a registered dentist may be subject to disciplinary sanctions by the PCC in a case falling within section 27(2) of the Dentist Act 1984, if his conduct amounts to "misconduct" (section 27(2)(a)), or by reason of a determination by another health service regulatory body (section 27(2)(g)).  The MPTS is plainly such a body and it is not disputed that it had imposed the sanction of erasure from the medical register.

25.	Professor Peckitt raised a number of grounds of challenge to the PCC's decision in his copious documents setting out his case, which ranged very widely.  The first point he made was that the incident involving the alleged punch to a patient, referred to as "Patient A", in 2012, had been the subject of a crime record to which Ipswich police had assigned a crime reference number.  Professor Peckitt said that the PCC failed to acknowledge that and take it into account.

26.	As I understood it, the crime which Professor Peckitt suggested may have been committed was that of perverting the course of justice and arose from his own complaint to the police, derived from his passionate objection to the proposition that he had behaved improperly towards Patient A.

27.	Ms Power accepts that the PCC's decision makes no reference to a report or record of a possible crime of perverting the course of justice, but she submits that cannot of itself come near to an irregularity, procedural or otherwise, and that there is no reason why a mere allegation, not having led to a charge, still less a prosecution, still less a conviction, should trouble the PCC to any significant extent.

28.	Moreover, she said, the subject of that complaint to the police was part of what the MPTS panel had ruled upon, and had made findings adverse to Professor Peckitt, behind which the PCC could not and should not go.

29.	I am quite satisfied that there is no merit whatever in this point.  It is frankly immaterial whether Professor Peckitt told the police that a crime may have been committed.  He was not able to show me any response from the police.  But even if the MPTS panel had had before it material from the police, lending support to the proposition that a crime might have been committed, that would still be no more than their view and a mere allegation.  I accept Ms Power's point that the PCC was not required to mention or trouble itself with that matter.

30.	Professor Peckitt's next point arose from the exchanges that had occurred before the MPTS panel's decision.  As I understood his argument, he pointed out, first, that the GDC had not sought to suspend him from practice in the run up to and prior to the MPTS panel's decision; second, that meant that the GDC was, contrary to the PCC's stance in its decision, prepared to go behind and "overrule" a GMC's stated position, the latter having, unlike the GDC, suspended Professor Peckitt from medical practice in the run up to and pending the MPTS's panel's decision.

31.	His argument in this regard was, with respect, a little difficult to follow.  But I do not see how it can undermine in any way the reasoning and conclusions of the PCC in this case.  After all, until the MPTS panel made its decision, Professor Peckitt, albeit suspended from practice, had not been found guilty of any misconduct.  That came later.  He was innocent until proven guilty.  So I do not, with respect, see how the GDC's prior forbearance to suspend him advances his case in any way.

32.	Next, he pointed out that he had in the past received the honour of being shortlisted for the Ipswich Hospital Clinician of the Year Award, and he criticised the PCC for making no mention of that accolade in its decision.

33.	 In response, Ms Power was able to show me the material passage from the transcript and the determination, which made it plain that the PCC was alive to and took into account "testimonials" and was therefore appreciative of the need to consider any evidence relevant to the correctness or the appropriateness of one type of sanction rather than another.

34.	I entirely accept her point that it was not incumbent on the PCC overtly to mention one particular item of such evidence, namely shortlisting for the award, rather than another or all of them.  I am satisfied from having looked at the transcripts and the decision and the reasons for it, that the PCC properly considered all matters relevant to sanction, which included evidence of prior good practice such as that drawn to my attention by Professor Peckitt.

35.	Next, the Professor invited me to find that the PCC should have taken on board, and that I should now take on board in assessing the propriety of its decision, the validity of his, Professor Peckitt's, critique of the process and outcome that had occurred under the auspices of the GMC and subsequently the MPTS panel.  He submitted that that process had been deeply flawed, had amounted to something like a campaign against him, that it had been fundamentally unfair and, as I understood his argument, he submitted that this meant that the PCC had, in its turn, acted unfairly and improperly in adopting and accepting at face value the MPTS panel findings of misconduct.

36.	Ms Power submitted, by contrast, that the PCC (I quote from her skeleton argument): 
"... had no power to go behind the primary findings of fact made by the GMC's MTPS Panel in determining the case under section 27(2) (g) of the 1984 Act and …. it correctly did not do so."

37.	Section 27(2)(g) of the Act does, indeed, provide for a finding of impairment by reason of the determination of another regulatory body and not the truth of the facts underlying that determination.  So to that extent I think Ms Power is right that it is not, at least other than in exceptional cases, for the second disciplinary panel to revisit the factual territory of the first.  That seems to me to be the position, other than in rare and exceptional cases.

38.	There could, at least in theory, be a case in which the first body's decision was so manifestly flawed or perverse that it would be wrong for the second body to blind itself to that fact.  I note that the opening words of section 27(2) are “[a] person's fitness to practise as a dentist shall be regarded as 'impaired'...”.  I do not think the word "shall" requires a second disciplinary body in a case falling under (g) uncritically to adopt a determination of the first body in a rare case where the second is presented with stark evidence that the decision of the first must be plainly wrong.

39.	That said, I do not see any material in the present case which comes near to undermining or casting doubt on the propriety of the PCC's decision to find Professor Peckitt's fitness to practise impaired on the strength of the MPTS panel's determination.  I reject the suggestion that the latter was so obviously and blatantly flawed that a reasonable PCC could not fairly take it at face value.  I do not think, despite the passionate belief to that effect held by Professor Peckitt, that he has provided any evidence to support that proposition.

40.	He referred to a report by a body called the Professional Standards Authority (the PSA) which, I am told, has overarching responsibility for looking into the activities and standards of performance of regulators in the health sector.  I was referred to but not taken in detail to a report of that body last year, in which I understand criticisms of the investigatory processes of the GDC were expressed, although it is not suggested that reference to this case appears in that report.

41.	Professor Peckitt went as far as to invite me to consider whether the GDC and GMC are bodies that are fit for their purpose, an invitation I unhesitatingly declined.  The mere existence and content of that report, whatever the detail, is not, in my judgment, of the slightest relevance to the issue as to whether, and if so, to what extent, Professor Peckitt conducted himself improperly, and whether the sanction of erasure from the dental register was within the range properly open to the PCC.

42.	That then leaves the second charge, that of dishonestly making untrue and misleading statements in the five emails that I have already mentioned.  Ms Power has taken me to the relevant evidence in relation to that matter and how the PCC dealt with it.  She showed me the direction that was suggested as appropriate by her, and concurred in by the legal assessor.  It was a dishonesty direction crafted from the judgment of Mostyn J in Kirschner, in turn derived from Ghosh, as I have already mentioned.

43.	The PCC was also referred to the concept of "Nelsonian dishonesty", but reached the conclusion that Professor Peckitt had not merely put a blind eye to the telescope but had been "aware that the statements he was making were untrue".  In the relevant part of the PCC’s determination, as read into the record and subsequently transcribed, the PCC said after referring to the Kirschner/Ghosh test:

"The Committee was of the view that the correspondence between Professor Peckitt and the GMC and Professor Peckitt and the GDC demonstrates that he has not been honest in his communications, and in particular the inaccurate statements detailed in charge 2. The Committee noted that none of the emails containing these inaccurate statements were copied to the GDC by Professor Peckitt, although he did copy in a number of other people and organisations into the emails. This explains why that [sic] the first time the GDC were made aware of these emails was when contacted by the GMC to query the accuracy of the statements.  This was supported by his statement to the GMC in an email dated 19 March 2015 in which he stated ‘Please note that Oral and Maxillofacial Surgery is a Dental Specialty and therefore comes under the regulation of the GDC as a specialty. Therefore the views of the GDC are relevant.’ In his correspondence to the GDC, dated 21 January 2016, he stated ‘the GDC has no remit or authority to hear a case related to Maxillofacial Surgery which is a Medical Specialty and outside their jurisdiction…’ The Committee was of the view that the opinions expressed by Professor Peckitt alter dependent upon the recipient of his correspondence. 
The Committee was referred to the judgment in the case of Twinsectra ... which outlined the principle of ‘Nelsonian Dishonesty’. This principle is derived from when Lord Nelson at the battle of Copenhagen made a deliberate decision to place the telescope to his blind eye in order to avoid seeing what he knew he would see if he placed it to his good eye. As such the Committee was invited to consider whether Professor Peckitt ‘turned a blind eye’ to the inaccuracy of the statements that he made to the GMC. The Committee concluded that Professor Peckitt was aware that the statements he was making were untrue and as such did not consider that he simply turned a blind eye. 
The Committee ... considered whether Professor Peckitt’s statements were innocent or even negligent mistakes in which case they would not have been dishonest. It concluded, based on all the evidence before it, that Professor Peckitt was aware of the untruthful nature of the statements that he made on multiple occasions and considered that these were not innocent or negligent statements. The Committee was of the view that the reasonable and honest dentist, in possession of all the facts of this case, would consider that Professor Peckitt’s conduct was dishonest. The Committee also concluded that Professor Peckitt was aware that the statements that he was making had no basis in truth and therefore he was acting dishonestly. As such this charge is found proved."

44.	Professor Peckitt submitted that he had been doing nothing worse, in the five emails mentioned, than expressing his opinion to the effect, as I understood his argument, that what the GMC had done merited criticism from the GDC, and that the GDC's actions implicitly entailed disapproval of the GMC's positions.  That is not quite how Professor Peckitt put it to me, but that is what I understand to be the non‑dishonest interpretation of his communications, which he seeks to place on the statements in the five emails.

45.	I accept that a charitable reading of those statements, in their context, might have led a reasonable committee in the position of the PCC, to regard the statements as more in the nature of extreme hyperbole and over‑the‑top language than knowingly dishonest misrepresentations of the truth.  But, I am afraid do not have much hesitation in finding that it was well open to the PCC in this case to take a different and more harsh view of Professor Peckitt's mental processes when making those statements.

46.	Its reasoning included the legitimate point that the emails in question had not been copied to the GDC and had attributed to the GDC statements that it had not made.  The directions about dishonesty and the PCC's treatment of those directions and its application of them to consideration of the facts, seems to me to have been impeccable and I cannot fault it.  The fact that another committee might have taken a more lenient view of what Professor Peckitt wrote in the five emails, does not mean that the PCC's decision on charge 2 is flawed.  In my judgment it is not.

47.	That, I think, covers the substance of all the points made in Professor Peckitt's present appeal.  He did, as I have said, make very broad and wide‑ranging criticisms of the entire regulatory process, which he clearly passionately believes has treated him unfairly and indeed falsely.  But as he accepted, it is no part of my function to entertain and consider those very broad and general criticisms of the process.

48.	I have the much more limited function of considering whether the decision under appeal is wrong or unjust because of a serious procedural or other irregularity.  For the reasons I have given I have no hesitation in concluding that it is neither.  For those reasons I will dismiss the appeal.