England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice
		12th October 2017

MR JUSTICE HOLMAN:

1. This is a statutory appeal by a registrant, Mrs Florence Yewande Phillips, from a decision and order of a Professional Conduct Committee of the General Dental Council reached on 20^th April 2017.
2. The appellant has appeared in person before me today and has demonstrated candour in relation to the difficulties she faces on the present appeal, which, as I have already told her, is, frankly, hopeless. I will summarise the essential background and context extremely shortly.
3. The appellant is a registered dentist who was practising as a dentist. Allegations were made in relation to the competence of her treatment of a particular patient, known as "Patient A", and as to steps which she then took when she realised the dental error which she had made. It is not necessary for the purpose of today's public hearing to give fuller details.
4. There was a full hearing before a Professional Conduct Committee of the General Dental Council in April 2016. After the full hearing the committee found a number of the charges proved, including a charge to the effect that the appellant had subsequently dishonestly made a false entry in her records of Patient A in order to try to cover up the error.
5. On the facts and allegations as found proved, a Professional Conduct Committee of the General Dental Council might well, without error, have decided that the registrant should be removed from the register.
6. However, the committee in April 2016 took a more lenient view and appear to have accepted that the matters found proved were something of a one off, and that patients and the public could be sufficiently protected by imposing a period of suspension for the maximum permissible period of 12 months.
7. They said in their written reasons in April 2016:

"… the committee has determined that it is appropriate and proportionate to suspend your registration for a period of 12 months. It is considered that such a period, which is the maximum available, reflects the seriousness of your misconduct and will give you time to develop the necessary level of insight …"

8. The decision made plain that the question of a further period of suspension would be considered by the committee at a review of the case about 12 months later, namely, in April 2017.
9. Both in their written reasons for their decision and also in a subsequent letter dated 19^th April 2016 the committee, in April 2016, set out evidence or material that it would be helpful for the registrant to produce before the review hearing a year later. This included evidence of the actions the registrant had taken to address her misconduct and, in particular, her dishonesty. They said:

"This evidence could usefully include a substantial piece of written reflection to show that you have developed a full understanding of the importance of absolute honesty and integrity in a dental professional. The Committee notes your intent to write to Patient A, a copy of this letter may be of assistance."

10. Additionally, the committee referred to testimonials as to her character, evidence that she had addressed the clinical issues in the case, evidence of the strategies she has developed to avoid any repetition of her misconduct, and evidence that she had kept up to date with her CPD.
11. As I have mentioned, the secretariat of the General Dental Council sent a very clear letter dated 19^th April 2016 setting all those matters out. The letter stated:

"If you wish to provide this evidence, please send it to me on email or at the address below, marked for my attention, by 21^st March 2017."

12. That letter, dated 19^th April 2016, was sent by post and recorded delivery to the registered address of the registrant at her dental surgery in Coventry. It was also sent by email to an email address, which, as she accepts today, was and still is her email address.
13. There is within the bundle a document dated 20^th April 2016, now at bundle page 90, which evidences that the appellant did indeed receive and download that letter. So it was crystal clear to the appellant in April 2016, first, that there would be a further review hearing in a year's time; and second, that at that hearing, it would be helpful (and accordingly wise of her) to submit as much as she could of the evidence and material that the committee had described in April 2016.
14. The review hearing was duly set for 20^th April 2017. There is, frankly, no doubt that the secretariat of the General Dental Council sent clear notification of the time and date and place of that hearing to the registered address of the registrant by a letter dated 22^nd March 2017. They also sent it by email to the same email address which had been successfully used in April 2016 and which the appellant has confirmed today remains her email address.
15. The appellant did not attend that review hearing. She did not send in advance, whether by 21^st March 2017, or at all, any evidence or material or documents of the kind that the committee had indicated in April 2016 would be helpful. She did not in fact communicate with the General Dental Council in any way whatsoever more recently than January 2017, when there was a phone call.
16. In those circumstances, it is hardly surprising that at the review hearing on 20^th April 2017, the Professional Conduct Committee concluded that the registrant had not supplied any evidence of recognition of her earlier failings or of change, or of any attempts by her to address the issues, nor even that she was up to date with her CPD.
17. I have read with care the verbatim transcript of the whole hearing on 20^th April 2017. Notwithstanding the non-participation of the registrant, the committee conducted that whole hearing thoroughly and with scrupulous care. It was in no sense whatsoever, a formality. Their ultimate decision was that there must be a further period of suspension for a further 12 months which will expire in April 2018.
18. The appellant clearly learned of that outcome relatively soon afterwards, and on 22^nd May 2017 she filed with this court an appellant's notice in the prescribed form establishing her appeal from the decision and order of the committee reached in April 2017.
19. In section 8 of her appellant's notice, the order which she seeks from this court is "New date set for hearing". In section 10 of the form, under the heading "Evidence in Support", she describes some family misfortunes which it is not, I think, necessary for me to repeat in this judgment.
20. Although she does not say so in terms in her form, the obvious inference is that she was distracted or deflected from focusing on preparation for the important hearing in April 2017 by family problems.
21. The appellant did not, however, inform the General Dental Council of any of those problems and, as I have said, from their perspective, despite their best endeavours to engage with her, she had simply failed to engage with them or turn up at the hearing.
22. I said at the beginning of this judgment that the appellant had demonstrated candour today. She has indeed said to me to today that her failure to engage was "inexcusable". She has also said that she made: "An honest mix up of the dates because I had family issues."
23. That of course may or may not sufficiently explain her failure to engage, but the question for me on a statutory appeal of this kind is whether there was any error of any kind by the Professional Conduct Committee on the facts and evidence and material that was available to them at the hearing on 20^th April 2017.
24. I am afraid to say that it is impossible to consider that the Professional Conduct Committee made any error whatsoever on that date. There is no doubt that the registrant had been properly served in accordance with the rules of the General Dental Council. She had not engaged in any way whatsoever. She had not submitted any of the material that they had indicated a year earlier would be helpful, and she was not even present at the hearing.
25. In those circumstances, however hard it may be for the appellant, the decision and reasoning of the Professional Conduct Committee cannot be faulted and I must dismiss the present appeal, as I do.
26. The effect of the current order for suspension is that there will be a further hearing by the Professional Conduct Committee in about April 2018. One can only hope that the registrant has learned the lesson from earlier this year and will be very pro-active indeed in remaining in touch with the General Dental Council; with engaging in these important proceedings; and with assembling and supplying the evidence and material and documents that the Professional Conduct Committee have continued to indicate would be helpful.
27. Today, Mr Sandesh Singh, who appears on behalf of the General Dental Council, has candidly informed me and also the registrant, who is in the court room, of a recent decision of this court to the effect that a registrant may, if he or she wishes and judges it wise and appropriate to do so, apply to the General Dental Council for a review of a period of suspension even before that period has expired, or is about to expire. So even if she did not appreciate it before today, the registrant now knows that she may be able to apply for an earlier review of her case than April of next year. Whether or not it is wise and appropriate of her to do so, must be entirely a matter for her decision and judgment, and is nothing whatsoever to do with me.
28. I would only say, viewing the case objectively as I do, after this short involvement with it, that it might not be wise of the registrant to make any such application unless and until she had fully assembled the sort of evidence and material and documents that the Professional Conduct Committee have so clearly indicated they would need; but at all events, if the registrant does wish to promote some earlier review and reconsideration of her suspension, there is that possibility of her being able to do so. But for the reasons I have given, this appeal must be dismissed.

MR SINGH: My Lord, we do apply for costs. Has your Lordship seen the schedule?

MR JUSTICE HOLMAN: Have you got a costs schedule?

MR SINGH: Yes, it was

MR JUSTICE HOLMAN: I have not personally seen it.

MR SINGH: No. I can hand this up. (Handed).

MR JUSTICE HOLMAN: Thank you. Has the appellant got a copy of this?

THE CLAIMANT: It was emailed to me yesterday.

MR JUSTICE HOLMAN: Have you got it with you, though?

THE CLAIMANT: No, I have not.

MR JUSTICE HOLMAN: Well, here you are. Mr Singh will give you another copy.

THE CLAIMANT: Thank you. (Handed).

(A Short Pause)

MR JUSTICE HOLMAN: All right. So the bottom line is £5,702.88, is that right?

MR SINGH: Yes.

MR JUSTICE HOLMAN: So you say she should be ordered to pay that?

MR SINGH: In principle, yes.

MR JUSTICE HOLMAN: Well, sorry, in principle she should be ordered to pay your costs.

MR SINGH: Yes.

MR JUSTICE HOLMAN: Then you would ask me to assess it, presumably at or about that figure?

MR SINGH: I would, my Lord, yes.

MR JUSTICE HOLMAN: Yes. Your essential point would be she has brought this appeal, it has resulted in expense by you and she has been unsuccessful and in fact I have, with due deliberation, characterised it as hopeless.

MR SINGH: Yes, correct.

MR JUSTICE HOLMAN: Well, madam, the problem is you have set this in train and it was inevitably going to cost the General Dental Council money which is all money, I expect, which comes from registration fees.

On the principle of it, is there any basis on which I can not order you to pay their costs? We will think later as to the exact amount.

THE CLAIMANT: I cannot afford it.

MR JUSTICE HOLMAN: That, unfortunately, is not a reason for not making an order as to costs.

THE CLAIMANT: It would only be a principle of mercy, not on justice.

MR JUSTICE HOLMAN: I am afraid, really, at the level of an appeal, which this is, I have to apply justice and not mercy. I am very, very sorry.

I am very sympathetic to you but the fact is you have brought this appeal. It is an appeal which was and is hopeless. The General Dental Council who are funded entirely by all the other dentists paying their registration fees have incurred expenditure, so if I was merciful to you, I would be unjust to them. I am very, very sorry madam but I will have to make an order that you are to pay the costs of the General Dental Council of and incidental to this appeal.

The next thing is the amount of them. I can either make what is called a "summary assessment" and decide today what the amount should be and that is the end of it, or I can make an order that there be what is called a "detailed assessment", which means on another day a Costs Judge would look at this bill, would hear anything you have to say and decide how much the reasonable costs are. The difficulty about that is it, in turn, incurs more costs.

THE CLAIMANT: Further costs.

MR JUSTICE HOLMAN: And if the GDC had to attend a hearing before a Costs Judge to justify the figures in their bill and they were successful in doing so, you would then be ordered to pay the additional legal fees of that and so it goes on.

So I think what I should make is what is called a "Summary Assessment" today. Do you, madam, wish to address me on the actual items in this bill, or the levels of charge? I know it is difficult for you because you are not familiar, probably, with legal costs.

THE CLAIMANT: I am none the wiser, your Lordship.

MR JUSTICE HOLMAN: Sorry?

THE CLAIMANT: I am none the wiser.

MR JUSTICE HOLMAN: It is not easy to fault the amount of time that staff at the GDC have spent on this because I think if you add it up in preparation for this, they have only incurred somewhere around three hours, which is not a lot. Plus, they are here today and that is two hours.

MR SINGH: In addition, there is the work on the documents, I think, it is on the schedule in the back.

MR JUSTICE HOLMAN: No, that is a breakdown, is it not? The schedule itself shows £518.20.

MR SINGH: Sorry, yes.

MR JUSTICE HOLMAN: The schedule of work on document is a breakdown of what they were doing in those periods of time.

MR SINGH: Yes. There is the work on documents, on page 2, is included as a figure, 518.

MR JUSTICE HOLMAN: Have I got that wrong?

MR SINGH: Then I think, then that is itemised separately within the schedule. So the hours on the documents are not reflected within the hours on page 1 and page 2.

MR JUSTICE HOLMAN: Exactly.

MR SINGH: As I understand it. It is only an additional - it is two hours preparing the bundle and another 1.2 hours dealing with other matters.

MR JUSTICE HOLMAN: Then we have got Mr Singh's fees. He has prepared a very detailed argument. That is included in the fee, is it not?

MR SINGH: It is, yes.

MR JUSTICE HOLMAN: Yes. Which must itself have involved quite a few hours of work. Have you, yourself, previously been engaged in this case, Mr Singh?

MR SINGH: No, I do not appear below.

MR JUSTICE HOLMAN: So you have had to come at it from scratch.

MR SINGH: Yes.

MR JUSTICE HOLMAN: I am afraid litigation is expensive. To guard against a possibility that there is some excess in these figures, I will be willing to round it down to £5,000, inclusive of VAT. I cannot do much more than that.

THE CLAIMANT: I do appreciate that, your Honour.

MR JUSTICE HOLMAN: I beg your pardon?

THE CLAIMANT: I do appreciate that, your Honour. It will be hard for me.

MR JUSTICE HOLMAN: Yes, all right. Well then, I am going to say, or I have already said, that the appellant must pay the costs of the General Dental Council of and incidental to this appeal, summarily assessed in the sum of £5,000, inclusive of VAT.

Is there anything else, Mr Singh, that now arises from your perspective?

MR SINGH: No, thank you.

MR JUSTICE HOLMAN: Is there anything else, madam?

THE CLAIMANT: No, your Lordship.

MR JUSTICE HOLMAN: No. All right. Thank you very much indeed for coming, madam. I am very glad that you have come, because as the court had not heard anything from you and I had no elaboration of your appeal document, quite frankly, I was not at all sure whether you were going to be here.

So I am very glad that you have been here, and it has helped clarify a number of issues, but I am afraid for the reasons I have given that is the decision.

Do you wish Mr Singh to draw up an order?

THE COURT ASSOCIATE: I will.

MR JUSTICE HOLMAN: Yes, all right. Well, the associate will draw up an order. Thank you all very much indeed.

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