QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| Professional Standards Authority for Health and Social Care
|- and -
|General Dental Council
Iain Steele (instructed by General Dental Council) for the First Respondent
Fiona Neale (instructed by BLM Law LLP) for the Second Respondent
Hearing dates: 8 May 2019
Crown Copyright ©
The Honourable Mr Justice Julian Knowles:
a. the GDC failed to present, and so the PCC did not consider, a High Court judgment from September 2017 (the judgment was actually delivered in October 2017) in which Mr Hussain gave evidence which the judge found was untrue (Ground 1);
b. that finding was relevant to the PCC's consideration of Mr Hussain's fitness to practice as a dentist, his conduct since his conviction, and other matters (Ground 2);
c. hence, the PCC's decision to restore Mr Hussain's name was taken on an evidential basis which was incomplete (Ground 3);
d. if the PCC had been aware of that finding, it would have done various things, including exploring the finding with Mr Hussain and the witnesses he called who attested to his insight into, and remediation of, his earlier dishonesty (Ground 4).
"The Committee failed in any event to (i) properly characterise the seriousness of Mr Hussain's conduct and the impact of that conduct upon the public interest; and (ii) address, or to address adequately, whether public confidence and the maintenance of professional standards would be damaged by the restoration of Mr Hussain to the register."
Factual background and chronology
a. the NHS, by agreeing that Mr Bachada would perform NHS dental treatment at the Droitwich surgery and secure payment from the NHS for that treatment when they knew that Mr Bachada's application to join the relevant dental performers' list (in order to lawfully provide NHS dental services) had not been granted. The NHS was therefore misled into paying the fees for the treatment on the basis that it had been provided by other practitioners and/or at another dental practice;
b. patients, by misleading them into believing that they were receiving NHS treatments at NHS fees at the Droitwich surgery when in fact they were not (Mr Bachada was not permitted to provide NHS dental services), and were being charged higher fees than NHS fees.
"20. Mr Hussain was a very unimpressive witness constantly repeating questions and page references, re-reading the documents whilst in the witness box and failing to answer the very simple direct but searching questions posed to him in cross examination or even the simple elucidating questions put to him by the court.
23. I place no reliance upon Mr Hussain's self serving evidence in this case, save where it is corroborated by a document or an another witness whom the court feels able to trust."
1.7.96 Mr Hussain registered as a dentist
1.6.07 Registration suspended for 12 months by reason of his misconduct
11.1.08 Sale by Mr Hussain and his business partner Mr Bachada of the Litchfield Road Dental Practice, Wednesbury
30.4.08 Sale by Mr Hussain and business partner Mr Bachada of Droitwich Spa Dental Practice to AG Family Care Ltd
9.7.10 Mr Hussain convicted on indictment (after his guilty plea and a trial) of two counts of conspiracy to defraud (with business partner Mr Bachada)
5.10.10 Mr Hussain sentenced to 30 months imprisonment for each offence, to run concurrently
22.12.10 Judgment of HHJ Simon Brown QC in the High Court in AG Family Care Ltd v Hussain and Bachada
8.11.11 PCC erases Mr Hussain's name from the register
12.7.17 Mr Hussain applies to be restored to the register
31.10.17 Judgment of HHJ David Cooke in the High Court in Dr Navdeep Dhaliwal v Hussain and Bachada
27.6.18 PCC restoration hearing
27.6.18 Decision to restore
13.8.18 The Authority determines that the decision was 'not one which no reasonable panel could have made … it was not insufficient for public protection' and writes to Mr Hussain to advise him it is not referring the decision under s 29 of the DA 1984
21.8.18 The Authority writes to Mr Hussain to say that, in fact, it will be referring his case in the light of further information
22.8.18 Appellant's Notice filed and served containing only Grounds 1 to 4
5.10.18 The Authority applies to amend its Notice of Appeal to add Ground 5.
The decision to restore Mr Hussain's name to the register
a. the burden was on Mr Hussain to satisfy the PCC of the matters in s 28(5) of the Dentists Act 1984 (the DA 1984);
b. the GDC did not accept that he was fit to practice as a dentist (s 28(5)(a)) or that he was of good character (s 15(3)(b));
c. it had been referred to evidence that Mr Hussain had taken steps to address his dishonest behaviour;
d. it had been referred to the 2010 High Court judgment which, it said, had spoken of Mr Hussain's 'gross duplicity' in the sale of the Droitwich practice;
e. it had heard from Professor S, who works with healthcare professionals in relation to behavioural matters. He said that Mr Hussain had developed 'very considerable insight' and that he did not pose a major risk of re-offending;
f. it had received a witness statement from Dr B who had provided coaching/mentoring sessions and said that Mr Hussain had developed a 'deeper sense of self-awareness and an understanding of the factors that contributed to his unacceptable behaviour and actions';
g. Mr Hussain had given evidence on oath about the steps he had taken since his erasure;
h. Mr Hussain's convictions were 'very serious', involving a conspiracy to defraud the NHS and patients and an attempt to cover up the offences by withholding, destroying or altering patient records and included repeated dishonesty over a protracted period of time;
i. the events giving rise to the 2010 civil judgment amounted to further examples of Mr Hussain's dishonesty;
j. it kept in mind Mr Hussain's fitness to practise history;
k. it was clear that Mr Hussain had reflected extensively over the last seven years, with his release from prison being the turning point, weight being accorded the opinions of Professor S and Dr B;
l. Mr Hussain recognised that what he did was wrong, had acknowledged why he had acted in the way he did and stated that it was satisfied that the factors which had caused him to do so are no longer present;
m. it determined that the risk of repetition of the behaviour was low, as there had been no further evidence of misconduct on the part of Mr Hussain since his erasure in 2011, which (then) had been almost seven years ago, and the pressures he faced between 2002 and 2006 were no longer present. The PCC referred to the dishonest conduct as having spanned the period from 2002 until 2010.
n. this was not a case in which the misconduct was so serious that the public interest required Mr Hussain to be kept permanently out of practice;
o. it considered that his convictions were now to be regarded as spent for the purposes of the Rehabilitation of Offenders Act 1974;
p. it observed that it had received extensive feedback from a range of people as to Mr Hussain's recognition of his wrong doing and how he had changed for the better, in particular from Dr B, who believed Mr Hussain to be sincere in wishing to change and to demonstrate that change;
q. it found that Mr Hussain was to be considered of good character for the purposes of section 15(3)(b) of the Dentists Act 1984;
r. it imposed conditions upon Mr Hussain's return to practice, in particular as to reporting to the Council by a workplace supervisor and limiting his dental practice in accordance with the workplace supervisor's advice.
The issues on the appeal
"42. I did not however form a good impression of either of the defendants as witnesses …
43. In answering cross examination, in my view both defendants were throughout evasive. … Mr Hussain frequently interrupted questions, launching off into a long statement about matters irrelevant to the question being asked. Both of them when dealing with their own actions and motivations in the sale process gave answers that in my view were implausible and untrue."
a. his identity;
b. that he is of good character;
c. that he has the necessary knowledge of English; and
d. that he is in good health, both physically and mentally.
"(4) … refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the profession concerned; and
(c) to maintain proper professional standards and conduct for members of that profession."
The appeal court's approach
"48. Patients, employers, colleagues and the public should be able to rely on a dental professional's integrity. Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional's fitness to practise and to public confidence in the profession. Examples of dishonesty in professional practice include, but are not limited to:
- defrauding an employer or contracting body;
- falsifying and/or improperly amending patient records;
- issuing practice policies which unduly influence patients to receive expensive or unnecessary treatment;
- misrepresenting the NHS position;
- submitting or providing false references;
- providing misleading information on a CV;
- failing to take reasonable steps to ensure that statements made in formal documents are accurate;
- misconduct in relation to research for example presenting misleading information in publications or dishonesty in relation to clinical trials.
49. Dishonesty is serious even when it does not involve direct harm to patients (for example defrauding the NHS or providing misleading information) because it can undermine public confidence in the profession. The Privy Council has emphasised that 'Health Authorities must be able to place complete reliance on the integrity of practitioners and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole'.
50. The High Court has also held that, when considering impairment, a panel is entitled to take into account the way in which a registrant has conducted his or her defence and any dishonesty therein."
"10.4 The burden of proof is on the applicant to satisfy the PCC that they:
• are fit to practise. This means satisfying the PCC that not only do they have the necessary knowledge and skills to practise the profession safely and effectively, but also as to their identity, good character, necessary knowledge of English and health, as specified in the Act;
• meets the requirements of any CPD rules relevant to their case; and
• meets any other requirements as to education and training as directed by the PCC.
10.5 When considering the applicant's application for restoration, the PCC must have regard to all three aspects of the over-arching objective of the Council, as set out in the Dentists Act i.e. the protection of the public via the pursuit of the following objectives:
• to protect, promote and maintain the health, safety and well-being of the public;
• to promote and maintain public confidence in the professions regulated under the Act; and
• to promote and maintain proper professional standards and conduct for members of the dental professions."
a. Honesty is a fundamental tenet of the dentists' profession. In the furtherance of its over-arching objective in s 1(ZA) of the DA 1984 (namely, protection of the public), the GDC was obliged to present the PCC with all the evidence in its possession material to the issues under consideration but did not do so. If anything, more than the 2010 judgment, the 2017 judgment was material to Mr Hussain's application, because it undermined Mr Hussain's evidence, and that of Professor S and Dr B, that he now had insight into his dishonesty and had acquired an understanding of and insight into it, and that he had changed his ethical and moral outlook since his release from prison. That is because it amounted to a finding that in September 2017, Mr Hussain, during the course of protecting his own interests (to the detriment of the purchaser of one of his practices), had not told the truth on oath;
b. The 2010 and 2017 judgments demonstrate Mr Hussain behaving in a similar (dishonest) fashion, when giving evidence on oath in Court whilst seeking to protect his own interests, to the detriment of the purchasers of his practices. The 2017 judgment is evidence of very recent dishonest behaviour on the part of Mr Hussain and shows that he has not remediated his dishonesty;
c. another element of Mr Hussain's case was that his convictions arose out of pressures to which he was subject in 2002 to 2006 and that those pressures were no longer present, however the 2017 judgment shows that is not true;
d. the terms of the 2017 judgment are such that Mr Hussain cannot be considered to be of good character for the purposes of the s 15 of the DA 1984;
e. without the 2017 judgment the PCC was unable to make any assessment of the significance of the judge's finding in relation to the lack of truth in Mr Hussain's evidence on oath to the Court;
f. had the PCC been made aware of the finding that Mr Hussain had been found to have given evidence to a Court in September 2017 which was untrue it would have been able to ascertain whether Mr Hussain had informed the witnesses called by him to attest to his insight into and remediation of the dishonest conduct which resulted in his conviction of the finding that he had given evidence in the High Court which was untrue;
g. the 2017 judgment is capable of undermining the PCC's conclusions about Mr Hussain's reformed character, which was the basis of its decision to restore his name to the register.
h. overall, what happened here was a serious procedural error within CPR r 52.21(3)(b) because there was an error in process in Mr Hussain's restoration application, which resulted in the PCC not being provided with information which was material to the issues it had to consider.
a. the PCC should have considered the evidence as to Mr Hussain's remediation and the behaviour which resulted in his erasure from the register, and in the event that it made positive findings it should have balanced those findings against each of the limbs of the over-arching objective, in order to satisfy itself that the restoration of Mr Hussain to the register would promote and maintain public confidence in the profession, thereby ensuring that the over-arching objective would be achieved;
b. the PCC failed to have adequate regard to the nature and seriousness of Mr Hussain's convictions, and its decision is wrong. Mr Hussain's dishonesty went to the heart of dental practice, impacting upon patients and the public purse, to the detriment of patients' interests and public confidence in the profession, all in Mr Hussain's own interests. In order to further his own interests in escaping the consequences of his dishonesty Mr Hussain withheld, destroyed and re-wrote patient records. In response to such conduct the most robust affirmation of the acceptable standards is required. No dentist who has chosen to further his own interests in this way should remain on or be restored to the register;
c. contrary to the finding of the PCC, Mr Hussain is not a person of good character within the meaning of section 15 of the Dentists Act 1984 and his convictions are not to be considered as spent within the meaning of the Rehabilitation of Offenders Act 1974;
d. contrary to the finding of the PCC, Mr Hussain is not fit to practise dentistry. No individual with convictions of the nature and seriousness of Mr Hussain's (even without his other fitness to practise history) would be considered a fit person to be registered as a dentist and no such individual should be considered a fit person to be restored to the register;
e. having failed to identify the true nature and seriousness of Mr Hussain's behaviour, the PCC failed to conduct the exercise described at (a) above; the PCC focused on Mr Hussain's remediation. It failed to address the limbs of the over-arching objective, and did not consider how the restoration of Mr Hussain to the register would achieve that objective.
"(a) to protect, promote and maintain the health, safety and well-being of the public;
(b) to promote and maintain public confidence in the professions regulated under this Act; and
(c) to promote and maintain proper professional standards and conduct for members of those professions".
"10. The circumstances in which this situation arose were as follows:
(1) A copy of the Second Judgment was forwarded to the GDC by NHS England on 8 November 2017. It was omitted in error from the papers served on Mr Hussain's solicitors in advance of the PCC hearing scheduled for 27 June 2018.
(2) On 18 June 2018, the proposed hearing bundle was updated to include the Second Judgment and a copy was served on Mr Hussain's solicitors.
(3) On 19 June 2018, the hearing bundle was further updated to include the judgment in the first set of civil proceedings against Mr Hussain ('the First Judgment') … Although it pre-dated the original PCC decision to erase Mr Hussain's name from the Register by about eleven months, the First Judgment had not been before the PCC when it took that decision.
(4) On 27 June 2018, prior to the commencement of the hearing, there was a discussion between Counsel for the GDC, Counsel for Mr Hussain and the Legal Assessor to the PCC. Counsel for Mr Hussain objected to either of the Judgments being put before the PCC on the basis that the GDC had only very recently indicated that it intended to rely upon them, and further that the Second Judgment was at that stage subject to an appeal.
(5) By way of compromise and with a view to the hearing not being delayed by procedural objections (including the possibility of an adjournment), it was agreed between the GDC and Mr Hussain that the First Judgment, but not the Second Judgment, would go before the PCC.
11. In deciding to proceed in the manner set out above, the GDC took the view at the time that the First Judgment alone (taken together with Mr Hussain's criminal conviction for conspiracy to defraud and other fitness to practise history) provided a sufficient basis for resisting Mr Hussain's application for restoration, in circumstances where the findings made in the First Judgment were very serious.
12. With hindsight, and having regard to the manner in which the PCC approached the issues in its decision dated 27 June 2018, the GDC recognises that it should have invited the PCC to consider the Second Judgment, notwithstanding the possibility that Mr Hussain might raise a procedural objection.
13. The better course would have been to leave it to the PCC to determine the admissibility of the Second Judgment and the significance and weight to be attached to it (for example if Mr Hussain was pursuing an appeal in relation to the Judge's findings that he had given evidence that was untrue). "
Mr Hussain's submissions
Grounds 1 – 4
"It was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong."