EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Hardie Lord Mackay of Drumadoon Lord Drummond Young	[2010] CSIH 75 XA65/10 OPINION OF THE COURT delivered by LORD HARDIE in Appeal by ARFAN ZIA DAD Appellant; against A decision of the General Dental Council Professional Conduct Committee communicated to the Appellant on 8 May 2010 Respondents: _______

Act: Clancy Q.C.; Brechin Tindal Oatts

Alt: Dunlop; Anderson Strathern

19 August 2010

Introduction

[1] The appellant qualified as a dentist in 1992 and in the early 90s, he established a dental practice. He worked and lived in Glasgow for the rest of that decade, but at weekends he travelled to Birmingham to help in the care of his father who was a quadriplegic as a result of a stroke suffered in 1991. This involved a round trip of 600 miles and in the course of making that journey each weekend over a number of years the appellant accumulated a series of road traffic convictions, principally speeding but also a conviction for driving while disqualified. These convictions for contraventions of the Road Traffic Act 1988 resulted in his appearance before the Professional Conduct Committee of the General Dental Council ("the respondents") in 1999 which determined on 14 May 1999 that, by reason of his convictions, his registration in the Dentists' Register should be suspended for 12 months. The appellant successfully appealed against that decision to the Privy Council, which considered that the appropriate course for the respondents to have taken would have been to postpone judgement for a period of 2 years following the determination. Moreover, having regard to the period which had elapsed since his last offence, the case could be concluded without the imposition of any further penalty if he did not commit any further offences within the period of postponement (Dad v General Dental Council [2000]1 WLR 1538). When the case was reconsidered by the respondents, no further sanction was imposed. In 2002, the appellant's father died.

[2] On 8 April 2004 the appellant defrauded the National Health Service of £8,336.60 representing sums which he claimed he had paid to Glasgow District Council as non-domestic rates for two properties that he claimed were dental surgeries. Although he had sent a cheque for that sum to Glasgow District Council, he knew that the cheque would be dishonoured. Moreover, in respect of one of the properties, the appellant had represented to the National Health Service that it was being used as a dental surgery, when in fact it was not. On 5 October 2007, following a plea of guilty, the appellant was convicted of two charges of fraud and was subsequently sentenced to a community service order for 240 hours. The appellant had first appeared on petition on 29 January 2007 in respect of these and other charges alleging dishonesty. On that date, the appellant was not registered as a dentist, his registration with the General Dental Council having ceased on 24 January 2006 as a result of his non-payment of the annual retention fee.

[3] On 2 February 2007, 3 days after appearing on petition in Glasgow Sheriff Court in respect of a total of 6 charges of dishonesty, the appellant applied to the General Dental Council to restore his name to the Dentists' Register.

The applicant signed and dated the application form in the space provided on the form. Immediately above the signature of the appellant, the following was printed:

"I know that if I make any false declaration in this application

·       My registration may be refused and/or

·       I may be prosecuted and/or

·       I may be charged with serious professional misconduct.

The information I have given here is true."

The information was in fact untrue in two respects. The first was that the appellant did not disclose that he was currently the subject of police investigations which might lead to a conviction, namely the allegations of fraud contained in the six charges within the petition which had resulted in his appearance in Glasgow Sheriff Court on 29 January 2007, the investigation of which was still current. Secondly, he failed to disclose that he had been the subject of disciplinary proceedings before the respondents in 1999.

[4] On 5 and 6 May 2010, the appellant attended a hearing of the respondents to answer the following charge:

"That being a registered dentist:

Conviction
1. At the Sheriff Court of Glasgow and Strathkelvin before Sheriff Jones QC:

a. on 5^th October 2007, you were convicted of two offences of Fraud,

b. on 2^nd November 2007, in relation to your convictions at 1a, you were sentenced to a Community Service Order for 240 hours;

Conduct

2. In relation to your registration:

a. on 24^th January 2006, you were removed from the Dentists' Register as a result of your non-payment of the Annual Retention Fee,

b. on 6^th February 2007, the General Dental Council ("GDC") received an application for your restoration to the Dentists' Register (the application form), dated 2^nd February 2007 and signed by you,

c. in answer to question 3 at section 3 of the application form:

'Have you been convicted of a criminal offence or cautioned or are you currently the subject of any police investigations which might lead to a conviction or a caution in the UK or any other country? Note: Dentists are exempt from the Rehabilitation of Offenders Act 1974. You must, therefore, tell us about all prosecutions or convictions including those considered "spent" under this Act.'

You ticked the box "NO";

d. The information given by you in relation to the question at 2c above was incorrect in that:

i) You have criminal convictions that pre-date your completion and signing of the application form,

ii) In February 2007, you were already subject to criminal proceedings at the Sheriff Court of Glasgow and Strathkelvin which resulted in the convictions and sentence at 1 above.

e. In answer to question 4 at section 3 of the application form:

'To the best of your knowledge, have you been or are you currently subject to any proceedings by a regulatory or licensing body in the UK or any other country?

You ticked the box "NO";

f. The information given at 2e above was incorrect in that between 1999 and 2001 you were subject to proceedings before the GDC in relation to the convictions at 2(d)(i) above;

3. In completing the application form as stated in 2(c-f) above your actions were:

a. Misleading,

b. Intended to mislead, and

c. Dishonest;

AND, by reason of the facts stated, your fitness to practise as a Dentist is impaired by reason of your:

1) conviction

2) misconduct."

On 5 May 2010, following admissions on behalf of the appellant, the Committee found the charge admitted and proved in respect of heads 1(a) to 3(a) inclusive. As regards heads 3(b) and (c) the Committee found these admitted and proved in respect of 2(c), 2(d)(ii), to (e) and 2(f). No evidence was called in respect of heads of charge 3(b) and 3(c) in so far as they relate to 2(d)(i). Accordingly the Committee found these not proved. On 6 May 2010, the Committee ordered the name of the appellant to be erased from the Dentists' Register and imposed an order for immediate suspension.

Submissions on behalf of the Appellant

[5] In the grounds of appeal, the appellant contended that in ordering the name of the appellant to be erased from the Dentists' Register and imposing an order for immediate suspension, the respondents had erred in two respects. The first was an error in concluding that the appellant's current and future fitness to practise was impaired. The second alleged error was that the sanction imposed was excessive and disproportionate to the culpability of the appellant's conduct. In his submissions senior counsel for the appellant accepted that the respondents were entitled to conclude that the appellant's current and future fitness to practise was impaired as a result of the conduct admitted by the appellant in the hearing before the respondents. The submissions thereafter concentrated on the second issue to the effect that the sanction imposed by the respondents was excessive and disproportionate to the culpability of the appellant's conduct. In that regard, senior counsel accepted that the respondents had properly concluded that a reprimand was not an adequate sanction to address their concerns. Moreover, he accepted that conditions would not be adequate were the appellant to be permitted to continue practising. However, he submitted that the respondents had erred in concluding that a period of suspension would be an inadequate remedy. Such a remedy would be significant and would have the desired objective of maintaining public confidence in the profession.

[6] In support of his submission that the respondents ought to have suspended the appellant, senior counsel relied upon the marked improvement in the appellant's personal circumstances since January 2007 when he appeared on petition at Glasgow Sheriff Court. He had established a new dentistry business, Dental Surgery Ltd, which owns and operates surgeries in Glasgow, Falkirk and Stirling. Prior to 6 May 2010 the appellant had been the principal dentist and the practice manager for each practice. That had ceased to be the case following the respondents' decision that his name should be erased from the Dentists' Register. Since that date, employees of the company have assumed the roles of principal dentist and practice manager. Senior counsel provided the court with details of the three practices. The practice in Glasgow was started in February 2007 and has more than 3,000 registered National Health Service patients. It employs two full-time dentists, three dental nurses, one of whom is employed part-time, and a receptionist. The practice in Falkirk opened towards the end of 2007 and has about 9,000 National Health Service patients. It employs four dentists, one of whom is employed on a part-time basis, four dental nurses and two receptionists. The practice in Stirling opened in January 2010 and has more than 8,000 patients. It employs five dentists, two of whom are employed on a part-time basis, three receptionists, two of whom are employed part-time, three nurses, a trainee nurse and two additional nurses employed on a part-time basis. All three practices are serviced by a full-time practice manager and a part-time practice bookkeeper. The practice manager and principal dentist are both registered dental practitioners, as required by the General Dental Council, and are also directors of the company. All three practices had been opened as new practices by the appellant's company. Since 2007, the appellant had not committed any additional offences. He had re-established a useful dental practice. He was providing a valuable public service. He had taken steps to manage the practices on a proper financial basis. He was in good health and was aged 42. He is married with three young children.

[7] Against that background, it was submitted that the respondents had erred. In particular the respondents had relied upon a misconception about the risk of the appellant re-offending and they had also placed too much reliance upon the proposition that an offence of dishonesty must incur the sanction of erasure. In that latter regard, senior counsel relied upon decisions of the respondents in two cases namely, Samit Ashok Shah (July 2009) and Geoffrey Patrick O'Sullivan (September 2009). Both of these cases involved dishonesty but in each case the respondents imposed a sanction of suspension. The testimonials provided to the respondents from the appellant's patients as well as professional colleagues and others, together with the passage of time since the appellant's conviction, the valuable public service which he was providing in three communities and the low risk of any repetition, particularly having regard to his current financial stability, all indicated that the respondents had erred in rejecting the sanction of suspension in favour of the erasure of his name from the Dentists' Register.

Submissions on behalf of the Respondents

[8] In response, counsel for the respondents submitted that in determining the appeal, the court should have regard to three principles. The first was that the purpose of the sanction imposed by the respondents was the protection of the reputation of the profession as a whole, rather than the punishment of the individual concerned. Accordingly, the significance of the consequences for the individual, which would normally be relied on in mitigation, is less relevant than would otherwise be the case. Secondly, the court should be slow to interfere with the assessment of the specialist tribunal as to what is necessary for the protection of the reputation of the profession. Thirdly, where the conduct complained of included serious dishonesty, especially where that was inextricably linked to professional activities, erasure from the register of practitioners was often the only means of ensuring the protection of the profession's reputation (Bolton v Law Society [1994] 1 WLR 512; Gupta v General Medical Council [2002] 1 WLR 1691; McMahon v Council of the Law Society of Scotland 2002 SC 475; Mallon v General Medical Council 2007 SC 426; Sheldon v The Nursing & Midwifery Council [2010] CSIH 17). Under reference to the facts of this case, particularly the appellant's admission that he had made a false statement to his professional body with the intention of misleading it, it could not be maintained that the decision of the respondents was plainly wrong. Moreover, the respondents had sufficient information to enable them to assess the risk of re-offending. The appellant committed fraud within 3 years of his previous appearance before the respondents when no further action was taken against him. Three days after appearing on petition at Glasgow Sheriff Court, he submitted the form containing the dishonest statements to his professional body. He obtained references from colleagues and others without disclosing his dishonest conduct. One professional referee was unaware of the appellant's dishonest acts until five weeks prior to the hearing before the respondents. The approach adopted by the respondents had been consistent with the "Guidance for the Professional Conduct Committee" issued in November 2009.

[9] The comparative justice exercise undertaken by senior counsel for the appellant was of no assistance in this case. None of the cases relied upon had been placed before the respondents. In any event, such an approach is of limited assistance as each case must depend upon its own facts and circumstances and in the two cases cited the offence in each case, whether criminal or disciplinary, was a first offence. In addition, the tribunal in each case expressly found it established that there had been insight by the practitioner after the commission of the offence. This could be contrasted with the appellant's position. In allowing the appellant's appeal against the suspension of his registration for a period of 12 months, the Judicial Committee of the Privy Council had been influenced by his subsequent lack of offending, from which they concluded that it might be inferred that the appellant had learned his lesson. Despite that, he committed two crimes of fraud in 2004 and three days after his appearance at Glasgow Sheriff Court on petition in respect of these offences, he committed the misconduct charge in relation to the fraudulent application form.

Discussion

[10] The factual background is evident from the narrative in [1] to [4] above. In Dad v General Dental Council Lord Hope of Craighead, in delivering the judgement of the Board, recognised that the appellant's record of driving offences was "plainly a deplorable one" (page 1542E-F) but drew a distinction between cases involving conduct which the committee considered was serious professional misconduct and cases where the penalty imposed by the committee was imposed following proof of a conviction (page 1542H). In allowing the appellant's appeal in that case, Lord Hope observed:

"As against the obvious point that his convictions for repeated speeding offences and for driving while disqualified and without insurance indicated a disregard for the law and a readiness to act in breach of orders made against him by the court, it could be said that no other criminal convictions or conduct which might amount to serious professional misconduct had been alleged against him. A period of well over a year had elapsed between the date of his latest offence and the hearing before the committee, from which it might reasonably be inferred that he had indeed learnt his lesson and was unlikely to repeat these offences". (Page 1543C-E).

These observations should not be read too narrowly. The Board clearly considered that the threat of an appearance before the respondents had had a salutary effect upon him, as a result of which it was unlikely that the appellant would commit not only road traffic offences but also offences of a more serious nature.

[11] The same considerations do not apply in this case. Despite the inference to the contrary referred to in the above quotation, it is apparent that the appellant did not learn his lesson from his previous involvement with the respondents or with the criminal law. Instead, about four years after the decision of the Privy Council, he committed two offences of fraud. He was convicted of these offences in 2007 and three days later, he submitted an application form to his professional body which he acknowledged to be misleading, intended to mislead and dishonest. Unlike his previous convictions for offences under the Road Traffic legislation, the convictions for fraud were associated with his practice as a dentist. Similarly, the intentionally misleading and dishonest statements, submitted by the appellant to his professional body, were made in a successful attempt to restore his name to the Dentists' Register to enable him to practise as a dentist. The distinction between criminal conduct unrelated to his practice as a dentist and such conduct or other misconduct associated with his profession seems to us to be significant. The guidance available to the respondents recognises that dishonesty is highly damaging to a registrant's fitness to practise and to public confidence in the dental profession, particularly where that dishonesty is associated with professional practice. In reaching their decision, the respondents took into account the "Guidance for the Professional Conduct Committee" dated November 2009. The guidance about erasure is to the following effect:

"40. The ability to erase exists because certain behaviours are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that removal of their professional status is the appropriate outcome. Erasure is imposed in order to protect the public and maintain its confidence in the profession as a whole. ...

42. In the circumstances outlined in the guidance given below, a decision not to erase would require careful justification. That said, the commentary under each heading cannot cover every situation and each case must be considered on its own merits. The following guidance highlights behaviours which are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that erasure should be considered to be the appropriate outcome:

...

e. Dishonesty
Patients, employers, colleagues and others have a right to rely on registrants' integrity. Important choices about treatment options and significant financial decisions can be made on the basis not only of the registrant's skill but also of their honesty. Dishonesty, particularly when associated with professional practice, is highly damaging to a registrant's fitness to practise and to public confidence in dental professionals."

Thus on the basis of the guidance, the circumstances of this case clearly supported the decision of the respondents to order the name of the appellant to be erased from the Dentists' Register. Indeed, any contrary decision would require careful justification.

[12] What, then, was the justification advanced for taking the unusual course of not ordering the erasure of the appellant's name from the Dentists' Register? Various factors were placed before the committee. The first was the effect of the death of his father upon the appellant and his practice. Secondly, reliance was placed upon the repayment of the money fraudulently obtained. Thirdly, the respondents' attention was drawn to the fact that whereas the appellant had intentionally and dishonestly misled his professional body when he submitted his application for registration as a dentist, he submitted an application form to the National Health Service for inclusion in its Dental List in which he disclosed the proceedings before Glasgow Sheriff Court. Fourthly, he relied upon the lack of any further incidents of dishonesty since 2007 and the establishment of the three dental practices referred to above. Finally, reliance was placed upon various references and the evidence of Dr Kumar who appeared as a character witness. The respondents clearly rejected these considerations as a justification for a disposal other than erasure. In doing so, the respondents carefully considered other sanctions including a reprimand, the imposition of conditions as a restriction on registration and suspension.

[13] We recognise that the court should be slow to interfere with a decision of a professional disciplinary body as to what is necessary for the protection of the reputation of the profession. Prior to the decision of the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915 the court was reluctant to interfere with the sentence imposed by a disciplinary tribunal on the view that the tribunal was best placed to assess the seriousness of the offence and determine the appropriate penalty. However, following that decision, as was observed in McMahon v Council of the Law Society of Scotland,

"we must now apply a less rigorous test. We should simply look at the Tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the Tribunal and giving to their decision such weight as we should think appropriate." (Para 14).

Having said that, the court continued as follows:

"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind." (Para 16).

Many of the points advanced in mitigation before the respondents related to the personal circumstances of the appellant in 2004 when he committed the two offences of fraud, his present status and good reputation within the dental community and the improvement in his fortunes following the establishment of the three dental practices about which the respondents and this court were provided with details. In the context of proceedings before a professional disciplinary tribunal, these issues are of less significance than in criminal courts. As Sir Thomas Bingham M.R., as he then was, observed in Bolton v Law Society at page 519B-E:

"Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

Although these comments were made in the context of a member of the solicitors' profession, they are equally pertinent to the appellant as a dentist. As the "Guidance for the Professional Conduct Committee" recognises, the public are entitled to rely upon the integrity of dentists. Members of the public may require to take important financial decisions in connection with their treatment and, as such, must be able to rely upon the honesty of the dentist treating them. Such treatment may also lead to significant charges being borne by the National Health Service.

[14] In the context of professional misconduct, it does not appear to us to be significant that the appellant repaid the money, which he had obtained by fraud. Such repayment would be beneficial to him in the criminal proceedings but it does not detract from his dishonesty, which was the issue of concern for the respondents. Nor do we consider it significant that, in his application to be included in the National Health Service list of practitioners, he disclosed the criminal proceedings although he had not done so in his application to his professional body. We were advised that the original petition at Glasgow Sheriff Court which included the two charges of fraud to which the appellant ultimately pled guilty, also included four charges alleging dishonesty in respect of the appellant's dealings with the National Health Service. Although these charges were not pursued by the Crown, the National Health Service would be aware of their existence and it is understandable why the appellant would feel constrained to disclose the proceedings in Glasgow Sheriff Court in his application to the National Health Service.

[15] In short we consider that the respondents were entitled to conclude that the issues raised on behalf of the appellant were not of sufficient weight to justify the unusual course of not ordering the erasure of the appellant's name from the Dentists' Register when he had committed two offences of fraud and had subsequently knowingly submitted a dishonest application to his professional body. Nor is there any substance to the criticism of the respondents that they erroneously assessed the risk of the appellant re-offending. Having regard to his history of offending prior to 1999, the erroneous impression formed by the Judicial Committee of the Privy Council that he had learned his lesson and was unlikely to re-offend, his subsequent re-offending and his dishonesty in his dealings with his professional body, we consider that the respondents were entitled to infer that the appellant lacked insight into his behaviour. In these circumstances they were undoubtedly entitled to take the view that there is a risk of the appellant re-offending in the future, notwithstanding his present success in opening and operating three busy practices. In all the circumstances we are unable to conclude that the decision of the respondents was plainly wrong, the test enunciated by Collins J in Moody v General Osteopathic Council [2004] EWHC (Admin) 967 and approved in Macleod v Royal College of Veterinary Surgeons [2006] UKPC 39 at paragraph 23.

[16] We shall accordingly refuse the appeal.