Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 96
P1227/10	OPINION OF LORD DOHERTY in the Petition of STUART LUTTON Petitioner; for Judicial review of a decision of the Investigating Committee of the General Dental Council dated 7 May 2010 ­­­­­­­­­­­­­­­­­________________

Pursuer: Macpherson, Solicitor Advocate; Simpson & Marwick WS

Respondent: Dunlop QC; Anderson Strathern, Solicitors

3 June 2011

Introduction

[1] The Petitioner is a dental surgeon registered under the Dentists Act 1984. He is the principal of the practice Ivy Dental. In this Petition he seeks judicial review of a decision of the Investigating Committee of the General Dental Council dated 7^th May 2010 to issue a written warning to him in respect of a complaint made against him by a patient, "M". The General Dental Council are the Respondents. The Petition was also served on the patient but there was no appearance on her behalf. The matter came before me for a First Hearing.

Statutory provisions

Dentists Act 1984

[2] The Dentists Act 1984 ("the Act"), section 1 made provision as to the constitution and general duties of the Respondents. Section 1(2) provides:

"The Council shall, when exercising their functions under this Act, have a general concern -

....

(b) to promote high standards of professional conduct, performance and practice among persons registered under this Act".

Section 2 provided for, inter alia, the continuance of the Professional Conduct Committee (s. 2(1)(a)) and the establishment of the Investigating Committee (s. 2(2)(a)), and for the committees being constituted as provided for by order of the Privy Council. In terms of section 2(3) "Practice Committee" in the Act "means the Professional Conduct Committee, the Health Committee or the Professional Performance Committee".

[3] Part III of the Act made provision as to the keeping of the dentists register by a registrar appointed by the Respondents. Section 27 applies where an allegation is made to the Respondents against a registered dentist that his fitness to practise as a dentist is impaired. Section 27(5) and (6) provide:

"(5) The registrar -

(a) shall refer the allegation to the Investigating Committee....

(6) The registrar shall investigate the allegation for the purpose of exercising his functions under subsection (5)".

Section 27A relates to powers and duties of the Investigating Committee.

"27A.- The Investigating Committee

(1) Where the registrar refers an allegation under section 27 to the Investigating Committee they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee.

(2) If the Investigating Committee determine that the allegation ought not to be considered by a Practice Committee, the Investigating Committee may -

(a) issue a warning or advice to the person who is the subject of the allegation regarding his future conduct, performance and practice; ....

(3) If the Investigating Committee issue a warning under subsection (2)(a), they may, if they consider it appropriate to do so, direct the registrar to enter details of the warning in the entry in the register relating to the person who is the subject of the allegation.

(4) ...(I)f the Investigating Committee determine that the allegation ought to be considered by a Practice Committee, the Investigating Committee-

(a) shall refer the allegation -

(i) to the Professional Performance Committee, in the case of an allegation based on the ground mentioned in section 27(2)(b) (deficient professional performance),

(ii)               to the Health Committee, in the case of an allegation based on the ground mentioned in section 27(2)(c) (adverse physical or mental health), or

(iii) to the Professional Conduct Committee in any other case....

(7) The registrar shall serve notice of any determination made by the Investigating Committee under subsection (1) on the person who is the subject of the allegation and the person (if any) making the allegation..."

[4] Section 27B makes provision as to the powers and duties of the Practice Committees:

"(1) ...(A) Practice Committee must investigate an allegation or allegations against a person referred to them by the Investigating Committee under Section 27A and determine whether that person's fitness to practise as a dentist is impaired."

In the event of a Practice Committee so finding section 27B(6) empowers it to direct that the person's name be erased from the register, or that his registration be suspended for up to twelve months, or that his registration be conditional on him complying with conditions specified by the Committee, or that he be reprimanded in connection with any conduct or action of his which was the subject of the allegation (section 27B(6)).

[5] Section 33(6) and Schedule 3, paragraph 2(1)(b) make provision for rules being made as to the procedure to be followed by the Investigating Committee in the exercise of their functions under section 27A

The Rules

[6] Part 2 of the General Dental Council (Fitness to Practise) Rules Order of Council 2006 (2006 No. 1663) ( "the Rules") provides:

" Investigating Committee

3. Initial consideration by the registrar

The registrar shall consider a complaint or other information in relation to a registered dentist ...and shall determine whether a complaint or information amounts to an allegation.

4. Notification of allegation

(1) Where the registrar determines that a complaint or information amounts to an allegation, he shall send a notification to the respondent and the maker of the allegation (if any) accordingly.

(2) The notification sent under paragraph (1) shall -

(a) contain a summary of the allegation;

(b) subject to rule 7(3), be accompanied by a copy of the documents in the registrar's possession which relate to the allegation;

(c) invite the respondent to respond to the allegation with written representations addressed to the Investigating Committee within a period which the registrar shall specify in the notification; and

(d) where the allegation has been made by a person, inform the respondent that representations received from him may be disclosed to that person for comment...

5. Meeting to consider allegation

The Investigating Committee shall hold a meeting, in the presence of the registrar but in the absence of the parties, to consider an allegation which has been referred to them.

6. Evidence

The Investigating Committee may, subject only to the requirements of relevance and fairness, admit any documentary evidence, whether or not that evidence would be admissible in any proceedings in a court.

7. Determination

(1) Subject to paragraph (2), upon consideration of an allegation the Investigating Committee may determine -

(a) to adjourn consideration of the allegation and direct the registrar to carry out such enquiries as the Investigating Committee shall specify;

(b) that the allegation ought not to be considered by a Practice Committee but no warning or advice ought to be given under subsection (c) or (d);

(c) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent or to any other person involved in the investigation of such advice as the Investigating Committee may issue in accordance with section 27A(2).... of the Act ....;

(d) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent of such warning as the Investigating Committee may issue in accordance with section 27A(2)(a)....of the Act; or

(e) that the allegation ought to be considered by a Practice Committee.

(2) The Investigating Committee shall not make a determination under paragraph (1)(b),(c), (d) or (e) unless they are satisfied that the respondent and the maker of the allegation (if any) have been provided with a reasonable opportunity to submit written representations commenting on the allegation and...the evidence relating to the allegation...."

Practice Committee

[7] Parts 3 to 8 of the Rules make provision as to how matters are to proceed before Practice Committees. The relevant Practice Committee is to hold a hearing to consider an allegation referred to it by the Investigating Committee (Rule 12). A respondent may attend and be represented at a hearing (by counsel, a solicitor, or certain other persons), and may adduce evidence (Rules 13(1)(d), 52 ). The notification of hearing contains a charge setting out the grounds by reason of which it is alleged that his fitness to practice as a dentist is impaired, and "particularising" the facts alleged against him in support of the allegation (Rule 13(1)(e). The hearing includes a factual inquiry with both parties having the right to call witnesses and to cross-examine the other party's witnesses (Rule 19). A Practice Committee makes findings of fact by reference to the matters mentioned in the notification of hearing (Rule 19(11), (12)). Rule 57 makes provision as to the rules of evidence which apply before a Practice Committee. Rule 57 (4) provides that it shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities.

The complaint

[8] On 13 October 2009 M complained by email to the Respondents about treatment and advice given to her by the Petitioner and another dentist in the practice. The email was copied by her to the Petitioner. Thereafter there were discussions between the Respondents and M to clarify the nature of her complaint against the Petitioner and his colleague. An assessment sheet was prepared by the Respondents setting out a summary of M's allegations against the Petitioner. The Respondents were satisfied that the complaint amounted to an allegation that the Petitioner's fitness to practise was impaired due to conduct. The allegations were that:

"1. Mr Lutton failed to appraise [M] of the details of her course of treatment, particularly with regard to extractions which he arranged to be carried out by his colleague;

2. Mr Lutton failed to discuss alternative treatment options with her;

3. Mr Lutton advised her that the peridontal treatment she required is not available on the NHS."

Standards Guidance which was alleged to have been contravened was:

"1.1 Put patients' interests before your own or those of any colleague, organisation or business.

1.2 Follow these principles when handling questions and complaints from patients and in all other aspects of nonclinical professional service.

2.4 Listen carefully to patients and give them the information they need, in a way they can use, so that they can make decisions.

This will include:

-        communicating effectively with patients;

-        explaining options (including risks and benefits); and

-        giving full information on proposed treatment and possible costs.

4.3 Communicate effectively and share your knowledge and skills with other team members and colleagues as necessary in the interests of patients. In all dealings with other team members make the interests of patients your first priority. Follow our guidance 'Principles of dental team working'.

5.3 Find out about current best practice in the fields in which you work. Provide a good standard of care based on available up-to-date evidence and reliable guidance.

5.4 Find out about laws and regulations which affect your work, premises, equipment and business and follow them."

[9] By letter dated 8 January 2010 the Respondents wrote to the Petitioner informing him of the complaint. Copies of the information received from M and the assessment sheet were enclosed and the letter indicated that the case would be considered by the Investigating Committee at their meeting on 6^th May 2010. The Petitioner's written observations on the allegations were requested by 25^th March 2010.

[10] Written observations on his behalf were submitted by solicitors. These provided the Petitioner's account of events. All of the allegations were denied.

[11] In relation to the first allegation it was indicated that the Petitioner considered that he had fully explained the prognosis of the two teeth which were extracted, that they required to be extracted, and that the extractions would be carried out by his colleague when M returned to the surgery. The letter enclosed and referred to copies of M's dental notes which contained the entry "discuss options, pt understands".

[12] With regard to the second allegation the Petitioner had discussed treatment options with M - he had indicated that there was no other treatment which would have been appropriate in the circumstances. The letter continued:

"It is difficult to answer this allegation without some suggestion of what alternative treatment options could have been provided. However root canal treatment would not have been appropriate in this situation. Even if root canal treatment had somehow managed to be successfully completed the two teeth in question would not have been restored to functional use. In Dr Lutton's opinion, given the size of the cavity and the mobility of the teeth there were no other viable treatment options.

We also note that in the papers provided no alternative treatment options have been suggested. If further specification of this allegation is provided we will be able to respond to it."

[13] In respect of the third allegation the Petitioner had advised M that if she wished a specialist opinion on the long term prognosis of her dentition she would require to be referred either to the dental institute or to Dr Maran. His position was that he had explained that the dental institute would have been on the NHS but the disadvantage with that was that the waiting list could be in excess of one year. He had explained that while she would have to pay for Dr Maran the waiting list would be much shorter. M had decided she wished to be referred to Dr Maran.

[14] In conclusion, the Petitioner considered that he had acted in M's best interests at all times and that he had fully complied with the Respondents' ethical guidance and standards.

[15] M provided written comments on the Petitioner's response. In relation to the first allegation she agreed that the Petitioner had appraised her of the need for extraction. Nonetheless she complained that she had been led to believe that the swelling she was suffering needed to be reduced before the extractions were carried out; that this would be re-assessed when she re-attended; and that this was not done. With regard to the second allegation she re-iterated that no mention was made of alternative treatment options. In respect of the third allegation M indicated that the Petitioner had indicated to her that referral to the dental institute would be a fruitless exercise: he explained that he had earlier referred two patients and they had not been successful in having the institute take on their care. She advised that she had asked to be referred to both the dental institute and Dr Maran.

[16] The Petitioner was not given the opportunity to respond to M's further comments.

Investigating Committee

[17] The Investigating Committee considered the complaint on 6 May 2010. By letter dated 7 May 2010 it intimated its decision to the Petitioner.

".....The Committee decided that, on this occasion, you shall not be summoned to attend an inquiry held by a Practice Committee of the Council. However the Committee has decided to issue you with a written warning.

The Committee noted the allegations and considered that you failed to communicate effectively with the patient regarding her treatment and options. The Committee considered that you provided information to the patient that could potentially mislead her regarding the periodontal treatment requested by informing her that it was not available on the NHS.

The Committee warns you to in future:

·       Ensure that you communicate effectively with patients at all times; always provide written treatment plans to patients and advise them of all treatment options available.

·       Ensure that information provided to the patient is factually correct and does not have the potential to mislead.

·       Ensure that you undertake proper assessments of patients at all times.

·       In future give consideration as to whether a specialist referral is required, whether NHS or private, and, if appropriate, ensure it takes place..."

Grounds of challenge and response

[18] The Petitioner seeks reduction of the Investigating Committee's decision to issue the warning latter of 7 May 2010. He challenges the decision on the following grounds. First, that in doing what they did the Investigating Committee exceeded its jurisdiction and thereby acted illegally. Second, that the decision was irrational. Third, that the Committee was under a duty to give reasons for the decision and that it had failed to give adequate reasons. The second and third grounds were inextricably linked.

[19] Each of these grounds was resisted by the Respondents. In addition, the Respondents argued that the decision challenged was not amenable to judicial review. In the event that the decision was amenable to judicial review the Respondents argued that the Petitioner was barred by mora, taciturnity and acquiescence from seeking reduction. I deal with the latter two arguments first.

Amenable to judicial review?

The parties' contentions

[20] The foundation of Mr Dunlop's submission that the Investigating Committee's decision was not amenable to judicial review was the familiar passage from the speech of Lord Diplock in C.C.S.U. v Minister for the Civil Service [1985] 1 A.C. 387 at pages 408E to 409C:

"Judicial review, now regulated by R.S.C., Ord. 53 , provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision.

To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either

(i)                 he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or

(ii)               he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a "legitimate expectation" rather than a "reasonable expectation," in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a "reasonable" man, would not necessarily have such consequences. The recent decision of this House in In re Findlay [1985] A.C. 318 presents an example of the latter kind of expectation. "Reasonable" furthermore bears different meanings according to whether the context in which it is being used is that of private law or of public law. To eliminate confusion it is best avoided in the latter.)

For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute...."

[21] Mr Dunlop contended that this was not a case where a question of legitimate expectation arose. Accordingly, the Investigation Committee's decision would only be amenable to review if it could be shown to alter rights or obligations which were enforceable by or against the Petitioner in private law. Lord Diplock's test for amenability to review had been followed in Scotland by Lord Marnoch in two Outer House decisions: Abbas v Secretary of State for the Home Department 1993 SLT 502 at p. 503B-F, and Petition of Maguire for Judicial Review, unreported, 9 March 1994, at p. 4. The giving of the warning to the Petitioner did not involve a determination of any of his civil rights or obligations (H v France (1990) 12 EHRR 74 at p. 87; Appeal No. 1033/83 v United Kingdom (1984) 6 E.H.R.R. 583 AT P. 583-4; R (Thomson) v Law Society [2004] 1 WLR 2522 at paragraphs 77-88). It did not alter those rights and obligations.

[22] In response Mr Macpherson maintained that the decision was amenable to review. The Committee was exercising a jurisdiction conferred on it by statute. The challenge was that it had exceeded or abused that jurisdiction. The Petitioner's rights and interests had been materially prejudiced as a result.

Discussion

[23] There is no plea to the competency of the Petition in the Respondents' Answers, (cf. West Secretary of State for Scotland, 1992 SC 385 at p. 414), although the issue of amenability to judicial review is a matter raised in their averments. The Petitioner did not suggest that in the absence of a plea I ought not to rule on this matter. Questions of competency are pars judicis. I consider it appropriate to deal with the issue.

[24] In my opinion the relevant passage in Lord Diplock's speech is not definitive of the circumstances in which resort may be had to the supervisory jurisdiction of the Court of Session.

[25] In West v Secretary of State for Scotland, supra, Lord President Hope reviewed the authorities and opined (at pages 412-3):

"We are now in a position, in the light of our examination of all these cases, to describe the principles by reference to which the competency of applications to the supervisory jurisdiction under rule of court 260B are to be determined....In our opinion the principles are well settled, and no good reason has been advanced as to why we should not describe them in order to remove the uncertainty and to correct misunderstandings which have affected discussions on this matter since the rule was introduced.

The following propositions are intended therefore to define the principles by reference to which the competency of all applications to the supervisory jurisdiction under Rule 260B are to be determined:

1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.

2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction power or authority requires.

3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy." (emphasis added).

[26] In my view it is clear from West, and from the authorities reviewed there, that the scope of the supervisory jurisdiction is wider than Mr Dunlop suggests. In my opinion a more accurate description of the position in Scotland is found in Clyde and Edwards, Judicial Review, at paragraph 8-04:

"To qualify for judicial review, the action must at a minimum truly be about a challenge to the exercise of powers which affect the rights or interests or legitimate expectations of a person. The supervisory jurisdiction is, as its name implies, directed at providing a remedy for the improper use of power" (emphasis mine).

[27] The improper use of power can have material affects on "the rights or interests" of a person, even though there may have been no "altering rights or obligations of that person which are enforceable by or against him in private law." The English approach seems to me to be too narrow and at odds with principle and authority in Scotland. I do not find H v France, Appeal No. 1033/83 v United Kingdom, or R (Thomson) v Law Society to be of any assistance in this context. The issue in each of those cases was whether the particular disciplinary proceedings had resulted in the determination of the civil rights and obligations (the right to practise) of the professional. Those cases make clear that disciplinary proceedings resulting in a warning, censure or reprimand do not involve the determination of civil rights and obligations and do not engage article 6 ECHR. The Petitioner's challenge is not founded on there having been a breach of article 6. The issue raised here is not whether the warning involved a determination of the Petitioner's civil rights and obligations.

[28] In so far as Abbas and Maguire suggest that the narrow approach encapsulated in paragraph (a) of Lord Diplock's dictum represents the law in Scotland, I respectfully disagree and decline to follow them. In Abbas the Lord Ordinary did not have the benefit of the point being fully argued (see p.503F-G). In any event, the approach is not reconcilable with West or the earlier Scottish authorities. See also McDonald v Secretary of State for Scotland 1996 SLT 16, at p.20J-L; Hardie v City of Edinburgh Council 2000 SLT 130 at p.136C-D and 136H-I; Planning Law Encyclopedia, Chapter 11, "Judicial Review", Hon. Lord Reed, paragraph A.5030, note 2.

[29] The Investigating Committee is a body upon whom a jurisdiction has been conferred by statute. The Petitioner's complaint is that the Committee has exceeded or abused its powers to the Petitioner's detriment.

[30] Plainly, not every decision of such a body is susceptible to judicial review. For example, some decisions are merely procedural or have no material detrimental consequences for the person concerned. However, where the body is said to have exceeded or abused its powers and there are such consequences the decision is open to challenge.

[31] In the present case the challenge in the Petition does not concern a matter which is academic or trivial. The Investigating Committee's decision has practical consequences (Clyde and Edwards paragraphs 9.03 to 9.07). There is a degree of censure implicit in the warning issued to the Petitioner. That in itself, for a professional person of hitherto unblemished reputation such as the Petitioner, is no trivial thing (cf. R (Tudor) v General Medical Council [2004] EWHC 2409 (Admin) at paragraph 39). The Petitioner highlights other material affects. He wishes his practice to be registered with the British Dental Association ("BDA") as fulfilling the requirements of good practice, but the BDA has not as yet taken a decision on his application because of the existence of the warning. The warning is a material matter he requires to disclose to others including insurers, any future employers, his current NHS Trust or any NHS Trust in another area should he move to practice there, and the vocational training authority should he apply for a vocational training number.

[32] In the whole circumstances I am persuaded that the decision complained of affects the Petitioner's rights or interests, and that the detriment said to have been caused is sufficiently material to render that decision amenable to judicial review.

Mora, taciturnity and acquiescence?

The parties' contentions

[33] The Respondents' second plea-in-law is "2. The Petition being barred by mora, taciturnity and acquiescence, the prayer thereof should be refused". The averments in support of that plea are set out in Answer 16:

"The Petitioner has throughout been legally represented. On 21 May 2010, the Petitioner's agents wrote to the Respondents asking for reconsideration of the matter by a fresh Investigating Committee. The letter concluded "If we do not hear from you then we have our client's instructions to institute judicial review proceedings." The Respondents replied promptly, and by letter of 25 May 2010 advised the Petitioner's agents that there would be no reconsideration of the matter as the 1984 Act provided no authority therefore. Other than a formal response dated 27 May 2010, the Respondents heard nothing further from the Petitioner with regard to this matter until service of the Petition on 18 November 2010, a gap of more than 6 months since the issuing of the written warning now complained of. The time limit applicable under the 1984 Act for decisions which are appealable (all of which involve determinations which may, unlike the decision complained of in the instant case, have serious repercussions for a dentist's ability to practice: cf. s. 27B of the 1984 Act) is 28 days (cf. s. 29 of the 1984 Act). Having regard to the requirements of good administration, a reasonable time within which to present the instant Petition would have been 28 days. In delaying for more than six times the statutory appeal period, the Petitioner has delayed unreasonably. He has remained silent since 21 May 2010. The reasonable inference from such delay and silence is that the Petitioner has now accepted the decision now complained of and the lack of any ability on his part to challenge the same. In the circumstances the Petitioner is barred by mora, taciturnity and acquiescence."

In response the Petitioner avers (in article 17):

"With reference to the respondents' plea of mora, taciturnity and acquiescence, explained and averred that the respondents' position, or that of any other relevant party, has not been materially altered. No material alteration or prejudice to any party has arisen as a consequence of the lapse of time between the issuing of the letter of 7 May 2010 and the presenting of the Petition on 12 November 2010. The Petitioner sought advice from his defence union and, on 4 June 2010, his union requested the Petitioner's present agents to advise on the prospects for judicial review. This advice was submitted on 23 August 2010. The matter was referred to the appropriate committee of the defence union who reached their decision on 30 September 2010, and communicated this to the Petitioner's agents on 11 October 2010. At that stage, a Petition was instructed, and the draft prepared on 2 November 2010. Following instructions from the Petitioner and his defence union the petition was presented on 12 November 2010, and first orders granted on 16 November 2010. The period between the issuing of the letter and the presenting of the petition has had no bearing on the respondents' activities or the administration of their business. The plea of mora, taciturnity and acquiescence is not made out."

[34] Mr Dunlop submitted that here there had been unreasonable delay by the Petitioner. There had been silence from him between the letter of 27 May 2010 and service of the Petition on 18 November 2010. The letter of 21 May 2010 had indicated that the Petitioner's agents had their client's instructions to institute judicial review proceedings if they did not hear from the Respondents within 7 days. The Respondents had replied within 7 days. The letter of 27 May had concluded "I note the General Dental Council's position and will now take my client's further instructions." It ought to be inferred from the whole circumstances, including the Petitioner's silence, that he had acquiesced in the Respondent's decision and had abandoned his right to challenge it. Mr Dunlop accepted that the Respondents did not say that they had altered their position during the period between receipt of the letter of 27 May 2010 and 18 November 2010, or that they had suffered any prejudice because of delay in the Petition being brought. He contended that the circumstances were not dissimilar to those in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831.

[35] In clarification of the averments in the Answers Mr Macpherson indicated that the draft Petition had been received on 2 November 2010. On that date it had been sent to the Petitioner for him to confirm its accuracy, and to obtain any other comments he might have. There was an explanation for the period which it had taken to serve the Petition: there had not been unreasonable delay. There had been no acquiescence on the Petitioner's part, and there had been no alteration in position or prejudice to the Respondents or anyone else.

Discussion

[36] In Sommerville v Scottish Ministers 2007 SC 140 the First Division provided authoritative guidance as to the requirements of a successful plea of mora, taciturnity and acquiescence. Paragraph [92] of the Opinion of the Court quoted passages from Singh v Secretary of State for the Home Department 2000 SLT 533 and R (Burkett) v Hammersmith and Fulham London Borough Council and anr [2002] 1WLR 1593 which had been relied upon by counsel for the Respondents:

"[92]..... In Singh v Secretary of State for the Home Department Lord Nimmo Smith said (p 537):

'It is well recognised that a plea of mora, taciturnity and acquiescence may, in appropriate circumstances, be sustained in an application for judicial review. The classic definition of the plea is found in the opinion of Lord President Kinross in Assets Co. Limited v Bain's Trustees (1904) 6F at page 705 (the decision in the House of Lords [(1905) 7 F (HL) 104] does not affect this statement). The passage concluded with this sentence:

'But, in order to lead to such a plea receiving effect, there must, in my judgment, have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party.'

The plea of mora, taciturnity and acquiescence is a plea to the merits: Halley v Watt 1956 S.C. 370. The definition in Assets Co. Limited v Bain's Trustees is more readily applicable to a case involving private rights, but in a series of decisions that has been held to be applicable in the field of judicial review. Reference was made during the course of the hearing to Hanlon v Traffic Commissioner 1988 SLT 802, Watt v Secretary of State for Scotland
[1991] 3 CMLR 429, Atherton v Strathclyde Regional Council 1995 SLT 557, Conway v Secretary of State for Scotland 1996 SLT 689, Ingle v Ingle's Trustee 1999 SLT 650 and Noble v City of Glasgow Council 2000 House LR 38. It does not appear to me to be possible to define the plea of mora, taciturnity and acquiescence more precisely than the dictum in Assets Co. Limited v Bain's Trustees to which I have made reference. The plea is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question. Usually, there will have been such alteration of position on the part of one of the parties, or of third parties, as, together with the passage of time, to yield the inference of acquiescence. The Petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference. The concept of detriment to good administration appears to me to have a part to play in all of this, not as an abstraction but where further administrative action has been taken in the belief that the decision in question has been acquiesced in.'

Finally, in R (Burkett) v Hammersmith and Fulham London Borough Council and anr, Lord Hope said (p 1613, para 63):

'The principal protection against undue delay in applying for judicial review in Scotland is not to be found ... in any statutory provision but in the common law concepts of delay, acquiescence and personal bar: see Clyde and Edwards, Judicial Review , paragraph 13.20. The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice ... As Lord Nimmo Smith said in the Singh case ..., at p. 536, none of the cases in Scotland provide support for a plea of unreasonable delay, separate and distinct from a plea of mora, taciturnity and acquiescence, in answer to an application for judicial review.' "

At paragraph [94] the Court opined:

"[94] In considering the submissions we remind ourselves, in the first place, of the meaning of the words of the plea. Mora, or delay, is a general term applicable to all undue delay (see Bell, Dictionary, sv 'Mora'). Taciturnity connotes a failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present. In civil proceedings delay alone is not enough; the position in criminal proceedings may be otherwise (see Robertson v Frame, per Lord Rodger of Earlsferry, para 37). We have quoted the passage from Lord Nimmo Smith's opinion in Singh v Secretary of State for the Home Department, approved (albeit obiter) by Lord Hope in Burkett because counsel were agreed that this was the fullest treatment of the subject in judicial review cases. While we are content to adopt it, we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea. In none of the three cases in which the plea has been tabled have the Scottish Ministers made any averment of acquiescence, let alone of circumstances from which it might be inferred. Without such averments, there is no relevant basis for the plea, and the Lord Ordinary was bound to repel it."

[37] I am not persuaded that in the whole circumstances the delay ought to be characterised as unreasonable. The Petitioner had made known to the Respondents his dissatisfaction with their decision. He had taken appropriate steps to have the Dental Defence Union and their solicitors take matters forward. The delay which arose was not attributable to equivocation, hesitation, or change of mind on his part. By letter dated 4 June 2010 (and received on 8 June 2010) the Union requested the solicitor who had been dealing with the matter to obtain a colleague's view on the prospects of a successful judicial review. It was not until two and a half months later that the advice was sent to the Union. That seems a lengthy period, even if allowances are made for summer holidays and for the subject matter being not free from difficulty. The other steps described by the Petitioner do not appear to have been the subject of any significant delay.

[38] The context is important. The subject matter was not without novelty or complexity. I was informed that there was no authority relating to judicial review of a decision of an Investigating Committee, or to the interpretation of the relevant parts of the 1984 Act and the Rules. There was a need to take advice on prospects. Authorisation for the proceedings had to be obtained from the appropriate committee of the Union. This was not a situation where it was obvious that unless the Petitioner acted quickly it was likely that the Respondents or third parties would alter their positions in reliance on the decision, or act to their prejudice. As a matter of fact, there was no alteration of position by, or prejudice to, the Respondents or third parties. Prejudice or reliance are not necessary elements of the plea of mora, taciturnity and acquiescence, but their presence or absence are relevant circumstances. It is in the absence of any such prejudice or reliance that the Respondents argue that acquiescence ought to be inferred simply because of what was said in the letters of 21 and 27 May 2010, and because of the Petitioner's silence after the letter of the 27 May 2010.

[39] All things considered, while the period before proceedings commenced was lengthier than it might have been, I do not think that overall there was unreasonable delay. Nor, in my opinion, are the circumstances such that it ought to be inferred that the Petitioner acquiesced in the Committee's decision.

[40] I do not find it particularly helpful to compare the circumstances of other cases where the plea has been taken. As Lord Nimmo Smith observed in Singh "the plea is necessarily protean and it must depend upon the particular circumstances whether or not its requirements are satisfied." That said, the circumstances of the present case appear to me to be clearly distinguishable from those in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists. In that case the petitioners had asked the panel to reduce its own decision and had given a deadline for a favourable response. They knew that, in reliance on the panel's decision to include the proposed new pharmacy in the list, the operators were likely to complete their purchase of the new premises. It was in that, very different, context that the court held that there had been undue delay and taciturnity, and that acquiescence in the decision was to be inferred.

Grounds of challenge

Excess of jurisdiction?

The parties' contentions

[41] Mr Macpherson submitted that the Investigating Committee had exceeded the jurisdiction conferred on it by the Act and the Rules. It had, he contended, made findings in fact on disputed matters. It had no power under the Act or the Rules to do that. The critical part of the decision letter was:

"The Committee noted the allegations and considered that you failed to communicate effectively with the patient regarding her treatment and options. The Committee considered that you provided information to the patient that could potentially mislead her regarding the periodontal treatment requested by informing her that it was not available on the NHS."

If fact finding was required, that was for the relevant Practice Committee, in this instance the Professional Conduct Committee. If the Investigating Committee had considered it necessary for any of the disputed factual matters to be determined the allegation ought to have been referred to the Professional Conduct Committee. The Investigating Committee had erred by purporting to determine factual issues which were in dispute.

[42] In reply Mr Dunlop observed that this argument was not a ground founded upon in the Petition. The grounds in the Petition were that the Investigating Committee had acted irrationally, or in error, and had failed to give reasons for its decision. He did not accept that the Investigating Committee had made findings in fact. What it had done was to decide that the allegation need not be referred to the Professional Conduct Committee, but that there was a need for a warning to be given. Rules 6 and 7 envisaged an assessment of the evidence being carried out by the Investigating Committee. It was implicit in the Rules that it was open to the Investigating Committee to form a view on the material placed before it as to whether a warning was necessary, and on the terms of such a warning. That was what had been done here. It was intra vires. It was not the sort of formal fact finding which a Practice Committee required to carry out at a hearing before it determined whether a dentist's fitness to practice was or was not impaired.

Discussion

[43] I agree with Mr Dunlop that this argument was not foreshadowed in the Petition. The vague averment that the Investigating Committee acted "in error" does not appear to me to provide a proper basis for advancing the argument. In any event, the suggestion that the Investigating Committee has no power in any circumstances to decide factual matters is unsound in my opinion. I agree that it is implicit in the Rules that the Investigating Committee may, in appropriate circumstances, reach a view on the facts for the purposes of fulfilling its functions. That is sufficient to dispose of the argument that it was not within its jurisdiction to reach any view of the facts. In some cases certain facts may not be in dispute. In other cases where there is a dispute there may, for example, be very clear and cogent evidence supporting one side of the dispute which is confirmed or supported by other evidence, whereas the evidence to the contrary may be wholly implausible or inherently inconsistent. However, there will be some cases where there is a marked evidential dispute which it is not possible for the Investigating Committee to resolve at a meeting, because there may be no proper, rational basis for the Committee accepting one version of events and rejecting another. In such cases, if determination of which version is correct is critical to the disposal of the allegation, referral of the allegation to a Practice Committee is likely to be required.

Reasons and rationality

The parties' contentions

[44] Both parties were at one that neither the Act nor the Rules contain an express or implied obligation for the Investigating Committee to give reasons for the decision. They were at odds as to whether in the circumstances of this case a duty to give reasons arose at common law as a matter of fairness and openness.

[45] Mr Dunlop did not argue that either the Act or the Rules are to be read as excluding an obligation to give reasons where the common law would require reasons to be given. He submitted that while it is good practice to give reasons, there had been no duty at common law on the Investigating Committee to do so here. He sought to contrast the circumstances of the present case with those in Stefan v General Medical Council [1999] 1 WLR 1293. The decision of the Professional Conduct Committee in that case had had much more serious consequences for Dr Stefan than the Investigating Committee's decision had for the Petitioner. In Stefan there had been a right of appeal against the Committee's decision - that had been a pointer towards the need for reasons. There was no right of appeal against the Investigating Committee's decision. The decision had been merely an administrative one - not a judicial one.

[46] Mr Dunlop argued that if there was a duty to give reasons, short, "quite minimal", reasons would suffice. What was said in the decision letter here was sufficient. The Petitioner knew what the allegations were, and knew from the terms of the letter "that to an extent" the patient's allegations had been accepted. Mr Dunlop maintained that Gupta v General Medical Council [2002] 1 WLR 1691 demonstrated that where a committee had heard witnesses it was not required to explain why it had preferred one body of evidence to another. He suggested that it would be strange if the position was different where only documentary evidence was considered. What was said in the letter was "more than adequate". To require more would be "a sterile exercise". It could not be said that there had been no evidence before the Committee entitling it to decide as it had. At the end of the day the essence of what was said in the decision was that the Petitioner had failed to communicate effectively with M. That was a decision the Committee had been entitled to reach.

[47] Mr Macpherson submitted that in the circumstances of the present case it was clear that fairness and openness required reasons for the decision to be given. The challenge was not based on a contention that there had been no material before the Committee which supported the approach it took. Rather, there had been contradictory factual accounts, but the Committee did not give any explanation as to how and why it had decided as it had done. In those circumstances neither the Petitioner nor the Court could be confident that the Committee had acted rationally and otherwise within its jurisdiction.

Discussion

[48] I agree with Mr Dunlop that guidance may be obtained from Stefan as to the circumstances in which a duty to give reasons will arise. In my opinion, however, as I shall seek to explain, proper application of the principles discussed in Stefan to the facts of the present case point strongly to the existence of a duty to give reasons. Gupta is not in point. It deals with a very different scenario.

[49] It is clear from Stefan that a duty to give reasons may be held to exist by operation of the common law as a matter of fairness (p. 1297D); and that where the decision of a body is susceptible to judicial review it may be important for reasons to be disclosed so that there is an effective means of detecting the kind of error which would enable the court to intervene (pages 1299B, 1300C).

[50] The Gupta case concerned a hearing before the Professional Conduct Committee of the General Medical Council - where the procedure was similar to that before a Practice Committee of the Respondents. Dr Gupta had been provided with a notice of inquiry specifying the charges against her. The Committee heard conflicting evidence from witnesses called by Dr Gupta and the Council. It found three of the four disputed charges proved but gave no indication of the reasons for its decision when it delivered it. Addressing Dr Gupta, the chairman explained the committee's decision in these terms:

"Dr Gupta, having carefully considered all the evidence, the committee have made the following findings of fact in your case. Heads 1,2 and 3 of the charge have been admitted and found proved. Heads 4(a) and 4(b) have not been found proved. Heads 5(a) and 5(b) have been found proved. Heads 6(a), 6(b)(i) and 6(b)(ii) have been found proved. Heads 7(a) and 7(b) have been found proved."

When addressing Dr Gupta when determining the sanction to be imposed the chairman said:

"Your evidence to this committee was inconsistent and by reason of our determination untruthful in many respects".

The committee directed that her name be erased from the register. Dr Gupta appealed on the ground that the decision was bad for want of reasons. The Judicial Committee of the Privy Council dismissed the appeal. In doing so it observed that appeals to it from the Professional Conduct Committee were "similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses". It continued:

"10.....In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body....

11 Ms Booth submitted that, even in cases which turned on the credibility or reliability of the witnesses before the committee, the committee could and should give reasons explaining what it had done. In a case like the present, those reasons might need to go little further than saying that the committee had preferred the evidence of a particular witness and had rejected the evidence of another witness, perhaps in particular the practitioner concerned. In this way the practitioner would be able to understand the committee's thinking.

12 Their Lordships are unable to accept that submission. The form of the notice given to practitioners was amended in 1988 so as to ensure that they would be given considerable detail about the conduct on which the respondent council were basing their complaint. In its determination the committee finds a particular charge or head of a charge proved or not proved. The practitioner is therefore able to see, in the same detail, which allegations have been established. This in turn will usually mean that the practitioner will have a very good idea what evidence the committee has accepted. In some cases, such as the present, the committee's decision will show that it has felt able to find one allegation proved on the basis of the evidence of a particular witness, while feeling unable to find another allegation proved on the basis of some other part of the evidence given by the same witness. In this way, in cases involving issues of credibility and reliability, the structured determination of the committee dealing with the various heads of the charge will in itself reveal much about its reasons for reaching its decision. As the European Commission of Human Rights noted in Wickramsinghe v United Kingdom [1998] EHRLR 338, the fact that the practitioner can study a transcript of the hearing, including not only the evidence but the submissions on the evidence by the respective parties, further assists the practitioner in understanding not only which witnesses' evidence the committee accepted and which it rejected, but why it did so.

13 To go further and to insist that in virtually all cases raising issues of credibility and reliability the committee should formally indicate which witnesses it accepted and which it rejected would be to require it to perform an essentially sterile exercise. For the reasons that their Lordships have already given, it would not in practice advance the appeal on the matters of fact which the committee had found proved on the basis of its assessment of the witnesses..... Their Lordships.... are accordingly satisfied that there is no general duty on the committee to give reasons for its decisions on matters of fact and, more particularly, that there is no duty to do so in a case like the present where, as the appellant's solicitor was at pains to emphasise to the committee, its decision depended essentially on resolving questions of the credibility of the witnesses led before it. The committee's decision on the individual heads of the charge, when considered in the light of the transcript of the evidence, reveals sufficiently clearly the reasons for its decision. Nothing more was required in this case. It so happens, however, that a further indication of the committee's reasons could be found in its indication to the appellant in person that it had found her evidence to be untruthful in many respects. That made the position even clearer.

14 Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. None the less, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact. Nothing in Selvanathan is inconsistent with that approach, while the general reasoning in Wallace supports it. It is also in line with the observations of Lord Steyn giving the judgment of the Board in Rey v Government of Switzerland
[1999] 1 AC 54. That case concerned extradition proceedings in The Bahamas in which the magistrate had not given reasons for her decision on certain disputed matters of fact. The Board was not prepared to hold that there is a general implied duty on magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. Lord Steyn continued, however, at pp 66-67:

'But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons.'

In the present case Mr Shaw, who appeared for the respondent council, accepted that in certain circumstances - which he said would be exceptional - there could indeed be a duty on the committee to give reasons for its decision on matters of fact. He gave examples of situations in which, he believed, such a duty might arise. He urged the Board to provide guidance to the committee on this matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live."

[51] In Gupta there had been a hearing where witnesses gave evidence, and the committee was in a position to assess their credibility and reliability. The outcome of the committee's assessment was apparent from the committee's determination of the various parts of the charge. No further explanation was necessary. There was an obvious, proper and transparent basis upon which they were able to accept or reject witnesses' evidence - they had seen and heard the witnesses and were well equipped to assess their credibility and reliability. Here, by contrast, the Committee did not hear the Petitioner and M give evidence. On the contrary, it was faced with contradictory accounts of events in correspondence submitted to it. Notwithstanding that, it made a decision which was based upon it having accepted one account and having rejected the other. No explanation of the basis upon which it felt able to do so has been provided.

[52] In the particular circumstances of the present case I am persuaded that there was a duty at common law upon the Investigating Committee to state the reasons for their decision. In the first place, the decision was one which called out for an explanation as to why the patient's factual account of events had been accepted and the Petitioner's account rejected. Secondly, as discussed above, the decision is one which is susceptible to judicial review. It is necessary for reasons to be given because without them the Petitioner simply cannot tell whether the decision-making process has been flawed by illegality, irrationality or unfairness. Thirdly, the nature of the functions which the Committee was exercising when it considered whether to, and decided to, issue a warning to the Petitioner appear to me to have been more akin to judicial functions than administrative ones. That these were judicial functions is a further consideration in favour of a requirement to give reasons. (I do not regard their judicial nature as being critical. Even if the relevant functions were of an administrative nature I think that in the circumstances of this case there would still have been a duty to give reasons for the decision). Fourthly, the issue was of importance to the Petitioner. It did not prevent him from working (cf. Stefan) but it had consequences for his professional reputation and professional life which were material.

[53] Having held that there was a duty to give reasons, I turn to the terms of the decision letter.

[54] I deal first with the contention that, fairly read, all that the decision letter says is that the Petitioner failed to communicate effectively with M. I disagree. The position was not, for example, that the Committee accepted the Petitioner's account but found that he did not effectively communicate specified matters which ought to have been communicated to her. Rather, directly contrary to the Petitioner's account, the Committee has proceeded on the basis that the Petitioner told the patient that the periodontal treatment requested was not available on the NHS.

[55] Reasons need not be elaborate or lengthy, but they should tell the parties in broad terms why the decision has been reached (Stefan, p.1304B). The decision letter provides no explanation of why the Committee preferred the patient's account to the Petitioner's on disputed matters. In the circumstances of this case the absence of any such explanation is unfair and prejudicial to the Petitioner. He is left with no way of knowing whether the decision was arrived at in a way that was legal, rational and otherwise intra vires. In the absence of proper reasons it would be wrong for the Court to infer that the decision was arrived at in a way that was indeed legal, rational and otherwise intra vires.

Decision

[56] The Investigating Committee's decision of 7 May 2010 is amenable to judicial review. The Petitioner's challenge is not barred by mora, taciturnity and acquiescence. In the particular circumstances of this case the Investigating Committee had a duty to give reasons for its decision. It did not give adequate reasons. In the absence of adequate reasons the decision is unreasonable and falls to be reduced.

Disposal

[57] I shall sustain the first and second pleas-in-law for the Petitioner, repel the first, second and third pleas-in-law for the Respondents, and reduce the Respondents' decision of 7 May 2010. I shall remit the allegation against the Petitioner to a differently constituted Investigating Committee of the Respondents.