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URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_112.html
Cite as: [2019] ScotCS CSOH_112, 2020 GWD 1-3, [2019] CSOH 112, 2020 SLT 253

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P1138/19

OUTER HOUSE, COURT OF SESSION

[2019] CSOH 112

OPINION OF LORD PENTLAND

In the petition

ALISTAIR GAIR

for

JUDICIAL REVIEW

Petitioner

Petitioner: Duncan QC; Clyde & Co

Respondent: Khurana QC; NHS Scotland Central Legal Office

27 December 2019

[1] On Friday 13 December 2019 the petitioner moved for interim suspension of a

decision made on 3 December 2019 by Dumfries and Galloway Health Board, the

respondents, to suspend him with immediate effect from its dental list. Having heard oral

submissions from Mr Duncan QC on behalf of the petitioner, I continued the motion until

Wednesday 18 December 2019 at the request of Mr Khurana QC, who appeared for the

Board, so that he could take further instructions and obtain additional information. Having

heard both sides at the continued hearing, I announced my decision to grant the petitioner’s

motion. The following is a revised version of the reasons I gave at that time. The substance

of my reasoning has not been changed.

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[2] The background to the motion may be summarised as follows. The petitioner is a

registered dentist. He has been in practice in the United Kingdom since 1994 having

graduated from the University of Glasgow in 1987 and having then spent a spell working in

Trinidad and Tobago. He seeks judicial review of a decision taken by the respondents on

3 December 2019 to suspend him from its dental list.

[3] In terms of regulation 4 of the National Health Service (General Dental Services)

(Scotland) Regulations 2010 (“the 2010 regulations”), the Board requires to prepare and

maintain a list known as the dental list. Included within the dental list are the names of

those persons who have undertaken to provide general dental services in the Board’s area

and whom the Board has approved to assist in the provision of such services.

[4] Regulation 10 provides inter alia that a dentist included on the dental list requires to

“exercise a reasonable standard of professional and clinical judgment, behaviour, skill,

knowledge and care towards patients” and that the dentist requires to comply with the

[5] Regulation 11 makes provision for suspension from the dental list. It provides inter

alia:

“(1) If a Health Board is satisfied that it is necessary to do so for the protection of

members of the public, or is otherwise in the public interest it may suspend a

dentist … from its dental list in accordance with this regulation –

(a) while it considers whether to remove that person from its dental list

under regulation 12;

(b) while it waits for a decision affecting that person of a court anywhere

in the world, or of a licensing or regulatory body;

…

(2) In paragraph (1)(b) ‘decision’ means the final determination of the relevant

proceedings, after any appeal or other review procedure has been exhausted.

…

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(14) The Health Board shall notify the dentist or body corporate (as the case may

be) of its decision and the reasons for it (including any facts) relied upon

within 7 days of making that decision.”

[6] The petitioner has been on the respondents’ dental list since 1994. He avers that he

joined the St Andrews Street Dental Surgery in Castle Douglas as an associate in April 1994.

In 1999, upon retirement of the then practice principal, the petitioner purchased the

business. He continued to work in the practice as a single-handed principal until

February 2018. At that time he sold the business to a couple, one of whom was a dentist.

The petitioner avers that he agreed to continue working as an associate within the practice,

which the new owners rebranded as Dental Bees. Unfortunately, according to the

petitioner’s averments, relations between him and the new owners soured. He determined

to resign. Shortly after his resignation the petitioner secured employment with a different

practice, the Blue Door Practice, in Dumfries. He worked for that practice one day a week,

while for the other four days, he worked his three month notice period with Dental Bees.

[7] The petitioner goes on to aver that relations with the owners of Dental Bees

deteriorated further at this point. His wife contacted the Dental Bees’ practice manager to

complain that the petitioner was being bullied. The following day the practice manager

provided the petitioner with a box and instructed him to clear his desk and to leave.

[8] The petitioner’s averments continue by stating that he immediately began work with

the Blue Door Practice on a full-time basis. He says that soon after he commenced and

without any solicitation on his part former patients from his previous practice sought

appointments with him at the Blue Door Practice.

[9] Shortly after that, according to the petitioner’s averments, on 16 November 2019 he

received a letter dated the previous day from the respondents. The letter advised that

concerns had been raised with the respondents about aspects of the petitioner’s care and

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treatment. The letter further stated that a number of patient records had been provided to

the respondents, that these had been reviewed by Mr Peter Ommer, Director of Dentistry,

NHS Ayrshire and Arran, and that Mr Ommer had reported to the respondents that from

the evidence reviewed by him he had identified serious concerns about the petitioner’s

clinical performance. Finally, the letter stated that the respondents’ dental reference

committee had considered matters on 14 November 2019, that it had considered an

allegation that Mr Ommer’s findings amounted to breach of the dental list terms of service

provided for in the 2010 regulations and that it had determined that there should be a

reference to the General Dental Council (“GDC”) and that the petitioner should be invited to

attend an oral hearing to consider a suspension from the dental list pending the outcome of

the referral to the GDC.

[10] Thereafter, an oral hearing took place before a committee of the respondents on

28 November 2019. The committee was not accompanied or supported by a legal advisor or

assessor. The petitioner was represented by Mr Graham Watson, solicitor of Messrs Clyde

and Company. The petitioner avers that Mr Watson provided a detailed oral submission on

a number of matters: the legal basis and test for suspension from the dental list, whether the

test was met in the petitioner’s case, the factual background to the concerns raised and the

petitioner’s response to these. The petitioner states in his averments that Mr Watson

submitted that, in the whole circumstances, the test for suspension was not met, that an

order for suspension would be premature and that the concerns raised were at the lower end

of seriousness and presented no evidence of a real risk of harm to patients. The petitioner’s

averments state that in support of those submissions Mr Watson drew attention to certain

evidence, including the petitioner’s personal development plan, assessments of treatment by

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the dental reference officer and various testimonials and thank you letters from colleagues

and patients.

[11] Under cover of a letter dated 3 December 2019 the respondents provided the

petitioner with written notice of their decision to suspend him from the dental list. The

notice advised that the petitioner was suspended and would remain so pending the outcome

of the referral to the GDC. The notice also provided that “in the event of the outcome of the

referral to the GDC the petitioner will remain suspended for an additional period of two

weeks”.

[12] Section 4 of the notice was headed “Reasons for Suspension”. It was in the following

terms:

“In accordance with the provisions of NHS (GDS) Regulations 2010, Regulation 11,

suspension of the Dentist, Mr Alistair Gair, will take effect (sic) immediate effect

pending the outcome of a referral to the General Dental Council on the grounds that

there has been a breach of paragraph 22 (a) and (d) of the Terms of Service, as set out

in Schedule 1 of the NHS (General Dental Services) (Scotland) Regulations 2010. It is

alleged that the practitioner has not: (a) employed a proper degree of skill and

attention; and (d) not provided the care and treatment to such extent and at such

intervals and (sic) may be necessary to secure and maintain the oral health of the

patient.”

[13] It is important to note that regulation 11(1) of the 2010 regulations makes clear that a

Health Board’s discretionary power to suspend a dentist may only be exercised if the Board

is satisfied that it is necessary to do so for the protection of members of the public or is

otherwise in the public interest. Whilst Mr Khurana was instructed that the Board had

considered the statutory test in its deliberations, he frankly acknowledged that the reasons

contained in the notice failed to address the test and were inadequate. In my view, that

concession was properly made and was indeed inevitable. The reasons fail to engage with

the statutory test. Moreover, there is nothing in the five page record of the proceedings at

the hearing which touches on the statutory test or suggests that the committee considered it.

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In these circumstances, Mr Khurana fairly accepted that the petitioner had set out a prima

facie case in the petition. I agree. It seems to me that the petitioner has a strong prima facie

case that the respondents have failed to comply with the requirements of regulation 11(1) of

the 2010 regulations.

[14] Where a petitioner has a strong prima facie case it will often be convenient to grant

interim relief. Nonetheless, Mr Khurana submitted that the respondents’ decision should not

be suspended ad interim. He referred to the fact that an independent investigation had been

conducted by Mr Ommer, who is the director of dentistry at Ayrshire and Arran Health

Board. Mr Ommer had reviewed the records of ten patients whom the petitioner had

previously treated and had identified a number of failings on the part of the petitioner; he

considered that these amounted to serious concerns regarding the petitioner’s clinical

performance. The difficulty is, however, that on the evidence which has been produced to

the court, Mr Ommer did not support the view that it was necessary for the protection of

members of the public or in the public interest to suspend the petitioner. Moreover, it seems

to me that there is force in the submissions made by Mr Duncan that to a large extent the

criticisms relate to matters of record keeping and to the petitioner’s practice in regard to the

taking of x-rays.

[15] Mr Duncan submitted that the suspension would have a serious effect on the

petitioner’s reputation and on his ability to earn a living. Whilst the petitioner would be free

to do private work whilst suspended from the dental list, he does not have a significant

private practice.

[16] In my opinion, the suspension of a dentist from the dental list is likely to have a

serious impact on his standing and reputation, as well as on his ability to practice his

profession. It is, therefore, important to ensure that such a step is taken in accordance with

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the applicable statutory framework. Unfortunately, on the evidence before me, that has not

been done in the present case. I consider that the right course for the court to take, in the

whole circumstances, is to grant the petitioner’s motion for interim suspension of the Board’s

order of 3 December 2019.