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Cite as: 2020 GWD 40-512, [2020] CSIH 71, [2020] ScotCS CSIH_71

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Malcolm

Lord Woolman

OPINION OF THE COURT

[2020] CSIH 71

XA131/19

delivered by LORD MALCOLM

in the Appeal

Appellant

against

THE GENERAL DENTAL COUNCIL

Respondent

Appellant: Duncan QC, P Reid; The Medical and Dental Defence Union of Scotland

Respondent: Dean of Faculty; Balfour + Manson LLP

17 November 2020

[1] This is an appeal under section 29 of the Dentists Act 1984 against a decision of the

Professional Conduct Committee of the General Dental Council. It directed that the

appellant’s name be erased from the register of dentists. The background circumstances are

as follows.

Background

[2] The appellant was diagnosed with a health condition (the ‘first health condition’).

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He was permitted to practise as a dentist subject to annual testing as to viral load. An

administrative error resulted in him not being called for monitoring by his employers’

occupational health department between April 2008 and December 2011. He took no steps

to comply with the requirement and continued his dental practice as normal.

[3] In July 2010 the appellant was diagnosed as also carrying another virus (‘the second

health condition’). Under the then current Department of Health guidance, it prevented him

from practising dentistry. He told the medical staff treating him that he was a receptionist.

He did not inform his employers, a Health Board, of his condition. He continued to treat

patients, including by way of exposure prone procedures (EPPs), albeit that for a period he

reduced the number of such procedures. As a result of therapy, by December 2010 his viral

load in respect of the second health condition was undetectable, and he returned to a normal

number of EPPs.

[4] In October 2011, following his appointment to a particular hospital position, he

completed a health declaration form to the effect that he had no medical conditions and was

not receiving treatment. In September 2013 he applied for and obtained some private dental

work.

[5] As a result of guidance changes, from January 2014 dentists carrying the second

health condition could practise dentistry, including undertaking EPPs, if they were

registered as such, their viral load was and remained at undetectable levels, an d they were

under the supervision of an occupational health physician. However the appellant

continued to conceal his condition.

[6] In December 2016 the appellant’s second health condition was uncovered when, by

chance, a colleague saw computer records which indicated that he was attending a

particular clinic. He was suspended by the Health Board and he undertook not to carry out

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private work. In due course the matter was referred to the GDC. A number of charges were

made to the general effect of misleading and dishonest behaviour amounting to misconduct

which impaired the appellant’s fitness to practise. Dishonesty was admitted in respect of

the failure to disclose the second health condition.

The Committee’s decision

[7] The Committee heard evidence over several days. The witnesses included the

appellant, a senior HR professional, a clinical services manager and an occupational health

services manager, both from the Health Board. There was expert evidence from Martin

Fulford BDS MPhil DGDP FIBMS. Various witness statements were agreed. The Committee

made certain findings in fact which have been summarised above. Thereafter it reconvened

to consider whether the appellant’s fitness to practise was impaired because of misconduct,

and, if so, what sanction should be imposed. The appellant did not resist a finding of

misconduct. The Committee records that no submissions were made on his behalf

regarding impairment. As to sanction the Committee was invited to take the view that a

suspension would strike the right balance, and that erasure from the register would be

punitive.

[8] In considering misconduct, the Committee held that the failure to comply with the

monitoring requirement for the first health condition was serious. The appellant knew that

it was necessary to meet government guidance and to ensure that there was no risk to his

patients, who would have been trusting him to comply. It was recognised that there had

been an administrative error by the monitoring department and that to the appellant testing

might have seemed less of a priority because of the pressure he was under at the time.

Nonetheless the failure to meet the responsibilities that came with carrying the virus was

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deplorable. It met the threshold of misconduct as it posed a risk to patients, undermined

public confidence in the profession, and breached professional standards.

[9] In respect of the second health condition, the Committee judged the failure to

disclose and the non-compliance with government guidelines as being exceptionally serious.

There had been repeated acts of dishonesty. The appellant put his own interests ahead of

those of his patients. This was deplorable. It amounted to misconduct in that it posed a risk

to patients, undermined public confidence in the profession, and breached professional

standards.

[10] The Committee decided that the appellant’s fitness to practise as a dentist was

currently impaired by reason of his misconduct on wider public interest grounds. Any fair

minded and well informed member of the public would be shocked if no such finding was

made and would lose confidence in the dental profession and its regulatory process. It was

not for the appellant to decide whether there was a risk of transmission to a patient. As a

clinician he required to adhere to government guidance applicable to all healthcare

professionals specifying submission to independent specialist monitoring and testing. Even

after his viral load in respect of the second health condition fell below detectable limits, the

continuing treatment of patients in breach of the requirements remained an extremely

serious matter.

[11] The Committee then addressed sanction. It acknowledged that the aim is to protect

the public and the wider public interest, not punishment of the appellant. It set out a

number of mitigatory and aggravating factors, and sought to balance them. The mitigatory

factors included that the appellant’s judgement would have been impaired in the weeks

following the diagnosis of the second health condition, which would have been a

cataclysmic event. He was under the pressure of extraordinary circumstances. Since his

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conduct was discovered he has acted honestly, undertaken targeted remediation, shown

insight and remorse, and fully complied with investigations. A number of testimonials

attested to his dental skills and vouched him to be honest, trustworthy and of good

character.

[12] The aggravating factors included that there was a risk of harm to patients while the

first health condition was unmonitored and while the viral load of the second health

condition was high. The appellant knew of the risk but still undertook EPPs. It was not for

him to decide whether he could continue to practise and under what conditions. His

dishonesty was serious and prolonged, and productive of financial gain. There was a

significant breach of the trust of his patients, employers and colleagues.

[13] The Committee considered the available sanctions in ascending order of severity.

Notwithstanding the traumatic circumstances of the initial dishonesty, the remediation, and

the public interest in retaining the services of an otherwise competent dentist, it concluded

that a 12 month period of suspension would not be sufficient to mark the misconduct and

maintain public confidence in the profession. Great weight was put on the appellant putting

patients at risk when not being monitored for the first health condition and for the three

months after the second health condition when he had good reason to regard his viral load

as high. His actions in this respect were fundamentally incompatible with remaining on the

[14] The Committee also gave consideration to his dishonesty at the time when the shock

of the second diagnosis would have settled and a more reflective judgement could have

been made. In particular in October 2011 he lied to his employer when completing the OH

form, and in 2013, while concealing his status, he decided to secure specialist part -time work

to increase his income. The dishonesty was self-serving and in all likelihood would have

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continued had it not been discovered. His behaviour was fundamentally incompatible with

remaining on the register.

The grounds of appeal

[15] The grounds of appeal can be summarised as follows.

[16] Grounds 1 and 2 - There was no evidence that the appellant’s condition posed a real

risk to patients and no finding to that effect. The evidence indicated that his status was such

that there was no actual risk and he should have been allowed to undertake invasive

procedures. The expert evidence was that transmission was an extremely unusual event.

There was no basis for the Committee’s decision based on risk.

[17] Ground 2A - No proper effect was given to the conclusion that the appellant’s

judgement was impaired at the time of the diagnosis of the second health condition. The

Committee wrongly sought to differentiate between what the appellant said and what he

did.

[18] Ground 3 - There was no basis for the “more professional and reflective judgement”

passage in the decision. The diagnosis had a “snowball” effect on the appellant, who was

trapped by a lie made when he was in shock.

[19] Ground 4 - No proper consideration was given to the option of suspending the

appellant, and no adequate reasons for its rejection. A fair minded and well informed

member of the public aware of all the relevant circumstances would not be shocked and

outraged by such an outcome.

[20] Ground 5 – The reasoning was so deficient as to render the decision unfair. There

was powerful mitigation. It was not explained why it was concluded that patients were put

at risk. No adequate reasons were given for there being a pattern of behaviour which was

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fundamentally incompatible with the appellant remaining on the register, nor why

maintenance of public confidence required erasure.

[21] Ground 6 – No proper reasons were given for rejecting the “snowball” argument, nor

for the “shock and outrage” finding had it been accepted.

Submissions and the court’s decision

[22] Counsel for the appellant accepted that the scope for the court interfering with a

decision of this kind by a specialist body is severely circumscribed. However he submitted

that a serious error made by the Committee removed any scope for deference and vitiated its

decision on sanction. In particular the Committee founded its decision on an established

risk to the health of patients, in the sense of a palpable non-negligible risk of such

significance that erasure was justified. The contention was that the Committee’s concern

was not as to the appellant’s behaviour; the focus was on its consequences, but none were

proved. It was not a case of a potential for harm; the Committee was saying that patients

were indeed at risk when treated by the appellant. However the evidence and the other

findings did not support or lead to such a conclusion. Reference was made to the expert’s

evidence that the appellant’s risk to patients from the second virus could not be assessed

because his viral load was unknown, and that on any view any risk was very low.

[23] Counsel acknowledged that the Committee recognised that at all times the risk of

transmission was very low. Nonetheless, without any solid foundation, it seemed to

differentiate between the first three months after the second diagnosis and thereafter. It

would be reasonable to infer from all the evidence that there was never any actual or

palpable risk of transmission of a virus to a patient. In any event there was no proper basis

for a conclusion that patients were put at risk of harm as a result of the appellant’s conduct.

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This undermined a main plank of the erasure decision. If a reasonable member of the public

was told of the absence of any real risk to patients, or that at most it was extremely low,

there would be no shock and outrage if the appellant’s name remained on the register.

[24] The court is not persuaded by these submissions. Counsel accepted that his analysis

depended on a particular construction of the Committee’s decision as expressed in its

reasoning. In our view his interpretation proceeds on a misreading or misunderstanding of

the Committee’s approach. The decision requires to be read as a whole. If this is done it is

clear that the Committee was concerned about the appellant’s actions and failings, not just

whether any patient was exposed to a risk above a particular level. The guidance in respect

of the second health condition, both before and after 2014, and the requirement for

monitoring the first health condition, were aimed at patient protection. In ordinary parlance

his conduct exposed his patients to a risk of harm. It is the absence of monitoring and other

safeguards which creates the risk. Counsel’s insistence that the Committee was talking of an

actual risk of harm as opposed to the potential for harm is artificial and wrong.

[25] In respect of the first health condition the Committee said that the appellant’s

conduct “had the potential to put patients at risk.” It is clear that this was the overall

context of the findings as to risk, and that the focus was firmly on the conduct (or rather

misconduct) of the appellant. It was not a necessary step in the Committee’s reasoning that

a patient was exposed to a “palpable”, “clamant”, or “actual” risk of harm. If there was a

possibility of harm as a result of the appellant’s actions, he created a risk of such; and this

remains true whether it did or did not come about. And for present purposes it matters little

if throughout the risks were low. The safeguards were designed to eliminate them or reduce

them to the minimum. No doubt the appellant considered it safe for him to treat his

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patients, but as he accepted, it was not for him to decide on appropriate conduct for a dentist

carrying the viruses.

[26] As to the Committee singling out the three months after the diagnosis of the second

health condition, this was based on the appellant’s viral load being higher at that time, and

remaining so until therapy took effect. The appellant himself recognised this by reducing

his EPPs, albeit he should have stopped practising altogether.

[27] In so far as counsel’s submission ultimately came to be that, in the absence of proof

of unacceptable viral loads, erasure cannot be justified, we see no reason to agree. The

Committee was assessing matters by reference to the wider public interest and as to what

was required in order to maintain confidence in the profession and the regulatory process.

When regard is had to the factors prayed in aid by the Committee, it is plain that they

entitled the Committee to reach the decision that erasure was the only appropriate course.

[28] Counsel turned to the other grounds of appeal, dealing first with an alleged error in

respect of the Committee failing to conclude that the impact of the initial shock upon the

appellant’s judgement and sensibilities extended to his conduct in subsequent years. It was

said that this blunts the significance of the admitted dishonesty, his ability to make proper

decisions and exercise sound judgement having been weakened throughout. The finding of

current impairment should not have been made. Under reference to a report from a

counsellor it was submitted that the Committee should have held that the continuing

dishonesty was caused by shame and concerns about stigma. Furthermore he was caught

by the initial lie and matters “snowballed” thereafter.

[29] In response the Dean of Faculty observed that the guidance until 2014 was clear and

simple; the appellant should not have continued in dentistry. The Committee recognised

that there was a limited period of impaired judgement after the initial shock of what it

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described as a cataclysmic event. The counsellor’s report was aimed at remediation, which

was accepted. In any event there was no evidence of prolonged continuing shock or

weakened thought processes as would bear the weight of the premise behind this ground of

challenge.

[30] The court agrees with the Dean’s submissions. We would add that this was

quintessentially a matter for the Committee to weigh up and reach a decision. Given the

continuing dishonesty of a serious nature over a period of years while the appellant

continued as a dentist, and indeed gained additional specialist private work, it would have

taken strong and clear evidence to overcome the entirely understandable view that for the

bulk of that time he was responsible for his statements and conduct.

[31] Counsel labelled the remaining grounds of appeal as a reasons challenge. Suffice to

say that we find no merit in them. The Committee’s decision is commendably clear and

straightforward. The appellant would have no difficulty in understanding all of it, and in

particular why erasure was directed. Much of what is said amounts to no more than a

disagreement with findings, reasons, and conclusions which were matters for the specialist

judgement of the Committee. It had regard to all relevant considerations, weighed them,

and reached a balanced decision which cannot be categorised as plainly wrong or manifestly

inappropriate. Indeed we see no reason to express disagreement.

Disposal

[32] The court has identified no valid ground for interfering with the decision under

challenge. It follows that the appeal is refused.