APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Prosser Lord McCluskey
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Appeal No: C158/01 OPINION OF THE COURT delivered by LORD PROSSER in APPEAL AGAINST SENTENCE by WILLIAM JOHN DUFF Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Boag-Thomson, Q.C.; Wheatley & Co.
Respondent: Henderson, A.D.; Crown Agent
20 June 2001
[1] The appellant William John Duff appeared in the Sheriff Court at Glasgow on 25 January 2001, on an indictment containing two charges. Charge 1 contained three separate elements, (a), (b) and (c). Charge 1(c) was withdrawn by the Crown, and a plea of not guilty to charge 1(b) was accepted. The appellant pled guilty to charge 1(a), subject to an amendment, and also to charge 2, again subject to amendments. In their amended form, charge 1(a) and charge 2 were in the following terms:
"1 Between 1 May 1991 and 31 October 1994, both dates inclusive, while practising as a Dental Surgeon at 1933 Maryhill Road, Glasgow, and at The Old Manse, 14 Steeple Street, Kilbarchan, Renfrewshire and elsewhere in Scotland, you William John Duff did form a fraudulent scheme to obtain payments for dental work from the National Health Service and from patients to which you were not entitled by falsely pretending that patients were entitled to payment of part or all of the cost of dental work by the National Health Service and by claiming payment from the National Health Service for dental work and in furtherance of said fraudulent scheme,
(a) between said dates, you did submit National Health Service Claim
Forms GP17A signed by you and dated as set out in Column I of the First Schedule annexed hereto to the Scottish Dental Service Practice Board of the National Health Service (Scotland) at Trinity House, South Trinity Road, Edinburgh in respect of dental treatment carried out by you on the persons named in Column II of said First Schedule, between the dates set out in Column III of said First Schedule, for the sums set out in Column IV of said First Schedule, which forms GP17A falsely pretended that said persons were exempted from payment for said dental treatment for the reasons set out in Column V of said First Schedule, the truth being as you knew that said persons were not so exempted and you did thus induce said Dental Practice Board to pay you through their agents, the Greater Glasgow Health Board, the said sums in payment for dental treatment on said persons to which sums you were not entitled and you did thus obtain the sum of £11,848.99 by fraud, falsehood and wilful imposition.
2. Between 1 October 1992 and 31 July 1994, both dates inclusive, whilst practising as a Dental Surgeon at 1933 Maryhill Road, Glasgow, you William John Duff, as a qualified Dentist and knowing the danger that disease and infection might be transmitted from patient to patient by the failure to sterilise dental instruments, did, repeatedly use such instruments in successive patients without sterilising the same and did thus culpably and recklessly expose said patients to the risk of infection and disease to the danger of their health."
We were not referred to the First Schedule which is mentioned in charge 1(a), but we were informed that 72 patients were named in column II of that Schedule, and that in almost all cases, the reason for exemption, set out in column V, was that the patient was in receipt of DSS benefits - which in fact they were not.
[2] On 22 February 2001, the sheriff imposed a sentence of 15 months imprisonment in respect of charge 1(a) and a sentence of 21 months imprisonment in respect of charge 2, consecutively, resulting in a period of 3 years imprisonment in all, commencing on the date of sentence.
[3] The appellant appeals against sentence, on the ground that the sentence imposed was excessive. In particular, in his Grounds of Appeal he contends that a custodial sentence was not appropriate bearing in mind (1) the nature of the offences, (2) the appellant's previous good character, (3) the personal health situation of the appellant at the time of the offences, all as detailed in the medical reports before the court, and (4) the appellant's personal circumstances as set out in the Social Enquiry Report that recommended a Community Service Order as a direct alternative to custody. (We would observe that the Social Enquiry Report contains observations in relation to various forms of disposal, but very properly makes no positive recommendation as to disposal).
[4] The appellant was born in January 1962. After qualifying in dentistry, he entered practice in 1984, and took over the practice at Maryhill Road in 1988. It appears from the sheriff's report that by the end of the period covered by charge 1(a), in October 1994, the practice had quadrupled; and counsel for the appellant told us that over the whole of that period, the appellant would have carried out some 60,000 treatments. In that context, it can be seen that the number of patients in respect of whom the appellant committed an offence within charge 1(a) represents a very small percentage of the total number of patients treated. Correspondingly, however, it may be observed that the sum of £11,848 obtained by fraud would apparently represent a very small percentage of the income which the appellant would receive from 60,000 treatments over this period.
[5] In attempting to put charge 1(a) in context, counsel for the appellant emphasised that the appellant had been working extreme hours, and effectively could not cope with the stress which resulted from trying to deal with so many patients. Faced with patients who could not afford the treatment which they needed, and taking the view that they were disadvantaged, he had "ignored the requirements", and provided the treatment, wrongly, "on the NHS". There was no specific explanation as to why the appellant had built up his practice to a level where he was working such extreme hours, and treating so many patients that, according to the sheriff's report, a dental receptionist estimated that the appellant saw one patient every 5 minutes. Nor was there any real explanation as to why, in the context of the very high total number of patients (and indeed the very high income which that produced) the appellant did not simply treat those whom he regarded as disadvantaged without seeking payment, if he was unwilling to turn them away or direct them elsewhere, rather than fill in fraudulent claim forms in order to obtain payment. The explanation, or part of the explanation, may lie in the account which we were given of the appellant's health, to which we shall return.
[6] Turning to charge 2, it is worth noting the essential elements of the charge. The appellant's knowledge of the danger that disease and infection might be transmitted from patient to patient by the failure to sterilise dental instruments cannot be questioned. What he did was to "repeatedly use such instruments in successive patients without sterilising the same". And by doing so, he culpably and recklessly exposed the patients to the risk of infection and disease, to the danger of their health. The reference to use of instruments "in" successive patients, rather than "on" them, resulted from amendment of the original charge, and it may be that this reflects what counsel for the appellant emphasised - that failures to sterilise occurred only at the stage when the appellant was checking a patient's teeth, and not when actual treatment was carried out. At all events, it was submitted that this was an important distinction. A further distinction was drawn between situations where the appellant was being assisted by a dental nurse, and the situations where he was assisted only by a young trainee. It was said that the failures would only occur in the latter case. While it was acknowledged that sterilisation would be the appellant's responsibility, the suggestion appeared to be that when he was working at such high pressure, at the checking stage, sterilisation which would otherwise be carried out reliably and routinely by a dental nurse might rarely, or at least not regularly, be omitted by the trainee. It was emphasised that the charge did not specify the number of occasions upon which such lapses were said to have occurred.
[7] We are uneasy at the picture as it was thus presented to us. The suggestion that there was failure only in the special case of a trainee omitting to sterilise instruments does not seem to us to square with the account given to the sheriff. Both in the narrative given by the procurator fiscal, and in what was said by the appellant's agent in mitigation, failures to sterilise are related to the sheer volume of patients whom the appellant was seeing. In the procurator fiscal's narrative, what is said is this:
"It emerged that equipment was not routinely sterilised. Sometimes, equipment was run under hot water. A dental nurse (aged 16 or 17 years) knew this to be wrong, but she was young, inexperienced and in awe of the appellant and did not dare question the appellant's procedures."
What was said in mitigation was that the sheer volume of patients led "inadvertently" to charge 2, and that:
"The appellant's failure to sterilise equipment was not 'wholesale'. The pace of his work was such that his support systems simply could not keep up with it."
While it is not possible, or necessary, to reach any very precise picture, we cannot see the matter as simply one of a trainee being unable to cope with this crucial matter: the appellant's responsibility is in our view direct, with repeated omission of sterilisation resulting not from special circumstances, but from the fact that far more patients were being dealt with by the appellant than could reliably be given this elementary and crucial protection against infection and disease. It was submitted that the risks were impossible to quantify, and that no individual case of infection or disease had been discovered. However, it does not appear to us that these matters reduce the culpability and recklessness of the appellant's conduct, which like the sheriff we see as being of a very serious nature.
[8] Before the sheriff, and again in the presentation of the appeal, considerable emphasis was laid upon the appellant's state of health when these offences were committed. Counsel for the appellant submitted that it was critical, in considering the question of sentence, to appreciate that the appellant had been significantly ill throughout the whole or most of the periods with which we were concerned, with consequences which had a bearing upon his conduct, to some extent in relation to charge 1(a) but most significantly in relation to charge 2. He took us through a file of medical letters and reports, written during the relevant period, or after it but referring to it. It is not necessary to go through these documents in detail, but it is apparent that from quite early in the relevant periods, there had been a deterioration in health, including an occasion when the appellant collapsed and symptoms such as poor concentration and poor memory. The condition was eventually diagnosed as a post-viral fatigue syndrome. It appears that the appellant carried on working when he ought to have ceased for a while, and that one would expect a lack of concentration, affecting his ability to carry out paper work for any length of time. The fact that the appellant was handling far too many patients, so that the practice was overwhelmed, may be seen as both a result of the appellant's condition, and a cause of its deterioration. We have no difficulty in seeing a close relationship between the general way in which the practice was run and the appellant's state of health.
[9] Notwithstanding that fact, it does not appear to us that the conduct covered by charge 1(a) ties in with such matters as lack of concentration or poor memory, or an inability to carry out paper work. The false claims were numerous and intentional acts, designed to obtain from the National Health Service monies that were not due. And even in relation to charge 2, where the unrealistic pace of work ties in with the appellant's condition, it does not seem to us that his condition, or its consequences in terms of concentration and the like, can be seen as providing any very direct explanation for the appellant, even under stress, omitting sterilisation as he did, in knowledge of the danger.
[10] Counsel submitted that the sheriff need not have had recourse to a custodial sentence. The appellant had been willing to repay the sum obtained by fraud, and had now actually repaid it. There was no risk of re-offending. The sentences were effectively punitive in their purposes and appropriate alternatives to custody should have been adopted. Even if custody were to be seen as necessary, there was no need for it to be at this level, which was submitted to be grossly excessive.
[11] We are not persuaded that either of these sentences, viewed on its own, can properly be regarded as excessive. Each of the offences is a very serious one, and in each case the period selected is in our opinion within the sheriff's discretion. We have, however, come to the view that each of the two offences, despite their very different characters, can be seen as a manifestation of a single irresponsible betrayal of professional standards in the running of the practice. That being so, and having regard to the related health problems, we are prepared to see a cumulo sentence as justified. Adopting that approach, we quash the separate sentences, and impose a sentence of 2 years imprisonment in cumulo.