The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 80 of 1996

 

Robert Julian Hossack Appellant

v.

The General Dental Council Respondent

 

FROM

 

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL DENTAL COUNCIL

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th April 1997

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Present at the hearing:-

Lord Lloyd of Berwick

Lord Hope of Craighead

Lord Hutton

  ·[Delivered by Lord Lloyd of Berwick]

 

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1. This is an appeal by Mr. Robert Julian Hossack against a determination of the Professional Conduct Committee of the General Dental Council dated 20th November 1996 whereby he was found guilty of serious professional misconduct.  The Committee directed that Mr. Hossack's name be erased from the Register of Dentists.

 

2. The charge laid against the appellant was as follows:-

"That, being a registered dentist:

between about 29th April 1992 and about 29th March 1994 you accepted three patients ... for dental treatment as National Health Service patients, in the course of which you

(a)failed to employ a proper degree of skill and attention in providing treatment for the said patients;

(b)failed to carry out the treatments necessary to secure the oral health of Mr. Dack and Mrs. Hou.

 And that in relation to the facts alleged you have been guilty of serious professional misconduct."

 

3. The language of paragraphs (a) and (b) follows the language of paragraph 20(1)(a) and (d) of Part IV of Schedule 1 of the National Health Service (General Dental Services) Regulations 1992.  Schedule 1 sets out the appellant's Terms of Service.  Paragraph 20 is headed "Standards of Care".  The three patients referred to in the charge are Mr. Stephen Gerald Dack, Mrs. Yuk-kuen Hou and Mrs. Coral Patrice Lawson.  There are no further particulars.

 

Mr. Dack

Mr. Dack was treated by the appellant between 7th May and 20th August 1992.  He had been a patient of the appellant on and off for about 14 years.  His teeth needed a great deal of attention.  In addition to a number of ordinary fillings, the appellant carried out a root treatment of LL6 and replaced the crown.  Mr. Dack had no complaints.  He still has a full head of teeth, including eight successful crowns.

 

4. On 4th November 1992 Mr. Dack was seen by the Dental Reference Officer, Mr. Bull, as part of Mr. Bull's routine duties as Regional Dental Officer based in Cambridge.  In a report dated 5th November 1992, Mr. Bull criticised the appellant's treatment of LL6, because he had left a horizontal ledge of tooth beneath the crown, approximately two millimetres in width.  He also criticised the treatment of UL6.  Nearly two years later on 9th September 1994 the appellant was seen by the Dental Services Committee, who made a finding that the appellant was in breach of paragraph 20(1)(a) of the Schedule, and recommended a withholding of ,2,000.  A Mr. Clough, a former colleague of the appellant, served as a member of the Committee.  There was an appeal to the Secretary of State.  The Family Health Services Appeal Unit upheld the finding in relation to LL6, but not UL6, and reduced the withholding to ,500.

 

5. In December 1992, after Mr. Dack had been seen by Mr. Bull, the crown on LL6 came off when Mr. Dack was eating a toffee.  The crown was recemented back, and has remained in place ever since.

 

Mrs. Hou

Mrs. Hou had also been a patient of the appellant for about 14 years.  She attended for treatment on 29th April 1992 with a broken tooth at LR6.  The root filling was complicated, because, most unusually, the root split into three rather than the normal two.  In addition there was considerable bone loss at the trifurcation.   Mrs.  Hou  asked the appellant to save the tooth if possible.  Mrs. Hou's treatment was completed on 18th June 1992.  Three weeks later the crown fell out.  Mrs. Hou did not, however, return until 20th October 1992, when the appellant dressed LR6, and recemented a loose crown at UL7.  In due course the crown at LL6 was replaced.  It is still in position, and has given no trouble.

 

6. Meanwhile Mrs. Hou had been called to see Mr. Bull on 25th November 1992.  He was critical of the crown at UL7.  The appellant's explanation was that the cementing of the crown was temporary.  More important, Mr. Bull was critical of the appellant's treatment at LR6.  He advised that the condition of the tooth was so bad that it ought to have been removed.

 

7. In due course the case came before the Dental Services Committee.  Once again Mr. Clough was present.  On this occasion the Dental Services Committee recommended a withholding of ,1,000.  Once again there was an appeal, and the amount withheld was reduced to ,750.  In particular the Appeals Unit reversed the finding that Mr. Hossack had claimed payment for treatment which he had not carried out.  The Dental Services Committee must have misunderstood Mr. Bull's report that "no radio-opaque root canal filling was present" in LR6.  As for Mr. Bull's view that the tooth ought to have been removed, the facts are that the appellant's treatment has been successful.  The tooth survives and is functioning satisfactorily.

 

Mrs. Lawson

Their Lordships were given to understand that if it had not been for Mrs. Lawson's complaint, the other cases would never have come before the Professional Conduct Committee of the Council.  There had been only two findings of breach, and the amount withheld had never been more than ,750.  It was Mrs. Lawson's complaint that precipitated the present proceedings.  Whereas in the other two cases the charge related to paragraph (b) as well as paragraph (a), in Mrs. Lawson's case the charge related to paragraph (a) alone.

 

8. The facts are as follows.  Mrs. Lawson became a patient of the appellant on 29th March 1994.  She needed ten fillings, two crowns and a replacement bridge to span UL2, 3 and 4.  There was no complaint as to the fillings or the crowns.  The bridge was cemented on 25th October.  On 26th October Mrs. Lawson complained that she did not like the look of the bridge.  On 2nd November she saw the appellant in his surgery.  According to her, he lost his temper.  This he denied.  There are no findings one way or the other.  Their Lordships refrain from expressing any view, since it was not the subject of any charge.  On 3rd November   Mrs.   Lawson   complained  to  the  Family  Health Services Authority.  On 19th December 1995 she was seen by Mr. Martin Kelleher, a consultant restorative dentist.  Mr. Kelleher reported that the bridge was unsatisfactory in four respects: (i) it did not fit well, (ii) there were dark spaces between the upper and lower teeth, (iii) the bridge was not symmetrical with the teeth on the right side of Mrs. Lawson's mouth and (iv) the bridge work teeth were too short.  The case was referred to the Dental Services Committee.  Once again Mr. Clough was a member of the Committee, and once again there was an appeal.  The result was that the amount withheld was fixed at ,1,000, and the appellant was ordered to repay ,200 to Mrs. Lawson.

 

9. The findings in Mrs. Lawson's case meant that all three cases could be referred to the Preliminary Proceedings Committee of the General Dental Council.  In due course the appellant was called before the Professional Conduct Committee.  A hearing was held on 18th and 19th November 1996.  On the morning of 20th November the Chairman announced that the facts alleged in paragraphs (a) and (b) of the charge had been proved.  Later the same day he announced "that in relation to the facts proved against you in all the heads of the charge the Committee has found you guilty of serious professional misconduct".

The Professional Conduct Committee had been advised by the Legal Assessor as follows:-

"The Committee should make a finding of serious professional misconduct only if it is sure that no dentist of reasonable skill exercising reasonable care would have acted as Mr. Hossack did in these cases.  In reaching this judgment, the Committee should apply a proper professional standard, should have regard to the objective facts about the individual patients involved and should take into account both treatments provided and failures to treat or act.  Accordingly, seriously negligent treatment or practice can amount to serious professional misconduct, but serious professional misconduct should not be found unless the falling short from acceptable standards, whether by omission or commission, has been serious."

This advice was evidently based on the judgment of the Board in the case of Doughty v. The General Dental Council [1988] A.C. 164 followed recently in McCandless v. The General Medical Council [1996] 1 WLR 167.  Where the allegation of serious professional misconduct is grounded, as it was here, on negligent treatment, an important factor in determining whether the professional misconduct is serious or not will often be the number of patients involved; see in this connection the judgment in the case of Doughty.  It might have been better if the Legal Assessor had drawn attention to this point.  Otherwise their Lordships have no comment.

 

10. As for the Board's approach in appeals of this type, their Lordships were referred to Libman v. The General Medical Council [1972] AC 217 where it was said that:-

"... the only circumstances in which an Appellate Court can reverse a view of the facts taken by the Disciplinary Committee would be a case where, on examination, it would appear that the Committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them."

 

11. A little later it was said that it is difficult for an appellant to displace a finding or order of the Committee:-

"unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the Committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread."

 

12. For the reasons mentioned in Libman, and in many subsequent appeals, the Board is always reluctant to take a different view of the evidence than the highly qualified members of a Professional Conduct Committee; but that it will on occasion feel compelled to do so is shown by the recent decision in Brown v. The General Dental Council, in which judgment was delivered on 30th October 1990.

 

13. How does the present appeal stand?  The expert witness called by Miss Glynn in support of the charge was Mr. Martin Kelleher.  If he had given evidence in accordance with his report dated 19th December 1995, their Lordships would have dismissed Mr. Hossack's appeal without much hesitation.  But he did not.  His evidence-in-chief was so favourable to the appellant that it was hardly necessary for Mr. Williams to cross-examine on the appellant's behalf.  Mr. Kelleher pointed out that the replacing of the upper canine is regarded as the most complex of all bridge operations, all the more complicated in the present case by reason of the "outstanding" lower left canine.  Mr. Kelleher commented:-

"It is difficult to get a good cosmetic result with that particular combination of clinical problems.  It is not, in my view, an unusual problem, and if I may be so bold as to say I have probably done something similar myself from time to time and I have had to redo it."

 

14. As for the fit, Mr. Kelleher considered that the gaps or discrepancies were marginal.  From the outside they were imperceptible,  and  from the inside they could only be seen when photographed in a harsh light from a particular angle.  There was no gum disease or tooth decay in way of the bridge.  In short there was no need to replace the bridge, unless Mrs. Lawson wanted a replacement for cosmetic reasons.  If this were to be done, it would mean making the missing tooth much longer, and bringing it forward to cover the lower tooth where it projected.

 

15. So much for Mr. Kelleher's evidence.  By itself, it could not possibly support a charge of failing to employ a proper degree of skill and attention in the case of Mrs. Lawson.  But Mr. Kelleher was not the only dental practitioner called by Miss Glynn on behalf of the Council.  She also called Mr. Clough.  Mr. Clough was in a somewhat anomalous position, since he had been a member of the Dental Services Committee in the case of all three patients, and subsequently accepted Mrs. Lawson as a patient of his own.  It is not clear why he was called.  But in any event he would be bound to want to defend his decision to replace the bridge.  Their Lordships have read his evidence with care.  Where it conflicts with that of the consultant, Mr. Kelleher, as it did in relation to the alleged deficiencies at the margin, they have no doubt that Mr. Kelleher's evidence was to be preferred.

 

16. In the absence of any supporting evidence from Mr. Kelleher, Miss Glynn argued before their Lordships, as she had before the Professional Conduct Committee, that the appellant should have discussed with Mrs. Lawson beforehand the difficulties of making an aesthetically satisfying bridge, and should then have shown her the bridge in a mirror before it was cemented in position.  The appellant's evidence was that he did show her the bridge in position before it was cemented, in accordance with his standard practice.  But even if his evidence as to that was not accepted, it would hardly justify a finding of a breach of section 21(1)(a) of Schedule 1.

 

17. Finally there was the allegation that the appellant lost his temper on 2nd November.  But as already mentioned that allegation was not made the subject of any charge.  So it obviously had to be excluded altogether from consideration.

 

18. Having reviewed the evidence in relation to Mrs. Lawson, their Lordships feel bound to conclude that the finding of the Professional Conduct Committee in relation to her was "out of tune" with the evidence to such an extent that the members of the Committee must have misunderstood what Mr. Kelleher was saying.  Their Lordships repeat that if Mr. Kelleher had given evidence in accordance with his report, then they would not have intervened in the finding.  But the evidence which he gave at the hearing, both in chief and in cross-examination, was so very different  from  what  he had said in his report, and was so veryfavourable to the appellant, that the finding of fact by the Professional Conduct Committee in relation to Mrs. Lawson cannot stand.

 

19. That leaves the question whether the finding of serious professional misconduct can rest on the findings of fact in relation to the other two patients.  The answer must surely be no.  The finding of serious professional misconduct was explicitly based on the facts found to have been proved in relation to all the heads of charge in relation to all three patients.  Since in their Lordships' view the Professional Conduct Committee was wrong to find the facts proved in relation to Mrs. Lawson, part of the foundation for the overall finding of serious professional conduct has gone.  In these circumstances the overall finding cannot stand.  Their Lordships will humbly advise Her Majesty that the appeal should be allowed and the appellant's name restored to the Register.  The General Dental Council must pay the appellant's costs before their Lordships' Board.

 

© CROWN COPYRIGHT as at the date of judgment.