The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 72 of 1997

 

Duncan John McDonald Appellant

v.

The General Dental Council Respondent

 

FROM

 

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL DENTAL COUNCIL

 

---------------

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 30th March 1998, Delivered the

7th April 1998

------------------

 

Present at the hearing:-

Lord Lloyd of Berwick

Lord Hoffmann

Lord Hope of Craighead

  ·[Delivered by Lord Lloyd of Berwick]

 

-------------------------

 

1. At the conclusion of the hearing of this appeal on 30th March their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed for reasons to be given later and ordered the appellant to pay the respondent Council's costs before their Lordships' Board.  Their reasons now follow.

 

2. This was an appeal by Duncan John McDonald pursuant to section 29(1)(a) of the Dentists Act 1984 against the determination of the Professional Conduct Committee of the General Dental Council made on 21st November 1997, whereby they found him guilty of serious professional misconduct, and ordered that his name should be erased from the dentists register.

 

3. The hearing before the Committee lasted three days.  Mr. McDonald,  an  undischarged  bankrupt,  was represented by Mr. Fortune of counsel.  Before their Lordships the appellant appeared in person.  He had taken much time and trouble in preparing his case, and he presented it carefully and persuasively.

 

4. There were seven heads in the charge.  The Committee decided one of the heads in the appellant's favour.  The facts in relation to the other six heads, with some exceptions, were found to have been proved.  It was common ground that heads 3-5 were the most serious.  They were as follows:-

"3.(i)Between February 1991 or earlier and May 1996 you obtained goods and services on credit from sundry dental technicians and other dental suppliers when you knew or ought to have known that you were unable or unwilling to pay for those goods and services;

(ii)Between February 1991 and May 1996 judgments were obtained against you in numerous County Courts to a total of ,21,136 details of which are set out in Schedule `A' annexed hereto.

 

4.On or before 2 July 1996 you ordered goods from Fielding Dental Supplies Limited of Northampton to the value of ,187.88 by pretending to be a registered dentist called Mr K Davis or K Davies of 12 Caerau Road, Caerau, Maesteg when no person of that name worked at that address.

 

5.On 26 May 1994 you accepted Mr P Wallace for dental treatment as a National Health Service patient and thereafter:

(i)on 26 May 1994 you submitted a claim to the Dental Practice Board in respect of the surgical extraction of lower right seven and lower right eight;

(ii)on 23 September 1994 you submitted a claim to the Dental Practice Board in respect of the surgical extraction of the same two teeth."

 

5. Evidence in support of head 3 was given by Miss Watson, a credit controller employed by Commercial and Domestic Investigations.  She produced a computer printout obtained from Infocheck which showed a number of County Court judgments   outstanding   against  the  appellant.  She  then prepared a schedule showing twenty four judgments of eleven different County Courts totalling ,21,136.

 

6. The appellant's defence at the hearing was that the information obtained from Infocheck was inaccurate.  A number of the judgments had been satisfied, and others set aside.  But in cross-examination the appellant agreed that he did not have any evidence to support this defence.  He could not prove payment in the ordinary way by referring to his bank statements or cheque stubs, because according to him all these documents were in the hands of his trustee in bankruptcy.  There was evidence in rebuttal, admitted on the advice of the Legal Assessor, that this was not so.  Be that as it may, the appellant said that he had had great difficulty in obtaining information direct from the County Courts concerned.  Since the hearing before the Committee, the appellant has pursued his researches.  He has produced evidence that a judgment of the Basildon County Court dated 2nd September 1994 was set aside on the ground that the summons had not been served.  But that was not one of the judgments which appeared on Miss Watson's schedule.  So matters remain as they were at the hearing.  There was ample evidence on which the Committee could find that head 3 had been proved.  Their Lordships are unable to disturb that finding.

 

7. As to head 4, evidence was given by Mr. Fielding, a director of Fielding Dental Supplies Limited.  He said that his company had received two orders for dental supplies, one in the name of the appellant and another in the name of K. Davies from a different address.  The company has not been paid for either order.  The appellant's explanation for the second order is that it must have been placed by Mrs. K. Davies, a lady whom he employed occasionally to help with administration, although she did not in fact remember placing the order.

 

8. The difficulty with this explanation by the appellant is that it does not meet the case which is brought against him.  The sting of Mr. Fielding's evidence was that on 20th February 1997 he received a telephone call from somebody claiming to be Mr. K. Davies, who could only in fact have been the appellant.  Mr. Fielding's evidence was confirmed by a letter which he wrote a few days later on 24th February 1997, addressed to Mr. K. Davies.  The letter concludes with the following paragraph:-

 

"Both my secretary and myself have been told on two separate occasions by telephone that no Mr. K. Davies was working at your practice.  I was therefore very surprised and pleased to receive your telephone call.  I will be even more delighted when I receive your payment."

 

9. The appellant accepted that a telephone conversation had taken place as described by Mr. Fielding.  He described the conversation as acrimonious.  But he denied having referred to himself as Mr. Davies.  So there was a direct conflict of evidence on this issue.  The Committee evidently preferred the evidence of Mr. Fielding.  There is no basis on which their Lordships can go behind that finding.

 

10. On the third head, evidence was given by Mr. Whiteside, who was an employee of the Dental Practice Board, Eastbourne.  He said that the Board had received two claims for payment in respect of the same treatment.  One claim was dated May 1994, and the other September 1994.  The appellant did not dispute the facts, but said that the submission of a second claim was a "stupid error".  Such mistakes often, he said, occur in a busy dentist's practice.  He denied that he was guilty of any dishonesty.  Since the facts were admitted, it was for the Committee to decide what importance, if any, to attach to head 5 in the light of the other findings which they made.  Taking all the findings into account it cannot be said that the Committee was not entitled to form the view that the appellant was guilty of serious professional misconduct.  It was for these reasons that their Lordships dismissed the appeal.

 

© CROWN COPYRIGHT as at the date of judgment.