The Judicial Committee of the Privy Council Decisions

Spofforth v. The General Debtal Council (Dentists Act 1984) [1999] UKPC 41 (20th August, 1999)

Leonard Morris Spofforth Appellant

v.

The General Dental Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

8th July 1999, Delivered the

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Present at the hearing:-

Lord Hoffmann

[Delivered by Lord Hutton]

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1. On 8th July 1999 at the conclusion of the hearing their Lordships agreed humbly to advise Her Majesty that the appeal ought to be allowed, the decision of the Professional Conduct Committee of 25th January 1999 to remove the appellant’s name from the dentists register be quashed and that the matter be remitted to a differently constituted Professional Conduct Committee to rehear the case and come to a fresh decision. Their Lordships indicated that they would give their reasons later, which they now do.

2. This is an appeal by Mr. Leonard Morris Spofforth to Her Majesty in Council against the decision of the Professional Conduct Committee of the General Dental Council on 25th January 1999 to erase his name from the dentists register pursuant to section 27 of the Dentists Act 1984 on the ground that he had been convicted in the United Kingdom of a criminal offence on 30th March 1998. The appellant’s ground of appeal is that prior to coming to that decision the Committee had made a wrongful exercise of its discretion in refusing to grant him an adjournment of the hearing before it by reason of his mental ill health.

3. The background facts are these. The appellant is now aged 56 and has practised in the Merseyside area since 1970. Prior to the criminal proceedings in March 1998 which gave rise to the hearing before the Committee he had an unblemished reputation both as a dentist and as a private citizen. In 1994 and 1995 he applied for and obtained two grants from the Department of Trade and Industry. The grants were called "smart grants", which was an acronym for Small Firm Merit Award for Research and Technology. One grant was in respect of a project called "Speedpost", which was a system to supersede metal post technology in dentistry with a modern, light-cured, composite system. The other grant was in respect of a project called "Speed-dive", which was a pump-assisted snorkel for sea diving. In respect of the first project an award of £43,500 was made and one third of that amount was paid in advance to the appellant, and in respect of the second project an award of £41,000 was made, and again one third of that amount was paid in advance to him. One of the terms of the grants was that all invoices for money spent in the project were to be kept for later inspection.

4. As further expenditure was made in the course of the projects the appellant claimed further payments from the Department of Trade and Industry and an official of that Department called with him to discuss the details of his claims. She became concerned when she found that the appellant was the landlord of the property in respect of which he was claiming for payments of rent in respect of the projects, and this concern led her to seek original invoices in support of the claims which the appellant had made. The appellant then submitted invoices to the Department between November 1995 and January 1996 and it then transpired that these invoices had been forged by the appellant. The appellant was clearly guilty of the crime of forgery but it was accepted by all relevant parties that he would in fact have been entitled to receive the monies which he claimed if he had kept proper records. It is therefore clear that if the appellant had conducted his affairs in relation to the two projects in a more businesslike way he could have obtained documents from his suppliers which would have properly vouched his expenditure, but not having done so he resorted to the criminal device of forging invoices.

5. The appellant was charged before Liverpool Crown Court on seven counts of forgery and false accounting in relation to a total sum of £5,826.38 and pleaded guilty. He was sentenced on 15th May 1998 to undergo 200 hours community service on each count, the sentences to run concurrently, and he was also ordered to pay prosecution costs amounting to £15,000, but as the appellant by this time had been adjudicated a bankrupt the order for costs was not to be enforced without further leave. It is relevant to set out the observations of His Honour Judge James in passing sentence, and these observations were before the Committee at the hearing on 25th January 1999. The judge stated that it was conceded by the Department of Trade and Industry that the appellant would have received the money if he had gone about the matter in a proper way, and he later said:-

"But because of the way that the prosecution have presented their case today, the nature and extent of your dishonesty is now plain and nothing like as serious as it might have seemed to anyone reading the papers initially in this case.

 

You are a man now aged 55, and hitherto well respected in the community as a dentist, but as a consequence of what has happened you have lost everything: your home, your financial situation is such that you have been declared bankrupt and you are now just about, I have been told, managing to continue in practice as a dentist. It may very well be that as a consequence of this case those responsible for the profession will require you to cease in practice. That, of course, is not a matter for me but I take the possibility into account.

 

I have read a number of references concerning you and it is obvious that you were a very good dentist who did his best for all his patients. That, of course, does not excuse the dishonesty but it is a matter that I have to take into account in deciding what is overall the appropriate sentence in this case.

 

Deciding that as I do, and having heard that the Department would probably have given you the money anyway if you had gone about your application in a quite different way, I have reached the eventual conclusion that this is not a case in which I must send you to prison. I will, however, order you to undergo 200 hours community service on each count to which you have pleaded guilty. Those sentences to run concurrently with each other."

6. On 22nd October 1998 the solicitors for the General Dental Council, Messrs. Field Fisher Waterhouse, wrote to Mr. Spofforth informing him that on 19th November 1998 a meeting of the Professional Conduct Committee would be held in London to consider the charge against him that he had been convicted on 15th May 1998 at Liverpool Crown Court on five counts of forgery and two counts of false accounting and to determine whether or not the Registrar should be directed to erase his name from the dentists register or to suspend his registration. On 6th November 1998 the appellant’s solicitors, Messrs. Linskills, wrote to the Council’s solicitors to inform them that the Dental Union had taken the view that as the case against Mr. Spofforth was a "non dental case" it would not fund his representation and accordingly, until the matter of proper funding for representation was arranged, they would not be in a position to represent the appellant on 19th November and the date might therefore have to be vacated. On 11th November 1998 the appellant’s solicitors again wrote to the Council’s solicitors in the following terms:-

"Unfortunately we understand that contrary to your expressed view the Dentist Union has refused to meet our client’s reasonable expenses in appearing on the 19th November 1998 before the Committee of the General Dental Council on the basis that it is a ‘non-dental case’. We have asked our client to pursue this matter with his Union in relation to the relevant regulation as we must say that, we are surprised at the Union’s view expressed as the consequences to our client are likely to be the same whether it is a dental case or not.

Equally, we understand that our client is not currently in the best of health. These factors seem to militate against the full hearing on the 19th November, and we have asked our client both for his union membership number and address of the union so we may write to the responsible party and also to obtain a medical report as to his fitness to appear on the 19th November.

We will keep you fully informed and once again, do not wish to be placed on the record as far as the hearing of the 19th November is concerned."

7. On 13th November 1998 the appellant’s solicitors received a report from the appellant’s general practitioner, Dr. John A. Wright, dated 12th November 1998 in the following terms:-

"The above has been a patient of mine for many years, and I have seen him professionally on several occasions recently.

At the present time, he has overwhelming problems with his own professional situation, and is seeing a consultant psychiatrist on the 27th November. I really do think it would be very much in Dr. Spofforth’s interest to see the psychiatrist, before the hearing. As I understand it this is on the 19th of November, 1998.

Therefore, this report is to request deferment of the hearing, so that we can have the benefit of the consultant’s opinion, and I do feel that a hearing at this stage is going to be prejudicial to Dr. Spofforth’s mental health."

8. A copy of this letter was sent to the secretary of the Council and to the Council’s solicitors by fax on 16th November 1998 with a further request that the hearing date on 19th November be vacated until such time as further information was available as to the appellant’s health. By fax of even date from the Council the appellant’s solicitors were informed that the President had considered the request for an adjournment but had not acceded to it and that the inquiry would proceed on 19th November.

9. Dr. Wright sent a further medical report to the appellant’s solicitors on 18th November in the following terms:-

"I have been in touch with Dr. Spofforth on several occasions in the last week, and have seen him this morning for consultation, in a very distressed state. I consider that he is profoundly depressed, and have commenced psychotropic medication, which was very much against his better judgement previously. I really do feel he does need some medication.

 

Furthermore, his sleeping pattern is absolutely hopeless, and he is getting only a couple of hours sleep a night, and waking very early, after initially getting to sleep, a typical feature of depression.

 

Therefore, because of his acute mental state, and also the initiation of new therapy, I think it would be most unwise for him to travel to London tomorrow, and I have told him this.

 

Hopefully his mental state will improve, over the next four to six weeks, and he is due to see a Consultant Psychiatrist soon anyway, who may continue or modify the treatment. Anyway, I think it would be very bad for him to be travelling all over the place and attending hearings in his present condition."

 

10. The appellant’s solicitors instructed counsel to attend the hearing on 19th November but when counsel arrived at the premises of the Council in Wimpole Street, London, she was informed that the case had been taken out of the list and the reason given was that the list had been overloaded, and it was clear that the adjournment did not take place as a result of representations or submissions made on behalf of the appellant.

 

11. By letter dated 18th December 1998 the Council’s solicitors informed the appellant’s solicitors that a new date for the hearing had been set for 25th January 1999. On 15th January 1999 Dr. Wright wrote a further report in the following terms:-

"The above has been a patient of mine for many years, and I have seen him professionally on several occasions recently.

 

At the present time, he has overwhelming problems with his own professional situation, and saw the Consultant Psychiatrist in mid December, 1998.

 

He remains in a precarious psychological condition, and is not only depressed and anxious, but has the added problem at the present time of moving house in the next day or two.

 

Therefore, I think it would be valuable if his pending case could be deferred until his situation is more stable, as I feel at present he will be made considerably worse by added stress."

 

12. On 18th January 1999 the appellant’s solicitors wrote to the Council as follows:-

"Further to our telephone conversation of last week, please find enclosed:-

 

1. Letter from our client’s GP Dr. John A. Wright.

 

2. Document from the Trustee in Bankruptcy.

 

You will see in the second paragraph of the Trustee’s document reference to the period between the 15th and 31st January 1999.

 

This confirms our client’s instructions that he will be moving from his family home during the proposed hearing date.

 

In the circumstances could you please confirm that the date can be vacated and a further date arranged more to the convenience of our client?

 

We have asked our client to confirm whether there is a psychiatrist report in existence or not?

 

We understand that our client’s consultant is currently unavailable on holiday."

 

13. On 20th January 1999 the appellant’s solicitors again wrote to the Council repeating the request for an adjournment and the appellant’s solicitors instructed counsel to appear before the Committee on 25th January 1999 to make a request for a further adjournment.

 

14. Counsel for the appellant, Ms. Duff, made this application to the Committee and advanced two reasons in support of it. One reason was the mental condition of the appellant and the other reason was that the appellant was in the process of moving house because of bankruptcy proceedings. The application was opposed by counsel for the Council and counsel for the appellant then informed the Committee that she was not instructed to represent the appellant if the matter was not adjourned and proceeded to a hearing. The Legal Assessor then suggested to counsel that she should take instructions to see if she could represent the appellant if the matter proceeded. In replying to this suggestion counsel stated that the only information which she had as to the appellant’s medical condition was that contained in a letter from Dr. Wright which was before the Committee.

 

15. After a brief adjournment the Chairman of the Committee then ruled that the Committee did not accede to the application for an adjournment and that the case would continue. The Legal Assessor then asked counsel whether she could be instructed to conduct the case on behalf of the appellant and he stated:-

"It is now a question really for you. Obviously, if you say you do not wish or are not instructed to take any further part in the matter, I will advise the Chairman to allow you to withdraw, but I personally think that would be a rather unhappy resolution of this problem, because if you were to be instructed, if you are not instructed, it would obviously be of greater assistance to this Committee in doing justice in the matter."

 

16. The Committee then adjourned for a short time to enable counsel to seek further instructions. She telephoned the appellant’s solicitors who informed her that they had only instructions to attend to apply for a further adjournment and she was instructed to withdraw from the proceedings. Counsel then informed the Committee of her instructions to withdraw and she further stated that she had spoken to the Bar Council and they had advised her that it would not be proper for her to continue and she therefore made an application to withdraw, and the Chairman granted this application and added:-

"Can I take the opportunity of thanking you for the way in which you have behaved, most admirably, under difficult circumstances."

 

17. This is an observation with which their Lordships entirely concur.

 

18. Counsel for the Council then addressed the Committee on the circumstances leading to the convictions and on the character and previous history of the appellant. After a short adjournment the Chairman stated:-

"I have to announce that, by reason of the conviction proved against him, the Committee has directed the Registrar to erase from the Dentists Register the name of Leonard Morris Spofforth."

 

19. The principal submission advanced to their Lordships by Mrs. Hollis on behalf of the appellant was that the Committee had erred in law in the exercise of its discretion to grant or refuse an adjournment by giving undue weight to the need to come to an immediate decision without further delay on the question whether the appellant’s name should be erased from the Register and by failing to give proper weight to the excellent past record of the appellant who was, as the Crown Court judge stated, "a very good dentist who did his best for all his patients" and to the opinion of Dr. Wright who stated in his report of 15th January 1999 that the appellant remained in a precarious psychological condition and was depressed and anxious.

 

20. The Chairman of the Committee did not state any reasons for the Committee’s decision to refuse the application for an adjournment, but their Lordships infer that the Committee took into account the reasons advanced by counsel for the Council in opposing the application. He made the point that the Council would have been better served if the report of the psychiatrist to whom Dr. Wright referred in his report of 15th January 1999 had been available to the Committee. Counsel then stated:-

"That having been said, on the face of these documents, it is my submission that this application is ill-founded. Mr. Spofforth is depressed and anxious, as may be expected of anyone who is to appear before a committee of his peers. Sir, he is moving house. In my submission, that is a poor excuse. It is something which can be delegated, and a dentist has a professional responsibility when called to account for himself before his peers to make all expeditious arrangements that he can do to appear here before you.

 

Perhaps the most important reason in respect of my submission is the public interest in the Council being seen to proceed with this inquiry. This is a serious matter which Mr. Spofforth is called to account for. The Committee can see from their papers that it includes convictions for forgery and false accounting. We would say, in the absence of any cogent reasons to the contrary, that this Committee should proceed with the inquiry."

 

21. Miss Glynn for the Council submitted to their Lordships that the Committee had not erred in law in refusing the application for the adjournment. She submitted that it was important for the public to see that the Committee dealt expeditiously with a dentist who had been convicted of the grave offence of forgery. Moreover the fact that the appellant was disorganised in the conduct of the projects for which he claimed grants and was prepared to submit forged invoices was a very serious matter in relation to a person who, in the course of his practice as a dentist, frequently submitted claims for payment of large sums of remuneration to the National Health Service. In his report of 18th November 1998 Dr. Wright had stated that hopefully the mental state of the appellant would improve over the next four to six weeks, but at the hearing on 25th January 1999 there was no report from the consultant psychiatrist and there was nothing to indicate on that date that if the matter were adjourned to a future date the appellant would be fit to attend the later hearing.

 

In Ziderman v. General Dental Council [1976] 2 All ER 334, 336 Lord Diplock stated:-

"Their Lordships do not doubt that before the disciplinary committee decide to erase the name of a dentist from the register on the ground that he has been convicted of a criminal offence they must be satisfied that the offence which he committed was one that showed him to be unfitted to continue in practice as a member of the dental profession. The disciplinary committee have no power to reprimand a dentist or to suspend him from practice temporarily. The only order they have power to make is for the erasure of his name from the register; and this prevents him from continuing to practice his profession. The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence, but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. So, quite apart from the presence in the Dentists Act 1957 of s25(2)(a), it would be the duty of the disciplinary committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was of so grave a character as to show that he was unfitted to continue to practise his profession."

 

22. Their Lordships are only concerned on this appeal to consider the lawfulness of the Committee’s decision to refuse an adjournment. However in order to decide this issue their Lordships must express some views on the nature of the case, although the expression of such views is not intended to influence the decision to which a differently constituted Committee will ultimately come. In the opinion of their Lordships the criminal offences which the appellant committed, although grave, were unusual in that he was entitled to the monies which he claimed and he could have obtained those monies properly if he had supported his claims with valid documents. There was no suggestion that the appellant’s patients had suffered in any way because of the crimes which he had committed and there was no suggestion that he had made improper claims for payment from the National Health Service. Moreover it was clear to the Crown Court judge that the appellant was a very good dentist who did his best for all his patients. Therefore their Lordships consider that the appellant had a case to make before the Committee that his conduct had not been so grave as to show that he was unfitted to continue to practise his profession.

 

23. It would have been preferable if the consultant psychiatrist’s report had been furnished to the Committee, but it had before it the reports of Dr. Wright which stated that the appellant was "profoundly depressed", that he had "overwhelming problems" and that he remained in "a precarious psychological condition". There appears to be no reason to doubt the validity of these reports and there is nothing to suggest that the appellant was malingering. Therefore their Lordships consider that there were reasons of considerable weight for granting an adjournment in order to give the appellant an opportunity to instruct counsel, when he was in a fit mental condition to do so, or to present his case in person to the Committee. In the particular circumstances of this case (and every case must depend upon its own facts) and bearing in mind that the appellant had been sentenced in May 1998, their Lordships consider that there was little weight in the point that the public interest required the matter to proceed on 25th January 1999 or that there would have been public concern or a lack of public confidence if the Committee had granted an adjournment because of the appellant’s mental ill health. Therefore the conclusion of their Lordships is that the Committee misdirected itself in giving undue weight to what it regarded as the public interest and in giving inadequate weight to the unusual and mitigating circumstances of the criminal offences, to the previously unblemished reputation of the appellant and to the mental ill health from which the appellant suffered.

 

24. Their Lordships will accordingly humbly advise Her Majesty that the appeal should be allowed. The respondent must pay the appellant’s costs of this appeal.