Bhavsar v General Dental Council [2015] QBD (Admin) - Judgment not yet released

Posted by Sophie Cisler on
The appellant dentist appealed against a decision of the Professional Conduct Committee that he was guilty of misconduct, on the grounds that the Committee had incorrectly found the appellant had admitted misconduct and, further, had incorrectly stated that there was no evidence that the appellant had undertaken audits of his record keeping. The Court upheld the appeal finding that there had been a serious procedural irregularity.

Facts

The General Dental Council [“GDC”] initiated disciplinary proceedings against the appellant, a registered dentist and the case was heard before a panel of the Professional Conduct Committee [“PCC”]. The grounds for the proceedings were that the appellant had made five clinical errors in a procedure he had performed on one patient and that, further, his record keeping was inadequate. The appellant admitted these grounds but did not admit that they amounted to him being guilty of professional misconduct. The expert evidence which, the appellant did not challenge concluded that the individual failings did not amount to conduct that fell far below the standard which would reasonably be expected of a dentist working within the same discipline but that, when considered cumulatively, the failings did amount to this.

The appellant adduced at the PCC hearing that he had undertaken remediation of his practice since the allegations were made, in particular by familiarising himself with the Standards for the Dental Team, carrying out continuing professional development regarding standards of record keeping and carrying out audits of his own records. This evidence was not challenged by the PCC and the PCC did not ask any questions of the appellant.

The PCC stated in their ruling that the appellant had admitted his failings amounted to misconduct and that cumulatively his failings amounted to serious misconduct. They found that the appellant had insight into his failings but there was limited evidence of how he met the standards and there was no evidence of audits of his record keeping. Accordingly, they found the appellant to be currently impaired. The PCC imposed conditions upon the appellant's practice which had been suggested before the appellant had given his evidence.

At the end of the hearing, the PCC attempted to correct the error in the determination that the appellant had "admitted that his failings amounted to professional misconduct". The appellant expressed his concern about the error and about the fact that the PCC had found he had not provided any evidence of audits of his record keeping. The PCC decided to leave the error uncorrected. The GDC accepted that there was an error in the determination but submitted that it was immaterial as the expert evidence submitted that the cumulative failings of the appellant were far below the standard, gross professional negligence could be inferred.

The appellant appealed on the grounds of serious procedural irregularity, in that the PCC had incorrectly found he had admitted professional misconduct and that they had incorrectly found he had not submitted any evidence concerning audits of his record keeping.

Judgment

Handed down by Andrews J.

Andrews J held that part of the PCC’s decision was the finding that the appellant had admitted his failings amounted to misconduct, and this was stated in their determination. It would have been wrong to remove this statement alone from the determination. The PCC may have been able to reach the same conclusion without this statement but it was not possible for the court to know what the outcome had been.

Andrews J stated that, if a disciplinary panel found that a registrant accepted he was guilty of professional misconduct, this was liable to colour the way the panel looked at the evidence. As such, Andrews J found that he could not be satisfied that the mistake in the determination was immaterial to the ultimate outcome. This concern was increased by the fact that the PCC had stated there was no evidence of audits being undertaken by the registrant, despite the fact that the appellant had presented unchallenged evidence on this matter.

Finally, Andrews J found that the PCC had adopted the GDC’s recommendation as to the conditions to be imposed on the appellant without acknowledging the later evidence they had received from the appellant concerning his subsequent remediation.

As such, Andrews J found that there had been serious procedural irregularity and the decision of the PCC that the appellant was guilty of professional misconduct was unjust.

Appeal upheld.

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Sophie is a Solicitor in the Succession and Tax team, based in London.

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