Kirschner v General Dental Council  EWHC 1377 (Admin)
The appellant dentist appealed a decision of the General Dental Council's Professional Performance Committee that she was dishonest under the Ghost/Twinsectra test. The appellant was suspended for 12 months and appealed on the both the finding of dishonesty and the proportionality of sanction. The appeal was successful and Mostyn J spent some time pondering the 'test' for dishonesty in professional regulatory proceedings.
This case concerned a Polish dentist who between February 2010 and June 2012 was the subject of a Primary Care Trust ("PCT") review. As a result of this review, the dentist was referred to the GDC and thereafter to the GDC's Professional Performance Committee in respect of allegations of clinical deficiencies and mismanagement. Shortly prior to the hearing, allegations of dishonesty arose and the hearing was postponed. In due course the dentist was charged with 110 separate allegations (the case now apparently before the Professional Performance Committee ("PCC")). Included in those were two groups of allegations which alleged dishonesty. In respect of the first set of allegations the appellant was acquitted but was found guilty of the second. Those allegations alleged that she had dishonestly claimed payments under her NHS dental contract of £48 for three child patients, a total of £144. She was also found guilty in respect of a number of the clinical deficiencies but those did not form part of the appeal. The appellant was suspended for 12 months.
The dentist appealed the finding of dishonesty and the sanction.
Handed down by Mostyn J.
After considering the authorities concerning the nature of an appeal by way of 'rehearing', Mostyn J went on to consider the authorities relating to dishonesty and, in particular, the difference between the definition of dishonesty in professional disciplinary proceedings and the definition applied in other civil proceedings. After observing that professional disciplinary proceedings were indeed civil proceedings, albeit with many of the hallmarks of criminal proceedings, he stated that it would be a "surprising state of affairs" if there were a different legal test for dishonesty in disciplinary proceedings than there is in a mainstream civil proceedings, but that nevertheless that is the state of the law. He considered that it was a position which needed to be conclusively clarified by the higher appellate courts or by legislation.
He referred to the adoption of the criminal test of dishonesty in R v Ghosh  QB 1053 by the House of Lords in Twinsectra Limited v Yardley and Others  UKHL 12. This case was then significantly modified by the Privy Council in Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37, an appeal from the Isle of Man. The Privy Council adopted an approach whereby the 'subject limb' of the Ghosh test was not applied. The test for dishonesty is whether "…by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards" – per Lord Hoffmann. This revised test, albeit strictly a statement only of Manx law, was recently applied by the Privy Council in Central Bank of Ecuador & Ors v Conticorp SA & Ors (Bahamas)  UKPC 11, an appeal from the Bahamas. In Abour-Rahmah & Anor v Al-Haji Abdul Kadir Abacha & Ors  EWCA Civ 1492 the Court of Appeal accepted that the revised Barlow Clowes test applied in English civil proceedings.
Mostyn J noted that this test had not been adopted in professional disciplinary matters and that the courts had continued to apply the Twinsectra/Ghosh test, albeit noting that Longmore LJ in Hussein v GMC  EWCA had amended the test slightly in that the objective limb of the Ghosh test should refer to the standard of 'reasonable and honest doctors', rather than people.
Mostyn J observed that the only professional disciplinary case where the issue had been dealt with head on was Bryant v Law Society  1 WLR 163 where Richards LJ and Aiken J, sitting as a Divisional Court Judge, stated: "…in our view it is more appropriate that the test for dishonesty in the context of solicitors' disciplinary proceedings should be aligned with the criminal test than with the test for determining civil liability for assisting in a breach of trust." Mostyn J stated that it was a decision which was not strictly binding on him and the correctness of which he doubted. He went on to say that "…in my opinion there should be but one test for dishonesty in all civil proceedings, whatever their nature. That test should be as propounded by the Privy Council in Barlow Clowes and as very recently confirmed by it in Central Bank of Ecuador. The Privy Council is the Supreme Court in all but name, and if it propounds a legal test then we should faithfully follow it unless it conflicts with an earlier binding domestic decision."
However, having spent some twelve paragraphs of the judgment in expressing his dissatisfaction with the current state of the law, Mostyn J concluded:
"22. It would, however, be a step too far for me, notwithstanding my great misgivings, to hold that Bryant does not represent the law concerning dishonesty in disciplinary proceedings. Or that the Twinsectra/Ghosh test has not been adapted as suggested in Hussein. As things stand the test is… the tribunal should first determine whether on the balance of probabilities, a defendant acted dishonestly by the standards of ordinary and honest members of that profession; and, if it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was by those standards, dishonest."
That was the test applied by the PCC in Kirschner. The case against the appellant was that she had dishonestly 'split' treatments in respect of three child patients. Her contract provided that a Unit of Dental Activity ("UDA") was worth £16. For a Band 2 course of treatment, which included fillings, she could claim 3 UDAs i.e. £48. That was whether or not the course of treatment comprised one or more fillings. Each of the patients needed four fillings and therefore in respect of each patient, she was entitled to £48. However, in respect of each patient, she did two fillings and then, after a hiatus of least 62 days, did two more. This therefore led to double-claiming for the same course of treatment. The appellant's case was that she acted as she did, because she was told that she was entitled to do so.
Mostyn J observed that it would have been possible for the PCC to make a finding that her evidence was false. It did not make any such finding and that, were it to have done so, it would have been incumbent on it to have spelt this out with the utmost clarity.
The key finding was as follows:
"The Committee however, taking into account the whole of the evidence, formed the view that whilst you had persuaded yourself that splitting claims was acceptable, in part because it did not harm your patients, you knew, at that time, that you were making claims to which you were not entitled under the contract."
The appellant submitted that the finding was internally inconsistent and incoherent. Mostyn J accepted that submission and held that it was impossible for the subjective element of the Twinsectra/Ghosh test to be satisfied in this case. He further held that, even if the Barlow Clowes test was the correct one, it would still have been difficult to convict the appellant of dishonesty, although the decision would have been much closer to the line.
The appeal was allowed, the findings of dishonesty quashed, and the case remitted to the PCC to reconsider sanction.