Davey v General Dental Council, Queen's Bench Division [2015 WL 6757832]
Judgement date: 8th October 2015
In this case the Claimant made an application to the High Court seeking to overturn or remove an immediate suspension order made by the Professional Conduct Committee ("PCC") of the General Dental Council ("GDC") at the conclusion of fitness to practise proceedings in which Mr Davey's fitness to practise had been found to be impaired and a 12 month suspension order was made.
The Claimant had agreed to make dentures for a patient in circumstances which were outside the scope of his practice because he had not received a reference from a practising dentist from this particular patient, who was dentate and had thereafter not kept adequate records of the treatment that he had given this patient on a number of occasions.
When the GDC asked him to provide records, in the first instance he provided not the records that he had in fact made, but rather, amplified records which to the best of his recollection described what had in fact happened on each and every attendance by the patient in question.
Whilst it is not suggested that those records were concocted in the sense of describing things that had not happened, it was clear that when he provided those records to the GDC he did so in response to a request for original records, and he did so in the initial hope of persuading the GDC that these were original records. Three months later his solicitors wrote explaining that he had produced these records subsequent to the patient's departure and that they were not original at all; the originals were provided.
Consequently he faced a number of charges of failing to provide appropriate care and treatment; acting outside the scope of his practice; failing to maintain an adequate standard of record-keeping; submitting patient records which were not contemporaneous; doing so dishonestly to try and convey inaccurately to the General Dental Council that the records were genuine; and in that regard failing to co-operate with the General Dental Council investigation.
Following a hearing which concluded on 30th April 2015 these allegations were either accepted or proved. The PCC then concluded that these actions amounted to misconduct and that Mr Davey's fitness to practise was impaired and passed a 12 month period of suspension.
An application was made for an immediate order of suspension on the grounds that it was otherwise in the public interest and advice was provided by the legal assessor that the appropriate test was the same as for the imposition of an interim order. Namely, that before an order could be imposed the PCC must be satisfied that it was necessary for the protection of the public, or otherwise in the public interest, or in the interests of that person.
The PCC made an immediate order of suspension under Section 36 U of the Dentists Act 1984.
As well as seeking to appeal the immediate suspension, Mr Davey also sought to appeal the imposition of the suspension order on the grounds that it was excessive.
Deputy Master Bard pointed out that the effect of an immediate order could be substantial in that as well as removing the 28 day period before which an order comes into effect, it also has the effect of meaning that, should an appeal be lodged, the time spent 'serving' an immediate order does not count towards the relevant suspension. He described this as being a draconian effect potentially at the whim of the listing facilities of the court.
Deputy Master Bard pointed out that in this case there was no suggestion that the order had been made on any ground other than that it was in the public interest to do so. He set out that there is a regulatory definition of what is meant by this in the GDC's Scope of Practice document at para 5.11 which makes clear that the PCC exists to protect the public interest which includes – and there are four points:
- the protection to patients, colleagues and the wider public from the risk of harm;
- maintaining public confidence in the dental profession;
- protecting the reputation of the dental professions; and
- declaring and upholding appropriate standards of conduct and competence among dental professionals.
Deputy Master Bard opined that although the wording of the test for interim orders and immediate orders was the same the context was different. He stated that in cases where there was a risk to patients, a risk of harm or issues of public safety the PCC must be astute to ensure such risk is minimised but that public interest issues alone are different.
He referred to Mr Justice Davies comments in the well known case of Sheikh v GDC that it would be relatively rare for an interim order of suspension to be made solely on the ground of public interest.
Deputy Master Bard went on to state that there was a significant difference between an interim order and an immediate order in that in the instance of an immediate order there has already been a finding against a registrant and so their reputation is already damaged and so it is simply the impact on the right to earn a living that comes into play.
In his consideration of whether or not the order was wrong Master Bard stated that it was not a judgment that one would lightly make, bearing in mind that the PCC was a specialist conduct committee experienced in its field. However he concluded that the "importance of the giving of reasons when an immediate order is made should not be underestimated." The PCC were wrong in that he found it hard to see that the public interest was benefitted to any significant degree, to a test of desirability let alone necessity, by the imposition of the immediate order. He speculated that the Committee had conflated the reason given (gravity of the misconduct) with the considerations appropriate in the earlier two stages. He concluded that the making of the immediate order in this case was wrong and that therefore the order should be terminated.