PSA v GDC and another [2016] EWHC 1539 (Admin)

Posted by Antonia Dowgray on
On 30 October 2015, following a disciplinary hearing, the General Dental Council's Health Committee ("the Committee") imposed a Conditions of Practice Order upon AB, a dentist ("the Dentist").  The Professional Standards Authority ("the PSA") subsequently brought an appeal against the Committee's decision. There were five grounds of appeal, which the PSA had slightly refined by the conclusion of the appeal hearing, including that:
  • There had been little exploration, and therefore evidence, of the circumstances in which the Dentist had provided a false answer on a pre-admission health questionnaire in 2007, such that the Committee was not entitled to determine it was not of such seriousness as to amount to misconduct. The Committee was in error in treating dishonesty, which was unrelated to the profession as, automatically, not amounting to misconduct;
  • In the absence of sufficient reasons, which were not provided by the Committee, it was aberrant for the Committee to find dishonesty established in only one of the series of similar incidents of non-disclosure;
  • The Committee failed to provide any or any adequate reasons as to why it departed from the GDC's Indicative Sanctions Guidance, when the circumstances of the case indicated Suspension, rather than Conditions. The Committee had failed to have any regard for the fact the Dentist had not taken any action after the initial report by NHS England in 2013;
  • The Committee had overlooked or underestimated the significance of the lack of insight exhibited by the Dentist in regard to the impact of his (health) condition on his professional work.

The High Court of Justice found that the sanction imposed by the Committee was unduly lenient. It quashed the order for Conditions, and remitted the case back to the Committee for it for further consideration as to the appropriate sanction in the case (in light of the Court's judgment).

Facts

On 22 November 2013, NHS England visited the dental practice where the Dentist was a principal.  This was following a written request, dated 14 February 2013, from NHS England for evidence relating to adequate hepatitis antibody titre for the practice staff, which had not been fulfilled. NHS England notified the Dentist of this failure in an interim report dated 6 December 2013. Subsequently, on or about 25 April 2014, blood tests were carried out upon the Dentist, which revealed that he had the hepatitis B virus. The GDC were informed of the results on 12 June 2014.

During the course of the GDC's investigation, it was discovered that a liver biopsy, carried out on the Dentist in June 1998, revealed that he had changes which were consistent with chronic hepatitis B. It was further discovered that, not only had those findings not been revealed by the Dentist either to the GDC or to other health professionals who had been treating him, but that the Dentist had not complied with appropriate guidance in relation to hepatitis B infected healthcare workers. The charges before the Committee included that the Dentist:

  • had adverse health conditions;
  • had not disclosed the condition to the GDC and to medical practitioners;
  • completed a pre-admission health questionnaire on 8 November 2007, ticking "no", in response to the question: Have you ever had a liver disease or been jaundiced?;
  • failed to make himself aware of or comply with guidance relating to Hepatitis B infected Health Care workers, including continuing to undertake Exposure Prone Procedures.

The GDC's case before the Committee was that the various aspects of the Dentist's conduct were dishonest; deliberately misleading and/or recklessly misleading. The Committee only found dishonest conduct in relation to the answer on the pre-admission health questionnaire. 

Judgment

Handed down by Mr Justice Baker.

Baker J noted that the main thrust of the Dentist's case before the Committee was that, as a result of the diagnosis in 1998, although he appreciated that he had been diagnosed with hepatitis B, the Dentist believed that he was not infectious, and therefore, because of the lack of risk to patients, there was no need to disclose his condition to the GDC or any other healthcare professionals.  Further, that this mitigated any culpability for his failure to make himself aware of and/or comply with appropriate guidance regarding those suffering from the condition.

The determination of the issue largely rested upon the Committee's assessment of the Dentist's credibility. Baker J noted that the Committee said, in terms, that they found the Dentist to be "a generally credible witness".  Baker J noted the PSA challenged the assessment, amongst other matters, on the basis it was inconsistent with the Committee's finding of dishonesty in regard to the false answer given on the health questionnaire.

Baker J found that the Committee "were entitled to reach its central determination", namely that the Registrant was a generally credible witness, and to accept that, although the Registrant had hepatitis B, he believed he was non-infectious, and was not therefore a risk to his patients.

Baker J accepted that, in having made this credibility assessment, it was not "necessarily to have been anticipated" that the Committee would make a dishonesty finding. However, Baker J was "unpersuaded" that this exhibited a sufficiently inconsistent approach to the evidence, which the PSA had submitted, disentitled the Committee to find he was credible. In reaching this view, Baker J considered the context and evidence upon which the Committee reached its finding. He noted it was "of significance" that the question being asked on the form was in the past tense (have you ever had liver disease…). Baker J said it was clear that the Dentist was aware hepatitis B was a liver disease and that he knew in 1998 he had been diagnosed with the condition.  With these circumstances, Baker J did not:

"…consider the making of a single finding of dishonesty in relation to one discreet aspect of [the Dentist's] conduct concerning his knowledge about his past diagnosis negated the Committee's ability to find that he was generally a credible witness in relation to the central issue which he sought to establish in the course of his evidence" [63].

Baker J took into account, when reaching his views (including the Committee's findings on reckless), that the Committee "saw and heard evidence" from witnesses including the Dentist, and the Committee was in the "advantageous position to make a proper assessment of the credibility of these witnesses, and the evidence which they provided".

Baker J accepted that the fact he was a dentist and had undergone further blood tests in Denmark after his diagnosis were matters of significance and accepted that not every Committee would have necessarily reached the same overall credibility conclusion in relation to the Dentist.  However, in Baker J's judgment neither of these factors, nor those submitted by the PSA or GDC, were such that the Committee's determination on the issue could be said to be wrong (that is, the test for intervention by the Court in order to disturb the Committee's primary factual findings). 

Baker J noted it was apparent from the Committee's decision that it was aware that its determination, namely that it's finding that the dishonesty was not serious (and therefore did not amount to professional misconduct), "was unusual". The Committee relied on three matters to reach its conclusion:

  1. the singular nature of the incident;
  2. that it had not involved loss or gain to anyone;
  3. that the conduct was not in the context of dentistry.

Baker J found that the Committee was entitled to reach the conclusion the dishonesty did not take place in the context of dentistry. The disclosure related to a pre-admission health questionnaire which was completed by the Registrant, prior to undergoing an operation relating to his hearing. There was no evidence that those receiving the information on the questionnaire (if it had been disclosed by the Dentist that he had suffered from liver disease) would have been under any obligation to disclose, or had been likely to have disclosed, the information to the GDC. Baker J was satisfied that the non-disclosure was not made in relation to the Dentist's practise of dentistry; it was not made in response to an enquiry by the GDC, or related to his dealing with any of his patients or those provided funding for his dental services.

Baker J accepted that the Committee could have explored in more detail the Dentist's motivation for the single incident of dishonesty, but accepted the Committee made its determination "against the backdrop of its overall conclusion" on credibility. Baker J was "ultimately unpersuaded" that the Committee reached a wrong decision or that the decision was unduly lenient (in relation to the Committee's decision that its finding of dishonesty did not justify a finding of professional misconduct).

In his judgment Baker J said, "the most significant adverse findings" against the Dentist were in relation to the extent of his culpability for failures to make himself aware of appropriate Department of Health Guidance, and his continued undertaking of exposure prone procedures, whilst suffering from the condition. The Committee found the Dentist had been reckless, and imposed a sanction of Conditions (which the PSA and the GDC submitted was unduly lenient amongst other submissions).

Baker J reminded himself that, on the question of undue leniency, it was necessary to consider whether the sanction imposed was one which a disciplinary tribunal, having regard to the relevant facts and the object of disciplinary proceedings, could reasonably have imposed.

Baker J found the reasons given by the Committee, in explaining why a conditions of practice order as opposed to suspension was the appropriate sanction, were inadequate and determined that insufficient consideration was given to the relevance of the Dentist's insight into his misconduct, when considering the question of appropriate sanction. 

Baker J also found there was no indication that the Committee considered whether the public confidence in the profession would be insufficiently protected by an order of Conditions, rather than suspension (beyond a "general expression" on the issue).

Importantly, for Baker J, there did not appear to have been any determination on a "relevant issue of potential significance", namely the Dentist's "culpability for the delay over a year" between NHS England's request for evidence of adequate antibody titre in February 2013, and his undergoing blood tests in April 2014. During this period, the Dentist continued to practise, treating patients who would have been at risk of being infected with the virus. Baker J said:

"although this issue had not been made the subject of a formal charge, it was one which clearly arose from the evidence during the course of the proceedings, and required determination by the Committee in that if it considered that [the Dentist] bore culpability for the delay, then this was a further, and potentially important, aggravating factor".

Baker J accepted submissions from the PSA and the GDC that the reputational damage to the profession and the case "remains of a high order".  He was not only satisfied that the Committee failed to provide reasons for its decision upon sanction in the case, but that it failed to make a determination upon the potentially significant aggravating factor. Baker J found that the Committee reached an unduly lenient decision on sanction, determining Conditions was not a sanction which could reasonably have been imposed in this case. 

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Antonia is a Senior Associate in our Professional Regulatory team based in London.

Antonia Dowgray
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