R(on the application of Rothschild) v GDC  EWHC 1632
This case is significant in two respects. First, it confirms that section 40 of the Dentists Act 1984, which precludes unregistered persons (which encompasses suspended dentists) from receiving payment for dentistry carried out by other people, does not preclude suspended or erased owners of dental practices from engaging locums to ensure continuing care for their patients. The only restriction is on them earning money for doing so.
Second, and more importantly, it suggests for the first time that where the representation of previous counsel is criticised in an appeal arising from proceedings before a professional regulator, a similar process should apply to that utilised in criminal proceedings. No explicit guidance was given by the court in that regard. However, where Grounds of Appeal are being settled which involve criticism of the conduct of previous representatives, careful consideration should be given to ensuring the following steps are taken:
- Obtaining a written waiver of privilege from the client;
- Obtaining copies of the client files and inviting the previous representatives to respond in writing to the client's allegations; and
- In the event that there is a material dispute of fact, put the previous representatives on notice that they may be required to give evidence.
In June 2016, around the time this case was heard, the Bar Council issued guidance to counsel instructed to settle allegations of incompetence. Following this case, this guidance may be of assistance for those instructed to allege incompetence to ensure that they comply with their own professional duties.
High Level Summary
An application to terminate an immediate order for suspension was refused. Section 40 of the Dentists Act 1984 does not preclude a suspended dentist from finding a successor or engaging a locum, provided he receives no payment himself for services rendered. Where the incompetence of the previous representatives is a ground for challenging a finding it is inadequate for them to merely be informed that criticism will be made.
Dr Rothschild was the subject of proceedings before the Professional Conduct Committee ("PCC") of the GDC in relation to allegations pertaining to medical emergencies, health and safety practices, and compliance with statutory requirements. The PCC considered the allegations to amount to misconduct and that Dr Rothschild's fitness to practise was impaired. The PCC determined that the appropriate sanction to impose was suspension for a period of 9 months.
After hearing submissions, the PCC imposed an immediate suspension order under section 30(1) of the Dentists Act 1984, an order which remains in force until such time as the substantive order comes into effect. Dr Rothschild applied to the High Court for an order terminating the immediate suspension under the section 30(7) of the Act.
It was submitted on behalf of Dr Rothschild, who wished to retire from practice, that the effect of the immediate order was that he would be unable to wind up his dental practice in an orderly fashion and that would lead to a serious prospect of the value of the practice's goodwill being irretrievably lost. That was so because the effect of section 40 of the Act is to preclude a suspended dentist from carrying on the business of dentistry. As a result, the order for immediate suspension was disproportionate in all the circumstances.
It was further submitted that Dr Rothschild's barrister did not address the PCC on these points and also refused to permit Dr Rothschild to do so himself.
Supperstone J dismissed the claim.
The court considered that the PCC was entitled to reach the conclusion, on the evidence available and the submissions made to it, that Dr Rothschild had a significant lack of insight and that there was a risk of repetition of the identified failings. The court said that the PCC can only be expected to deal with the submissions before it.
The court did not consider that where criticism of previous counsel is made, it is sufficient for previous counsel to merely be put on notice by counsel for the Defendant that criticism will be made by the Claimant of their conduct. In the absence of a response from previous counsel, the court is left with the allegations without knowing whether there is any basis for them. In any event, the court considered that the submissions made by counsel at the hearing, albeit succinct, were focused and realistic in light of the PCC's findings.
The court further concluded that, in any event, the PCC cannot be said to have made a wrong decision, even in light of the fresh submissions. The court rejected the submission that section 40 of the Act precluded Dr Rothschild from either finding a successor or employing a locum to continue the care of patients in the interim. A suspended dentist may find a successor or engage a locum provided that he or she does not themselves receive any payment for services rendered. The court was not persuaded that the effect on the value of the practice by the immediate suspension was anything other than minimal and that the immediate suspension order was both necessary and proportionate.