Akhtar v GDC (QBD, Administrative Court) (unreported)

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The Claimant was a dentist who was appealing against a six-month suspension imposed by the Professional Conduct Committee ("PCC") for failing to have professional indemnity insurance for a period of four years. The Claimant argued this was inconsistent and/or disproportionate when compared with a previous PCC decision which had imposed only a three-month suspension for a similar offence. The Claimant further argued that it was inappropriate to impose a six-month suspension as he had already been subject to a six-month suspension during the disciplinary proceedings.

The Judge dismissed the appeal and held that the previous PCC decision had not set any benchmark and that in each case the PCC had a margin for judgment. The Judge also found that the PCC had taken the interim suspension into account in reaching their decision, and were therefore entitled to impose a six-month suspension notwithstanding the interim suspension.

Facts

Between February 2012 and March 2016, the Claimant practised as a dentist without professional indemnity insurance. It was found that the Claimant had been made aware of this by June 2012.

The General Dental Council ("the GDC") brought proceedings against the Claimant alleging he had been dishonest and misleading in treating patients whilst knowing he did not hold valid indemnity insurance. For this reason, the GDC alleged his fitness to practise was impaired. During proceedings, a six-month interim suspension was imposed.

The Claimant admitted to all of the allegations. The PCC decided a six-month suspension to be the appropriate sanction; while the Registrant had arranged for retrospective indemnity insurance, had shown insight into his wrongdoing, and there was no evidence of patient harm, a suspension was necessary to  maintain the public's trust in the regulation of the profession given the finding of dishonesty.

In appealing against the sanction, the Claimant referred to a previous PCC decision, Carmichael, where only a three-month suspension was imposed, arguing a six-month suspension was inconsistent or disproportionate. It was further argued that considering the Claimant had already been subject to a six-month interim suspension, it was inappropriate to impose a further six-month suspension.

Outcome

The Judge dismissed both grounds.  It held that the previous PCC decision, Carmichael, was not to be considered as a benchmark for other cases. Furthermore, while these cases were similar, they were also distinguishable; in Carmichael, the dentist had been uninsured for only eighteen months, whereas in this case it had been four years. Additionally, in Carmichael there had been no allegation of dishonesty. The Judge also pointed out that in each case, the PCC had a margin of judgment, and did not have to rigidly stick to specific sanctions for specific allegations. Instead, they could take into account the different factors in each case.

Dismissing the second ground of appeal, the Judge then held that the PCC had taken into account the six-month interim suspension; the interim suspension had been acknowledged in the hearing, and the PCC had been advised to take the interim suspension into account by the legal advisor. Applying Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin), it was for the PCC to decide whether the interim suspension should have an effect on the final sanction. Therefore, as the PCC had considered the interim suspension, the Judge held they were entitled to decide that a suspension was necessary to maintain public confidence in the regulation of the profession.

Commentary

This case demonstrates that in each case, the PCC has a margin for judgment when deciding a sanction and, generally speaking, a sanction imposed in a previous case does not dictate the sanction for later hearings with similar facts. Additionally, where there has been an interim suspension in place, the PCC needs only to have considered its existence when applying the final sanction, rather than apply the effect of the interim suspension to the final sanction.