Mohammed Ashraf v General Dental Council [2014] EWCH 2618 (Admin)

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Facts

The appellant, a general dental practitioner, was the owner and principal of a general dental practice in Bradford. He was investigated by the NHS Dental Fraud Team on suspicion of making inappropriate and dishonest claims to the NHS for payment over the period 2006 to 2008. He was alleged to have attempted to frustrate the investigation by failing to supply copy patient records and by interfering with witnesses. The Dental Fraud team referred the matter to the GDC in 2009.

In 2012, the appellant was also the subject of a criminal prosecution in respect of the same claims. He was acquitted of all charges.  

The appellant was then the subject of GDC fitness to practise proceedings. He applied to stay the proceedings as an abuse of process owing to his acquittal in the criminal courts. The application was refused and the matter proceeded to a Professional Conduct Committee ["PCC"] hearing. The PCC determined that the appellant had made inappropriate and dishonest claims to the NHS and had further interfered with the counter fraud investigation. The PCC sanctioned an erasure from the register.  The appellant appealed the determination pursuant to s.29 of the Dentists Act [1984].

The court had to determine whether: (i) the PCC had erred in not staying proceedings considering the appellant had been acquitted of largely the same charges by a jury, (ii) the PCC had made incorrect factual findings, and (iii) the PCC had made an incorrect determination as regards the appellant's fitness to practise and requisite sanction.

The appeal was dismissed.

Judgment

Handed down by Sir Brian Leveson P

Ground 1: Abuse of Process

Leveson LJ referred to the accepted principle that disciplinary proceedings following an acquittal in the criminal courts are not "inherently abusive". He deprecated the appellant's reliance on R (Redgrave) v Commission of Police for the Metropolis [2003] 1 WLR 1136, where Simon Brown LJ referred to the the 1999 Home Office Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures, which stated "(a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is in substance the same as the criminal charge…it will normally be unfair to institute disciplinary proceedings". Leveson LJ noted that this Home Office guidance had now changed, and merely suggested that an acquittal was a relevant factor to be considered when deciding whether to continue with police disciplinary matters. He emphasised that Redgrave was not "authority… for the proposition that it was an abuse of process to bring disciplinary proceedings against a person on substantially the same subject matter as had been the subject of failed criminal proceedings".

He referred to the differing purpose of criminal and regulatory proceedings, and the need to maintain the standards and integrity of professions. He stated that there may be circumstances where it is unfair to proceed in these circumstances:

"Without seeking to be determinative, it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly). This elaboration, however, is not intended to be definitive guidance: regulators must each determine how they go about achieving their regulatory objectives and, bearing those objectives in mind, faithfully apply the well known principles engaged within the concept of abuse of process."

Leveson LJ concluded that, "viewing the allegations through the prism of the importance to the public of the integrity vested in dentists in connection with payment claims (and the critical importance that those whose conduct is under scrutiny do not seek to impede the investigation)" the PCC's decision was justified. There was no error of law and dismissed this ground.

Ground 2 Finding of Fact:

The appellant argued (with an acknowledgment that the court was not best placed to assess the credibility of live witnesses) that the PCC had "unreasonably" disregarded contemporaneous records and claim form evidence during the disciplinary hearing. 

Leveson LJ applied the principle from Biogen Inc. v Medusa plc [1997] RPC 1 that the court should apply caution when being asked to differ from a judge's evaluation of witnesses. The test of whether the determination of the PCC was manifestly wrong (Meadow v General Medical Council [2006] EWCA Civ 1390) was applicable here and it was his opinion that the appellant had not shown the PCC's evaluation of the evidence "with reasonable certainty to be wrong" and that the reasons given by the panel were made within the "appropriate limits of a proper assessment of the evidence"

The appeal failed on this ground.

Ground 3 Impairment and Sanction:

The appellant advanced arguments of good character and the modest sums involved in the fraudulent claims. The appellant had also remained on the register throughout the GDC investigation, practising for a significant period of time without posing any risk to patients. 

Leveson LJ found that the appellant had provided no basis upon which to challenge or overturn the PCC's determination.  The PCC had acknowledged the appellant's community work and his practise leading up to the hearing, but "it is simply not possible to argue that fitness to practise is not impaired when the trust and confidence that the NHS funding body (and, thus, the public) must be able to maintain in those who are contracted to provide services is lost and that the loss of that trust and confidence is an inevitable consequence of the adverse findings." As to sanction, the PCC had considered the modest sums involved and the impact on the appellant in making their sanction. This ground was dismissed and so the appeal as a whole.