Professional standards authority for health and social care appellant against General Dental Council (First Respondent) S T (Second Respondent)

Posted by Charles Sinclair on

Summary

The PSA appealed a decision by the GDC committee on the basis that its decision was unduly lenient on the Registrant. 

Facts

The initial case against the Registrant included charges of sexual harassment of colleagues and the consumption of codeine linctus during working hours. The charges were admitted.  On 16 September 2015, the GDC health committee found the Registrant's fitness to practise was impaired by reason of misconduct and not health.  The Registrant received a 12 month conditions of practice order. 

The charges were of a health condition and inappropriate behaviour towards colleagues A and B. Colleague A was a 19 year old dental nurse assigned to the Registrant and colleague B was a female dentist.  The committee found the Registrant had breached his professional boundaries and that the alleged comments had been made, and were of a sexual nature.  The committee found a number of additional aggravating factors.  When considering sanction they decided that the public would be suitably protected by a conditions of practice order.

The PSA appealed the determination on public protection grounds.

Appeal

Under-prosecution

The PSA's legislative authority is from the National Health Service Reform and Health Care Professions Act 2002 ("the Act").  Under section 29 of the Act, the PSA has the power to refer disciplinary cases to the court.  The four grounds of appeal open to them are: the case was under-prosecuted; the sanction imposed was unduly lenient; the conditions dictated by the conditions of practice order were not appropriate to the level of misconduct; and the reasons given by the committee were not adequate.

Mr Johnston for the PSA argued that the power to refer the case was awarded by section 29 of the 2002 Act:

(1) (e) where the section applied to a 'direction by...the Health Committee of the General Dental Council under any of sections 27B, 27C, 36Por 36Q of the Dentists Act 1984 following a determination that a person's fitness to practice as a dentist...is impaired' and section

(3) The things to which this section applies are referred to below as 'relevant decisions' and section

(4) If the Authority considers that--

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such finding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within subsection (2) should not have been made,

Mr Johnston relied upon the judgment of the Court of Appeal in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo as highly persuasive authority.  This addressed under prosecution due to not providing all of the relevant material before the committee.  This case found subsection 29(4) was not confined to a sanction but directed at a decision.  In addition, he relied on two subsequent cases (R (Council for the Regulation of Health Care Professionals) v General Medical Council and Dr Mahesh Rajeshwar and R (Council for the Regulation of Health Care Professionals) v Nursing and Midwifery Council) in which the decision in Ruscillo was followed in the administrative court.

Mr Dunlop QC, for the GDC argued that for subsection (4) (a) to be engaged, it was essential for there to have been a finding of impairment under section (1)(e).  There needed a decision with a finding of impairment and the committee had made a direction or declined to make a direction.  The power to refer was restricted to sanction and could not refer a case of under-prosecution. 

Mr Dunlop QC further submitted that section 27B gave the PSA provision to consider the duties of the practice committees only and not the registrar or the investigating committee, sections 27 and 27A, who, in this case, decided to prosecute.

Mr Johnston QC counter argued that if no finding of impairment was found and thus the PSA could not refer the case under section 29(4), there would be a large gap in which the PSA could not refer matters.

Mr Johnston QC submitted there had been under prosecution in relation to the details of the behaviour towards Colleagues A and B not being fully specified and inappropriate conduct towards a third colleague has not been charged.  Mr Johnston QC further submitted sexual motivation ought to have been specifically alleged. 

The court, having reviewed the committee's findings, confirmed that it had been accepted that there was sexual motivation present.  The court further reviewed the third colleague's evidence and stated that even if the conduct in relation to this had been charged and found proven, it was very unlikely to have made a material difference to the committee's approach towards the registrant and/or to its disposal of the case.  The case for an appeal on the ground of under prosecution had not been established by the PSA. 

As the court had not found under prosecution, it did not give consideration as to whether section 29 gave the PSA the power to refer a case on this ground.  Section 29 is considered an area to watch in the future as guidance maybe offered in a future case.

Sanction

Mr Johnston QC submitted that the committee did not place enough weight on the aggravating factors present in this case and that a suspension was the appropriate sanction to protect the public and uphold the reputation of the profession. 

Mr Duncan submitted the committee had gone through a discriminating approach as to the question of sanction and having focused on the registrant's insight; they carefully considered and rejected suspension.

The unduly lenient test applied by the court was whether the committee had reached a decision as to sanction which was manifestly inappropriate having regard to the practitioner's conduct and the interests of the public (Ruscillo, para.77).

In making a finding of impaired fitness to practise, the committee had considered the Registrant's ongoing remediation.  The Registrant did not, however, demonstrate full insight at the time of the hearing.  The committee determined that there was insufficient remediation to completely remove the risk of repetition.  However, the committee considered that a suspension would not enable the Registrant to address the issues which had been identified by the committee.  The committee considered that a suspension was disproportionate and the public would be suitably protected and the public interest upheld with the conditions of practice imposed. 

The court considered that the relevant material had been put before the committee and further considered the relevant factors of the case and acknowledged the experience of the committee members.

Conditions were not appropriate due to the level of misconduct

The court found that conditions were appropriate to monitor the Registrant.  They required the Registrant work through his personal development plan and for it to be carefully monitored.  The Registrant was also to be supervised whilst working which offered public protection.  The court further found that the committee's reasons were adequate.  They stated an 'informed reader would be in no real or substantial doubt as to the reasons for the committee's decision.'

Outcome

Held (1) that a case for allowing an appeal on the ground of under-prosecution had not been established and each of the three cases of under-prosecution referred to by counsel was readily distinguishable from the case of the second respondent (para.30); and

(2) that the sanction imposed by the committee could not be said to be unduly lenient (para.47); and appeal dismissed.

Opinion reserved as to whether s.29 empowered the PSA to refer a case to the court on the ground of under-prosecution.

Commentary

Whilst the court elected not to clarify the power of s29 of the National Health Service Reform and Health Care Professions Act 2002, it was demonstrated in this case that if other material is seen and not considered to have materially altered the potential outcome, then under prosecution is unlikely to be proven. The case also shows that if the court considers that the public is sufficiently protected, irrespective of the type of sanction which is determined, that an unduly lenient appeal is unlikely to be upheld.

About the Author

Charles predominantly works on fitness to practise investigations on behalf of clients.

Charles Sinclair
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