Abraham Johannes Henning v The General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 28 January 2022 |
| Neutral Citation | [2022] EWHC 175 (Admin) |
| Docket Number | Case No: CO-2261-2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 175 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM A DECISION OF THE PROFESSIONAL CONDUCT
COMMITTEE OF THE GENERAL DENTAL COUNCIL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Hill DBE
Case No: CO-2261-2021
James Buchanan (instructed by The Medical Protection Society) for the Appellant
Peter Mant (instructed by The General Dental Council) for the Respondent
Hearing date: 19 January 2022
This judgment was handed down remotely by circulation to the parties' representatives by email. It will also be released for publication on BAILII and other websites. The date and time for hand-down is deemed to be 10.30 am on 28 January 2022.
Introduction
This is an appeal under section 29 of the Dentists Act 1984 (“the Act”). The Appellant is an orthodontist who retired in 2018 but who continued to be registered with the General Dental Council (“the GDC”), the regulatory body for dentists. On 27 May 2021 the GDC's Professional Conduct Committee (“the Committee”) determined that his fitness to practise was impaired by reason of misconduct and imposed a sanction of suspension for six months with review. The Appellant appeals the Committee's findings of fact in relation to four of the heads of charge, its decision that his fitness to practise as a dentist was impaired and the sanction imposed.
The facts
The Appellant has been in practice as a dentist for over 30 years. No allegations of poor performance had been made against him before the complaints that underpin this appeal. All the allegations relate to one patient, known for the purposes of these proceedings as ‘Patient A’. The Appellant provided orthodontic treatment to Patient A between January 2015 and July 2017. She had sought treatment in order to straighten her bottom teeth and for the widening and straightening of the definition on her top arch. The treatment that was provided included the placing of brackets on Patient A's teeth using the ‘Damon’ technique.
The Committee is one of the Practice Committees responsible under section 27B(1) of the Act for determining whether a dentist's fitness to practise is impaired. The Committee's procedure is governed by The General Dental Council (Fitness to Practise) Rules 2006 (“the Rules”), made under the General Dental Council (Fitness to Practise) Rules Order of Council 2006 (SI 2006/1663).
The charge of misconduct against the Appellant was particularised as follows:
Head of charge 1(a) alleged that the Appellant did not carry out sufficient diagnostic assessments prior to commencing treatment of Patient A on 16 January 2015, in that he did not carry out a general dental assessment adequately or at all;
Heads of charge 1(b)(i)-(ix) alleged that the Appellant provided a poor standard of orthodontic treatment to Patient A in nine different respects from 16 January 2015 to 3 July 2017;
Heads of charge 1(c)(i)-(vii) alleged that the Appellant did not adequately respond to the concerns which Patient A expressed about her treatment on seven different occasions;
Head of charge 1(d) alleged a failure to manage Patient A's pain effectively on 11 January 2017;
Head of charge 2 alleged a failure to maintain adequate professional boundaries with Patient A;
Heads of charge 3(a)-(c) alleged a failure to treat Patient A with dignity and respect in respect of three comments made on 3 April 2017; and
Heads of charge 4(a)-(d) alleged failures to maintain an adequate standard of record keeping in respect of Patient A's appointments.
The hearing before the Committee lasted 9 days between 17 and 27 May 2021.
Under the Rules, the Committee first determines which of the facts alleged it finds proved (Stage 1) and then determines whether, in the light of the facts found, the dentist's fitness to practise is impaired and, if so, whether to give any direction as to sanction under section 27B(6) of the Act (Rule 21). The latter two determinations are made in a single stage (Stage 2).
The Committee heard oral evidence from Patient A and Professor Derrick Willmot (on behalf of the GDC) and from the Appellant, Dr Gerry Bellman and a number of colleagues (on behalf of the Appellant). The Committee also considered the reports from each expert, their joint statement and various other witness statements and documents.
The Appellant admitted heads of charge 1(a)(i),1(c)(v), 4(a), 4(b), 4(c) and 4(d). He admitted, as fact, the individual clinical matters set out in heads of charge 1(b)(i) to 1(b)(vii) but denied that they reflected a poor standard of orthodontic treatment. During the course of the hearing, he made a full admission to head of charge 1(b)(viii), which he had initially denied. All the remaining allegations contained within the charge were denied.
The Committee found charges 1(b)(i), 1(b)(iv), 1(b)(v), 1(b)(vi)), 1(b)(viii), 1(b)(ix), 1(c)(ii), 1(c)(iv), 1(c)(vii) and 1(d)) proved.
In considering whether the facts found proved against the Appellant amounted to misconduct, the Committee had regard to the following GDC Standards which it considered to be engaged:
2.1 Communicate effectively with patients – listen to them, give them time to consider information and take their individual views and communication needs into account.
4.1 Make and keep contemporaneous, complete and accurate patient records.
7.1 Provide good quality care based on current evidence and authoritative guidance.
7.3 Update and develop your professional knowledge and skills throughout your working life.
The Committee made the following observations about the elements of the misconduct found: (i) the failure to carry out a general dental assessment prior to commencing treatment on Patient A represented “a serious breach of the standards expected of a competent dental practitioner” and a “failing in a basic and fundamental aspect of dentistry about which both experts…were critical”; (ii) the individual failings in the standard of treatment the Appellant provided to Patient A were “not necessarily, in and of themselves, failings that fell far below the standard expected”, but “when viewed together, the clinical failings…did reflect a pattern and course of treatment that fell far short of what was proper in the circumstances”; (iii) the Appellant's failure to adequately respond to Patient A's concerns on the four occasions highlighted was “conduct that amounted to a serious departure from the standards” which “persisted over a period of time” which “other dental professionals would find deplorable”; and (iv) the deficiencies in the Appellant's record keeping “persisted throughout the entire period of Patient A's treatment” and “record keeping is a basic and fundamental aspect of general dental practice.”
The Committee noted that the Appellant had been unaware of his obligations in relation to general dental assessments and record keeping and concluded that he should have been aware of both requirements.
The Committee determined that the facts found proved amounted to misconduct. It had been conceded on the Appellant's behalf that misconduct was made out.
The Appellant adduced extensive evidence of remediation in the form of continuing professional development which he had undertaken despite having retired from clinical practice.
Applying Clarke v General Optical Council [2018] EWCA Civ 1463, the Committee decided that it had to assess the Appellant's current fitness to practise, irrespective of his retirement. He remained on the Dentists' Register and, as such, could return to practice.
The Committee concluded that a finding in respect of the Appellant's impairment was necessary for the protection of the public. The Committee also considered the wider public interest. It concluded that public confidence in the dental profession would be seriously undermined if a finding of impairment were not made.
Section 27B(6) of the Act permits a range of sanctions spanning, in order of severity, a reprimand, conditional registration, suspension and removal. As the section is permissive, the Committee may also take no further action following a finding of impairment.
The Committee decided that a six-month suspension, followed by a review, was the appropriate sanction.
The grounds of appeal
The Appellant advances three grounds of appeal.
Under Ground 1 he argues that the Committee erred in its findings of fact in respect of heads of charge 1(c)(ii), 1(c)(iv), 1(c)(vii) and 1(d), in that the Committee failed to take into account adequately or at all evidence relevant to Patient A's credibility. It is submitted that such a failure was a serious irregularity in the proceedings and renders the determination of the Committee unjust.
Under Ground 2 he submits that the Committee's finding on impairment was wrong because (i) it gave insufficient weight to the extensive evidence of remediation produced by the Appellant; (ii) it placed undue weight on the fact of the Appellant's retirement from practice; and (iii) it did not take into account that the Appellant's failings related to the treatment of a single patient only.
Under Ground 3 he argues that the sanction imposed was disproportionate and excessive and/or wrong on the basis that (i) the allegations found proved were in respect of a single patient and were not representative of the Appellant's general standard of treatment and/or conduct; and (ii) the order for suspension with a review was unworkable and/or one which it was impossible for the Appellant to complete successfully.
The legal framework
(i) The nature of the appeal
Under section 29(1) of the Act, a decision to impose suspension is appealable to this court.
Under section 29(3) of the Act, on...
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