Akhtar v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Judge McKenna |
| Judgment Date | 11 July 2017 |
| Neutral Citation | [2017] EWHC 1986 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/499/2017 |
| Date | 11 July 2017 |
[2017] EWHC 1986 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge McKenna
(Sitting as a Judge of the High Court)
CO/499/2017
Mr Jayesh Jotangia (instructed by Direct Access) appeared on behalf of the Appellant
Mr Sandesh Singh (instructed by the General Dental Council) appeared on behalf of the Respondent
This is an appeal brought by the appellant, Mr Shahzad Akhtar under section 29 of the Dentists Act 1984 in which the appellant seeks to appeal against an order imposed by the respondent General Dental Council's Professional Conduct Committee (PCC) on 5 January 2017 to suspend his registration for a period of six months.
The case against the appellant concerned his practising dentistry when he was not in possession of professional indemnity cover in the period between 19 February 2012 and mid-March 2016 in circumstances where by June 2012 at the latest Mr Akhtar was aware that professional indemnity cover that he had previously had — and had for a number of years — had been terminated, because he was informed of that fact by the Medical Protection Society. He therefore continued to practise dentistry from at the latest June 2012 in the knowledge that he was not appropriately indemnified, actions which are characterised by the respondent as both misleading and dishonest.
The specific charges made against Mr Akhtar are as follows:
"That, being a registered dentist:
1. For some of or all of the period between 19 February 2012 and on or around 14 March 2016 you were not in possession of professional indemnity cover.
2. For some of or all of the period between 19 February 2012 and on or around 02 February 2016 you provided dental advice and/or treatment to patients when you were not in possession of professional indemnity cover.
3. You became aware that your membership of the Medical Protection Society had been terminated with effect from 19 February 2012 for non-payment of your subscription on or about March 2012.
4. For some of or all of the period between 19 February 2012 and 02 February 2016 you continued to provide dental advice and/or treatment to patients when you knew or ought to have known that you were not in possession of professional indemnity cover.
5. Your conduct in relation to allegation 4 was:
A. Dishonest and/or
B. Misleading.
[…]
AND that by reason of the facts alleged your fitness to practise as a dentist is impaired by reason of your misconduct."
At a hearing before the PCC panel on 4 and 5 January 2017 Mr Akhtar, to his credit, admitted all of the allegations following which (perhaps not surprisingly) the PCC found the charges proved, relying on the documentary evidence that was produced to it and of course Mr Akhtar's admissions. The PCC therefore proceeded to stage two. Submissions were heard on the stage two issues of misconduct, impairment and sanction, and on 5 January 2017 the following determinations were made. First, on impairment:
"The Committee noted that there was no evidence that there had been actual harm to patients in this case. However, in the absence of indemnity cover there was the risk that patients may not be able to claim compensation. The Committee considered that some of the facts relating to your lack of indemnity cover are capable of being remedied. It noted that you now have current indemnity cover and that you have obtained retrospective cover which goes some way to remediating your conduct. It also took into account that you have demonstrated some insight through your early admissions to the allegations and from your written statement. In particular, you stated '… I should have sorted the matter out as regaining indemnity should have taken precedent and should have been my first priority …' Additionally, in your written statement you did demonstrate some remorse and you apologised for your actions.
Whilst the Committee accepted that you obtained retrospective cover and have developed some insight, dishonesty has been found in this case and the Committee is mindful that, as a matter of principle, attitudinal and behavioural shortcomings connoted by dishonest conduct are often more difficult to remedy than, for instance, clinical concerns. The Committee concluded that it had before it no evidence to demonstrate that you now understand the consequences of the effect that your actions had on your patients or the profession. In particular, you do not appear to understand the risks that your conduct posed to public confidence and trust in the profession.
The committee considered that, due to the remaining financial difficulties you are experiencing, there did continue to be some risk of repetition engaged in this case. However, it concluded that, as a result of your developed insight and the effect this process has had on you, that the remaining risk of harm to patients was minimal. The Committee was of the view that it is unlikely that you would repeat the same behaviour in future.
Whilst the Committee bore in mind that its primary function is to protect patients, it also took into account the wider public interest, which includes maintaining confidence in the dental profession and the GDC as a regulator, and upholding proper standards and behaviour. The Committee concluded that to make a finding of no current impairment would send a message to the public and the profession that your conduct was acceptable. It concluded that trust and confidence in the profession and in the GDC as the regulator would be seriously undermined if a finding of impairment was not made. The Committee had regard to the serious nature of the issues identified in the circumstances of this case when reaching this decision.
The Committee therefore finds that your fitness to practise is currently impaired."
The Committee then went on to deal with sanction, and the following appears:
"In reaching its decision the Committee again took into account the GDC's Guidance for the Practice Committees, including Indicative Sanctions Guidance … The Committee considered the range of sanctions available to it, starting with the least serious. It applied the principle of proportionality, balancing the public interest with your own interests.
In considering the matter of sanction, the Committee considered the mitigating and aggravating factors in this case.
In the Committee view the mitigating factors were:
— evidence of the serious financial and personal difficulties you were experiencing;
— evidence of good conduct following the incident in question, particularly any remedial action, namely obtaining retrospective cover;
— evidence of previous good character;
— evidence of some remorse shown, some developed insight and an apology given;
— no evidence of actual harm to a patient; and
— no direct financial gain on your part.
Aggravating features include:
— dishonesty which included a breach of trust between you and your patients; and
— misconduct sustained or repeated over a period of time.
The Committee took into account that there had been no clinical failings in this case and the positive testimonials that it had before it, which indicated that you were considered to be a well regarded dentist by your patients.
In light of its findings, the Committee determined that it would be wholly inappropriate to conclude this case without taking any action in respect of your registration, given the serious departures from the standard expected of a registered dentist, including its finding of dishonesty. It reached the same conclusion in respect of a reprimand. The serious nature of the conduct that it has found, raising as it does significant concerns about public trust and confidence, as well as the standing and reputation of the profession and the regulatory process, means that a form of action must be taken.
The Committee next considered whether a period of conditional registration would be appropriate. The Committee determined that, given the serious findings that it has made in respect of allegations which are not clinical in nature, there are no conditions that could be formulated which would prove to be workable, measurable or enforceable, or which would adequately address the public interest concerns engaged in this case.
The committee next considered whether a period of suspension would be appropriate in this case. The Committee accepted the submission, from Mr Jotangia, that you were experiencing difficult financial circumstances which spiralled out of control and led to your conduct. Whilst it also accepted that, your dishonest conduct was not calculated, the Committee considered that it represented serious departures from the expected standards of a registered dentist, over a sustained period of time, and that public confidence in the profession and the GDC, as its regulator, would not be upheld by any lesser sanction than one of suspension.
The Committee was aware that the effect of this order is that you will be prevented from working as a registered dentist. This could result in financial hardship, and the Committee received information from you that the financial impact would be serious. However, in applying the principle of proportionality, the Committee determined that your interests in this regard were outweighed by that of the wider public interest.
Accordingly, the Committee determined that the appropriate and proportionate sanction was one of suspension. The Committee did consider erasure but concluded that it would be disproportionate in the circumstances of this case. You have taken steps to...
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