Alberts v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 10 May 2022 |
| Neutral Citation | [2022] EWHC 2192 (Admin) |
| Docket Number | No. CO/439/2022 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 2192 (Admin)
Mrs Justice Foster DBE
No. CO/439/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Miss N Gomersall (instructed by Irwin Mitchell) appeared on behalf of the Claimant.
Mr T Orpin-Massey (instructed by the General Dental Council) appeared on behalf of the Respondent.
( )
This is an appeal against the decision of the Professional Conduct Committee (“PCC”) of the General Dental Council (“GDC”) on 13 January 2022 by which it suspended the Appellant's registration for a period of 12 months, having found his fitness to practise was impaired by reason of his misconduct. By this appeal, the Appellant originally challenged, first, the finding that the Appellant's fitness to practise was impaired on the grounds of public protection; alternatively, secondly that the finding was unjust, because of a serious procedural irregularity, in that the PCC failed to give adequate reasons for their decision and, in any event, thirdly, that the PCC was wrong to consider a direction for suspension for 12 months was either necessary or proportionate in all the circumstances.
By a late notified concession, the Appellant dropped his first and second grounds of challenge. The court commends this approach and, although no argument was heard, I wish to indicate to the Appellant that it was an entirely proper approach to take given the materials and conclusions to which this court was likely to come on those issues. This has become a challenge only to the imposition of the 12-month suspension.
Background
Mr Tertius Alberts used to own a dental practice in which the incidents which are the subject of this appeal took place. At the relevant time he had sold the practice but was working there part-time. He is, and remains, a dentist registered with the GDC and has been in practice for a number of years. At the time of the incidents in November 2020, he was about eight months into this new pattern of working. The complainant was a dental nurse who had just begun to work at the practice when the events in question took place. It appears that they had never worked together, nor indeed met before the first incident.
The findings followed a three-day hearing by the PCC. The circumstances which gave rise to their conclusions were that the Appellant had made comments to this junior female colleague at work on two separate dates which were in terms of “How lovely your eyes are” and “Your eyes are like the snake from the Jungle Book. If I look into them for too long, I'll get into trouble”. These comments were made on two dates in early November 2020.
In respect of both comments the Appellant accepts they were made within the hearing of other dentists at the practice and that, in respect of the second, he, Mr Alberts, winked at another dentist at the time of the comment.
The evidence given by Mr Alberts contained the following passages:
“ Q. Do you accept that it is a very personal thing to comment on someone's attractiveness?
A. You keep using the word ‘attractiveness’, with respect I only commented on her eyes, she was wearing a mask, so it left me with the hair and the eyes and, in my usual way of complimenting people, I remarked that she had lovely eyes.
Q. Mr Alberts, you did not have to comment on her appearance at all, did you?
A. Again, if I say with the knowledge of hindsight, if I knew it would have caused her discomfort, I would not have made those, but that is not what I mean. I mean as a level playing field, if I can use that term, because I have always been level with all my staff and my patients. I have never been myself on a pedestal above everyone else and this is part of the way I level the playing field with people, colleagues and the patients as well. If I caused her discomfort, yes, again, I made a mistake. That is not what it was supposed to be.
Q. Do you accept that it is a personal thing to comment on how beautiful someone's eyes are?
A. Say that again. Repeat that, please.
Q. Certainly. Do you accept that it is a very personal thing to comment on how beautiful somebody's eyes are?
A. I say it again, I say that I will accept that it is a personal thing, but, as I say, it was not meant as – it was meant as a personal compliment nothing more.
Q. Mr Alberts, do you accept that that kind of personal compliment, as you put it, that that crosses the line from the professional into the personal?
A. I don't have any more comment on what I felt like on the day and what my intention was and my intention was not to be personal. It does not matter this person was beautiful, ugly, normal, it does not make any difference, if I make a compliment to make someone feel comfortable in my presence and to take me off my pedestal.”
Mr Alberts went on to describe his approach as an “icebreaker”. He accepted in questioning that he was about three times the age of the – I will call her – “victim” and wished to emphasise he would not have done it again if he had known that she felt uncomfortable.
He further said this:
“ Q. Mr Alberts, just a few minutes ago, I think in relation to my question, you said that it was jokey, light-hearted characterisation. That is in relation to the second comment about the snake, if I understood you correctly.
A. Say it again.
Q. I just want to check I understood what you said a few moments ago. I asked you – I suggested to you that simply saying that someone's eyes are pretty or beautiful, that is not funny. It is not a joke. I believe your response was, your characterisation of the conversation as a joke relates only to the snake comparison, is that what you are saying?
A. I am saying that, when I say somebody has lovely eyes, they do not see that as a joke, that was the compliment.
Q. That was the compliment, the other was the joke, understood. You also said a few minutes ago that your second comment was to ensure that your first comment was not misinterpreted. Did I catch that correctly just now?
A. Yes. It's probably the wrong way of expressing myself, but that was to stress the way so she understands my jovial easy personality and that the compliments about her eyes were to level the playing field when we joke about the snake to express the way I am with my character as a jovial easy person.”
He further said about the second part of the phrase “getting into trouble”:
“ Q. Let's talk about the phrase “I'll get into trouble”. What you meant there was a sexual connotation, that's what you meant, isn't it?
A. I don't agree with that, because that was not my intention.”
In submissions on behalf of the GDC, it was said that, on the evidence they had received and looking at the words used in context, a reasonable person would consider that, because of the nature of the words, they might be sexual and, looking at the purpose for which they were said, namely, to express sexual interest and signal sexual attraction or both, the words were sexual. The Committee was invited, on the balance of probabilities, to the conclusion that the charge, including that the comments were sexually motivated, was proved.
Mr Alberts accepted that the comments were inappropriate and unprofessional and he accepted that the complainant was made to feel awkward or uncomfortable, but he did not admit that his conduct was sexually motivated. The PCC, however, found that element of the charge proven and it is no longer challenged here.
The finding of the terms of impairment are, however, instructive. Relevantly, the Committee found:
“ When determining whether the facts found proved amounted to misconduct, the Committee had regard to the terms of the relevant professional standards in force at the time of the incidents. The Committee, in reaching its decision, had regard to the public interest and reminded itself that misconduct was a matter for its judgment. The Committee has concluded that your conduct was in breach of the following Standards for the Dental Team (2013):
“ 6.1.2 You must treat colleagues fairly and with respect, in all situations and all forms of interaction and communication. You must not bully, harass, or unfairly discriminate against them.
…
“ 9.1 You must ensure that your conduct, both at work and in your personal life, justifies patients' trust in you and the public's trust in the dental profession.”
The Committee:
“… was of the view that the breaches in this case went to the heart of requirements for professional behaviour. The Committee considered that your conduct in making remarks of a sexual nature fall far below the standards expected of a registered dentist. Your conduct, which the Committee found to be unprofessional and of a sexual nature, was repeated over two separate days for your colleague to be uncomfortable. The Committee considered that this is not treating a colleague with respect, neither does it accord with the requisite...
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