Arfan Zia Dad Against A Decision Of The General Dental Council Professional Conduct Committee Communicated To The Appellant On 8 May 2010
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Drummond Young,Lord Mackay of Drumadoon |
| Neutral Citation | [2010] CSIH 75 |
| Court | Court of Session |
| Docket Number | XA65/10 |
| Published date | 19 August 2010 |
| Date | 19 August 2010 |
| Year | 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
| Lord Hardie Lord Mackay of Drumadoon Lord Drummond Young
| [2010] CSIH 75 XA65/10
OPINION OF THE COURT delivered by LORD HARDIE in Appeal by ARFAN ZIA DAD Appellant; against A decision of the General Dental Council Professional Conduct Committee communicated to the Appellant on 8 May 2010 Respondents: _______
|
Act: Clancy Q.C.; Brechin Tindal Oatts
Alt: Dunlop; Anderson Strathern
19 August 2010
Introduction
[1] The appellant qualified as a dentist in 1992 and in the early 90s, he established a dental practice. He worked and lived in Glasgow for the rest of that decade, but at weekends he travelled to Birmingham to help in the care of his father who was a quadriplegic as a result of a stroke suffered in 1991. This involved a round trip of 600 miles and in the course of making that journey each weekend over a number of years the appellant accumulated a series of road traffic convictions, principally speeding but also a conviction for driving while disqualified. These convictions for contraventions of the Road Traffic Act 1988 resulted in his appearance before the Professional Conduct Committee of the General Dental Council (“the respondents”) in 1999 which determined on 14 May 1999 that, by reason of his convictions, his registration in the Dentists’ Register should be suspended for 12 months. The appellant successfully appealed against that decision to the Privy Council, which considered that the appropriate course for the respondents to have taken would have been to postpone judgement for a period of 2 years following the determination. Moreover, having regard to the period which had elapsed since his last offence, the case could be concluded without the imposition of any further penalty if he did not commit any further offences within the period of postponement (Dad v General Dental Council [2000]1 WLR 1538). When the case was reconsidered by the respondents, no further sanction was imposed. In 2002, the appellant’s father died.
[2] On 8 April 2004 the appellant defrauded the National Health Service of £8,336.60 representing sums which he claimed he had paid to Glasgow District Council as non-domestic rates for two properties that he claimed were dental surgeries. Although he had sent a cheque for that sum to Glasgow District Council, he knew that the cheque would be dishonoured. Moreover, in respect of one of the properties, the appellant had represented to the National Health Service that it was being used as a dental surgery, when in fact it was not. On 5 October 2007, following a plea of guilty, the appellant was convicted of two charges of fraud and was subsequently sentenced to a community service order for 240 hours. The appellant had first appeared on petition on 29 January 2007 in respect of these and other charges alleging dishonesty. On that date, the appellant was not registered as a dentist, his registration with the General Dental Council having ceased on 24 January 2006 as a result of his non-payment of the annual retention fee.
[3] On 2 February 2007, 3 days after appearing on petition in Glasgow Sheriff Court in respect of a total of 6 charges of dishonesty, the appellant applied to the General Dental Council to restore his name to the Dentists’ Register.
The applicant signed and dated the application form in the space provided on the form. Immediately above the signature of the appellant, the following was printed:
“I know that if I make any false declaration in this application
- My registration may be refused and/or
- I may be prosecuted and/or
- I may be charged with serious professional misconduct.
The information I have given here is true.”
The information was in fact untrue in two respects. The first was that the appellant did not disclose that he was currently the subject of police investigations which might lead to a conviction, namely the allegations of fraud contained in the six charges within the petition which had resulted in his appearance in Glasgow Sheriff Court on 29 January 2007, the investigation of which was still current. Secondly, he failed to disclose that he had been the subject of disciplinary proceedings before the respondents in 1999.
[4] On 5 and 6 May 2010, the appellant attended a hearing of the respondents to answer the following charge:
“That being a registered dentist:
Conviction
1. At the Sheriff Court of Glasgow and Strathkelvin before Sheriff Jones QC:
a. on 5th October 2007, you were convicted of two offences of Fraud,
b. on 2nd November 2007, in relation to your convictions at 1a, you were sentenced to a Community Service Order for 240 hours;
Conduct
2. In relation to your registration:
a. on 24th January 2006, you were removed from the Dentists’ Register as a result of your non-payment of the Annual Retention Fee,
b. on 6th February 2007, the General Dental Council (“GDC”) received an application for your restoration to the Dentists’ Register (the application form), dated 2nd February 2007 and signed by you,
c. in answer to question 3 at section 3 of the application form:
‘Have you been convicted of a criminal offence or cautioned or are you currently the subject of any police investigations which might lead to a conviction or a caution in the UK or any other country? Note: Dentists are exempt from the Rehabilitation of Offenders Act 1974. You must, therefore, tell us about all prosecutions or convictions including those considered “spent” under this Act.’
You ticked the box “NO”;
d. The information given by you in relation to the question at 2c above was incorrect in that:
i) You have criminal convictions that pre-date your completion and signing of the application form,
ii) In February 2007, you were already subject to criminal proceedings at the Sheriff Court of Glasgow and Strathkelvin which resulted in the convictions and sentence at 1 above.
e. In answer to question 4 at section 3 of the application form:
‘To the best of your knowledge, have you been or are you currently subject to any proceedings by a regulatory or licensing body in the UK or any other country?
You ticked the box “NO”;
f. The information given at 2e above was incorrect in that between 1999 and 2001 you were subject to proceedings before the GDC in relation to the convictions at 2(d)(i) above;
3. In completing the application form as stated in 2(c-f) above your actions were:
a. Misleading,
b. Intended to mislead, and
c. Dishonest;
AND, by reason of the facts stated, your fitness to practise as a Dentist is impaired by reason of your:
1) conviction
2) misconduct.”
On 5 May 2010, following admissions on behalf of the appellant, the Committee found the charge admitted and proved in respect of heads 1(a) to 3(a) inclusive. As regards heads 3(b) and (c) the Committee found these admitted and proved in respect of 2(c), 2(d)(ii), to (e) and 2(f). No evidence was called in respect of heads of charge 3(b) and 3(c) in so far as they relate to 2(d)(i). Accordingly the Committee found these not proved. On 6 May 2010, the Committee ordered the name of the appellant to be erased from the Dentists’ Register and imposed an order for immediate suspension.
Submissions on behalf of the Appellant
[5] In the grounds of appeal, the appellant contended that in ordering the name of the appellant to be erased from the Dentists’ Register and imposing an order for immediate suspension, the respondents had erred in two respects. The first was an error in concluding that the appellant’s current and future fitness to practise was impaired. The second alleged error was that the sanction imposed was excessive and disproportionate to the culpability of the appellant’s conduct. In his submissions senior counsel for the appellant accepted that the respondents were entitled to conclude that the appellant’s current and future fitness to practise was impaired as a result of the conduct admitted by the appellant in the hearing before the respondents. The submissions thereafter concentrated on the second issue to the effect that the sanction imposed by the respondents was excessive and disproportionate to the culpability of the appellant’s conduct. In that regard, senior counsel accepted that the respondents had properly concluded that a reprimand was not an adequate sanction to address their concerns. Moreover, he accepted that conditions would not be adequate were the appellant to be permitted to continue practising. However, he submitted that the respondents had erred in concluding that a period of suspension would be an inadequate remedy. Such a remedy would be significant and would have the desired objective of maintaining public confidence in the profession.
[6] In support of his submission that the respondents ought to have suspended the appellant, senior counsel relied upon the marked improvement in the appellant’s personal circumstances since January 2007 when he appeared on petition at Glasgow Sheriff Court. He had established a new dentistry business, Dental Surgery Ltd, which owns and operates surgeries in Glasgow, Falkirk and Stirling. Prior to 6 May 2010 the appellant had been the principal dentist and the practice manager for each practice. That had ceased to be the case following the respondents’ decision that his name should be erased from the Dentists’ Register. Since that date, employees of the company have assumed the roles of principal dentist and practice manager. Senior counsel provided the court with details of the three practices. The practice in Glasgow was started in February 2007 and has more than 3,000 registered National Health Service patients. It employs two full-time dentists, three dental nurses, one of whom is employed part-time, and a receptionist. The practice in Falkirk opened towards the end of 2007 and has about 9,000 National Health Service patients. It employs four dentists, one of whom is employed on a part-time basis, four dental nurses and two receptionists. The practice in Stirling...
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