Beata Kirschner v The General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 19 May 2015 |
| Neutral Citation | [2015] EWHC 1377 (Admin) |
| Docket Number | Case No: CO/5914/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2015 |
[2015] EWHC 1377 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/5914/2014
Jonathan Holl-Allen (instructed by Radcliffes Le Brasseur) for the Appellant
Rebecca Harris (instructed by Blake Morgan) for the Respondent
Hearing date: 5 & 8 May 2015
This is my judgment on the appellant's appeal made under section 29(1)(b) Dentists Act 1984 against the decision of the Professional Conduct Committee (PCC) of the respondent in protracted disciplinary proceedings which eventually concluded on 21 November 2014.
The conduct of the appellant which was the subject matter of the disciplinary proceedings mainly took place in February 2010. She had come to this country to work as a dentist from Poland in 2005. In February 2010 and up to June 2012 the appellant was the subject of a PCT review as a result of concerns that had been raised in relation to her NHS practice. In late 2011 or early 2012 the appellant was referred to the General Dental Council. In June 2012 charges relating to clinical deficiencies or mismanagement were framed; these did not include allegations of dishonesty. A hearing before the Professional Performance Committee was fixed for January 2013. However on Christmas Eve 2012 allegations of dishonesty surfaced in a letter sent by the GDC to the appellant on that day. The January 2013 performance hearing was vacated in the light of the new allegations.
On 31 January 2014 the appellant was formally charged with 110 separate professional infractions, although these charges had been supplied in draft to her about 4 months earlier. Most of the allegations were of clinical deficiencies or mismanagement but, as prefigured, there were two groups of allegations that accused the appellant of dishonesty. The appellant was also accused of failure to cooperate with the authorities. The case was heard by the PCC over 12 days in three tranches in March, June and November 2014. At the end the appellant was found guilty of a number of the clinical deficiency allegations and of the charges of failure to cooperate. The PCC decided in relation to these proven charges that her conduct was not so grave as to warrant suspension. The appellant does not appeal against these findings.
Of the dishonesty allegations the appellant was acquitted of the first group but found guilty of the second. Specifically she was found guilty of dishonestly claiming payments under her NHS dental contract of £48 for three child patients, a total of £144. For this she was suspended for a year — the maximum allowed under section 27B(6)(b) of the 1984 Act. She appeals against the finding of dishonesty and the sanction.
CPR 52.11 (1) provides that every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes different provision for a particular category of appeal or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. CPR PD52D para 19.1(1)(c) and 19.1(2) provides that this appeal under the 1984 Act "must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing".
Whether the appeal is by way of review or rehearing the appellate threshold is the same. CPR 52.11(3) provides that the appeal court will only allow an appeal where the decision of the lower court was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. No-one has suggested that (b) is in play here and so the only question I have to decide is whether the decision of the PCC was wrong. Authority has stated that the concept of wrongness should not be varnished adverbially, although, as Lord Wilson pointed out in Re B (A child) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, [2013] 3 All ER 929, [2013] 2 FCR 525 at para 44 the addition of the adverb "plainly" does not add anything to the concept where the exercise is evaluative rather than discretionary.
Given that the threshold is the same what is the difference between an appellate review and an appellate rehearing? An appellate rehearing is obviously not literally a rehearing. The difference between a rehearing and a review was considered by the Court of Appeal in EI Du Pont De Nemours & Company v S.T. Dupont [2003] EWCA Civ 1368 [2006] 1 WLR 2793. May LJ stated at paras 93 – 98:
"Subject to exceptions, every appeal is limited to a review of the decision of the lower court. … The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences … Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review under rule 52.11(1) … On … a rehearing the court will hear the case again. It will if necessary hear evidence again and may well admit fresh evidence. It will reach a fresh decision unconstrained by the decision of the lower court, although it will give to the decision of the lower court the weight that it deserves. "
In truth there is not much difference between the two techniques. In this case I did not hear any oral evidence and the focus has been on whether the reasoning of the PCC was wrong (per the appellant), or whether it was tenably correct (per the respondent). If a member of the public had been sitting in my court he or she would not have concluded that an actual rehearing had been conducted. It was only a rehearing in the term of art sense that in the old days all appeals to the Court of Appeal under the RSC were technically rehearings.
What is the legal test for dishonesty in disciplinary proceedings such as these? Disciplinary proceedings have many hallmarks of criminal proceedings in that they may result in severe, even draconian, sanctions being meted out which can have a devastating effect on the professional's career and reputation. But they are civil proceedings nonetheless. And it is to state the obvious that in mainstream civil proceedings heard, say, in the Chancery Division or the Commercial Court, a finding of dishonesty and an award of heavy damages and costs can have an equivalently dramatic effect on a person's economy and reputation. So it would be a surprising state of affairs if there were a different legal test for dishonesty in disciplinary proceedings on the one hand, and mainstream civil proceedings on the other. Yet that appears to be the position that the law is in, and it would seem that it would be possible for a professional person to be found guilty of dishonesty in civil proceedings and to suffer heavy damages and costs but later, on the very same facts, to be found not guilty of dishonesty in disciplinary proceedings. That is (to put it mildly) an unhappy state of affairs. In my opinion the position needs to be conclusively clarified by the higher appellate courts or by legislation.
In the mainstream civil sphere the House of Lords in Twinsectra Limited v Yardley and Others [2002] UKHL 12, [2002] 2 AC 164 considered a case where a solicitor had been acquitted of dishonest conduct by Carnwath J but where that finding had been reversed in the Court of Appeal. The House of Lords restored the original finding. In formulating the test for dishonesty it modified the purely objective approach of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378. It adopted a mixed or combined test of objectivity and subjectivity in line with the criminal direction propounded in the well known case of R v Ghosh [1982] QB 1053. In para 20 Lord Hoffmann stated that the principles "require a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour". At para 35 Lord Hutton stated:
"There is, in my opinion, a further consideration which supports the view that for liability as an accessory to arise the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men. A finding by a judge that a defendant has been dishonest is a grave finding, and it is particularly grave against a professional man, such as a solicitor. Notwithstanding that the issue arises in equity law and not in a criminal context, I think that it would be less than just for the law to permit a finding that a defendant had been "dishonest" in assisting in a breach of trust where he knew of the facts which created the trust and its breach but had not been aware that what he was doing would be regarded by honest men as being dishonest."
And at para 36:
"… dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest...
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