Council for the Regulation of Healthcare Professionals v (1) General Dental Council (2) Iain Ralph Marshall
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hodge: |
| Judgment Date | 24 July 2006 |
| Neutral Citation | [2006] EWHC 1870 (Admin) |
| Docket Number | Case No: CO/5669/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 July 2006 |
[2006] EWHC 1870 (Admin)
Mr Justice Hodge
Case No: CO/5669/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Kristina Stern (instructed by Bevan Brittan Solicitors) for the Claimant
Andrew Hockton (instructed by Radcliffes le Brasseur) for Iain Ralph Marshall
The General Dental Council did not attend and was not represented
Iain Ralph Marshall became a dentist in 1982. He received the qualification of Batchelor of Dental Surgery from Manchester University in that year. From 1985 he established a dental practice in Belfast, Northern Ireland. He worked, apparently successfully, within the NHS but did some private work as well. He was responsible, with one other dentist, for some 6,000 patients, working latterly from purpose built premises in Sandown Road, Belfast.
In or about 2001, Mr Marshall sold his practice and emigrated to New Zealand. He has been working there as a dentist since then. Complaints began to be made about his work as a dentist in the UK after he moved to New Zealand. They covered a broad period from 1985 to 2001.
The first respondent, the General Dental Council (the GDC), became involved. It did not appear at this hearing and was not represented. It does however support the appeal of the claimant.
The Professional Conduct Committee (the PCC) of the General Dental Council eventually found Mr Marshall guilty of serious professional misconduct. They determined on 14 July 2005 to suspend Mr Marshall's registration for a period of 12 months.
The Council for Regulation of Healthcare Professionals (now known as the Council for Healthcare Regulatory Excellence and referred to in this judgment as "the Council") determined that the decision by the PCC was unduly lenient. Accordingly it appealed against the decision of the PCC using its powers under Section 29 of the National Health Service Reform and Health Care Professions Act 2002 (the 2002 Act).
In its Appellant's Notice issued in the Administrative Court on 5 th August 2005, the Council contends that the decision was unduly lenient and that only erasure of Mr Marshall's name from the Dental Register would properly protect the public. The Court was invited to quash the PCC's determination as to sanction and direct that Mr Marshall's name be removed from the register. Alternatively, the Council says in its Notice, that in failing in any way to explain how it was that the sanction of suspension for a period of 12 months adequately protected the relevant public interests, the PCC failed to give any, or any proper, reasons for its determination as to sanction, and the Court was invited to direct that the matter be remitted to the PCC for fresh consideration in accordance with the Court's judgment.
The contention that the sanction of erasure should be imposed was not pursued before this Court. The Council pursued the alternative remedy and seeks an Order under Section 29(8)(d) of the 2002 Act that the matter be remitted to the PCC of the GDC for rehearing in accordance with the judgment of the Court.
Facts
After he emigrated to New Zealand it became clear from a number of complaints and from the work of other dentists that Mr Marshall's work, had in a number of cases, fallen significantly below the required standards. He recognised in his evidence before the PCC that during the period relevant to the complaints he took on an excessive workload, seeing 25–30 patients a day. He also contended that the cases represented a very small fraction of the total number of cases treated over the relevant period.
That period extended over some 15 1/2 years from 1985. In a hearing which lasted for 7 days, the PCC considered 81 charges relating to 9 patients over the 15 1/2 year period. Many of the 81 charges Mr Marshall faced were particularised and contained a number of sub-charges running in some cases to 8 such sub-charges. The Court was provided with a detailed list showing the heads of charge and findings. It is clear that Mr Marshall contested many of the charges. Some charges were withdrawn, some were not proved, some were admitted. But it is clear that the bulk of the charges were not admitted. Yet in relation to each of the 9 patients, there were a substantial number of the particularised charges found proved. Mr Marshall appears to have failed these patients badly.
The PCC, having been satisfied so it was sure in relation to the charges that it found proved, heard mitigation from Mr Hockton on behalf of Mr Marshall. In its determination it summarised the matters found proved and said as follows:
"Mr Marshall, in reaching its determination the Committee has paid very careful regard to the facts found proved against you, which show deficiencies in the standards of care you provided to 9 patients over the period from 1985 – 2001. The particular failings which have been identified in your practice include:
• Failure to perform and note periodontal examinations, to provide treatment for advanced periodontal disease, and to provide advice on oral hygiene;
• Inadequate use of radiography;
• Very poor standards of root canal treatments;
• Failure to diagnose and treat caries;
• Provision of inappropriate treatment;
• Provision of defective crown and bridge work;
• Failure to inform one patient of a root perforation, and another patient of a fractured instrument left inside a root canal;
• Inadequate record keeping;
• Failure to explain to patients the nature of the contract under which they are being treated;
• Failure to provide adequate treatment plans; and
• Not always wearing gloves when treating patients."
The PCC had concluded that the facts found against Mr Marshall established that he had been guilty of serious professional misconduct. They set out their reasons and their conclusions in relation to sanction as follows:
"In reaching its conclusions, the Committee found your testimony to be somewhat unreliable and self-justifying. It has preferred the evidence of the patients and the expert witnesses Dr Deery and Mr Emery, over your testimony and that of Mr McPhillips.
Your failures to provide an adequate standard of care were apparent in so many basic aspects of dentistry, and took place over such a lengthy period, that the Committee can only view them as extremely serious. Because of your failings, the oral health of these patients suffered. Their serious dental decay or periodontal disease should have been identified and treated while they were under your care, but your inaction over many years amounted to serious neglect of their needs. In all the respects identified above you failed to meet the standards required of you as a member of the dental profession. Taking all the matters of your conduct into account, the Committee has found you guilty of Serious Professional Misconduct.
The Committee is concerned by the lack of insight you have shown into your failings in this case. You should be in no doubt that your conduct has fallen far short of the standard expected of a member of the dental profession.
The Committee recognises that directions imposed under Rule 11 do not have any punitive purpose. Their purpose is to protect the public, maintain public confidence in the profession and maintain proper standards of behaviour by dental practitioners. The Committee has made its determination on that basis. In considering sanction the Committee has taken into account all the mitigation which has been presented on your behalf.
The Committee has considered each of the options available to it in turn. It has borne in mind the need for proportionality in its decision, balancing your interests against the need to maintain public confidence in the dental profession, the broader public interest, and the need to maintain high standards of behaviour by dental practitioners.
The extensive and serious findings mean, in the judgement of the Committee, that to conclude with an admonition would be inadequate. The Committee carefully considered whether postponement would be an appropriate and proportionate sanction, and decided that this would not be sufficient to protect the public interest. The Committee then considered whether suspension would be an appropriate and proportionate sanction and concluded that this was the case. Accordingly the Committee has concluded that, for the protection of the public, your registration should be suspended for a period of 12 months.
The Committee has directed the Registrar to suspend the name of Iain Ralph Marshall from the Register. The effect of the foregoing direction is that unless you exercise your right of appeal your name will be suspended from the Dentists Register for a period of 12 months, beginning 28 days from this date.
The dental authorities in New Zealand will be informed of this determination. That concludes this case."
The Statutory Framework
Section 25 of the 2002 Act created the Council. By Section 25(2):
"(2) The general functions of the Council are
a) To promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3)… and by their committees and offices / officers
b) To promote best practice in the performance of their functions
c) To formulate principles relating to good professional self regulation, and to encourage regulatory bodies to conform to them, and
d) To promote cooperation between regulatory bodies; and between them or any of them, and other bodies performing...
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