Jacobus Aldwin Johnson (Respondent v The Secretary of State for Health (Appellant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,SIR JOHN MEGAW,LORD JUSTICE PURCHAS |
| Judgment Date | 26 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0226-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0294 |
| Date | 26 February 1992 |
[1992] EWCA Civ J0226-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Roch)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
Sir John Megaw
92/0294
MISS M. O'ROURKE (instructed by Messrs Hempsons) appeared on behalf of the Respondent (Applicant).
MR. D. OUSELEY (instructed by The Treasury Solicitor) appeared on behalf of the Appellant (Respondent).
This is an appeal by the Secretary of State for Health from the decision of Roch J. of 2nd May 1991, whereby he quashed the determination on 14th August 1989 by the Secretary of State of an appeal by Jacobus Aldwin Johnson, a dentist, under the National Health Service (Service, Committees and Tribunal) Regulations 1974 ("the 1974 Regulations"). The determination quashed was that the decision of the Barking and Havering Family Practitioner Committee (FPC) was not a nullity by reason of admitted breaches of the procedural requirements laid down for the conduct of enquiries by a Dental Service Committee (DSC) and, in any event, the appeal to the Secretary of State, as a rehearing, would cure any defect or unfairness in those proceedings. The Secretary of State therefore held that he had jurisdiction to determine Mr. Johnson's appeal. Mr. Johnson, on advice, had refused to give evidence on the dental aspects of the case before the persons appointed to hear the appeal. The conclusion of the FPC on the questions as to the treatment of Mr. Mills by Mr. Johnson had been that Mr. Johnson had failed to employ a proper degree of skill and attention, and in particular that he did not follow the correct procedures when assessing dental bridge work. Without conceding any obligation to do so the Secretary of State offered to convene a further oral hearing before different persons to hear evidence in respect of all dental aspects of the case. Mr. Johnson did not accept that offer but applied for judicial review of the decision of the Secretary of State.
It is necessary to examine the facts in some detail. The admitted procedural defects must be examined in the circumstance in which they occurred. The case arises out of a complaint against Mr. Johnson made by Mr. Mills, a patient upon whose teeth Mr. Johnson had carried out work between May and October 1986. On 9th December 1986, Mr. Mills sent a written complaint to the FPC. The substance of the complaint was that Mr. Johnson had advised the fitting of bridges; and that, in addition to preparatory work for the fitting of one bridge, Mr. Johnson, after making an incision, removed or attempted to remove an old damaged root of a missing tooth. Upon a later visit (Wednesday) for treatment it was found that the site of the incision was infected. Mr. Mills said that he suffered much pain and was driven to visit Old Church Hospital (Friday) where he was advised to return to Mr. Johnson who gave him tablets. On the Sunday, Mr. Mills went to London Hospital because of pain where he was advised that the bridge should not have been fitted when infection was present and that he should return to Mr. Johnson for it to be removed. On the next day, Monday, Mr. Johnson removed the bridge and carried out an apicectomy, which required a number of stitches and caused much pain. Mr. Johnson went on holiday for a month. Mr. Mills next saw Mr. Smith, an associate of Mr. Johnson, who referred Mr. Mills to the Royal Eastman's Dental Hospital. A letter went from the hospital to Mr. Smith and Mr. Johnson to the effect that the pain suffered by Mr. Mills was due to the apicectomy. Mr. Johnson advised Mr. Mills to leave things to see if they settled down. Mr. Mills continued to have much pain and was seen by Mr. Smith because Mr. Johnson had gone away to South Africa. The bridge fitted to the left side of his mouth by Mr. Johnson had broken and further work, including a further extraction, was said to be necessary but was uncertain of success. Mr. Mills' complaint was that he "had perfectly good teeth ruined for the sake of dental bridges" and he sought advice whether he should allow Mr. Smith to make the suggested extraction. It is to be emphasised that the foregoing is a summary of what was in the written complaint of Mr. Mills.
The procedural requirements.
Provisions are made for dealing with such complaints in the 1974 Regulations. A complaint may, if it is found to demonstrate failure by a dentist to comply with the terms of service, have serious consequences for him, such as the withholding of an amount of money from his remuneration, and the making of a representation that his name be removed from the dental list.
Time limits for complaining against, and for notice of complaint to, a dentist, are laid down. By Regulation 4 a complaint against a dentist must be made to the Administrator within six months after completion of the treatment or within eight weeks after the matter which gave rise to the complaint came to the complainant's notice, whichever is the sooner. By Regulation 5, late complaints may be investigated with the consent of the dentist or of the Secretary of State.
By Regulation 6 (1) "…any complaint made against a dentist in respect of an alleged failure to comply with the terms of service shall be investigated by the Dental Service Committee". By Regulation 6 (3) "a complaint shall be investigated under this regulation if…in the opinion of the chairman of the (Dental) Service Committee, the complaint relates to an alleged failure by the (Dentist)…to comply with the terms of service in respect of any person who was entitled to the provision of general dental services…and (a) the complaint is made by…that person…"
References to the terms of service of a dentist are references to those stated in Parts 1 and 2 of Schedule 1 to the General Dental Regulations of 1973. Paragraph 2 thereof, "standards of service", provides that "in providing general dental services…a dentist shall…(a) employ a proper degree of skill and attention…". Other terms of service relate to such matters as the administration of general anaesthetics, the keeping of records, fees and remuneration, the use of dental estimate forms, the provision and prior approval of treatment, and the authorizing of a dentist to discontinue treatment of a patient.
The procedure of Service Committee's for the investigation of complaints is governed by Schedule 1 of the 1974 Regulations: see Regulation 9. The provisions there set out include the following:
" Procedure of Service Committees
1 (1) The Administrator shall as soon as practicable send to the chairman of the appropriate Service Committee a copy of the complainant's statement. If in the opinion of the chairman the statement discloses no failure by the (dentist)…against whom the complaint has been made, to comply with his terms of service, the Administrator shall so inform the complaintant and notify him that he may within 14 days submit a further statement in amplification of his complaint. If no further statement is submitted within that period or if, after considering such further statement, the chairman considers that a hearing of the case is unnecessary, the case shall as soon as practicable be brought before the Service Committee who may then report on the matter without holding a hearing.
(2) If the chairman considers that the complainant's statement…discloses reasonable grounds for believing that the (dentist) has failed to comply with his terms of service, he shall instruct the administrator to send such statement to, and seek the comments of, the (dentist)…with regard to the complaint and to inform him that such comments must be made within a period of four weeks, or such longer period as the Service Committee may allow. The Administrator shall send to the complainant a copy of any comments made by the (dentist)…and shall give the complainant a period of 14 days…in which to make observations on those comments.
(3) If having considered comments made by the (dentist) and any observations made by the complainant thereon the chairman is of the opinion that a hearing of the case is unnecessary, the case shall as soon as practicable be brought before the Service Committee who may then report on the matter without holding a hearing.
(4)…if no comments by the (dentist)…on the complainant's statement have been received within the period allowed…, or if such comments have been received and notwithstanding them the chairman is of the opinion that a hearing of the case is necessary, or if the correspondence discloses a material difference between the parties with regard to the facts of the case, the chairman shall instruct the Administrator to arrange a hearing thereof, to inform the parties of those arrangements and to send them copies of all relevant correspondence.
(5) The Administrator shall inform both the complainant and the (dentist)…that copies of any documents including written comments or observations submitted in connection with a complaint will be furnished to the other party and will be produced in evidence at a hearing of the Case…
(8) Except in cases disposed of without a hearing the Administrator shall give to both parties and to the secretary of the local…Dental…Committee…not less than 21 days notice of the meeting at which the case will be heard.
(9) The chairman may, upon the application of either party postpone the hearing…for any…reason he thinks fit.
(10) The Administrator shall seven clear days before the hearing supply to each member of the Service Committee copies of the statement and...
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