Stuart Lutton For Judicial Review Of A Decision Of The Investigation Committee Of The General Dental Council

JurisdictionScotland
JudgeLord Doherty
Judgment Date2011
Neutral Citation[2011] CSOH 96
Published date03 June 2011
CourtCourt of Session
Date03 June 2011
Docket NumberP1227/10

OUTER HOUSE, COURT OF SESSION

[2011] CSOH 96

P1227/10

OPINION OF LORD DOHERTY

in the Petition of

STUART LUTTON

Petitioner;

for

Judicial review of a decision of the Investigating Committee of the General Dental Council dated 7 May 2010

________________

Pursuer: Macpherson, Solicitor Advocate; Simpson & Marwick WS

Respondent: Dunlop QC; Anderson Strathern, Solicitors

3 June 2011

Introduction

[1] The Petitioner is a dental surgeon registered under the Dentists Act 1984. He is the principal of the practice Ivy Dental. In this Petition he seeks judicial review of a decision of the Investigating Committee of the General Dental Council dated 7th May 2010 to issue a written warning to him in respect of a complaint made against him by a patient, "M". The General Dental Council are the Respondents. The Petition was also served on the patient but there was no appearance on her behalf. The matter came before me for a First Hearing.

Statutory provisions

Dentists Act 1984

[2] The Dentists Act 1984 ("the Act"), section 1 made provision as to the constitution and general duties of the Respondents. Section 1(2) provides:

"The Council shall, when exercising their functions under this Act, have a general concern -

....

(b) to promote high standards of professional conduct, performance and practice among persons registered under this Act".

Section 2 provided for, inter alia, the continuance of the Professional Conduct Committee (s. 2(1)(a)) and the establishment of the Investigating Committee (s. 2(2)(a)), and for the committees being constituted as provided for by order of the Privy Council. In terms of section 2(3) "Practice Committee" in the Act "means the Professional Conduct Committee, the Health Committee or the Professional Performance Committee".

[3] Part III of the Act made provision as to the keeping of the dentists register by a registrar appointed by the Respondents. Section 27 applies where an allegation is made to the Respondents against a registered dentist that his fitness to practise as a dentist is impaired. Section 27(5) and (6) provide:

"(5) The registrar -

(a) shall refer the allegation to the Investigating Committee....

(6) The registrar shall investigate the allegation for the purpose of exercising his functions under subsection (5)".

Section 27A relates to powers and duties of the Investigating Committee.

"27A.- The Investigating Committee

(1) Where the registrar refers an allegation under section 27 to the Investigating Committee they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee.

(2) If the Investigating Committee determine that the allegation ought not to be considered by a Practice Committee, the Investigating Committee may -

(a) issue a warning or advice to the person who is the subject of the allegation regarding his future conduct, performance and practice; ....

(3) If the Investigating Committee issue a warning under subsection (2)(a), they may, if they consider it appropriate to do so, direct the registrar to enter details of the warning in the entry in the register relating to the person who is the subject of the allegation.

(4) ...(I)f the Investigating Committee determine that the allegation ought to be considered by a Practice Committee, the Investigating Committee-

(a) shall refer the allegation -

(i) to the Professional Performance Committee, in the case of an allegation based on the ground mentioned in section 27(2)(b) (deficient professional performance),

(ii) to the Health Committee, in the case of an allegation based on the ground mentioned in section 27(2)(c) (adverse physical or mental health), or

(iii) to the Professional Conduct Committee in any other case....

(7) The registrar shall serve notice of any determination made by the Investigating Committee under subsection (1) on the person who is the subject of the allegation and the person (if any) making the allegation..."

[4] Section 27B makes provision as to the powers and duties of the Practice Committees:

"(1) ...(A) Practice Committee must investigate an allegation or allegations against a person referred to them by the Investigating Committee under Section 27A and determine whether that person's fitness to practise as a dentist is impaired."

In the event of a Practice Committee so finding section 27B(6) empowers it to direct that the person's name be erased from the register, or that his registration be suspended for up to twelve months, or that his registration be conditional on him complying with conditions specified by the Committee, or that he be reprimanded in connection with any conduct or action of his which was the subject of the allegation (section 27B(6)).

[5] Section 33(6) and Schedule 3, paragraph 2(1)(b) make provision for rules being made as to the procedure to be followed by the Investigating Committee in the exercise of their functions under section 27A

The Rules

[6] Part 2 of the General Dental Council (Fitness to Practise) Rules Order of Council 2006 (2006 No. 1663) ( "the Rules") provides:

" Investigating Committee

3. Initial consideration by the registrar

The registrar shall consider a complaint or other information in relation to a registered dentist ...and shall determine whether a complaint or information amounts to an allegation.

4. Notification of allegation

(1) Where the registrar determines that a complaint or information amounts to an allegation, he shall send a notification to the respondent and the maker of the allegation (if any) accordingly.

(2) The notification sent under paragraph (1) shall -

(a) contain a summary of the allegation;

(b) subject to rule 7(3), be accompanied by a copy of the documents in the registrar's possession which relate to the allegation;

(c) invite the respondent to respond to the allegation with written representations addressed to the Investigating Committee within a period which the registrar shall specify in the notification; and

(d) where the allegation has been made by a person, inform the respondent that representations received from him may be disclosed to that person for comment...

5. Meeting to consider allegation

The Investigating Committee shall hold a meeting, in the presence of the registrar but in the absence of the parties, to consider an allegation which has been referred to them.

6. Evidence

The Investigating Committee may, subject only to the requirements of relevance and fairness, admit any documentary evidence, whether or not that evidence would be admissible in any proceedings in a court.

7. Determination

(1) Subject to paragraph (2), upon consideration of an allegation the Investigating Committee may determine -

(a) to adjourn consideration of the allegation and direct the registrar to carry out such enquiries as the Investigating Committee shall specify;

(b) that the allegation ought not to be considered by a Practice Committee but no warning or advice ought to be given under subsection (c) or (d);

(c) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent or to any other person involved in the investigation of such advice as the Investigating Committee may issue in accordance with section 27A(2).... of the Act ....;

(d) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent of such warning as the Investigating Committee may issue in accordance with section 27A(2)(a)....of the Act; or

(e) that the allegation ought to be considered by a Practice Committee.

(2) The Investigating Committee shall not make a determination under paragraph (1)(b),(c), (d) or (e) unless they are satisfied that the respondent and the maker of the allegation (if any) have been provided with a reasonable opportunity to submit written representations commenting on the allegation and...the evidence relating to the allegation...."


Practice Committee

[7] Parts 3 to 8 of the Rules make provision as to how matters are to proceed before Practice Committees. The relevant Practice Committee is to hold a hearing to consider an allegation referred to it by the Investigating Committee (Rule 12). A respondent may attend and be represented at a hearing (by counsel, a solicitor, or certain other persons), and may adduce evidence (Rules 13(1)(d), 52 ). The notification of hearing contains a charge setting out the grounds by reason of which it is alleged that his fitness to practice as a dentist is impaired, and "particularising" the facts alleged against him in support of the allegation (Rule 13(1)(e). The hearing includes a factual inquiry with both parties having the right to call witnesses and to cross-examine the other party's witnesses (Rule 19). A Practice Committee makes findings of fact by reference to the matters mentioned in the notification of hearing (Rule 19(11), (12)). Rule 57 makes provision as to the rules of evidence which apply before a Practice Committee. Rule 57 (4) provides that it shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities.

The complaint

[8] On 13 October 2009 M complained by email to the Respondents about treatment and advice given to her by the Petitioner and another dentist in the practice. The email was copied by her to the Petitioner. Thereafter there were discussions between the Respondents and M to clarify the nature of her complaint against the Petitioner and his colleague. An assessment sheet was prepared by the Respondents setting out a summary of M's allegations against the Petitioner. The Respondents were satisfied that the complaint amounted to an allegation that the Petitioner's fitness to practise was impaired due to conduct. The allegations were that:

"1. Mr Lutton failed to appraise [M] of the details of her course of treatment, particularly with regard to extractions which he arranged to...

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