Manuel Nunez Martinez v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 24 March 2015 |
| Neutral Citation | [2015] EWHC 1223 (Admin) |
| Docket Number | CO/5878/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 March 2015 |
[2015] EWHC 1223 (Admin)
Mr Justice Warby
CO/5878/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr M McDonagh (instructed by Berrymans Lace Mawer) appeared on behalf of the Claimant
Miss E Power (instructed by the general Dental Council) appeared on behalf of the Respondent
This is a challenge by Mr Manuel Nunez Martinez under section 32(12) of the Dentists Act 1984 to a decision of the Interim Orders Committee ("IOC") of the General Dental Council ("GDC") on 18 November 2014 to impose conditions on his registration.
The matter had been referred to IOC by the Registrar following allegations in relation to 39 patients dealt with by Mr Martinez (who I shall call "the claimant") between 1 December 2011 and March 2012. The allegations fell into three categories. First, it was alleged that the claimant did not provide an adequate standard of care for patients. Secondly, it was alleged that he failed to maintain adequate records. Thirdly, he was accused of misuse of patient data and breaches of data protection requirements. By its decision, the IOC imposed 10 conditions on the claimant's dental registration for a period of 18 months.
The challenge as presented today by Mr McDonagh, who appears for the claimant as he did below, is directed at the IOC's reasons. It is submitted that the IOC failed to give adequate reasons for the conclusions that were said to justify the imposition of the order. The consequence, it is submitted, is that the court should discharge the IOC's order or revoke it.
The claimant graduated in dentistry in Madrid in 2005 and was first registered as a dentist in May 2006 by the GDC. In the period from December 2011 to March 2012 he was employed at Brighton White Dental Studios, of which the practice principal was a Mr Jafari. Following a falling out between them, Mr Jafari on 1 June 2012 made complaints about the claimant to the GDC. He subsequently made a statement and in August 2012 provided a selection of supporting documents from the practice records to the GDC. The case was then considered some time later by an expert, Mr Harrison. He reviewed the claimant's clinical care of the patients referred to, as disclosed by the documents produced by Mr Jafari, and provided a report dated 16 September 2014 entitled Clinical Advice Report — Early Advice. This concluded as follows:
"Overall there seems to have been many and diverse problems with the treatment plans, treatments, radiography, diagnosis and record keeping, albeit with only the complainants side of the story. The registrant should be allowed to give his story as well before a decision can be made, given the selective nature of the reporting of his alleged misdemeanours."
Mr Harrison said this about the clinical issues raised:
"Based on the information provided by the GDC, and in relation to the specific clinical issues raised by the informant, the care provided by Manuel Nunez Martinez from 01 Dec 2011 … [fell]:
•Significantly below the level of professional practice reasonably expected.
This is because:
Failure to utilise radiography either appropriately or responsibly. Failure to record contemporaneous notes in the patient's file. Inappropriate extractions, failure to take a radiograph prior to a surgical tooth removal in the lower jaw in the Wisdom Tooth position. He put the patient at risk by not following up a reported soft tissue lesion, nor did he refer the patient for specialist opinion.
The registrant did not follow the IR(ME)R2000 regulations appropriately and was careless in his prescription of radiographs and reporting on them.
Failure to complete the patient's records contemporaneously.
This assumes the information given by the complainant is accurate and complete."
On 28 October 2014, Mr Jafari's complaint was referred to the IOC by the Registrar of the IOC. The powers of the IOC are governed by section 32 of the Dentists Act 1984. By section 32(4) the IOC is empowered to make an interim order for a dentist's registrations to be suspended for a period not exceeding 18 months or to be subject to conditions for a period not exceeding 18 months if it is satisfied "that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned". Such orders, if made, are subject to review, the first review to be within a maximum of 6 months from the original order.
On 18 November 2014, there was a hearing before the IOC at which the representation was as it is today, with Mr McDonagh for the claimant and Miss Power for the GDC. The Committee, comprising a chair and three panel members (reduced, I think, to two by a recusal) had a legal adviser, Ms Swinnerton.
By the time of this hearing there were eight draft charges against the claimant. Six related to the standards of care provided to individual patients. Charge 7 related to failings of record keeping in relation to a list of patients and charge 8 alleged breaches of patient confidentiality, including posting records on social media websites.
The case for the GDC relied on the report of Mr Harrison, a letter from Mr Jafari, and the records which Mr Jafari had supplied. The GDC's case was that the evidence supported an interim suspension for the full 18 months, the maximum available. The claimant's case was, in summary, that the complainant, Mr Jafari, was unreliable as he had a grudge against the claimant and was himself the subject of GDC proceedings; and that the documents he had provided to the GDC were selective and had been cherry-picked and gave a false and misleading impression, which would be corrected by examination of the full records. The submission of Mr McDonagh was encapsulated by him at one point in this way:
"When you have got a snapshot provided by someone with an axe to grind the weight to be attached to those criticisms is such that it would not be appropriate to make an interim order at all today."
The full records were not available at the time of the hearing. That is a matter for concern, real concern in my view, given that the allegations had been made nearly two and a half years earlier and the selection of records relied on had been provided to the GDC as long ago as August 2012.
The IOC, having heard submissions, took advice from the legal adviser, which reminded the Committee of five matters in particular: the statutory requirement of necessity under section 34 of the 1984 Act; the limits of the IOC's powers; the need, if satisfied that some order was necessary, to act proportionately and to impose an order that was no longer, and no more severe, than was necessary to guard against any risks identified by the Committee; the need to ensure that any conditions were clear, relevant and addressed to the registrant; and the need to give reasons.
Having retired for some time to consider its determination, the IOC handed down a written decision. This was that an interim order was necessary for the protection of the public but that interim conditional registration, as opposed to suspension, was sufficient. Ten conditions were imposed, which it is not necessary to recite in full. The core requirements were to keep the GDC informed of the claimant's professional employment or engagements, to work under the close supervision of an individual approved by the GDC, and to allow his workplace supervisor to report to the GDC.
One condition I should refer to was condition 7, which required the claimant to maintain a log detailing every case where photographs had been taken of a patient, and the appropriate consent obtained from the patient for the purposes of future use of the image, and to provide a copy of that log to the GDC prior to any review, or alternatively to confirm that there had been no such cases.
The IOC gave these reasons for its decision:
"In assessing whether an interim order is necessary for the protection of the public the Committee had well in mind that these are interim proceedings in circumstances where an investigation is still on-going and where no facts have been found proved. The role of this Committee is not to make findings of fact but to assess risk.
You dispute the factual allegations against you, including the evidential basis upon which Mr Harrison formed his expert opinion. However, disputes of fact cannot be resolved by this Committee. In assessing risk, the Committee had regard to Mr Harrison's report. It was fully aware of your objections to the evidential basis upon which Mr Harrison reached his conclusions, and whilst not making any findings of fact, did have regard to the conclusions of Mr Harrison's report that there are serious and wide ranging concerns regarding your standard of practice in relation to a large number of patients. It was aware that he reached this conclusion notwithstanding the selective disclosure of the patient records and that you also dispute the Complainant's account. The report of Mr Harrison indicates that [there] may be a real risk to patients. The absence of complete patient records does not mitigate that risk.
The Committee considers that the allegations about data protection and confidential patient records are serious and raise concerns about risk to the public."
The powers of the court in respect of interim orders made by the IOC are prescribed by section 32(12) of the 1984 Act:
"Where an interim order has effect under any provision of this section, the court may —
(a) in the...
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