Mr Farid Monibi v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] EWHC 1911 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2014 |
| Docket Number | Case No: CO/527/2014 |
[2014] EWHC 1911 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stuart-Smith
Case No: CO/527/2014
Anthony Haycroft (instructed by Hempsons) for the Appellant
Selva Ramasamy (instructed by Capsticks LLP) for the Respondent
Hearing dates: 22 May 2014
Introduction
Between 2007 and 2009 the Appellant, Mr Monibi, provided dental services to a patient known as Patient A in the course of which he extracted her Lower Left 7 tooth ["LL7"] and fixed an implant and crown in the position from which the tooth had been extracted. Patient A was dissatisfied with her treatment. The matter was referred to the Respondent GDC which instituted disciplinary proceedings. After a hearing lasting 12 days spread over three sessions in July 2013, November 2013 and January 2014 the Professional Conduct Committee of the GDC determined that key facts alleged against Mr Monibi were proved, including an allegation that he had dishonestly altered entries in his notes for Patient A. On the back of those findings, the PCC determined that his actions amounted to misconduct and that his dishonesty impaired his fitness to practice. It directed that his registration be suspended for four months.
Mr Monibi now appeals against that determination on the grounds that the findings of fact made by the PCC were wrong and that the suspension, which is contingent upon the finding of dishonesty, should be set aside.
The Charge Brought Against Mr Monibi
The basis for the proceedings before the PCC, by reference to which it made its findings, is the Charge. Mr Monibi made admissions in relation to some of the facts alleged, which were accordingly found proved by the PCC. Other allegations were considered by the PCC and either found proved or not proved. The terms of the Charge in its final form are set out at Annexe A, annotated to show which matters were admitted and proved ("A+P"), found proved ("P") or found not proved ("NP").
The Legal Framework and the Principles to be Applied
The framework provided by the Dentists Act 1984 and the applicable legal principles are not materially in dispute.
The GDC has a statutory duty by s.1(2) of the 1984 Act to promote high standards of professional conduct among dentists.By s.33(2) and Schedule 3 paragraph 2(1)(a) of the 1984 Act, the GDC shall make rules as to the procedure to be followed and rules of evidence to be observed in proceedings before the PCC. The current rules are The General Dental Council (Fitness to Practise) Rules Order of Council 2006/1663.
By s.27B(6) of the 1984 Act, as amended, the PCC may erase a dentist's name from the register or suspend his registration for up to 12 months if they find his fitness to practise is impaired by reason of, amongst other things, misconduct. By s.29(1)(B) of the 1984 Act a dentist may appeal such a decision within 28 days of the notification of the action taken.
The recent case of Wasu v GDC [2013] EWHC 3782 (Admin) at [16]–[18] helpfully summarises the law, the appellate jurisdiction and the relevant approach:
"16. The approach to an appeal pursuant to s.29 of the Dentists Act 1984 can be summarised as follows:
(1) An appeal pursuant to s.29 of the Dentists Act 1984 is by way of rehearing ( CPR Part 52, PD 22.3).
(2) The Court has the power
(a) to dismiss the appeal,
(b) to allow the appeal and quash the decision appealed against,
(c) to substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or
(d) to remit the case to the Professional Conduct Committee to dispose of the case in accordance with the directions of the court (Dentist Act 1984, s.29(3)).
(3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity, in the proceedings before the lower tribunal ( CPR Part 52.11).
17. The general principles applicable to an appeal against a decision of professional Disciplinary Committee of this sort can be summarised as follows:
(1) The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
(2) The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;
(3) The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;
(4) Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
(5) Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair. (See the helpful summary of the authorities by Langstaff J in Bhatt v GDC [2011] EWHC 783 (Admin), in particular at para. [9]).
18. As regards a challenge to the sanction imposed, the Court will normally accord even more respect to the tribunal of first instance ( Raschid & Fatani v GDC [2007] EWCA Civ 46, at para. [19])".
Thus on an appeal the question for the Court is whether the decision of the PCC was "wrong"— CPR Part 52.11(3). This involves a rehearing amounting to a review of the material and evidence before the Panel. As findings of fact concern judgements about the reliability and truthfulness of witnesses who gave evidence before it, those findings should be accepted unless material errors are shown.
The burden upon an appellant, and the standard to be applied by the appellate court, is clearly set out in the judgment of Leveson LJ in Southall v General Medical Council [2010] 2 FCR 77 at [47]:
"… findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R (Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ)."
Before the PCC the burden of proof rested on the GDC throughout and the relevant standard of proof was the civil standard, namely the balance of probabilities. The Committee was given a full advice in open session by the Legal Assessor on how to approach the allegations of dishonesty 1 in the course of which he identified the two-stage test derived from Ghosh v The General Medical Council [2001] 1 W.L.R. 1915 and the need to factor in, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the Committee concludes that the allegation is established on the balance of probabilities. No criticism is made of that direction: nor could there be.
The GDC's published Guidance for the Professional Conduct Committee emphasises the need for the Committee to explain its decisions at [43]–[45]. The guidance includes the following:
"[43] Whatever the PCC decides to do in a case, it must explain its reasons. This will help show that all relevant issues have been addressed. … [44] The registrant … [has] the right to appeal against a decision of the PCC, so a clear explanation will help them decide whether to exercise that right, and will help the Court which has to consider any appeal. [45] It is therefore very important to give a comprehensive explanation of every decision made, …. The explanation should always cover; … conclusions on the main submissions made by the parties or their representatives; [and] a demonstration that each outcome has been considered and the reasons for the chosen outcome. Reasons should be given in sufficient detail so that interested parties may understand why a determination has been made; …"
This guidance appears consistent with general principles on the need for a tribunal or decision maker to provide adequate reasons, as outlined at [35–37] of South Bucks DC v Porter [2004] UKHL 33. I bear in mind at all times that the decision of the PCC should be read constructively with a view to identifying the logic that was intended to underpin it.
Mr Haycroft recognises that if the findings of fact (including the finding of dishonesty) made by the PCC are to be assailed, they must be shown to be wrong. He also recognises that a witness may be unreliable in respect of parts of his or her evidence but to be accepted as reliable in respect of other parts. The burden Mr Haycroft undertakes is therefore a difficult one, since the findings of fact made by the PCC were in large measure based upon the conclusion that it preferred the account of Patient A and other witnesses called by the GDC to the...
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