Preiss v General Dental Council
|Lord Cooke of Thorndon
|17 July 2001
| UKPC 36
|Appeal No. 63 of 2000
|17 July 2001
 UKPC 36
Present at the hearing:-
Lord Bingham of Cornhill
Lord Cooke of Thorndon
[Delivered by Lord Cooke of Thorndon]
By section 29 of the Dentists Act 1984 a person notified under section 27(4) that the Professional Conduct Committee (PCC) has determined that his name shall be erased from the register or that his registration shall be suspended has a right of appeal to Her Majesty in Council against that determination. The scope of the appeal is unrestricted by any catalogue of grounds, and in their report the Judicial Committee have wide powers of recommendation. In the present case the appellant, a registered dentist, appeals from a determination of the PCC made on 28th September 2000 suspending his registration for twelve months in consequence of a finding by them that he had been guilty of serious professional misconduct. By virtue of section 30(2) the determination has not taken effect during the pendency of the appeal.
Although the right of appeal is against the suspension and the Act does not appear to provide for an appeal from a finding of serious professional misconduct not followed by erasure or suspension (which would not be a frequent occurrence) it was not in dispute at the hearing of this appeal that the appellant is entitled to challenge before the Judicial Committee of the Privy Council the finding of serious professional misconduct leading to the suspension. Their Lordships readily accept that view. It is necessary to make the statute work. Otherwise the value of the right of appeal could be greatly diminished.
The disciplinary charges against the appellant all related to his treatment of one patient. A married lady then in her sixties (Mrs H), consulted him in January 1992. He was then in his forties, carrying on a sole practice and specialising in advanced restorative dentistry. The Board has studied the evidence recorded at the hearing before the PCC. The evidence shows that she then had various back teeth missing, so that she could bite with her front teeth only. She had a poorly fitted bridge over her upper front teeth. It was constantly being dislodged. She was a bruxist. Under dentistry some gagging response also occurred. She suffered from emotional and family problems after the death of a grandson in 1993. For rheumatic problems she was treated with voltarol, a drug which may have aggravated the condition of her mouth. The appellant found her a nervous patient. He had her take the sedative temazepam (valium) on some of the occasions of her treatment by him. From the outset she was adamantly against having dentures. Also she required a nice smile.
After his initial examination of her mouth, the appellant recorded her oral health as poor; but x-rays indicated that the bone condition was good. In consultation with a colleague he worked out for her an elaborate, long-term, treatment plan, involving extensive crown and bridge work. This was typed out and discussed with the patient and her husband. The estimated cost was about £8000. She decided to go ahead. In his evidence the appellant accepted that his plan was very ambitious, and that plaque control and the maintenance of general oral hygiene were crucial. One of his expert witnesses called the plan heroic. The plan provided for three-monthly sessions with a hygienist. An extraordinary feature of the case is that, after one early visit to the appellant's hygienist, there seem to have been no more over the years. The appellant accepted that it was his responsibility to make sure that she saw a hygienist every three months. He gave no satisfactory explanation of his failure in that respect. His clinical notes do record, however, various requests to her to make hygiene appointments and her failure to keep them. The patient's evidence about that and other matters was generally vague, but she claimed to have missed no appointments that were made for her. To what extent she realised the importance of oral hygiene or tried herself to maintain it is far from clear. The appellant had advised her to use fluorigard and other preparations.
Over the five years of her treatment by the appellant her dental health deteriorated dramatically, with a developing pattern of worsening plaque, rampant caries, bleeding and a large abscess. Ultimately all her teeth had to be extracted, first the top teeth, then the bottom ones. She wears complete dentures. From the patient's point of view the treatment was thus a complete, painful and stressful failure. From the dentist's point of view the position is best summed up in paragraph 16 of the appellant's statement of case before the Board:-
"The Appellant accepted in evidence, and it is acknowledged on his behalf, that his concern to fulfil this patient's passionate desire for restoration of her teeth overrode in this isolated case his professional judgment. In the result it is accepted on his behalf that his performance fell short of the highest standards to which he aspired, and to which hitherto he has always adhered. Neither the course of treatment nor its ultimate outcome conformed with his original goal, or that of his patient."
The disciplinary charges were detailed. Some of the allegations were admitted by the appellant through his counsel at the beginning of the PCC hearing. Some were ultimately found by the PCC not proved, others proved. In the result the established allegations were as follows, those admitted being identified below:
"That being a registered dentist:
In relation to the treatment you provided to Mrs [H] between January 1992 and March 1997 you failed to provide the high standard of care to which a patient is entitled and thereby neglected your professional responsibilities to this patient in that:
(a) you failed … adequately to control tooth decay after December 1994 [admitted], when the health of the patient's remaining teeth and gums should have been your first priority. [It is not clear whether this last limb was either admitted or found proved; but on the evidence it was clearly made out.] As a result of this failure you did not ensure that the patient's oral environment was appropriate for the placement of complex crown and bridge restorations;
(b) you diverged significantly from your original written treatment plan of 30th January 1992, without obtaining the patient's consent, in an inappropriate manner in that:
(i) you failed to ensure that adequate plaque control was maintained with regular treatment by your hygienist prior to providing crown and bridge work; [admitted]
(ii) you failed to ensure that investigation into the root canal status of upper right 3, 2 and 7 was carried out by an endodontist;
[As to (ii), the foregoing is the appellant's interpretation of the relevant finding of the PCC after an amendment to the charge during the hearing. The Board does not understand this interpretation to be challenged by the respondent.]
(iii) you provided bridge work to upper and lower jaws at the same time; and
(iv) you failed to investigate the condition of the nerves in the patient's lower teeth;
(c) you failed to allow a sufficient interval between providing temporary crowns and bridges and permanent units;
(d) you provided linked crowns to the patient's lower teeth of inappropriate design."
The PCC found that the allegations thus proved and admitted constituted serious professional misconduct. Their Lordships interpret this as a finding that cumulatively the established allegations amounted to such conduct, not that each of them by itself did so. In announcing the determination of the Committee as to penalty the chairman said:
"The Committee has directed the Registrar to suspend the registration in the Dentists Register of Mr David Preiss for a period of twelve months. The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended from the Dentists' Register 28 days from this date for a period of twelve months. The Committee has been particularly concerned by a number of issues in this case, in particular:
- the failure to ensure that the state of the patient's oral health was appropriate in view of the ambitious treatment plan;
- the failure to explain the divergences from the original plan, to a patient who was frequently sedated, which resulted in an absence of consent, whether informed or not, on the part of the patient;
- the delay in referring the patient to another practitioner when it was apparent that significant problems had developed.
The Committee considers that because of the gravity of the facts found proved in this case, particularly those involving standard of care, consent and duty to refer, it is necessary in the public interest to suspend the name of Mr David Preiss from the Dentists Register."
For the appellant an attack was mounted against various aspects of the disciplinary procedure. The Board sees no substance in the contentions that the PCC went beyond the charges or gave insufficient reasons for their decision. The other points merit further consideration.
This part of the argument for the appellant is founded on natural justice and article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998. Article 6(1) begins with the declaration that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Since the decision of a majority of the European Court of Human Rights in ...
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