R (Lynch) v General Dental Council

JurisdictionEngland & Wales
JudgeMr Justice Collins
Judgment Date10 December 2003
Neutral Citation[2003] EWHC 2987 (Admin),[2003] EWHC 1987 (Admin)
Docket NumberCase No:CO/2207/2002
CourtQueen's Bench Division (Administrative Court)
Date10 December 2003

[2003] EWHC 2987 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

The Hon Mr Justice Collins

Case No:CO/2207/2002

Between:
Lynch
and
The General Dental Council

Mr Philip HAVERS Q.C. (instructed by Hempsons, Solicitors) for the Claimant

Mr Neil GARNHAM Q.C. (instructed by Capsticks, Solicitors) for the Defendants

Mr Justice Collins
1

1. The claimant qualified as a dental practitioner in Australia in 198In the 1980s, there was a considerable development of interest in orthodontics in Australia and the claimant began to practise more and more in that field. By 1989 he had decided to do nothing but orthodontics and by 1992 he felt that he was able to ‘treat anything that walked through the door’. In 1996 he came to this country and has since 1997 been working as a full time orthodontist to whom a very large practice known as Whitecross Dental Care refer most patients who need orthodontic treatment. By the end of 2001 he was being referred to by a pool of over 100 dentists. Those who chose not to refer to him indicated that that was because they wished to use someone who was on the specialist list and would have used the claimant had he been on that list. In 2001 he was invited to become the resident orthodontist to the practice of Whitecross when it merged with another practice.

2

2. It is apparent that the claimant is a successful and respected orthodontist. But he cannot describe himself as a specialist unless he is entered on the specialist list which is maintained by the defendant. There are a number of such lists covering different specialities. Being recognised as a specialist in orthodontics enables an individual to practise as a specialist throughout the EEA and there are Regulations stemming from an EEA Directive which specify how that status can be achieved. There are, broadly speaking, three ways. These are by qualification, by training or by experience.

3

3. The Regulations in question are the European Primary and Specialist Dental Qualifications Regulations 1998 (1998 No.811), which came into force on 14 April 1998. It was recognised that there were existing specialists who did not require any extra qualifications and so there were transitional provisions which enabled them to apply to be on the list provided they applied within 2 years of the coming into force of Regulations to be made by the defendant pursuant to section 26(4) of the Dentists Act 1984. Regulation 12(3)(c) enables a person to be placed on the specialist list if he has satisfied the defendant that: -

“(i) he has been trained in the United Kingdom in the appropriate speciality and that having complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it;

(ii) he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST in that speciality’; or

(iii) he has acquired experience in that speciality which has given him a level of expertise he might reasonably be expected to have attained if he had a CCST in that speciality”.

4

A CCST is a certificate of Completion of Specialist Training in Orthodontics.

5

4. Regulations under s.26(4) of the Dentists Act 1984 have been made by the defendant. They are the General Dental Council (Distinctive Branches of Dentistry) Regulations 1998 (the s.26(4) Regulations) which came into force on 11 July 1998. Regulation 5 sets out a number of different ways by which a registered dentist will be entitled to use the title “Specialist in Orthodontics”. The primary way is by being awarded a CCST, but there are others which in the main reflect the need to recognise parallel EEA qualifications. The relevant one for the purposes of this case is to be found in Regulation 5(g), which requires an application within 2 years or “later if he/she satisfies the Registrar that there was good reason for not applying by then” which satisfies the defendant of any of the three matters set out in Regulation 12(3)(c) of 1998/811, namely training, qualification or experience.

6

5. There is a right of appeal against a refusal of an application. This lies to a panel of three, the chairman of which must be a lawyer holding a 10 year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990. The other two members are registered dentists who are Fellows of U.K. medical or surgical Royal Colleges. It is provided by the relevant regulations (contained in Schedule 2 to the General Dental Council Procedures Governing Appeals Regulations) that: -

“A person shall not act as … member of an appeal panel if that person …

(c) is a Fellow of a medical or surgical Royal College … who holds the prescribed distinctive title in the same branch of dentistry in which the appellant has received specialist dental training”.

7

This provision, which although not directly applicable where as here the appellant has received no specialist training in orthodontics, was applied and meant that the appeal panel contained no specialist orthodontist. This seems somewhat curious since one might have expected that at least one of the members should indeed have specialist knowledge. I was told that the reason behind it was to avoid any suggestion that established orthodontists could achieve specialist listing on the basis of some sort of favouritism from fellow orthodontists.

8

6. On 28 June 2000 the claimant applied for entry in the specialist list for orthodontists on the basis of, as the form put it, “specialist training qualification or experience requiring individual assessment”, i.e. all the grounds in Regulation 5(g) of the s.26(4) Regulations. He was then required by the form to give further information ‘by ticking the box against each statement which applies to you and by deleting any statement which does not apply’. He ticked three of the four boxes. The statements read as follows: -

“1. I enclose the Curriculum Vitae on which I rely in support of my application.

Your CV might include details of the following: relevant clinical practice; teaching experience; continuing professional education (including any overseas courses); professional standing.

2. I enclose original documentary evidence of my experience on which I rely in support of my application.

This original documentary evidence might include structured references from consultants, referring practitioners and colleagues; abstracts of referred publications; logs of treatments undertaken; course materials written by you from courses you have led; materials relating to congress and seminars you have attended.

3. I enclose original documentary evidence of any supervised training on which I rely in support of my application.

This might include training by books; course prospectuses and syllabuses; evidence of successful completion of training programmes; names and qualifications of training supervisors”.

9

There is a footnote which applies to all the boxes and which reads: -

“These are suggestions for the sort of material that ought to accompany your application, if the material is relevant to the speciality and you want it to be taken into account in the assessment process. These suggestions are indicative, not prescriptive, and the lists of material suggested are not exhaustive”.

10

7. As is perhaps obvious, Box 1 is applicable to all applications under s.26(4) Regulation 5(g) and 2 and 3 to experience and training respectively. Box 4 deals with qualifications. But the claimant had attended a number of training courses (as would be expected of a practitioner in any particular field of medicine or dentistry) and so he understandably regarded Box 3 as relevant. Although each gateway to the list under s.26(4) Regulation 5(g) is separate it is necessary to show that a level of expertise equivalent to that achieved through a CCST has been obtained by experience in orthodontics. It is obvious that training may assist in establishing such expertise and experience is not limited to practice alone. The guidelines issued by the defendant include the following information: -

“These three elements – training qualifications and experience – cannot be aggregated to satisfy the required standard but must be considered separately. Any one element may therefore in itself be sufficient to satisfy the requirement.

In assessing experience, the critical factor will be the expertise acquired. Indicators of such expertise may include scope of practice and the source and type of referrals, professional publications and involvement in continuing professional education and professional standing in the dental community. Training or qualifications which are not in themselves of a level to satisfy the requirements of (i) or (ii) above [i.e. training or qualifications] may be useful indicators of expertise, for the purpose of assessing an applicant's experience”.

11

I think there is some confusion in this. The regulation requires that the applicant in question has acquired experience which has given him or her a particular level of expertise. The expertise must result from the experience, not the other way round, but it is in my view apparent that experience, as I have said, can include experience obtained in any relevant way, whether by obtaining qualifications or undergoing training or practising as an orthodontist. In that sense, there can be a form of aggregation.

12

8. The claimant included with his application a considerable number of testimonials, some in a standard form, from dentists who customarily referred their patients who needed orthodontic treatment to him. He also included three detailed accounts of particular...

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