The General Dental Council v Lucy Jane Williams
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lady Justice Nicola Davies,Lady Justice King |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWCA Civ 481 |
| Docket Number | Case No: CA-2022-001260 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 481
Lady Justice King
Lord Justice Coulson
and
Lady Justice Nicola Davies
Case No: CA-2022-001260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Ritchie
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Z Johnson KC (instructed by GDC Legal Advisory Service) for the Appellant
Mr Robert Kellar KC (instructed by Hempsons Solicitors) for the Respondent
Mark Vinall as Advocate to the Court
Hearing Date: 30 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
This appeal arises out of a decision of the appellant's Professional Conduct Committee (“PCC”) in which various charges were found to be proved against the respondent. On her appeal to the High Court, Ritchie J (“the judge”) allowed that appeal in part, in particular relating to the “top-up” payments and related findings of dishonesty concerning three patients, T, U and V. A central feature of the judge's conclusion was his view that, contrary to the agreed position of the parties before him, the relevant Regulations did not prohibit the conduct complained of. Unusually, therefore, the appellant appeals against the judge's decision with at least some support from the respondent.
As I demonstrate below, the relevant Regulations are not at all straightforward. It appears that they have been accepted for many years as having a particular effect, but until the judgment below, no-one has troubled to analyse the actual words they use. The judge concluded that they did not mean what the appellant had always assumed they meant. To aid our task of interpreting them, we have been considerably assisted by Ms Z Johnson KC for the appellant (who did not appear below) and Mr Kellar KC (who did), and by Mr Mark Vinall of counsel, who was appointed as advocate to the court in the circumstances noted below.
The PCC Determination
The PCC Determination was dated 19 January 2022. It ran to over 70 pages. It covered numerous charges relating to 15 different patients.
The part of the Determination with which this appeal is concerned related to patients T, U and V, and is addressed at pages 65–72. These were all patients seen by the respondent for crown treatment in 2018. In each case, the patient was offered a porcelain bonded crown on the NHS. However, the patients were advised by the respondent that a better-looking ceramic crown could be provided for an additional fee, to be paid privately. The amount of the additional fee was modest: it varied between £30 and £65. This was to cover the additional laboratory costs of a ceramic crown. 1 It was described by the judge at [68] as “the difference in price between the porcelain bonded crowns and the wholly ceramic crowns”.
The Determination proceeded on the basis that it was impermissible to mix the payment structure of the NHS and private payments in this way. It was accepted by the respondent that her conduct was “inappropriate”, but she maintained that she did not know that what the appellant called “top-up fees” were not permitted. Dishonesty was firmly denied. In each case, however, the PCC went on to find that dishonesty had been proved and erased the respondent's name from the appellant's register.
The Proceedings
On 15 February 2022, the respondent appealed to the High Court. Her appeal concerned, not only the findings in respect of patients T, U and V, but also patient S and other charges (not related to the ceramic crown treatment) in respect of patient T. There was no appeal in respect of the remainder of the Determination.
The matter came before Ritchie J on 18 and 19 May 2022. In his judgment dated 7 June 2022 ( [2022] EWHC 1380 (Admin)), the judge dismissed the appeal in respect of patient S and the other charges involving T. However, the judge allowed the respondent's appeal in respect of the top-up fees charged to patients T, U and V, and quashed the findings of dishonesty in relation to those patients. He changed the sanction from erasure to one of suspension for 9 months.
The relevant parts of the judgment are set out between [66]–[111], with a further relevant finding at [137]. It is unnecessary to set those paragraphs out in detail. The essential elements were:
(a) The relevant facts were summarised at [66] – [68]: the three patients accepted the appellant's offer to have ceramic crowns, part funded by the NHS and part by the patient paying privately. It was not the case that ceramic crowns were deemed medically necessary for these patients such that they would be automatically covered by the NHS: [68];
(b) The judge recognised that both the experts who gave evidence to the PCC were agreed that the relevant Regulations prohibited top-up fees but rejected their evidence on the basis of the Regulations themselves: [69], [73];
(c) The judge looked at the specific contract between the respondent's practice and the NHS which he noted reflected the terms of Regulation 22 and Schedule 3, paragraph 10 [74–76];
(d) Having set out these matters, the judge concluded that the respondent “would have been entitled to conclude that she could charge top-up fees for the crowns she offered if the patients agreed to that route and she provided proper all round advice and so long as her clinical judgment was that ceramic crowns were not necessary for their ‘oral health’ and hence not available on the NHS”: [79];
(e) The judge said that he could not support the finding of the PCC, whatever the experts said or agreed, that voluntary mixing was banned by the Regulations. It was on that flawed basis that they had rejected the respondent's defence of genuine belief [96];
(g) In all the circumstances of the case, the judge quashed the dishonesty findings in relation to Patients T, U and V. His detailed findings on this issue run from [95]–[111]. I address this aspect of the judgment in greater detail in Section 8 below.
On 28 June 2022, the appellants filed a notice of appeal. Doubtless in order to be helpful, the parties submitted an agreed consent order, allowing the appeal by consent, because they were agreed that the judge's interpretation of the relevant Regulations was wrong. However there were difficulties with that course, not least because, although the appeal was being allowed, it was proposed that the order that the judge made remained unchanged. Furthermore, and perhaps more significantly, there were concerns about the making of a declaration that the judge's interpretation of the relevant Regulations was wrong, in circumstances where there would be no oral argument.
In the end, these difficulties were addressed by Dingemans LJ at a hearing on 15 December 2022 ( [2022] EWCA Civ 1899). Dingemans LJ pointed out the problems with both the original consent order and the parties' subsequent proposal (which he described as a private agreement between the parties not to rely on the dishonesty findings). Having heard submissions, he concluded, not only that there was a real prospect of the appellant successfully showing that the judge's interpretation of the relevant Regulations was incorrect, but that the appellant also had a real prospect of showing that the findings made by the judge in relation to dishonesty should be set aside. Furthermore, given the Press interest in the case and its potential consequences for dentists' disciplinary hearings, Dingemans LJ found that there were also other compelling reasons to grant permission to appeal. However, Dingemans LJ sought, and obtained, an undertaking from the appellant that, whatever the outcome of the appeal, it would not seek to modify the lesser sanction imposed by the judge (namely the 9 months' suspension).
Dingemans LJ directed that the parties should write jointly to the Government Legal Department to seek an advocate to the court to address the point as to the proper interpretation of the Regulations. It was in consequence of that direction that this court has received the written and oral submissions of Mr Vinall.
Issues on Appeal
There are, I think, three issues arising on this appeal. Putting them into a more logical sequence, they are:
(a) Was the judge entitled to determine the proper interpretation of the relevant Regulations despite the fact that the parties before him were agreed on another interpretation (Ground 2 of the Appeal)?
(b) Was the judge's interpretation of the relevant Regulations correct (Ground 1 of the Appeal)?
(c) Regardless of the correct interpretation of the relevant Regulations, was the judge wrong to quash the findings of dishonesty in respect of patients T, U and V (Ground 3 of the Appeal)?
Before addressing those issues in turn, I set out the relevant Regulations.
The Relevant Regulations
Section 1 of the National Health Service Act 1977 provided as follows:
“Secretary of State's duty as to health service.
(1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of those countries and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.
(2) The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.”
The Regulations relevant to this appeal were made pursuant to those powers.
The National Health Service (General Dental Services Contracts) Regulations...
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