The Professional Standards Authority for Health and Social Care v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 01 December 2021 |
| Neutral Citation | [2021] EWHC 3230 (Admin) |
| Docket Number | Case No: CO/1831/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3230 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Lane
Case No: CO/1831/2021
and
Mr D Bradly (instructed by Browne Jacobson LLP) for the Appellant
Mr I Hare QC (instructed by the General Dental Council) for the 1st Respondent
The second respondent, in person, assisted by Ms M Gay as a McKenzie Friend
Hearing date: 9 November 2021
Approved Judgment
This is an appeal brought by the Professional Standards Authority for Health and Social Care under section 29 of the National Health Service Reform and Health Care Professions Act 2002 (“2002 Act”), against the decision made by the Professional Conduct Committee (“PCC”) of the General Dental Council on 17 March 2021 to suspend the registration in the Dentists' Register of Mr Mohammed Amir for a period of three months, subject to a review prior to the expiry of that period. The appellant has referred the decision to the High Court because it considers that that decision is not sufficient for the protection of the public.
A. BACKGROUND
For a period up to 22 January 2019, the second respondent made claims to the public via his website that asthma, ataxia, allergies, sciatic nerve pain, breathing problem, Chrohn's disease, coeliac disease, depression and anxiety, fibromyalgia, infertility, arthritis, learning difficulties, migraine, multiple sclerosis and heart palpitations could be attributable to a dysfunctional jaw joint, a condition which, as a dentist, the second respondent was able to treat.
As a registered dentist, the second respondent was under a professional obligation to “provide good quality care based on current evidence and authoritative guidance” (paragraph 7.1 of first respondent's Standards for the Dental Team, 30 September 2013). The PCC found that there is no current evidence or authoritative guidance to support the second respondent's claims to be able to address those medical conditions through dental treatment.
Patient A had been diagnosed in 2011 with Spinocerebellar Ataxia Type 3 (“Sca3”), a rare incurable hereditary degenerative condition, the symptoms of which include loss of co-ordination and problems with movement. These progressively deteriorate over time and do not improve, according to the evidence given to the PCC by Dr Jonathan Rohrer, a consultant neurologist.
According to Patient A's witness statement, by January 2016 his mobility had become poor and he needed to have someone walking with him. Patient A's wife described him as having become increasing anxious about admission to hospital for tests for his Sca3, with Patient A experiencing low mood after hospital admission, as well as showing signs of anxiety and depression, not sleeping and expressing suicidal thoughts to their son. When Patient A consulted the second respondent in December 2015, Patient A was in a vulnerable condition. As he told he PCC in oral evidence, he was “very desperate at that point to find a solution for his problem”.
The evidence of Dr Rohrer is that there is no known association between Sca3 and disfunction of the tempero-mandibular joints.
The evidence of Patient A included an account that at his first appointment with the second respondent, the latter did not conduct an examination inside his mouth but rather asked him to walk and observed him walking. The second respondent asked Patient A to raise his left hand, with and without his mouth open. The second respondent did not answer Patient A's questions but told him that the doctors he had seen had wanted to label him as having Sca3 and that the second respondent could help. Patient A was told by the second respondent about the cases of other patients whom the second respondent had treated. According to the PCC's decision, the second respondent had informed Patient A that the second respondent could perhaps improve Patient A's cerebellar ataxia or stop it from deteriorating further. The PCC found it was likely that the second respondent told Patient A that his treatment might slow or improve Patient A's symptoms, such as walking and balance issues.
Patient A agreed to the only treatment which the second respondent offered; namely, an appliance which the second respondent claimed would expand Patient A's upper maxillary arch, at a cost to Patient A of £8,000.
The PCC found that this treatment was not clinically justified; and that the second respondent provided it to Patient A without performing an adequate examination of Patient A's jaw joints; without undertaking diagnostic assessments and special investigations required for an assessment of those joints; without obtaining Patient A's informed consent to the treatment (including by failing to provide any treatment options or explain any risks); and without making adequate clinical records.
A central element of the appeal to this court is the assertion that the PCC approached the second respondent's conduct as having two discrete elements; that is to say, (i) the statements which the second respondent had made on his website and to Patient A; and (ii) the deficiencies in the second respondent's care and management of Patient A. The appellant says that the PCC undertook no inquiry into the relationship between these two concerns, which went to the crucial issue of the reasons why the second respondent had failed in his care and management of Patient A. Accordingly, the PCC did not address the issue of whether the second respondent had abused his position as a dentist in relation to a vulnerable patient. That issue was, in effect, crucial to deciding upon the second respondent's fitness to practise.
Furthermore and in any event, the appellant contends that the second respondent's misconduct amounted to widespread breaches of relevant professional standards and was, thus, very serious. Since the second respondent proved incapable of demonstrating any insight into those serious deficiencies, the appellant submits that an order suspending the second respondent's registration for a period of three months is wholly insufficient to meet the public interest in protecting patients, maintaining public confidence in the profession and promoting standards within the profession.
B. LEGAL FRAMEWORK
Section 1 of the Dentist Acts 1984 (“1984 Act”) makes continued provision for the existence of the first respondent, conferring upon it the overarching objective, in exercising its functions, of the protection of the public. That involves protecting, promoting and maintaining the health, safety and wellbeing of the public, promoting and maintaining public confidence in the profession of dentistry, and promoting and maintaining proper professional standards and conduct for members.
Section 2 of the 1984 Act contains statutory recognition of the PCC. By section 27B, the PCC must investigate an allegation referred to it by the Investigating Committee and determine whether the fitness to practise as a dentist of the person referred to the PCC is impaired.
By Section 27B(6), if the PCC determines that a person's fitness to practise as a dentist is impaired, they may, if they consider it appropriate, direct that the person's name be erased from the register; that registration therein be suspended for a period not exceeding 12 months; that registration be conditional upon compliance with conditions specified by the PCC; or that the person concerned be reprimanded.
Section 29 of the 2002 Act makes provision for the appellant to refer to this court a direction of the PCC, following a determination of a person's fitness to practise as a dentist is impaired. Section 29(4) provides that the power to refer arises when the appellant considers that the decision of the PCC is not sufficient, whether as to a finding or a penalty or both, for the protection of the public. Section 29(4)(A) provides that consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient to protect the health, safety and well-being of the public; to maintain public confidence in the profession; and to maintain proper professional standards of conduct for members of that profession.
In the event of a referral, section 29(7) requires this court to treat the reference as an appeal against the relevant decision, even though the Professional Standards Authority was not a party to the proceedings which resulted in the decision. The body which made the relevant decision, as well as the person to whom the decision relates (the second respondent) are expressly made respondents to the deemed appeal (section 29)(7)(b)).
Section 29(8) provides that the court may dismiss the appeal; allow it and quash the relevant decision; substitute for the relevant decision any other decision which could have been made by the PCC; or remit the case to the PCC.
C. CASE LAW
The treating of a reference to this court as an appeal means that Part 52 of the Civil Procedural Rules applies. By reason of CPR 52.21(3), the court will allow an appeal where the decision of (here) the PCC was “wrong”; or “…unjust because of a serious procedural or other irregularity in the proceedings…”.
Although decided under different (albeit comparable) legislation, the judgment of the Court of Appeal in Council for the Regulation of Healthcare Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717 remains authoritative. The Court's role is to consider whether the penalty imposed is appropriate, having regard to the relevant statutory considerations of public safety and public confidence in the profession. In considering whether a penalty...
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