All relevant evidence: a reminder to Regulators

3 November 2019

Professional Standards Authority (PSA) v General Dental Council (GDC) and another [2019] EWHC 2640 (Admin)

Summary

Mr Hussain (Mr H), a dentist, owned a number of dental practices.  In July 2010 he was convicted of conspiracy to defraud, in that between 2002 and 2006 he had allowed his business partner to perform and claim for NHS dental treatment when that partner did not have the relevant permissions to do so; furthermore, patients were misled into believing they were receiving NHS treatments at NHS fees when they were in fact being charged higher fees.  As part of this conspiracy, Mr H concealed, destroyed, and re-wrote patient records.

Mr H spent a period of time in prison, and his name was erased from the GDC Register (the Register) in November 2011.

There had been other episodes of dishonest conduct by Mr H.  In June 2007 he had been suspended from the Register for 12 months, for sending intentionally misleading letters to patients and a former associate.  In August 2008, he had sold one of his practices in circumstances which led to a High Court Judgment in December 2010 that he had deceived the buyer as to the value of the practice.  In the course of the judgment, the judge accepted that Mr H had given deliberately false evidence to the court and described him as “a very unimpressive witness”. 

On 12 July 2017 Mr H applied to be restored to the Register, submitting a written statement signed on 12 June 2017 that he had remediated his previous dishonest behaviour, through reflection, mentoring, and cognitive behavioural therapy.  He also explained that the personal circumstances which had, he said, driven him to his offending were no longer present.

In June 2018, the Professional Conduct Committee (PCC) heard and granted Mr H’s application to be restored to the Register, on the basis (inter alia) that he had reflected extensively on his dishonesty, and that the risk of repetition was low as there had been no further evidence of misconduct by Mr H since his erasure in 2011.  The PCC also found that this was not a case in which the misconduct was so serious that the public interest required Mr H to be kept permanently out of practice.

However, the PCC did not know that in October 2017, another High Court case had gone against Mr H.  Once again, a judge concluded he dishonestly made false representations about the turnover of one of his dental practices, and again it was found that Mr H had given false evidence to the court.

The GDC had a copy of the judgment in its possession prior to Mr H’s restoration hearing, but it had been left out of the GDC’s bundle of evidence in error, along with the previous judgment of the High Court from 2010.  The updated bundle was only served on Mr H’s solicitors on 18 June 2018, with the hearing listed for 27 June 2018.  Mr H’s representatives objected to the documents being put before the PCC due to their late service, and by way of compromise and so as to prevent an adjournment, the GDC agreed that only the judgment from 2010 would go before the PCC. 

 

Appeal

The PSA initially declined to exercise its powers to appeal the decision to restore Mr H to the Register, concluding that the decision was not one which no reasonable panel could have made, and it was not insufficient for public protection. However, having received further information, it reversed its decision, and referred the case to the High Court under s.29(4) of the National Health Service Reform and Health Care Professions Act 2002.

The grounds for appeal were (in summary):

  • The decision of the PCC involved a serious procedural irregularity, as they were not provided with the 2017 Judgment;
  • The PCC’s decision to restore Mr H’s name was therefore taken on an incomplete evidential basis;
  • Had the PCC known of the 2017 Judgment they would explored this with Mr H and with the witnesses who had spoken to his remediation; and 
  • The PSA later applied to amend its grounds to include the argument that the PCC failed in any event to properly characterise the seriousness of Mr H’s conduct and to address whether the public interest considerations were consistent with his restoration (with reference to GMC v Chandra [2018] EWCA 1898); in other words, they decided to argue that the PCC ought not to have restored Mr H even on the information before them.

The GDC supported the PSA’s appeal on all grounds.

Knowles J found in favour of the PSA and GDC and remitted Mr H’s application for restoration to a differently constituted PCC for a fresh determination.  It was “inescapable” that there had been a serious procedural irregularity: the 2017 Judgment was plainly of relevance to the issue which the PCC had to decide; there had not been a tactical decision not to rely on the judgment when first received by the GDC but instead it was overlooked in error; most importantly, there were a number of findings in the PCC’s determination which are at least arguably wrong in light of the 2017 Judgment, particularly its conclusion that Mr H’s dishonesty only spanned 2002 to 2010.

Knowles J relied upon the opinion stated by the Court of Appeal in Chandra; there will be cases where it is in the public interest for additional evidence to be placed before the court “to ensure that a practitioner does not escape the sanctions that his conduct has made essential if patients are not to be exposed to risk”, and that the principles in Ladd v Marshall [1954] 1 WLR 1489 in relation to fresh evidence do not apply, i.e. the fact that the evidence could have been but was not placed before the disciplinary tribunal “can have no bearing on whether it should be admitted by the Court”.

 

Commentary

In a previous Case Summary, I explored a case which did not break new legal ground, but instead dealt with some of the procedural questions with which panels and legal assessors grapple every day.

This is a similar case, but focusing instead on the gathering and serving of evidence and the significance of decisions made outside the hearing room. This case serves as a  salutary reminder to those of us who work for Regulators and Regulators themselves, about the importance of ensuring that panels have before them all relevant evidence to enable them to make a clear and reasoned decision.  In terms of legal principle, Knowles J’s judgment does not craft ’novel‘ points, but is nevertheless a useful and interesting application of principles recently articulated by the Court of Appeal in Chandra and in Bawa-Garba v GMC [2018] EWCA Civ 1879, and provides a pithy summary at paragraph 41 of the seriousness of dishonest conduct.

The PSA's original decision on referral is also, with respect, surprising, and no doubt will lead to some reflection. Given the extent of Mr H's proven dishonesty even leaving aside the 2017 judgment, this is the type of case where ordinarily one would expect the PSA to refer it as insufficient to protect the public.

 

About the author

Laura Vignoles is an Associate Barrister in the Regulatory Department. Laura is primarily responsible for investigating fitness to practise cases on behalf of the Health and Care Professions Council. Laura also presents cases and argues preliminary matters before the Conduct and Competence Committee of the HCPC. 

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