Spinal Surgery Complications – A Change in the Law?
High Court dismisses appeal of registered dentist in connection with Panel’s failure to give adequate reasons and imposition of a disproportionate sanction.
Judgment date: 24 January 2014
From 2006, the claimant dentist, Edward Mills, worked under an NHS contract requiring him to perform 769 units of dental activity (UDAs) per year. This contract permitted him to claim an appropriate number of UDAs for “a course of treatment” as defined in the NHS contract. Money was paid monthly in advance on the assumption that the stated targets would be achieved that year.
By October 2009, the Claimant had failed to meet his annual UDA contractual target and he was issued with a Remedial Notice requiring a variation of his UDAs to 409 and repayment of monies overpaid in the amount of £4,153.59 to the Primary Care Trust (PCT). The Claimant was reluctant to reduce his contract level and repay monies owed and assured the PCT that, having spoken with his NHS colleagues, he was aware of “simple ways to alter ones prescribing pattern to achieve the UDA target whilst remaining within an ethical framework”.
The Claimant then proceeded to make claims for payment in what was described after investigation as an unusual monthly profile. This instigated an examination of the Claimant’s claims which revealed that his practice was submitting a high number of claim forms per patient, which were not for orthodontic assessment. An examination of patient’s clinical records by a Dental Practice Advisor revealed that certain claims were inappropriate.
The claimant’s case was referred to the General Dental Council (GDC) Fitness to Practise team on 20 September 2011.
On 15 January 2013, the Claimant appeared before a Professional Conduct Committee (PCC) of the GDC. The allegations against the Claimant were that his claims for payment were inappropriate, were motivated by financial gain and/or were dishonest in that the Claimant’s intention was to minimise or avoid liability to repay sums to the PCT. The inappropriate claims alleged included claiming the highest financial level for such acts as posting information leaflets and posting prescriptions to patients with whom he had no face to face contact.
Before the PCC live evidence was given by independent expert, Mr Birkin, who looked at matters afresh, and Heather Aston on behalf of the PCT for the GDC. The Claimant gave evidence on his own behalf as did his expert, Mr Barker.
The committee noted that the Claimant had, on his own admission, submitted to the NHS inappropriate claims for remuneration in respect of 43 patients. It determined that the Claimant must have known that he was not entitled to claim UDAs for these actions, as they clearly did not constitute “a course of treatment” as required by his contract and, in doing so, he acted dishonestly.
The PCC found that the Claimant’s fitness to practice was impaired by reason of misconduct and that he should be erased from the register of dentists.
The Claimant challenged the decision of the Panel on the basis that:
i. the PCC gave inadequate reasons;
ii. the Panel applied a disproportionate sanction in ordering the Claimant’s erasure from the register of dental practitioners.
It was submitted by the Claimant in relation to the first strand of his appeal that the reasoning of the PCC was very limited, in that there was no analysis of the process undertaken by the PCC in considering the issue of dishonesty. It was argued that the test was not whether the Claimant knew that his conduct was wrong but whether he was acting dishonestly.
It was argued further that the Claimant had accepted almost everything in evidence apart from dishonesty and that there was no element of concealment, facts which were not touched upon in the reasoning.
It was accepted by the Claimant that it was for the PCC to assess primary fact and come to a view on the demeanour of the witness, however, it was argued that such decisions needed to be reasoned to enable the registrant to know how the Panel reached their decision.
On the issue of sanction, the claimant submitted that he was of good character, was a comparatively junior practitioner and that a significant period of suspension would be adequate.
The High Court held, in relation to the first ground of appeal, that there was no flaw in the reasoning of the PCC, which had dealt with the main controversial issues in a clear and careful way.
The Court considered that the PCC’s ability to see, hear and assess the oral witnesses, including the Claimant, was a considerable advantage in a claim of dishonesty and put them in an ideal position to make primary findings of fact. It was the Court’s view that the Panel were perfectly entitled to find, as part of their assessment of the Claimant witness, that he had been evasive and not entirely truthful or frank, and that the claims made by him were “motivated by financial gain in a dishonest attempt to minimise or avoid the liability to repay what the Claimant owed to the PCT”.
It was determined that in the face of the evidence before it, including the evidence of the Claimant, the PCC was entitled to come to the view that it did. It quite properly took into account the conduct of the Claimant (including what he said, how he said it and the background context of financial difficulties) and found that his behaviour was that of a dishonest man. In these circumstances, the reasoning of the PCC was found to be perfectly clear and beyond challenge.
Having regard to the approach of regulatory bodies in considering dishonesty, the High Court endorsed the approach set out in Uddin v GMC  EWHC 2669, which rejected the Ghosh 2-part direction in favour of no direction being given on the word’s meaning.
In considering sanction, it was the judgment of the Court that the PCC’s decision to erase the Claimant from the register, made on the basis of the need to uphold proper professional standards and public confidence in the profession, was entirely justified in the circumstances of their findings. It was noted that the Guidance for the PCC makes it clear that where dishonesty is found there is a presumption of erasure of a practitioner.
Submissions made by the Claimant that any dishonesty was at the low end of the scale, involving only small sums of money, were rejected by the Court who noted that “whilst the sums were comparatively small it was…a significant departure from the standards of a dental professional”.
The application was dismissed.
The High Court here clearly endorses the approach of allowing the word ‘dishonesty’ to bear its ordinary, common sense meaning, rather than allowing it be over-complicated by legal definition. Further, it reinforces the proposition that it is in rare cases that an appellate Court would not defer to a Panel when matters revolve around credibility of witnesses whom they had the benefit of seeing live.
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