Spinal Surgery Complications – A Change in the Law?
Manuel Nunez Martinez v General Dental Council  EWHC 1223 (Admin)
Before Mr Justice Warby
Judgement date: 24 March 2015
A dentist, Mr M, sought to challenge the decision of the Interim Orders Committee (IOC) of the General Dental Council (GDC) to place interim conditions on his registration. Mr M’s challenge was pursuant to section 32(12) of the Dentists Act 1984 (the Act).
The concerns referred to the IOC by the Registrar related to 39 patients treated by Mr M between 1 December 2011 and March 2012. The allegations broadly fell into three categories:
Mr M sought to challenge the decision of the IOC on the basis that it failed to give adequate reasons for the imposition of 10 conditions on his registration. Mr M submitted that the court should discharge the IOC's order or revoke it.
The complaint to the GDC regarding Mr M was made by Mr J, who was the practice principal at a dental surgery Mr M had worked at between December 2011 to March 2012.
As part of its investigation the GDC instructed a clinical advisor, Mr H, to review the case. Mr H provided a report dated 16 September 2014. In relation to the specific clinical issues raised by Mr J, Mr H stated that Mr M’s practice was significantly below the level of professional practice to be reasonably expected. Mr H clarified his opinion by stating that his view was based on the information provided by Mr J, without any substantive response from Mr M.
Section 32(4) of the Act empowers the IOC to make an interim order for a period not exceeding 18 months (whether that be conditions or suspension) only if it is satisfied “that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned”. All orders are subject to review.
The court’s powers in relation to orders made by the IOC are set out in section 32(12) of the Act. In relation to interim conditions, the court can:
“…….revoke the order or revoke, vary or add to any condition imposed by the order
…..substitute for the period specified in the order (or in an order extending it) some other period which could have been specified in the order (or in the order extending it) when it was made”
The IOC hearing
The IOC considered Mr M’s case on 18 November 2014.
The GDC's case was that the evidence supported an interim suspension order for 18 months. Mr M’s case was that Mr J’s complaint to the GDC was unreliable, prompted by a falling out between the two, and further that Mr J’s provision to the GDC of documentation was selective thereby giving a false and misleading impression. Counsel for Mr M, stated as follows:
“When you have got a snapshot provided by someone with an axe to grind the weight to be attached to those criticisms is such that it would not be appropriate to make an interim order at all today.”
Mr M stated that the accurate picture could only be gleaned by examination of the full records which were not available to the IOC.
Having heard submissions the IOC determined that an interim order was necessary for the protection of the public but that interim conditional registration, as opposed to suspension, was sufficient.
The IOC gave these reasons for its decision:
“In assessing whether an interim order is necessary for the protection of the public the Committee had well in mind that these are interim proceedings in circumstances where an investigation is still on-going and where no facts have been found proved”
In making his decision Mr Justice Warby referred to His Honour Judge Gore QC in General Medical Council v Anyuan-Osigwe  EWHC 3984 (Admin) at paragraphs 12 to 14:
“…..First, I must decide whether the decision of the Interim Order Panel was wrong. In making that decision what I have to consider is whether the material indicates that, firstly, the decision the Panel made was necessary for the protection of the public or otherwise is in the public interest, (there being no suggestion here of any legitimate basis for the making of the decision in question), and secondly, in accordance with paragraph 18 of the Interim Orders Panel Guidance, the Panel in deciding to suspend or impose conditions were entitled to have formed a view that there was an impairment of fitness to practise which posed a real risk to the members of the public, and the order was necessary after balancing the interests of the doctor, that is to continue in practice and earn a living and the interest of the public to guard against the risk.
Secondly, in making that decision I exercise original powers as opposed to either appellate or for that matter what are sometimes called public law or judicial review powers and this calls upon me to consider all the relevant evidence and arguments, not only those that existed or were deployed at the time of the decision of the Panel, as indeed seems to me to have been the explicit judgment of Nicol J in Sandler at paragraph 12.
Thirdly, in coming to that decision, I must consider what weight, if any, to attach to the decision of the Panel but in doing so I must acknowledge that Parliament has entrusted that expert medical body of professionals powers to apply their own expertise and experience and their own knowledge of public expectations of the professionals they regulate and what is necessary in the public interest and I should not lightly substitute my own decision unless I determine that their view was wrong.”
Mr Justice Warby confirmed that in circumstances where factual allegations are disputed, it is not the role of the IOC to determine those disputes. The IOC should treat the allegation as disclosing a sufficient case unless they are strikingly incredible or it appears that they are likely to be rejected at a final hearing for some reason or another. Mr Justice Warby confirmed that in some cases this may be difficult, such as in Mr M’s case where it is said that if a fuller investigation of the facts was performed it would become evident that what is being relied upon to support the allegation is a misleading snapshot of the overall picture. In such cases, the IOC or the court will have to do its best on the evidence before it to make an assessment of whether that submission is made out. If the submission is not made out, and the allegations have some credibility, the matter should thereafter proceed on that basis.
Mr Justice Warby accepted the GDC’s submission that the function of the IOC and the court in relation to an interim order is one of risk assessment. In order to perform this function attention must be paid to the nature of the allegations and the evidence in support of them. In so doing, the court cannot ignore the need to have cognisance of the quality of the evidence, and further the possibility that it may not be sufficient to justify the view that there is a risk.
In dealing with the IOC's approach to the clinical and record keeping issues, Mr Justice Warby considered Mr M’s submission that the case against him was that of a complainant who had selectively chosen records which he alleges show deficiencies in care standards. In support of this, Mr M relied on Mr H’s comments regarding the need for him to be able to examine the full records of each of the patients.
Mr M submitted that the IOC failed to properly consider the submission put to them about Mr J’s credibility, and the reservations expressed by Mr H in relation to the available evidence.
Mr Justice Warby commented that the requirements as to reasons for decisions are well established, and in so doing referred to the GDC's guidance at paragraphs 30 and 31:
“30. Whatever the IOC decides to do in a case, it must explain its reasons. This will help show that all relevant issues have been addressed. The registrant, his or her representatives, advisers, witnesses and the public will be able to see why a particular course of action has been taken, without the disclosure of any confidential details relating to the physical or mental health of the registrant, even if they might disagree with the outcome.
31. It is therefore very important to give a comprehensive explanation of every decision made, including procedural decisions. The explanation should always include:
In short, the IOC must provide sufficient reasons to demonstrate that each outcome was considered and further, the reasons for each outcome must be sufficiently detailed to allow interested parties to understand why it has been reached.
In relation to the comments made by Mr H about the selection of the records, Mr Justice Warby concluded that the IOC was not in a position to reach a finding as to risk; however he did not consider the IOC’s reasons to be inadequate. However, he did conclude that the reference to ‘possible risk’ may be worthy of criticism.
Mr Justice Warby concluded that the passage read as a whole indicated that the basis for the IOC’s decision was as follows:
In short, the IOC did not accept that the records produced by Mr J were only a snapshot, and therefore were insufficient to justify a conclusion that a risk existed against which it was necessary to guard.
Further, Mr Justice Warby concluded that the IOC’s determination was not wrong.
Dealing with the matters of patient confidentiality and data protection, Mr Justice Warby considered Mr M’s submission that the IOC's reasoning did not comply with the GDC's own guidance or the relevant authorities, specifically that the IOC’s decision on this aspect failed to disclose the underlying basis for the decision.
On this point, Mr Justice Warby agreed. Stating as follows at paragraph 34:
“….in my judgment, the Panel's reasons in relation to this aspect of the matter are deficient. The complaint that the reasons do no more than express the Committee's conclusion is justified. It is not clear from the reasons what risk to the public the Committee has found established in this respect, or why”.
Referring to the decision in R(Walker) v General Medical Council  EWHC 2308 (Admin), paragraph 9, Mr Justice Warby confirmed that insufficient reasons and/or a decision which is disproportionate will encourage the court to consider more broadly the decision made by the Committee and substitute its own.
Whilst accepting that the IOC’s decision in relation to the data protection issues was deficient, the deficiency was not of a degree to impinge on the soundness of its conclusions in respect of the other aspects of the case.
On the patient confidentiality issue, Mr Justice Warby noted that only 1 of the 10 conditions was relevant. The evidence in relation to this issue largely emanated from Mr J who raised four primary concerns:
Mr M’s response to the aforementioned concerns was that he himself had concerns about the way in which the practice had handled record keeping and that is why he downloaded onto his own devices andsecondly that he had appropriate consents for the taking and usage of all the photographs.
Mr Justice Warby concluded that the evidential picture on these matters was sufficient to justify the imposition of the single interim condition on the basis that it was necessary and proportionate in the interests of protecting patients and in the public interest. On this point, Mr Justice Warby noted that Mr M had downloaded practice records on more than one occasion, one of which was after a warning had been issued. In such circumstances, there was reasonable concern that Mr M “displayed a cavalier attitude to data protection” (para 46).
Mr Justice Warby dismissed the application, but made it clear that neither he or the IOC had made any findings of fact. He further stated that the delay in the case should be a matter for considerable concern, the reason being that on the one hand it is considered that Mr M may pose a risk to patients if his registration was not subject to some restriction, but yet he had been allowed to practice unrestricted for a period of over two years following Mr J’s complaint. In addition, the full records relating to the patients in question had still not been obtained by 2014 when the matter was considered by the IOC, which meant that the interim order was granted on a partial picture.
Further, Mr Justice Warby commented that the meeting of the Investigation Committee (IC) which was due to be held in January was deferred because the full records were not available then.
In the circumstances, whilst he was not asked to address the length of the order (18 months), Mr Justice Warby considered that there may be a real risk of injustice to Mr M if the interim order remained in place for the full duration because the GDC had failed to investigate in a timely manner. Mr Justice Warby commented that the review of the interim order, which by the time of the hearing was in two months, should be approached by the GDC on the basis that the records should be available and considered in their entirety by the IOC, if by that stage the matter had not been considered by the IC, and possibly even if the IC had considered it. Further, if the records were still not available, the GDC should ask itself why not, and further, whether their absence affected the proportionality of the length of the interim order.
Mr Justice Warby made no order for costs on the basis that Mr M’s submissions had considerable force in the circumstances, and further the absence of the full dental records for consideration by the IOC (some two and half years after the original complaint had been made), for which he had been given no reasonable justification, was a matter for concern.
This case reinforces the established principle that Committee’s must provide sufficient reasoning for their decisions. Such reasons must be sufficient to allow any party reading the decision to understand the reasons for which it was made. Committees must be careful not to repeat trite conclusions such as ‘there is a risk to the public’ without making clear what exactly led them to that conclusion.
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