Case Update: High Court remits case back to the General Dental Council’s Professional Conduct Committee to reconsider whether the erasure sanction imposed was proportionate

9 August 2016

Nidal Abusara-Darwich v General Dental Council [2016] EWHC 1856 (Admin)

This was a statutory appeal to the High Court in relation to a decision of the Professional Conduct Committee (PCC) of the General Dental Council (GDC). The appellant, Nidal Abusara-Darwich (Mr A) appealed against some the findings of fact made by the PCC and against the sanction of erasure that was imposed.

Mr A was a dentist registered with the GDC. He practised as a dentist in the Isle of Man.

Dentists are required to renew their registration with the GDC annually by paying the required fee. Mr A failed to pay this fee and so he was removed from the GDC Register. On 10 January 2014, Mr A applied to the GDC to be restored to the register. On the GDC application form completed by Mr A, he was asked a series of questions. A number of the questions and the answers that were given by Mr A are pertinent to these proceedings. On the form, Mr A was asked to confirm whether he had been working as a dentist in the UK or abroad during the time that he was not registered with the GDC. Mr A answered ‘no’ to both these questions. The form also required Mr A to confirm whether he had been convicted of a criminal offence in the UK or any other country. Mr A again answered ‘no’ to this question. Mr A signed the declaration at the end of the form confirming that the information he had provided was accurate and true.

The GDC subsequently learned that Mr A had in fact received a conviction for a drink driving offence in the Isle of Man during 2012. In light of this, on 23 September 2014, a caseworker at the GDC sent an email to Mr A. In addition to a number of other enquiries, Mr A was asked to confirm whether he had been convicted of drink driving in 2012 and, if so, to provide further details. Mr A was also asked to confirm whether he had any other cautions or convictions and to provide any details of the same.

Mr A responded to the email from the GDC on 29 September 2014. Mr A confirmed that he was convicted of drink driving in September 2012. He stated that he had informed his previous and current employer of this conviction. Mr A went on to say in his email that ‘my legal body organisation has just confirmed to me that this issue should have been reported to the GDC by myself back in 2012. I truly apologise as I was not aware of this’. Mr A did not declare any other convictions in this email.

It was subsequently identified by the GDC that, in addition to Mr A’s conviction in 2012 for drink driving in the Isle of Man, he also had a conviction in 2011 in Ireland, also for a drink driving offence. This was subsequently admitted by Mr A. These events resulted in formal charges being brought before the PCC. The allegations in respect of Mr A essentially related to three matters. The first was in relation to Mr A ticking ‘no’ on the GDC application form in response to the question of whether he had been working in the UK or abroad during the time he was not registered. The second related to ticking the answer ‘no’ in relation to the question of whether he had been convicted of a criminal offence. The third related to the answer Mr A gave in his email to the GDC of 29 September 2014.

The allegations in relation to Mr A were heard by the PCC between 11 February 2016 and 12 February 2016.

In considering the allegation the PCC 'was of the view that whilst the dishonesty in this case was the result of a single act of completing and submitting the application form, the dishonest conduct was not isolated'.

The PCC found that Mr A had 'answered three questions and signed two declarations of truth on the application form with the intention to mislead the GDC and then some nine months later you compounded your dishonesty through omitting the answer to a specific question asked of you by the GDC. The Committee concluded that your dishonesty was persistent and you attempted to cover up your initial dishonesty with a further act of dishonesty. You were given the opportunity to correct your initial dishonesty but instead chose to be dishonest again in order to cover up your initial dishonesty. The Committee was not assured that you have insight into the seriousness of your dishonesty and the need to maintain the integrity of the register. Further, it was of the view that you have not demonstrated genuine remorse or made an adequate apology for your actions.'

The sanction imposed by the PCC was erasure from the GDC register. The PCC concluded that 'public confidence would be significantly undermined were you allowed to continue to remain on the register.'

The Appeal
Mr A lodged an appeal against the decision made by the PCC. He appealed against some of the findings of fact that were reached and against the sanction of erasure that was imposed.

Appeal against findings of fact

The first part of Mr A’s appeal in relation to the PCC’s findings of fact was in respect of his answer to the question on the GDC application form as to whether he had been working as a dentist during the period that he was not registered. Mr A denied that his answer in respect of this question was dishonest. Mr A had been practising as a dentist in the Isle of Man, which is not part of the UK. It was submitted on behalf of Mr A that when he ticked the ‘no’ box in answer to the question whether he had been working as a dentist in the UK, this was an entirely correct and truthful answer. It was submitted on behalf of the Mr A that the PCC had erred in their findings by concluding that he had been dishonest in respect of the answers he had given to both questions (whether he had been practising in the UK or abroad).

It was found by Mr Justice Holman, when considering the appeal ‘on a fair reading of this case as a whole, that if the appellant had ticked "no" to working abroad but "yes" to working in the United Kingdom, he would not have been in the trouble that he was later in’. Further that ‘read sensibly and as a whole, it seems to me that they were clearly concluding, and were justified in concluding, that there was dishonesty in the manner in which the appellant answered those two questions collectively. There is indeed plenty of blank space on the form, now at bundle page 140, in which he could very easily have elaborated that although he had ticked that he was not working in the UK or abroad, he had been working in the Isle of Man’.

The second point of appeal by Mr A related to the email he sent on 29 September 2014 to the GDC. It was submitted on his behalf that his failure to answer the question posed by the GDC, namely ‘please can you also confirm if you have any other cautions or convictions and any details for the same’ could not, of itself, amount to dishonesty. It was submitted that this was simply a failure to answer a question and was analogous to a ‘no comment’ answer in an interview. During the proceedings before the PCC, Mr A had stated, in relation to this allegation, that it was purely an oversight or mistake that he had not answered this question and he denied that he had been dishonest or deliberately trying to mislead the GDC.

In considering this submission, Mr Justice Holman concluded that the PCC had heard evidence at length from Mr A. During this evidence, he had asserted several times that he had made a mistake and that it was an oversight. It was found that the PCC were entitled to reject that evidence and to make a finding that his failure to answer the specific question was deliberate rather than an oversight. Further, it was held that the PCC were entitled to conclude that Mr A’s deliberate omission was dishonest.

Mr A’s appeal in respect of the findings of fact made by the PCC was dismissed.

Appeal against sanction imposed

The second stage of the appeal considered Mr A’s appeal against the sanction of erasure which was imposed by the PCC. It was identified that Mr A had consistently maintained that he had informed his employer in the Isle of Man of both of his criminal convictions and also that he would have expected his employer to have notified the GDC of at least one of the convictions.

The Court concluded that in light of the evidence repeatedly given by Mr A in relation to this and as this was being developed and relied upon by Mr A’s representative when making submissions on sanction, it was necessary for the PCC to establish whether what Mr A was saying was true. Mr Justice Holman stated:

‘In my view, the committee needed to do what they could to investigate and get to the bottom of this point and to try to establish what the true facts are. On the question of what the appellant informed his employers about, and whether it was one conviction or two, the truth of what he says would have to be assumed in his favour unless there is evidence to contradict it’.

Nowhere in their reasoning in relation to sanction did the PCC refer one way or another to the question of whether or not Mr A had informed his employer of both convictions, or consider its relevance to mitigation. It was found that, if Mr A had notified his employer of both convictions then this was capable of being relevant to mitigation.

Mr Justice Holman stated that ‘there does seem to me that there may be a mitigating factor in this case, namely that he had in fact reported both convictions to his employers, which may (I stress may) in the view of the committee just tip the balance so that some lesser sanction can be imposed’.

It was therefore determined that the matter should be remitted back to the PCC to consider the question of the appropriate sanction to be imposed in relation to Mr A. It was ordered that the PCC should reconsider whether erasure is the necessary and appropriate sanction.

This case serves as a reminder to Committees that they should investigate and establish the truth or otherwise of what a Registrant presents as mitigation, as this may have an impact on the sanction imposed. In addition, it is imperative that Committees set out in their decision where they have considered points of mitigation put forward by a Registrant and the conclusions they have reached on the relevance of these submissions to their decision making.

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