“Lights. Camera. Action!” – Re Motion Picture Capital and standing for minority shareholders to bring unfair prejudice petitions
When does treatment go from being simply incompetent to dishonest?
The appellant, a dentist in practice for over 30 years, appealed a decision to remove his name from the Dental Register due to a finding of dishonesty by the Professional Conduct Committee.
The original proceedings were in relation to a choice of treatment carried out by the appellant which was not clinically justified, without consent, causing irreparable and irreversible damage to the patient. The Committee found, having considered the test of dishonesty in Donkin v Law Society  EWHC 414 (Admin (2007) 157 N.L.J, that the appellant had deliberately and dishonestly conducted the treatment.
The Committee concluded that the appellant posed an ongoing risk and found that his fitness to practise was impaired.
The appellant appealed on the basis that the finding of dishonesty had not been properly open to the committee and it did not have a proper basis for that conclusion.
The appeal was dismissed. The Committee had had the benefit of hearing from an expert who was unable to provide any explanation for the choice of treatment made by the appellant. The choice of treatment constituted a serious professional error and demonstrated incompetence. The Court concluded that the Committee was best placed to make this conclusion as it had heard the evidence of witnesses and the appellant in live format. They further concluded that not only was the decision soundly based but that it was in fact the only one it could properly have reached.
The matter is as yet unreported.
The line between conduct which is simply incompetent and conduct which is so unjustified and incorrect as to be classified as dishonest, is one best drawn by a Panel who has heard expert evidence on the matter and from the Registrant themselves.
Harriet Roberts, Legal Assistant
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