Spinal Surgery Complications – A Change in the Law?
Before Elisabeth Laing QC on 31 May 2012
To appeal or not to appeal?
The applicant, Dr Bamgbelu, is a registered dentist. He lodged an appeal pursuant to section 29 of the Dentists Act 1984 (the Act) against the decision of a Practise Committee to impose amended conditions on his registration in August 2011.
Whilst awaiting the outcome of the appeal, Dr Bamgbelu applied for an order restraining the defendant, the General Dental Council (GDC), from imposing the conditions on his registration. In support of his application, Dr Bamgbelu relied on letters from the GDC which stated that the conditions imposed in August 2011 came into effect immediately.
By way of background, Dr Bamgbelu appeared before the Professional Conduct Committee (PCC) of the GDC on 15 September 2009, in relation to allegations involving a single patient and concerns arising from inspections of his surgeries.
Subsequent to making its findings on the facts, the PCC found Dr Bamgbelu’s fitness to practise to be impaired by reason of misconduct, and imposed conditions on his registration.
The conditions were reviewed in 2010 and 2011, at which time the order for conditions was maintained with some amendments. It is the decision of 17 August 2011 that is subject of Dr Bamgbelu’s appeal.
The basis of the GDC’s argument is that neither it nor the court has any power to interfere with the conditions formulated by the PCC pending the conclusion of Dr Bamgbelu’s appeal.
Section 27B of the Act provides the PCC with its powers of investigation and determination. Section 27C makes provision for review hearings, at which time the PCC can revoke the sanction imposed, vary it or extend it. In respect of conditions, the relevant sections are 17C(2)(c) and 27C(2)(d).
The effect of section 33(3) is that a pre-existing order remains in force pending the final determination of any lodged appeal, subject to any order made under section 30(1) or section 30(2).
The PCC can by virtue of section 30(2) of the Act when making a direction for conditional registration direct that it take effect immediately in one or more of three circumstances. These being that it is satisfied that it is necessary for the protection of the public, or is otherwise in the public interest, or is in the registrant’s own interests.
Where a direction is made pursuant to the aforementioned section, the registration will be conditional until the direction takes effect in accordance with section 29A, an appeal is determined or, following remission, the PCC concludes the case.
The issue in Dr Bamgbelu’s case is whether the PCC, when it made its determination on 17 August 2011, made it pursuant to its powers under section 30; the effect of which would be that the order came into effect immediately.
The basis of the GDC’s argument was that whilst the PCC indicated on 17 August 2011 that the order was to be of immediate effect, it had no power to do so because Dr Bamgbelu’s case fell under section 27C(2), in that existing conditions were amended. The immediate effect power under section 30 only applies to cases where a suspension order is replaced with conditions.
The court rejected Dr Bamgbelu’s application for an interim order.
If an appeal is made, the pre-existing order for conditions remains in force. In many circumstances, the pre-existing order may be more onerous than the revised order. This could prove to be a double-edged sword for the registrant, in that whilst they wish to appeal an order for revised conditions, they may be deterred from doing so in cases where the pre-existing order is onerous. Whilst this may be an unfortunate position, the statutory provisions are clear, and as such the court will not intervene to give effect to interim orders even if they may be more favourable to the registrant.
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