Lasting Powers of Attorney: recent key developments
High Court quashes finding of Professional Conduct Committee that dentist’s actions were ‘deliberately misleading’ but not ‘dishonest’, and agrees that reprimand was ‘unduly lenient’.
The appellant dentist (D) had treated a patient (X) over the course of three appointments for the replacement of existing fillings. Prior to the fourth appointment X attended a different dental practise for an emergency consultation, at which the consultant expressed concern about the quality of treatment X had been provided to date. X wrote to D outlining what the consultant had said, allowing him a chance to provide his explanation. D responded by email suggesting that the reason her filings appeared rough was because his treatment was not yet complete and that the fitted filings were only provisional. D apologised that he not made that clear earlier.
This matter came before a professional conduct committee (the Committee) of the respondent General Dental Council (GDC). The Committee found that D’s email which claimed that the fillings were only provisional had been misleading and had been intended to mislead, but that his conduct was not dishonest. The evidence they relied upon in their refusal to find dishonesty was that D had been willing to carry out any further necessary dental work for X and that D had apologised for not being clear. They felt that the high threshold that had to be met before dishonesty is found was not met. The Committee decided that the imposition of a reprimand was appropriate given the steps D had taken towards remediation, positive testimonies and his unblemished record.
The Professional Standards Authority (PSA) argued that, having found that D had intended to mislead, a finding that D had not been dishonest was perverse, and that the sanction of a reprimand was unduly lenient. The GDC accepted that, in the circumstances of the case, the Committee’s finding that D had not acted dishonesty was inconsistent with its finding that he had intended to mislead. D also accepted that the Committee had acted irrationally in finding both that D intended to mislead and that he was not dishonest but argued that it did not necessarily follow from that irrationality that a finding of dishonesty was the only reasonable outcome.
It was held that there was no doubt that the Committee’s finding that dishonesty had not been established for the reasons it gave was manifestly wrong and irrational. The fact that D had been willing to carry out further dental work for X was irrelevant as to whether his conduct would be regarded as dishonest by others. The apology had also been inappropriately relied upon. Further, having found that D had knowingly misled X, D’s good character was irrelevant to the objective test in Ghosh.
It was held that the Committee’s findings should have led to the inescapable conclusion that D had been dishonest. The finding that dishonesty had not been proved and the decision to impose only a reprimand were both quashed and the matter remitted to a fresh committee.
We await the full decision for full analysis, so that regulators can take stock of their approach to the drafting of their ‘state of mind’ particulars.
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