Lynch v General Dental Council

The claimant qualified as a dental practitioner in Australia in 1981. In the 1980s, there was a considerable development of interest in orthodontics in Australia and the claimant began to practise more and more in that field. By 1989 he had decided to do nothing but orthodontics and by 1992 he felt that he was able to ‘treat anything that walked through the door’. In 1996 he came to this country and has since 1997 been working as a full time orthodontist to whom a very large practice known as Whitecross Dental Care refer most patients who need orthodontic treatment. By the end of 2001 he was being referred to by a pool of over 100 dentists. Those who chose not to refer to him indicated that that was because they wished to use someone who was on the specialist list and would have used the claimant had he been on that list. In 2001 he was invited to become the resident orthodontist to the practice of Whitecross when it merged with another practice.

It is apparent that the claimant is a successful and respected orthodontist. But he cannot describe himself as a specialist unless he is entered on the specialist list which is maintained by the defendant. There are a number of such lists covering different specialities. Being recognised as a specialist in orthodontics enables an individual to practise as a specialist throughout the EEA and there are Regulations stemming from an EEA Directive which specify how that status can be achieved. There are, broadly speaking, three ways. These are by qualification, by training or by experience.

The Regulations in question are the European Primary and Specialist Dental Qualifications Regulations 1998 (1998 No.811), which came into force on 14 April 1998. It was recognised that there were existing specialists who did not require any extra qualifications and so there were transitional provisions which enabled them to apply to be on the list provided they applied within 2 years of the coming into force of Regulations to be made by the defendant pursuant to section 26(4) of the Dentists Act 1984. Regulation 12(3)(c) enables a person to be placed on the specialist list if he has satisfied the defendant that: -

“(i)

he has been trained in the United Kingdom in the appropriate speciality and that having complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it;

(ii)

he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST in that speciality’; or

(iii)

he has acquired experience in that speciality which has given him a level of expertise he might reasonably be expected to have attained if he had a CCST in that speciality”.

A CCST is a certificate of Completion of Specialist Training in Orthodontics.

Regulations under s.26(4) of the Dentists Act 1984 have been made by the defendant. They are the General Dental Council (Distinctive Branches of Dentistry) Regulations 1998 (the s.26(4) Regulations) which came into force on 11 July 1998. Regulation 5 sets out a number of different ways by which a registered dentist will be entitled to use the title “Specialist in Orthodontics”. The primary way is by being awarded a CCST, but there are others which in the main reflect the need to recognise parallel EEA qualifications. The relevant one for the purposes of this case is to be found in Regulation 5(g), which requires an application within 2 years or “later if he/she satisfies the Registrar that there was good reason for not applying by then” which satisfies the defendant of any of the three matters set out in Regulation 12(3)(c) of 1998/811, namely training, qualification or experience.

There is a right of appeal against a refusal of an application. This lies to a panel of three, the chairman of which must be a lawyer holding a 10 year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990. The other two members are registered dentists who are Fellows of U.K. medical or surgical Royal Colleges. It is provided by the relevant regulations (contained in Schedule 2 to the General Dental Council Procedures Governing Appeals Regulations) that: -

“A person shall not act as … member of an appeal panel if that person …

(c)

is a Fellow of a medical or surgical Royal College … who holds the prescribed distinctive title in the same branch of dentistry in which the appellant has received specialist dental training”.

This provision, which although not directly applicable where as here the appellant has received no specialist training in orthodontics, was applied and meant that the appeal panel contained no specialist orthodontist. This seems somewhat curious since one might have expected that at least one of the members should indeed have specialist knowledge. I was told that the reason behind it was to avoid any suggestion that established orthodontists could achieve specialist listing on the basis of some sort of favouritism from fellow orthodontists.

On 28 June 2000 the claimant applied for entry in the specialist list for orthodontists on the basis of, as the form put it, “specialist training qualification or experience requiring individual assessment”, i.e. all the grounds in Regulation 5(g) of the s.26(4) Regulations. He was then required by the form to give further information ‘by ticking the box against each statement which applies to you and by deleting any statement which does not apply’. He ticked three of the four boxes. The statements read as follows: -

“1.

I enclose the Curriculum Vitae on which I rely in support of my application.

Your CV might include details of the following: relevant clinical practice; teaching experience; continuing professional education (including any overseas courses); professional standing.

2.

I enclose original documentary evidence of my experience on which I rely in support of my application.

This original documentary evidence might include structured references from consultants, referring practitioners and colleagues; abstracts of referred publications; logs of treatments undertaken; course materials written by you from courses you have led; materials relating to congress and seminars you have attended.

3.

I enclose original documentary evidence of any supervised training on which I rely in support of my application.

This might include training by books; course prospectuses and syllabuses; evidence of successful completion of training programmes; names and qualifications of training supervisors”.

There is a footnote which applies to all the boxes and which reads: -

“These are suggestions for the sort of material that ought to accompany your application, if the material is relevant to the speciality and you want it to be taken into account in the assessment process. These suggestions are indicative, not prescriptive, and the lists of material suggested are not exhaustive”.

As is perhaps obvious, Box 1 is applicable to all applications under s.26(4) Regulation 5(g) and 2 and 3 to experience and training respectively. Box 4 deals with qualifications. But the claimant had attended a number of training courses (as would be expected of a practitioner in any particular field of medicine or dentistry) and so he understandably regarded Box 3 as relevant. Although each gateway to the list under s.26(4) Regulation 5(g) is separate it is necessary to show that a level of expertise equivalent to that achieved through a CCST has been obtained by experience in orthodontics. It is obvious that training may assist in establishing such expertise and experience is not limited to practice alone. The guidelines issued by the defendant include the following information: -

“These three elements – training qualifications and experience – cannot be aggregated to satisfy the required standard but must be considered separately. Any one element may therefore in itself be sufficient to satisfy the requirement.

In assessing experience, the critical factor will be the expertise acquired. Indicators of such expertise may include scope of practice and the source and type of referrals, professional publications and involvement in continuing professional education and professional standing in the dental community. Training or qualifications which are not in themselves of a level to satisfy the requirements of (i) or (ii) above [i.e. training or qualifications] may be useful indicators of expertise, for the purpose of assessing an applicant’s experience”.

I think there is some confusion in this. The regulation requires that the applicant in question has acquired experience which has given him or her a particular level of expertise. The expertise must result from the experience, not the other way round, but it is in my view apparent that experience, as I have said, can include experience obtained in any relevant way, whether by obtaining qualifications or undergoing training or practising as an orthodontist. In that sense, there can be a form of aggregation.

The claimant included with his application a considerable number of testimonials, some in a standard form, from dentists who customarily referredtheir patients who needed orthodontic treatment to him. He also included three detailed accounts of particular treatments which he had carried out, explaining how the patient had presented, what he had done and what the result had been. Each of the three patients referred to had been treated in Australia, as the claimant made clear when he gave evidence before the appeal panel in due course. In addition, there was a letter from a Dr. Flutter, an Australian dentist, who had had experience of the claimant’s work in Australia. The claimant believed that his record, coupled with the various courses and conferences he had attended over the years, demonstrated that he had the necessary experience and expected to qualify. He relied particularly on the referral to him by so many dental practitioners all of whom were satisfied by his work and none of whom expressed any reservations about referring even complicated cases.

It was unfortunate that the claimant did not seek any expert advice on what he needed to place before the defendant. It is apparent that the material he presented was lacking in detail and the testimonials were too general and some were of little value. For example, a letter from a respected specialist whom the claimant did not really know simply said; -

“I write to confirm that Mark Lynch … works as an orthodontist for Whitecross Dental Care and has done so for three years”.

The claimant, submits Mr. Havers Q.C., was entitled to assume that he had gone about things in the correct way because of the notes of guidance on the form. Nowhere was it suggested that any more detail was needed. The claimant reasonably believed, it is said, that his record spoke for itself and should have been sufficient to entitle him to succeed in his application.

This belief was in my view naïve. The notes made it clear that the suggestions as to what should be included were not exhaustive. The claimant should have appreciated that he had to show that he did have the necessary expertise and that to do that it would be of obvious assistance to get confirmation of his ability to carry out the sort of treatment that would require the services of a specialist orthodontist. General testimonials are of course of some value, but references to particular treatment and the solving of more difficult problems would be of much greater assistance.

The claimant’s application was considered by an Assessment Panel set up by the Faculty of Dental Surgery in the Royal College of Surgeons. On 31 October 2000 this Panel recommended to the defendant that the application should be refused because the applicant “does not possess training or qualifications equivalent to a CCST in orthodontics, nor does he have sufficient experience in this speciality”. By a letter to the claimant marked ‘Date as Postmark’ the defendant rejected the application. No reasons were given - the letter seems to be a proforma. While reasons do not have to be given, it is obviously of no assistance to an applicant who wishes to appeal but who does not know what he needs to do to persuade the appeal panel to overturn the refusal if they are not. All that the claimant knew was that what he had submitted in writing was not sufficient to establish his case.

On 26 January 2001 the claimant lodged a notice of appeal. He asked for an oral hearing. On 28 February 2001 he submitted a letter which summarised his claim and which read: -

“I believe I am deserving to be included on the Orthodontic Register because of a number of reasons. I outline these below:

Accept referrals from our wide network of Whitecross practices across Greater London

33 Whitecross practices, with the majority in London (25 practices in Greater London)

Nearly 200 dentists work with the Whitecross Group.

I have been Whitecross Dental care’s nominated orthodontic practitioner since April 1997.

I have been practising Orthodontics since 1989.

Whitecross Dental Care has now merged with Integrated Dental Holdings who have over 130 practices with over 1,000 dentists.

I have enclosed evidence of many practitioners’ referrals coming to me.

Treat nearly 1000 cases per year.

Treat NHS and private patients”.

The appeal hearing was held on 30 October 2001. The chairman was a retired circuit judge, His Honour Ronald Howe, and the other members were Dr. Margaret Hunter, a clinical Senior Lecturer and honorary consultant in paediatric dentistry and Professor Martin Addy, Professor of Periodontology and Head of Applied Clinical Research Group in the Department of Oral and Dental Science at the University of Bristol. Dr. Hunter and Professor Addy had, I note, collaborated in publishing a number of research reports, including one concerning orthodontic tooth extraction in a group of adolescents. While neither were, because of the regulations, specialists in orthodontics, it is clear that each knew what was required to qualify as a specialist. They were looking for expertise in the more complicated procedures which would be carried out by specialist orthodontists rather than the simple procedures which could and would be carried out by dentists who had an interest in orthodontics.

The claimant attended with two witnesses and submitted a number of additional testimonials, some of which were more detailed. His witnesses were a Dr. Bain and a Dr. Moulder, who was the Director of Dentistry for Whitecross. Dr. Bain confirmed that he referred all his patients (save for some whose place of residence made it difficult to keep appointments) to the claimant, but he had only been doing so for some 2 years which was ‘not a very long time’. Dr. Moulder was most supportive, having discussed with many of his colleagues and seen examples of the claimant’s work. He referred to a letter from a specialist who was happy that the claimant should cover for him when he was away or in case of emergency. This Dr. Moulder regarded as a feather in the claimant’s cap. The claimant referred to his three treatment records. He was asked by the chairman at one stage whether he had by any chance brought with him any models of his work. He said he had not, but would rely on the case studies, that is to say, the records of the three patients, which he had submitted. No further reference was made to models. The chairman did, however, make it clear that the lengthy time over which the claimant had been practising orthodontics was not of itself enough to establish the necessary expertise by way of experience. It also appeared that in many cases the time taken in any particular treatment was very short, averaging some 10 minutes or so. This it was later said did not show that the claimant had generally been dealing with complicated cases.

The panel dismissed the appeal. They are required to give reasons, and did so. The reasons are short, but that is not necessarily a matter for criticism. They certainly do not need to be lengthy. However, they should inform the appellant why he or she has failed so that he or she can decide whether the panel has erred in law. It is clearly insufficient merely to say that an appellant has not established his case. An appellant must be told the important matters which have led to the dismissal of the appeal. The reasons given were these: -

“Mr. Lynch indicated that he was effectively acting as a specialist in Australia from 1992, but he has produced no corroborative evidence in support of his contention, nor is there supporting evidence for the period up to April 1997. It was at that time he joined Whitecross Group as a general dental practitioner with a specialist interest in Orthodontics, but we understand from Dr. Moulder that within six months he converted his practice to that solely of treating Orthodontic cases.

The written and verbal support from his professional colleagues in this respect is of marginal assistance. We have insufficient evidence or authenticated evidence that he covers the full range of procedures expected of a specialist Orthodontist.

As I have said, this is an appeal based on the experience route. The level of expertise he has achieved must be judged in the requirement of Regulation 5(1)(g)(iii). Applying this Regulation, we are unanimously of the view that he has not demonstrated, either from his evidence or in the documentation produced, that he has sufficient expertise or experience to be included on the Specialist List. It is therefore with regret that we must reject this appeal”.

The claimant was dissatisfied with this result. Paragraph 19 of the Schedule to the Appeals Regulations enables an application to be made to the Director of Appeals (His Honour Ronald Howe) to set aside a determination “in a case where it appears to the Director just to do so on the grounds that: - …(c) the interests of justice so require”.

It was unfortunate that the same person who had chaired the appeal hearing should be the one to consider whether the interests of justice required that the determination of that appeal should be set aside. The claimant’s application was made by letter of 20 January 2002. In it, he said: -

“The reason for my action is that I wish to present further corroborative evidence in respect of my orthodontic experience in Australia which dates back to 1989, and in particular from colleagues practising Orthodontics.

I would also like to submit further evidence that I do treat the full range of orthodontic cases as a practitioner for Whitecross dental Group, where I have for the past four and a half years limited my practice to treating solely orthodontic cases”.

On 8 February, his application was rejected. This was said: -

“Following the decision of the GDC, Mr. Lynch filed notice of appeal on 26 January 2001. He had over 11 months to obtain all necessary evidence for his appeal on 30 October. Since that date a further period of about 3 months has passed.

He now wishes to submit further evidence from Australia and from his practice.

There are no grounds indicated to justify its submission in point of time. The application is refused”.

In support of his claim based on irrationality, the claimant sought to rely on the evidence of two experts which showed that the tests of equivalent expertise had been met and the panel was wrong to find that it had not. On 12 September 2002, Mr. Nigel Pleming, Q.C., sitting as a Deputy Judge, decided that that evidence was inadmissible. An application for leave to appeal to the Court of Appeal was refused on 22 May 2003, but the Court varied Mr. Pleming’s order so that the claimant was debarred from relying on the two reports in particular and not on expert evidence in general and directed that any application in relation to expert evidence should be heard by the judge who was to hear his claim. An application came before me on 6 October 2003. The claimant sought to rely on the same two experts who had submitted subsequent statements. I directed that the judge who heard the substantive matter should make the decision, and that the defendant should be permitted to lodge expert evidence in reply. Mr. Havers recognised that I could not decide between experts on issues of fact and so if the defendant produced a report from a reputable expert which contradicted those of the claimant’s experts any irrationality argument could not succeed insofar as it depended on any matter in issue between the experts. The defendant did produce such a report from a reputable expert. In those circumstances, the admissibility of the claimant’s experts’ reports was not of great importance and little time was spent in arguing the point.

The point is, however, of general importance. Furthermore, if defendants are to be faced with expert evidence in cases such as this, they will have to deal with it and costs will escalate. In judicial review proceedings, the circumstances in which fresh evidence can be received are very limited. In refusing leave to appeal from Mr. Pleming’s decision, Hale LJ said this: -

“This looks like a classic case for not receiving fresh evidence in judicial review proceedings for the reasons given by the judge. It falls within none of the Powis [R v SSE ex parte Powis [1981] 1 W.L.R. 584] categories. Insofar as it indicates that the panel may not have taken account of relevant evidence it adds nothing to what counsel may submit. Insofar as it seeks to advance an opinion that the panel was irrational, it is usurping the function of the Court. However attenuated, there are still distinctions between judicial review and appeal on a point of fact which must be taken into account in the operation of any legislative scheme”.

The principles to which Hale LJ was referring are set out by Dunn LJ in the Powis case at [1981] 1 W.L.R. 595-597. I need only cite the paragraph which commences on p595 and reads: -

“Finally there was an application on behalf of the tenant to admit fresh evidence which the Divisional Court had refused to admit. Like the Divisional Court we considered the evidence de bene esse. What are the principles on which fresh evidence should be admitted on judicial review? They are (1) that the Court can receive evidence to show what material was before the minister or inferior tribunal: Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the Court may receive and consider additional evidence to determine the jurisdictional fact nor procedural error: see de Smith’s Judicial Review of Administrative Action, 4^th ed.(1980), at pp.140, 141 and cases there cited; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, 39, 43 per Orr and Lawton L.JJ”.

Mr Garnham submitted that these categories were exhaustive and that no part of the evidence which Mr. Havers sought to rely on fell within any of them. He drew my attention to a number of cases in which attempts to rely on fresh evidence had failed and reliance had been placed on the Powis guidelines.

I have no doubt that fresh evidence involving expert evidence should in general not be admitted unless it falls within the Powis guidelines. However, it is and has always been recognised that irrationality is an error of law which can lead to a decision being quashed. If the decision in question is made by an expert tribunal or indeed by anyone dealing in a field involving consideration of matters which would not obviously be fully understood by a layman without some assistance from an expert in that field, it may be necessary at the very least to have some explanation of any technical terms. Mr. Garnham accepted that expert evidence could be adduced to provide such explanations. Without it, the Court might well be unable to consider properly any irrationality argument. When I use the word ‘irrationality’ I am intending to include not only perversity but also a failure to have regard to a material matter or a taking into account of an immaterial matter.

Thus before considering the statements I should consider whether the reasons were defective. I should say that Mr. Garnham has complained that there is no explicit challenge to the adequacy of the reasons in the grounds. In fact, in the grounds the attack is on the accuracy of the reasons given. However, Mr. Havers submitted to me that the reasons were inadequate and Mr. Garnham did not object to the making of the submissions. He claimed that the reasons were adequate and were certainly not defective.

There are three reasons given. The first is that there was no corroborative evidence that the claimant was working as a specialist in Australia and no supporting evidence up to April 1997, when he became the full time orthodontist used by most of the Whitecross dentists (and by some others too). This, submits Mr. Havers, is simply wrong. There was a letter from a Dr. Dean in general terms (“For many years Dr. Lynch has established his reputation and expertise in Orthodontics both in Australia and especially in UK”) and from Dr. Flutter who had worked with him in Australia. The transcript of the appeal hearing shows that the chairman appeared to misunderstand Dr. Flutter’s letter and not have appreciated that he was saying that by 1989 the claimant had established sufficient skills and patient base to start doing full time orthodontics and had continued until he left Australia in 1996. Furthermore, the three case studies were from Australia. It is clear that the panel had failed to realise this – the statements made by the members say as much – and, although in one sense they do not amount to corroborative evidence, unless the claimant was disbelieved (which is not suggested) they show the level of his work. It is true that the panel say that they attached little weight to the studies because of an absence of moulds, photographs or radiographs. But to assert that there was no corroborative evidence in support of his contention was to go too far. On the other hand, the panel was entitled to conclude that the evidence produced did not show that the claimant had the required level of expertise in that the letters referred to were in general terms and the case studies did not demonstrate the necessary breadth and depth. However, the failure to appreciate that the case studies were from Australia and the possible misunderstanding of what Dr. Flutter was saying lead to a real concern that the panel were too dismissive of the claimant’s Australian experience.

The second reason was that the written and verbal support from the claimant’s colleagues was of marginal assistance. This is criticised as demonstratably unfair in the light of the body of evidence from colleagues who referred to him and in particular the letter from a specialist, Dr. McNulty, with whom he had an arrangement to cover patients. The guidance in the notes on the application form did suggest that ‘structured references from consultants and referring practitioners and colleagues’ might be submitted. I asked Mr. Garnham what was meant by ‘structured’ but he was unable to enlighten me. The references obtained by the claimant were very general, but they did on their face show that a number of colleagues regarded him as someone who should be regarded as having sufficient expertise to be on the specialist list and that a very large number sent patients to him and there were no complaints about the standard of his work.

It seems to me that the chairman should have said why the support was of marginal assistance. A sentence or two explaining that the references were too general and did not show a sufficient depth of experience and that Dr. Bain’s and Dr. Moulden’s evidence covered an insufficiently long period and failed to establish the necessary expertise might have sufficed. As it was, that reason was in my view defective.

The third reason was the absence of sufficient ‘evidence or authenticated evidence that he covered the full range of procedures expected of a specialist orthodontist’. There is an overlap between this and the previous reason, but again there is an absence of explanation. It seems from the statements that the reason was that the case studies did not include any moulds etc and there was no positive evidence of the carrying out of treatment of a specialist nature over the necessary range. Further, there was an adverse conclusion drawn from the timing of appointments. The claimant’s evidence was that he gave time where time was required. In her statement, Dr. Hunter purports to carry out a calculation which showed that ‘each patient requiring a fixed appliance received about 2 ½ hours per year of Dr. Lynch’s time’ which was too short to carry out such complex work. It seems to me that a point such as this should have been put to the claimant so that he could deal with it rather than appear in a statement supplementing inadequate reasons.

I have no doubt that the reasons were inadequate. The first reason may have been based on a misunderstanding of the evidence. The statements made by the panel members do, however, justify the conclusion which was reached. But I must bear in mind in accordance with the caution which, following Ermakov, I must apply that the statements do amount to a justification of the decision reached. I do not for a moment suggest that any of the panel have said anything which they do not believe to be accurate and I recognise that the decision cannot be said to be irrational. But I have to ask myself whether it was the only reasonable decision which could have been reached. The answer is that it was not and so the misunderstandings in relation to the first reason are of some importance. Where there are inadequate reasons and particularly where an important reason can be shown to have been based on a possible misunderstanding, the court will intervene if persuaded that the result might have been different. The assertion in statements made after the event that the result would not have been different is of course entitled to be given weight, but it must be recognised that a reconsideration of a challenged decision in the light of subsequent knowledge is not necessarily to be regarded as wholly reliable since what matters is what would have been the decision at the time following a proper assessment of all material factors. This is not to impugn the good faith of the decision makers who understandably are concerned to uphold their decision.

It appears from the statements that the case studies were given little weight in the absence of moulds etc. Mr. Havers submits that it was unfair of the panel to have raised this with the claimant since there is nothing in the guidance or the notes to suggest that such material should be produced. Unless it was suggested that the claimant’s study reports were inaccurate, such material was not obviously needed. While the panel did not reject the studies, it is clear that very little weight was attached to them. Both Dr. Hunter and Professor Addy refer to the lack of any evidence to support the studies. Professor Addy concludes in Paragraph 31 thus: -

“In my opinion, Dr. Lynch had done nothing to dispel my concerns that had arisen on my reading of the written evidence he had brought to support his case. He had produced no testimonials by senior orthodontists with first-hand experience of his work, nor had he produced any case studies with evidence from moulds or studies”.

The point is made that the first part of the second sentence is factually inaccurate since it ignores Dr. McNulty’s letter.

It is for an applicant to establish that he has the necessary experience to fulfil the criteria set out in the Regulation. Equally, the defendant is rightly concerned to ensure that only those with the necessary expertise are placed on the specialist list and the standard set is a high one. The claimant should have appreciated that he could only succeed if he demonstrated from evidence and testimonials that he had expertise which was equivalent to that to be expected from one who had obtained a CCST. He, it is said, should have known that he had to show the necessary breadth and depth of his experience and it was not for the panel or indeed the defendant to tell him how to do that.

I recognise that there is great force in this. It would not be right to require the defendant or an appeal panel to advise an applicant how to establish his case or to point out deficiencies in his evidence with a view to letting him have an opportunity to remedy them. But there is some guidance given. The claimant was in my view entitled to believe that if importance were to be attached to a particular matter it would have been mentioned. ‘Logs of treatments undertaken’ is fine so far as it goes, but does not make the point that an absence of supporting evidence will mean that very little weight is likely to be given to such logs. In the hearing, the only reference to such evidence was the question whether he had ‘by any chance’ brought any models of his work. In all the circumstances, since so much importance was attached to its absence, it seems to me that the matter should have been raised. I appreciate that it may not have been appropriate to adjourn to enable the claimant to produce the material, but it might have been possible to permit him to produce it within a short time so that it could be considered before a final decision was reached. It must have been obvious to the panel that the claimant was not represented and was labouring under the belief that the fact that he had experience of carrying out all sorts of orthodontic treatment over a substantial period and that he was held in high regard by his colleagues was sufficient. It might have been that he was not doing himself justice. Further, he was, as it seems to me, entitled to believe his case studies would be accepted to be accurate unless disabused of that belief by the panel.

I have already said that it was unfortunate that the review under Paragraph 19 was carried out by the same person who chaired the panel. But that is not if itself fatal. It is true that no fresh evidence was presented and that might normally be a good reason to refuse a review. In any event, the failure to produce sufficient evidence is not a good reason to reopen the matter unless there was a good reason for the failure and the fresh evidence might affect the result. But the absence of proper reasons is material. The claimant was unaware of the importance attached to the absence of supporting evidence. If he had said that he had such evidence but had not submitted it because he had not been aware of the importance to be attached to its absence Mr. Howe’s decision might have been different.

The claimant is able to practise as an orthodontist without being on the specialist list. Mr. Garnham informed me, having taken explicit instructions from the defendant, that he may advertise himself as an orthodontist provided that he does not describe himself as a specialist. He will not be in breach of the Code of Conduct if he does not use the word ‘specialist’. This led Mr. Garnham to submit that, although no doubt it was desirable for the claimant to be on the list and it might affect to some small extent the volume of his practice if he were not, he did not lose much by his failure. He was used by many dentists and his position so far as Whitecross was concerned assumed a steady number of patients. But, as Mr. Havers pointed out, he might not remain with Whitecross. He was prejudiced by not being on the list if he wanted or was obliged to practise without the Whitecross referral base. In any event, as things stood now, some dentists who would otherwise be happy to refer to him did not do so because he was not on the list. There is an actual effect on his earning capacity. Although that may not be very great as things stand, it could increase and could become very significant. He can obtain a CCST, but that would involve a 3 year full-time or 6 year part-time course. For someone in his position, that would be difficult if not impossible to afford.

Notwithstanding the criticisms I have made of the defendant, I have to consider whether to grant relief. I recognise that the panel was entitled to dismiss the claimant’s appeal on the material he put before it. He did not produce sufficient evidence. I see the force of Mr. Garnham’s submissions and I appreciate that a fresh hearing may well produce the same result. Nevertheless, I am persuaded that the claimant has not had a fair crack of the whip and that he should have the opportunity to persuade a fresh appeal panel that he does indeed have the necessary experience to be on the specialist list. He now knows what he must do to establish his case and I cannot say that he has no chance of success. I am told, although I have not seen any of it, that he has produced some additional material.

I will hear counsel on the precise nature of any relief.