Brown, R (on the application of) v General Dental Council

MR JUSTICE SULLIVAN: This is an appeal under section 29 of the Dentists Act 1984 (as amended) against a decision of the respondent's Professional Conduct Committee ("the Committee") on 20th June 2005 that the appellant's name should be erased from the Dental Register.

The appellant appeared before the Committee to answer the following charge:

The appellant did not give evidence but his representative, Dr Lamden, sought to explain in his submissions the circumstances in which the claimant had practised without indemnity cover for the period of some 21 months. In summary, the explanation given to the Committee was as follows. The appellant's former insurer, St Paul Travellers Insurance Company Ltd ("St Paul") announced that it was withdrawing from the professional indemnity market in 2001/2002 but notified existing policy holders that it had made arrangements with the Medical Protection Society for cover to be offered to its policy holders by that insurer instead. The Committee had before it a witness statement made by Paul Kostiza, General Manager of St Paul. He said that St Paul wrote to all its policy holders in January 2002, stating inter alia:

He told the Committee in his witness statement that St Paul wrote a letter to each policy holder in the month before their policy expired, reminding them of its impending expiry and of the need to obtain indemnity cover elsewhere. That reminder letter contained the following sentence in bold type:

The appellant's indemnity cover with St Paul expired on 6th August 2002 so that he would have received the reminder letter from St Paul in July 2002 and also a communication from NPS. In response, he completed an application for membership of, and indemnity cover from, NPS dated 27th July 2002. A copy of that application form was included in the bundle before the Committee.

As part of that document, there was a direct debit instruction to the appellant's bank to pay the sums due to NPS in respect of indemnity insurance cover by way of monthly instalments. That instruction was completed and returned by the appellant. It was the appellant's case before the Committee that he believed that by completing this document he obtained indemnity cover for his subsequent professional practice and that this remained his belief until he received a letter from the respondent dated 20th January 2004 asking for details of his insurance cover. On receipt of that letter, he contacted NPD who informed him that they were not currently indemnifying him. It was common ground that the appellant's application for membership and for indemnity insurance cover from NPD was, for whatever reason, still under consideration in November 2002 and that he was never at any time prior to 20th January 2004 informed that it had been rejected.

Mr Cohen, a senior dental legal advisor for Dental Protection gave evidence before the Committee. When he was cross-examined about this matter by Dr Lamden on behalf of the appellant, he answered the question: "Why was the letter of rejection not sent to Mr Brown?" by saying:

The appellant's case was that whilst in the normal course of events he might reasonably have been expected to become aware of the fact that his monthly direct debit instruction for the payment of the insurance premium had not been activated and money was not being taken out of his account and would therefore have been led to the conclusion that the insurance cover had not been provided, the position in his case was somewhat unusual in that he had been declared bankrupt on 13th September 2001. A trustee in bankruptcy had been appointed in about December 2001 and from that date onwards all the bank statements would have been sent to the trustee in bankruptcy and not to him. In summary, his case before the committee was that, for these reasons, he was unaware that he was not insured for the period between 7th August 2002 and the date when he received the letter from the respondent dated 20th January 2004. That is to say, a period of 17 months.

So far as the period from January to May 2004 was concerned, it was the appellant's case that throughout that period he was making strenuous efforts to remedy the situation that had first become apparent to him on 21st January 2004. In his submissions, Dr Lamden gave a detailed explanation of the steps that the appellant contended that he had taken following receipt of the letter from the respondent:

The charge runs up to the 18th May 2004. On that day the appellant was suspended by the Preliminary Proceedings Committee and his suspension was renewed on 15th June and then again on 10th August. Eventually, the interim suspension was revoked on 7th December 2004.

Having heard those submissions, the Committee deliberated in private and when it returned, the Chairman gave its determination in these words:

Mr Snell, who appeared on behalf of the Council at the hearing before the Committee and before me today, very properly pointed out to the Committee that it appeared that the decision might have been reached upon an incorrect basis. He drew particular attention to the sentence in the determination which I have underlined above and said that the matters set out in the charge had been formally admitted:

After further submissions and discussion and advice from the legal assessor, the Committee retired. When it returned, the Chairman said this:

It is common ground between Mr Snell and Mr Young, who appeared before me on behalf of the appellant, that the Committee's reference to "part of that time" must be a reference to the period from 21st January 2004, when the appellant received the respondent's letter dated 20th January, to 18th May 2004. That is to say, a period of four months during which, it will be recalled, it was the appellant's case that he had been making strenuous efforts to obtain insurance, and indeed had not been rejected by Dental Protection until 29th April.

In this appeal there is no challenge to the finding of serious professional misconduct. Mr Young challenges the Committee's decision that erasure was a proportionate response to this particular instance of serious professional misconduct. The challenge is put on a number of grounds, including procedural unfairness, failure to give proper consideration to the changed factual basis of the case against the appellant, failure to give adequate reasons, and the overarching submission that in the light of other comparable decisions of the Committee, erasure for this instance of serious professional misconduct was wholly disproportionate.

I would accept Mr Snell's submission on behalf of the respondent that the Committee's error as to what had been admitted by the appellant, egregious though it was, was capable of being remedied by further consideration and a careful explanation in the Committee's reasoning of the basis upon which that reconsideration had been undertaken and on the conclusions which had been reached in the light of that reconsideration. As noted above, save for the substitution of the two sentences: "You treated a substantial number of patients over this period of time when you admitted you were not insured. For part of that time you admitted that you knew you were uninsured" for the sentence "You treated a substantial number of parents over this period of time when you admitted that you knew you were not insured", there is no change to the determination or the reasons. The fact that there is no change whatsoever to the Committee's reasoning is explained by the passage in the decision when the Chairman said:

Given the advice in "Maintaining Standards" cited by the Committee in its determination that "A lack of appropriate Defence Organisation membership or adequate indemnity cover which includes professional and legal advice will almost certainly lead to a charge of serious professional misconduct", it is perhaps understandable that even on the changed factual basis, the Committee still concluded that there had been serious professional misconduct. But could it reasonably be said that the changed factual basis had "no bearing" on the appropriate method of disposal in response to that misconduct?

Unless there were decisions of the Committee and/or guidance from the respondent that any practitioner found to have been practising without adequate indemnity cover in whatever circumstances would be likely to face erasure, it would seem, at first sight, that the surrounding circumstances would be highly relevant. For example, it would be relevant to the question of sanction to know whether the dentist had practised knowing that he was not covered by indemnity insurance, thereby deliberately exposing his patients to risk, or whether he had practised in the erroneous but genuine belief that he was covered by adequate professional indemnity insurance. Since the purpose of the sanction is the protection of the public, the period during which the practitioner knowingly put his patients at risk would also, at first sight, be a relevant consideration, as would the extent to which the practitioner either was or was not making any attempt to remedy the situation. The Committee mentioned that the purposes of the sanctions imposed by it are not punitive. Their purpose is to protect the public, to maintain public confidence in the profession and to maintain proper standards of behaviour by dental practitioners.

Bearing in mind these underlying purposes, it is difficult to see why, at least in principle, it would not be reasonable to draw a distinction between a practitioner who had deliberately exposed his patients to a risk over a prolonged period and a practitioner who had done so unwittingly. I would readily accept that in the latter case it would be legitimate for the Committee to consider whether the practitioner's lack of knowledge was understandable in all the circumstances, or whether it was due to carelessness or a failure to make appropriate enquiries.

In his skeleton argument on behalf of the respondent, Mr Snell made the following submissions, inter alia:

Mr Snell fairly conceded that the sanction of erasure could not be supported as proportionate unless these criticisms of the appellant's conduct were upheld. The difficulty with these submissions is that the criticisms advanced by Mr Snell are not to be found in the Committee's reasoning. I accept that the Committee might have concluded that the appellant's belief that he was adequately insured for 17 out of the 21 months was unjustified in the absence of subsequent correspondence or in the light of there being no drawings from the Direct Debit. The Committee might have concluded that the appellant had no justifiable reason for thinking after January 2004 that he would be covered retrospectively by a new insurer. It might have concluded that because no evidence had been called it was simply not prepared to accept the account that had been given in the submissions made on the appellant's behalf. But it did none of these things in its reasoning. Instead, it is common ground that the Committee accepted the submission that the appellant was not aware of the lack of insurance until 21st January 2004 ("part of that time"). The Committee makes no finding as to the extent to which, if at all, this lack of knowledge was blameworthy on the part of the appellant. Equally, no conclusions are reached as to the credibility of the appellant's explanation, put forward in submissions on his behalf, for that part of the time after he became aware of the lack of insurance.

In the absence of an absolute rule "no professional indemnity insurance equals erasure", there is, at least arguably, a distinction to be drawn between the practitioner who continues to practise when he reasonably believes that his outstanding application for insurance cover will be accepted and the practitioner who continues to practice, having made an application for insurance cover which he knows (or ought to know) has no, or at best uncertain, prospects of success. As mentioned above, on the appellant's case, for most of the period from 21st January onwards until 29th April, he was seeking to resolve what he believed was a lapsed insurance with Dental Protection. Once that approach failed, prior to 18th May, he had approached and been refused by MIA. However, since he eventually succeeded in obtaining insurance in October 2004, it is at least arguable that he had reasonable grounds for believing that his applications would succeed. It was, of course, for the Committee to decide whether it accepted or rejected such an explanation as plausible or implausible. But if it was going to reject the appellant's explanation, then it should have said so in terms and explained why.

In his skeleton argument, Mr Snell relied on new guidance that has now been provided by the respondent to the Professional Conduct Committee, "Guidance to the Professional Conduct Committee", published on 31st January 2006. Paragraph 30 of that guidance is in these terms:

Mr Snell submitted that the matter should be remitted to the respondent, and that if it was remitted the new guidance would be applied so that the Committee's decision that erasure was appropriate could be seen to be proportionate. I do not accept that submission. It is surprising that it should be advanced on behalf of the respondent. Both the respondent and the Committee must act fairly. On any basis, it would be most unfair to apply guidance in a new policy retrospectively, without any warning, to failures that had occurred long before the policy was published. It will be recalled that in the present case the charge related to the period from 7th August 2002 to 18th May 2004. It would be grossly unfair to impose a sanction based upon the application of a policy published over 18 months after the end of the period under consideration to the appellant's conduct during that period.

Absent such a policy at the relevant time, the explanations given by the appellant for his failure to have adequate professional indemnity cover were plainly relevant to the question of sanction and the Committee was simply wrong to say that the radically altered factual basis upon which it was redetermining the matter (if the submissions on behalf of the appellant had been accepted) had "no bearing on the appropriate method of disposal". As I have said, if the Committee was not accepting any of the submissions advanced on behalf of the claimant, then it was under an obligation to say so. I readily accept that the procedure at the hearing is at the discretion of the Committee, but any procedure adopted by the Committee has to be fair to both parties.

It is an open question whether, if the Committee had been minded not to accept the basis of the mitigation put forward in submissions on behalf of the appellant because no evidence had been called, it should have warned the appellant that without supporting evidence it would not be prepared to accept those submissions, thus giving the appellant the option of deciding whether to give evidence. I say that is an open question because there is no indication in the Committee's reasoning, beyond the fact that it accepted that the appellant was not aware of the lack of insurance for part of the time, as to whether it accepted or rejected the mitigation that was being advanced on behalf of the appellant by way of submissions. There is certainly no suggestion that it rejected the explanation put forward upon the basis that it was simply put forward by way of submission and was unsupported by evidence.

What is not satisfactory is the almost complete silence in the Committee's reasoning as to what parts of the appellant's account, as put forward in submissions, it did or did not accept, beyond the fact that he was not aware of the lack of insurance cover until 21st January 2004. The lack of such detail would be readily understandable on the Committee's first erroneous basis of decision: that for the whole of the 21-month period the appellant had admitted that he knew that he was not insured. In the light of that admission there would have been little need to search for any further explanation or justification. But as soon as it was clear that that was an incorrect basis on which to proceed, it was necessary for the Committee to examine with some care the account put forward on behalf of the appellant of the surrounding circumstances and for it to explain in its reasoning what it accepted and what it did not.

Whether the reasons given are or are not adequate in any particular decision will inevitably be fact sensitive. In the present case, it is highly relevant that the Committee had publicly announced a decision on what it subsequently accepted was a wrong basis. There is no doubt that the error was a serious one. It therefore behoved the Committee, if it was going to reach precisely the same decision, to explain why the changed factual basis made no difference, not merely to the appropriate method of disposal but to the reasons given by the Committee for adopting that method of disposal.

Faced with a complete lack of explanation as to why there is no change whatsoever in the reasoning, beyond the Committee's proposition that the altered information "had no bearing" on the matter, the appellant is understandably left with the distinct impression that the Committee, having decided upon a particular sanction upon an incorrect factual basis which was highly unfavourable to the appellant, was simply determined to adhere to that sanction, regardless of the fact that the case had to be reconsidered upon a factual basis that was significantly more favourable to the appellant.

Turning more generally to the question of proportionality, Mr Young referred in his skeleton argument and supplementary skeleton argument to four other cases where practitioners had appeared before the Committee charged inter alia with practising without indemnity cover. The cases were decided in June and November 2005 and January and February 2006. The practitioners in those cases were practising without indemnity cover for periods of 9 and a quarter years, a little over 23 months and around 12 months in two cases, respectively. In all cases the Committee concluded that there was serious professional misconduct. In response to those instances of serious professional misconduct, the Committee decided either to take no action or that an admonition or 4 or 12 months suspension was appropriate.

Mr Snell rightly submitted that each case will turn upon its own facts. In those cases there were in certain instances powerful mitigating factors. Equally, it is fair to say that there were also in some cases other charges that were proved in addition to practising without adequate indemnity insurance. In this context, Mr Snell referred to the fact that the appellant in the present case had been the subject of a previous erasure from the Register and submitted that the Committee were entitled to take account of that and to bear it in mind when deciding upon the appropriate sanction.

I accept that the Committee were entitled to take that matter into account, but it is important to see how they did so. The earlier erasure was not in response to a charge that the claimant had been practising without professional indemnity insurance. What the Committee said about the matter was this:

Mr Snell fairly accepted that he was aware of no other case where erasure had been thought to be the appropriate sanction for a practitioner who was found guilty of serious professional misconduct simply by reason of practising without appropriate professional indemnity insurance cover.

Against that background, there is simply no explanation as to why, if the appellant's account was to be believed, erasure was appropriate in his case. What were the particularly aggravating features that took his case out of the usual? In the light of all of this material, and in particular the Committee's decision in other cases, it is plain, in my judgment, that the sanction of erasure imposed upon this appellant was wholly disproportionate. At most, a brief period of suspension would have been an appropriate response, upon the basis that the Committee accepted the appellant's account of the circumstances in which he had been practising without professional indemnity insurance.

It will be recalled that the appellant in due course obtained professional indemnity insurance in October 2004. As the Committee said in one of the four cases relied upon by Mr Young:

I am of no doubt, therefore, that the Committee's decision as to the appropriate sanction must be quashed. Under section 29, as amended, the court has a discretion as to whether it should then proceed to decide upon the appropriate sanction itself or remit the matter to the Committee for further consideration. Mr Young submitted that I should determine the appropriate sanction myself. Mr Snell submitted that the matter should be remitted to the Committee. Plainly, it would have to be remitted to another Committee. Equally, it seems to me, given the paucity of the Committee's reasoning, it would be necessary, in effect, for there to be a rehearing as to the circumstances in which the appellant came to practice for the 21 months without indemnity insurance cover. In my view, the fair course would be for the court to determine the appropriate sanction upon the basis of the explanation advanced on behalf of the appellant, since that was not expressly rejected by the Committee.

I bear in mind that the appellant was suspended on an interim basis in May 2004 and that suspension was not lifted until December 2004. The appellant then resumed practice and practised without incident between December 2004 and 18th May 2005 when his name was erased from the Register. The Committee, however, did not invoke its power to order that the registration should be suspended forthwith pending the appeal, on the ground that it was necessary for the protection of the public, and so the appellant has in fact continued to practise as a dentist since 18th May 2005, again, apparently without incident.

Bearing in mind that the underlying purpose of the sanction is the protection of the public, bearing in mind that on the appellant's case as soon as he became aware that the public were not protected by indemnity insurance cover, he strenuously endeavoured to obtain such protection, bearing in mind the fact that he did obtain such protection and has subsequently been practising without incident, I have to ask myself whether any useful purpose would be served by imposing a further period of suspension. As I have said, upon the facts of this case, and in the light of the other comparable decisions, erasure was a wholly disproportionate response. At the most, a brief period of suspension would have been appropriate. Thus, the practical question now is whether, in all the circumstances, it is necessary, in particular in the interests of protecting the public and the maintenance of the good name of dental practitioners, to impose a further period of suspension.

Bearing in mind the fact that the appellant was suspended, albeit on an interim basis, for some seven months, and the fact that he is now only too well aware of the need for scrupulous attention to professional indemnity insurance, no sensible purpose would be served by imposing a further period of suspension. I therefore quash the Committee's decision and in place of the erasure I substitute an admonition.

MR YOUNG: My Lord, thank you very much. There remains the question of costs.

MR JUSTICE SULLIVAN: Yes.

MR YOUNG: I do have a schedule. (Handed).

MR JUSTICE SULLIVAN: Thank you. Yes.

MR YOUNG: I would ask that costs should follow the event in the normal way, my Lord.

MR JUSTICE SULLIVAN: Yes. What do you have to say about the principle, Mr Snell?

MR SNELL: My Lord, I cannot resist it in principle, but I have some submissions about the quantum.

MR JUSTICE SULLIVAN: Yes.

MR SNELL: Would it be helpful to have a copy of the respondent's schedule?

MR JUSTICE SULLIVAN: I think it would, yes.

MR SNELL: I will hand you up a copy, my Lord. (Handed).

MR JUSTICE SULLIVAN: Thank you. Yes, I did see that.

MR SNELL: Your Lordship will see in global comparisons, the costs sought by the appellant are in the sum of just over £19,000. I only seek costs of £13,000. That is the global comparison. The principal ground of attack from this side is in respect of the work done on documents. Your Lordship will see that on the second page of the appellant's statement of costs there were five POs who spent a total of 43.8 hours on documents.

MR JUSTICE SULLIVAN: Sorry, what is the total?

MR SNELL: I totalled it myself. One has to total the work on documents.

MR JUSTICE SULLIVAN: What was the total?

MR SNELL: 43.8 hours

MR JUSTICE SULLIVAN: You have done the arithmetic. Right.

MR SNELL: As compared with 16 hours spent by those on this side. Yet it would seem, in my submission, that we have done roughly the equivalent amount of work. My instructing solicitors prepared the authorities bundle. The appellant's solicitors prepared the appeal bundle which is, in my submission, a relatively slim bundle. It is difficult to see how that justifies 43 hours of work. It may be, my Lord, that the explanation relies on the fact that there were two solicitors, one of whom took over the conduct of the case from the other. It may be that there was some duplication, re-reading and so forth. Whatever the reason, it is my submission that 43.8 hours is excessive for preparation of this bundle.

MR JUSTICE SULLIVAN: It is not uncommon for the claimant's costs to be somewhat in excess of the respondent's. Putting together a documents bundle is slightly more onerous than putting together an authorities bundle.

MR SNELL: I do not dispute that, my Lord.

MR JUSTICE SULLIVAN: It is really just the extent of the disparity. Yours was 16 hours.

MR SNELL: Yes, 16.5 hours.

MR JUSTICE SULLIVAN: For people of the same sort of grade. They are A and C grade as well, are they not?

MR SNELL: They are.

MR JUSTICE SULLIVAN: That is the point there.

MR SNELL: My Lord, one further point may exist. Some time was clearly spent preparing a witness statement for Mr Brown. We were informed that an application was to be made to rely on that evidence. That, of course, did not materialise. I would submit that those costs are something which should not form part of the costs awarded in this case. That, of course, generated costs on our side because we had to respond to that. I cannot put a figure on that but it is an element of these costs that I would seek to challenge. Those are the two grounds, my Lord.

MR JUSTICE SULLIVAN: What do you want to say about that, Mr Young?

MR YOUNG: My Lord, if your Lordship looks at it in a slightly different way, and that is to take up the number of hours spent on either side. By my calculation, the number of hours spent on behalf of the appellant is 78 hours and the number of hours spent in total by the respondent is 63.7. It is just over 14 hours more on our side. Of course, acting for an appellant you have to make all the running. The other important factor, of course, is that the respondents are already thoroughly familiar with this case because they had the conduct of the matter before the Professional Conduct Committee, whereas my instructing solicitors came to the matter new and had to read up from scratch all of the documentation, which was necessarily a considerably more lengthy process than it would be for someone who already had conduct of the matter before the Professional Conduct Committee.

There is one point where I can provide something of an explanation for what appears to be a fairly lengthy amount of time spent by two of the solicitors, Kim Vernall and Gemma Murray. It is of the order of 15 hours each. I have taken specific instructions on those two amounts of time and I am told that there is some duplication there of the order of five hours. Kim Vernall sits behind me today. The case was being conducted on a day-to-day basis, under the supervision of the partner Chris Corney, by Gemma Murray until the end of last year. She had to give up her conduct of the case because she anticipated that there would be a clash between this case and another matter she was involved in. As I would submit, through no fault of my instructing solicitors, it became necessary for Miss Vernall to become involved in the case. Having done so, she then had to read her way into the case in place of Gemma Murray. There really was no avoiding that because it was thought that Gemma Murray could not carry on the case because of this clash.

MR JUSTICE SULLIVAN: Yes. Looking at it in round terms, if you knocked either of them out you would round it down to about £17,000. That is knocking them out completely, either of them. Then there is a question of how much there was overlap. Obviously they need some of their time anyway.

MR YOUNG: Yes. But I am told it is five hours, nothing like 15 hours, which was overlap. But it was necessary overlap for the reason I have given. It was not that that situation could not be avoided.

MR JUSTICE SULLIVAN: Yes.

MR YOUNG: On the specific point of the witness statement, it is quite fair to say, as my learned friend pointed out, that I did not take your Lordship to Dr Brown's witness statement because it dealt with the detailed matter of the amount of time that the Committee spent in camera when they retired for the second time. That issue arose in this way. Part of our submissions, as your Lordship will have seen --

MR JUSTICE SULLIVAN: Pre-determined, as it were.

MR YOUNG: They made up their minds in advance because they only went out for a very short period of time. I think I may have put a figure on it in my skeleton. There was a witness, Mrs Ann Sinclair, who then produced a witness statement on behalf of the respondent to say that in fact it was 30, 35 minutes.

MR JUSTICE SULLIVAN: I have read that, yes.

MR YOUNG: It was Dr Brown's recollection that it was even less than that amount of time. We felt that it was of sufficient importance for him to prepare a witness statement making that point. It is a witness statement that runs to two pages and five paragraphs. After the two introductory paragraphs, one of the remaining three paragraphs deals with the timing and two other paragraphs deal with other matters. It was a matter of discussion between my learned friend and myself as to whether it was proper for that additional material to go before this Tribunal. On reflection, it was conceded on our side that it would not be right to seek to introduce those two paragraphs. The one essential paragraph dealing with the time was in fact simply a response to a witness statement which had been put in by the other side.

MR JUSTICE SULLIVAN: Yes.

MR YOUNG: I think on any view it was reasonable expenditure, to that extent, on our side.

MR JUSTICE SULLIVAN: Thank you very much. I am satisfied, firstly, that the respondents ought to pay the appellant's costs. It is clearly sensible to summarily assess them. Doing the best I can, and accepting that an appellant might be expected to have a somewhat more burdensome time than a respondent, but equally taking on board the point made on behalf of the respondent that there was some degree of duplication and overlapping, it seems to me, doing the best I can, I am going to summarily assess the appellant's costs in the sum of £17,800 all in.

MR YOUNG: Inclusive of VAT?

MR JUSTICE SULLIVAN: Yes. It is instead of £19,275. I have allowed for a certain amount of duplication.

MR YOUNG: I am very much obliged, my Lord. Would your Lordship make an order for payment on account?

MR JUSTICE SULLIVAN: Do I need to? I should have thought the GMC are probably good for the money.

MR YOUNG: Since your Lordship has already made the assessment, in the normal course of events it is payable within 14 days.

MR JUSTICE SULLIVAN: Yes. I would not make a special order unless there was some indication that the GMC was going to be difficult.

MR YOUNG: I think I do not need to press that point. It is payable in 14 days.

MR JUSTICE SULLIVAN: Anything else?

MR YOUNG: No, my Lord.

MR JUSTICE SULLIVAN: Thank you very much. Thank you both for your very helpful skeleton arguments.