Shiekh v The General Dental Council

MR JUSTICE LLOYD JONES: This is a statutory appeal by Mr Mohammed Qusim Shiekh against a decision of the Professional Conduct Committee of the General Dental Council, made on 1st February 2008, ordering the erasure of his name from the register of practitioners.

The appeal is brought pursuant to section 29(1)(b) of the Dentists Act 1984. The powers of the court under section 29 include the power to remit the case to the Professional Conduct Committee to dispose of the case in accordance with the directions of the court.

On this appeal, Mr Winter QC, who appears on behalf of Mr Shiekh, identifies a number of matters which, he submits, show that the decision of the Professional Conduct Committee was reached on a legally flawed basis and, accordingly, he asks me to allow the appeal and to remit the case to the Professional Conduct Committee for reconsideration.

The case arises out of the following facts. The appellant, Mr Shiekh, owns some 13 dental practices in Nottingham and Derby. Between 1994 and 2000, dental practitioners at those surgeries provided out-of-hours emergency dental services to thousands of patients. There is no question in this case but that the patients received treatment which was at least adequate.

Provision is made by the National Health Service to remunerate travel payments for dentists for out-of-hours emergency provision. The regulation in question, at paragraph 57(b), provides that in a case of recalled attendance to re-open the surgery and provide emergency treatment at a time when the surgery would not normally be open, a fee shall be paid for the circuit of travel. The actual fee depends on the total distance travelled.

Payments were claimed by or on behalf of dental practitioners who were practising in Mr Shiekh's practices on the basis that they had travelled a distance to re-open the surgery, whereas they had not in fact travelled the circuit. Of the payments received, 50 per cent would be retained by the appellant, and 50 per cent would be paid to the dental practitioner who claimed to have been recalled.

The reality was that this was a fraud which was being perpetrated against the National Health Service. It was said that, under the influence of the appellant, others were induced to assist in the fraud and that the appellant employed a large number of foreign dentists whom he was able to manipulate. That appears from the sentencing remarks of His Honour Judge Alexander QC, at Northampton Crown Court in September 2006, when sentencing this appellant.

The Crown's case, as originally formulated, involved much wider allegations of dishonesty in relation to other claims and, in addition, the claims for emergency treatment were alleged to have been totally fraudulent. However, about a month after the start of the trial of the appellant, the appellant offered a plea of guilty on a limited basis that was acceptable to the Crown.

The offence to which he pleaded guilty is described in the indictment in the following terms: conspiracy to defraud in that between the 19^th day of December 1994 and the 4^th day of August 2000 he conspired, together with three named individuals, to defraud the Dental Practice Board by dishonestly making claims for repayment within the National Health Service, which were, and which he knew to be, false, in relation to claims for payment for recalled attendance under paragraph 35(b) and 57(b) of the Statement of Dental Remuneration, where the dentist concerned had not specifically travelled the requisite distance, or travelled at all, to re-open the surgery and provide treatment in an emergency, under National Health arrangements, at a time when the surgery would not normally be open.

The extent of the fraud, in financial terms, was unquantifiable. The appellant accepted that his criminal activity had spanned about 4 years between December 1994 and December 1998. He maintained that in 1998 he had given instructions that the circuit should be completed before a claim could be made, but that, notwithstanding such insistence, on occasions some of his associates still did not complete the circuit.

Dealing with this aspect of the plea in relation to the position from 1998 onwards, Judge Alexander observed in his sentencing remarks:

Having pleaded guilty to this count of conspiracy to defraud, the appellant was sentenced to 12 months' imprisonment suspended for 18 months and ordered to pay a fine of £50,000.

The Court of Appeal, in upholding the sentence, said that this sentence of imprisonment was appropriate and necessary in this case. Of the judge's decision to suspend the sentence of imprisonment, the court said that it may be thought that it was a merciful course.

In civil proceedings, which had been settled before the criminal case was heard, the appellant had repaid to the Dental Health Board the sum of £1.15 million. However, it was not intended that that sum should relate solely to the conduct which formed the subject of the count to which Mr Shiekh pleaded guilty. I am told by Mr Winter, who appears for Mr Shiekh today, that the sums obtained as a result of the conspiracy to defraud with which I am concerned, were very considerably less than that sum.

It is also relevant to record that Mr Shiekh was suspended, pursuant to an interim suspension, for a period of approximately 12 months before the final determination of his case by the Professional Conduct Committee. That interim suspension was challenged and Davis J, in a judgment delivered on 9th November 2007, held that that was an unlawful suspension.

Section 27(2) of the Dentists Act 1984 (as amended) provides in relevant part that:

Section 27B(6) of the Act provides for the Committee to impose sanctions on a dentist whose fitness to practise is found to be impaired. It states in relevant part:

I have been addressed by Mr Winter, on behalf of the appellant, and by Mr Stern QC, on behalf of the respondent, in relation to the correct approach by this court on such a statutory appeal. The matter has been considered recently in the Court of Appeal in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460. There the Court of Appeal identified, in particular, two principles emerging from the earlier Privy Council authorities in relation to such disciplinary proceedings.

The first identifies the importance of the public interest in maintaining public confidence in the profession. The point is made that where professional discipline is involved, those charged with its maintenance are not concerned exclusively, or even primarily, with the punishment of the practitioner concerned -- they are also concerned with the maintenance of public confidence in the profession. There reference has been made to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at pages 517-519.

The second principle is that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction which should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the Committee in the light of its experience. The Professional Conduct Committee is the body which is best qualified to judge which measures are required to maintain the standards and reputation of the profession.

In Fatnani, Laws LJ drew these considerations together at paragraphs 19 and 20. He observed:

In opening this appeal before me today, Mr Winter has been at pains to acknowledge the principle that the Professional Conduct Committee of the General Dental Council is a specialist tribunal with a high degree of expertise, which entitles its decision to considerable deference on appeal. Moreover, he has accepted that the criminal conviction under consideration was of a serious nature involving dishonesty. Nevertheless, he submits that the decision to erase the appellant was reached on a legally flawed basis, on various grounds which he identifies. It is his submission that, properly directed, in the light of the unusual circumstances and mitigation before the Committee, a period of suspension, especially when one takes into account the unlawful suspension previously imposed, would have been the appropriate outcome.

Against this background, I turn to consider each of the grounds in turn. I will use, in each case, the formulation advanced by Mr Winter.

The submission, as originally formulated, is that the Committee wholly disregarded these considerations. In the course of argument before me today, the matter has been put in a rather different way. The submission has been made that these considerations are relevant not simply to the punitive or retributive aspect of the proceedings, but are also relevant to the question of the maintenance of public confidence in the profession.

In the way in which the point has been advanced before me today, it has been submitted that there was a failure on the part of the Committee to consider these factors in the context of that responsibility of the Committee in maintaining that aspect of the public interest.

In considering these submissions, it is important to consider them in context. Before the Committee, the conviction was, of course, admitted. Moreover, the issue of impairment was conceded. The only issue for consideration by the Committee at that hearing was the issue as to the necessary sanction.

So far as the time elapsed since the commission of the offence is concerned, Mr Winter submits that the only reference to the length of time since the offence, which had concluded, as he puts it, in 1998 -- although I have already referred to the judge's observations in that regard -- was in the course of consideration of impairment, which had been admitted by the appellant.

At paragraph 2 of the determination, the chairman refers to the repayment of £1.15 million, which he says does not detract from the criminal act, which had been committed over a number of years, and then states:

Mr Winter's submission is that it could not exonerate the appellant from blame, but that there was here a failure on the part of the Committee to consider the passage of time and its impact on the public interest in maintaining confidence in the profession. I asked Mr Winter in what way the passage of time would be relevant to that consideration. It is his submission that it is relevant because it is necessary to consider what this appellant has done in the meantime. In this regard, he explained to me that since the commission of the offence this appellant has maintained and developed a network of dental practices which have provided a high standard of dental care to large numbers of patients under the NHS system. In Mr Winter's submission, this is an important consideration to be borne in mind in determining the necessary sanction in order to maintain public confidence in the profession. It is his submission that there was no consideration of this, which he says was a central feature of the mitigation on behalf of the appellant.

It is certainly the case that this was a central feature of the mitigation on behalf of the appellant. An examination of the transcript of these submissions, and of the evidence which was called at thathearing, indicates that a very substantial part of a day was devoted to the question as to the nature of the practice which was being followed by the appellant. In addition, there were many testimonials before the Committee, largely relating to the manner in which the appellant was continuing to provide his professional services. However, it is not the case that this was a matter which was disregarded. On the contrary, it is expressly referred to by the chairman in announcing the determination. I refer, at this point, to paragraphs 4, 5 and 6, which read as follows:

First, I note that in paragraph 5 the Committee has directed itself correctly as to the purpose of sanctions. It is clearly addressing in its determination the need to protect the public, to maintain public confidence in the profession and to maintain correct professional standards. It is in that context that the Committee considers the very matters which Mr Winter submits have not been considered. I have no doubt that full account was taken of the conduct of the appellant, what he had done, what he had achieved since the commission of the offence, and that those matters were properly considered by the Committee in the context of their bearing on the maintenance of public confidence in the profession.

I turn to Ground 1(b): the repayment of a greater sum of money than had been received. I can deal with this briefly. Mr Winter, in the course of his submissions before the Committee, drew specific attention to this matter at page 42. The matter is dealt with, albeit briefly, by the Committee at paragraph 2. In paragraph 5 of its decision, the Committee makes clear its correct understanding of the purpose of sanctions. It is clear that the Committee would have had this matter in mind.

Ground 1(c) is the evidence of the appellant's charitable works and assistance to the community. It is the case, as was accepted by the Committee, that the appellant has had the most commendable and extensive involvement in charitable projects, both in the area of dentistry and more generally. He has also been involved in providing training projects and training facilities for dentists. The Committee, in its determination, referred expressly to this at paragraph 4, which I have already quoted.

Mr Winter, in his submission, seizes on the statement at paragraph 4 that these charitable works and assistance to the community do not mitigate the facts of the conviction and submits that once again this is a factor which has not been considered in its proper context of the public interest in maintaining confidence in the profession.

The Committee did refer to the fact that it gave appropriate weight in mitigation to the testimonials. It referred to the charitable works and assistance to the community. The Committee also correctly directed itself that the purpose of sanctions was to maintain public confidence in the profession. In the circumstances, I am unable to accept that the Committee failed to take account of these matters in the correct context. This was the only matter with which the Committee was concerned on that occasion. It was concerned solely with possible sanctions. These matters were addressed in that context.

Ground 1(d) relates to the appellant's good character. Here it is relevant that it was acknowledged by the General Dental Council that there was no history of other convictions known to them, and they accepted that the appellant was of previous good character prior to his conviction. There was before the Committee the transcript of the sentencing remarks in which the trial judge had referred to the appellant's previous good character.

I am unable to accept that the Committee failed to take account of the appellant's good character, given that it refers to the character evidence which it heard and to the testimonials. It also refers to the good works which had been performed by this appellant. It is entirely clear to my mind that the Committee would have had firmly in mind his previous good character and there is nothing here to suggest that they may not have taken that into account.

It is important to state that it was accepted on behalf of the Council that the appellant did not create any risk to the public. The Committee was expressly directed by the legal assessor that there was no such risk in the following terms:

The members of the Committee were also made aware, during the course of the proceedings, of the judgment of Davis J, to which I have referred, which proceeded on the basis that the interim suspension was unlawful because there was no risk to the public.

In support of this submission, Mr Winter draws attention to paragraph 8 of the determination, which reads as follows:

Mr Winter draws attention to the reference to "any directrisk". He submits that the clear implication is that the Committee considered that there was some indirect risk to the public and that such a conclusion would be wrong, irrational and contrary to the evidence. He submits that the fact that such a risk was wrongly perceived by them also appears from the comment at paragraph 9 of the determination, that "there might be conditions that could be attached to your registration for up to three years".

I am unable to accept this submission. It seems to me that it is impossible to infer from the use of the word "direct" in conjunction with risk that the Committee was here suggesting that there was any indirect risk if, by that, is meant any risk of injury to the public as a result of the manner in which he carried out his specific dental duties or, more generally, any indirect risk to the public relating to the possibility of his defrauding members of the public. On the contrary, it seems to me to be clear from paragraph 8 that the Committee is here drawing a distinction between risk to the public of such a kind and the more general consideration of maintaining public confidence in the profession. It is that which is referred to in the final words of paragraph 8. Moreover, that reading is supported, to my mind, by the rejection, in paragraph 9, of conditions as being sufficient to maintain confidence in the profession or maintaining the standards of the profession. It is in that regard that the reference to "conditions" is made. To my mind, the Committee was here saying that this appellant's behaviour was so damaging to public confidence that removal was the appropriate outcome.

It is submitted by Mr Winter, on behalf of the appellant, that the Committee, in stating that an order of suspension could be imposed for a period of up to 12 months (paragraph 10 of the decision), was in error in failing to appreciate that some 18 months earlier a new power had been conferred on the Professional Conduct Committee generally to review and extend a period of suspension for up to a period of 2 years and, thereafter, indefinitely. This arises from section 27C(1) of the Dentist Act 1984 (as amended). Mr Winter submits that it was on this mistaken understanding of their powers that they concluded that, given the seriousness of the case, it did not consider a suspension order to be adequate.

Once again, I am unable to accept this submission. The statement by the Committee of its powers in relation to suspension is entirely accurate as a matter of law. It only had the power to impose a suspension for a period of 12 months. Section 27B(6) states that a suspension shall not exceed 12 months. To my mind, the fact that at the end of the period of 12 months another Committee might have the power to extend the suspension for a further period of 12 months is irrelevant. This Committee could not assume that there would be a proper basis for such a further suspension, or that such a decision would be made. It seems to me that there has been no error on the part of the tribunal, nor has there been any misunderstanding as to its powers.

In any event, I consider that, as a result of the reference to the powers of the tribunal which appears at page 281, this tribunal would have appreciated the power of review and extension which exists in relation to suspension as a result of the amendment of the statute.

I should add that the Professional Conduct Committee concluded, in full knowledge of its powers, that suspension did not meet the seriousness of this conduct. In my judgement, it was clearly entitled to do so.

Here Mr Winter begins by drawing attention to the guidance by the legal assessor to the Committee, to which I have already referred. Having told them that this was not a case where there was a risk to the public, he reminded them that the public interest was in maintaining public confidence in the profession, upholding the reputation of the profession and maintaining its standards. He then went on to say that it was also in the public interest that competent dentists providing a valuable public service should be in practice, other things being equal, and that this was part of the balancing exercise which had to be undertaken.

Mr Winter complains that the only consideration given to this aspect of the public interest in the determination was in the passage at paragraph 6, where it was noted that the appellant was in the process of selling his practices to a dental corporate body, and that accordingly services would continue to be provided. Mr Winter's submission is that while that was true in relation to the existing practices of the appellant, the Committee failed to give any consideration at all to the evidence of his plans to provide dental services to the public on an even more extensive basis in the future.

It is important to record that during the course of the hearing before the Committee, Mr Winter had made detailed submissions about the future intentions of Mr Shiekh. He had considered the question whether it would be possible for the appellant to carry out these plans if he were erased from the register. Mr Winter's submission was that it might be possible for him to do that within a partnership structure of the sort within which Mr Shiekh had recently been operating. Alternatively, he might be able to do so through some sort of corporate dental vehicle. However, it was Mr Winter's submission that not being a dentist would undoubtedly make that considerably harder and would, as he put it, cause him to revisit where he was and the direction in which he was to go in future. However, Mr Winter emphasised, on instructions from Mr Shiekh, that he wanted to pursue these plans and would do everything he could to pursue them, irrespective of the outcome of the hearing.

It is clear to my mind that the Committee did not ignore this issue at all. If one considers the full text of paragraph 6, it is clear that the Committee turned its mind to proportionality, together with the possible effect a sanction might have on patient care. I accept the submission of Mr Stern, on behalf of the respondent, that it could only have done this if it considered what had been done in the intervening period and what effect it would have on the appellant's ability to continue to provide such services. It is clear that the Committee has taken into account the effect of the likely sanction on members of staff in the practices organised by the appellant, and upon the appellant himself, if any direction were made affecting his registration. So I am entirely satisfied that this aspect of the public interest, that is the ability of competent practitioners to continue to practice, has been fully considered by the Committee in coming to its determination.

It is necessary to refer to the provision in question. The guidance states in its introduction at paragraph 4:

From paragraphs 26 onwards the guidance deals with possible outcomes. I draw attention to the word "possible". Under the heading "Erasure", the following passage appears at 43:

There then follows at paragraph b the following:

Then at e:

It is the submission of Mr Winter that the Committee regarded the guidance in paragraph 43b as determinative of the case, leading it wrongly to disregard relevant mitigation which weighed against the penalty of erasure. Moreover, he submits that the guidance set out in paragraph 43 is misleadingly prescriptive and does not properly reflect the approach which should be adopted.

I am unable to accept the submission that this guidance is misleadingly prescriptive. On the contrary, it seems to me that it is at pains to emphasise that each case must be considered on its own particular facts. Paragraph 43 makes clear that the commentary cannot cover every situation and states in terms that each case must be considered on its own merits.

Furthermore, counsel for the General Dental Council, Mr David Bradly, in referring the Committee to this guidance in his submissions on sanction, expressly drew the attention of the Committee to the facts that "each case of course depends upon its own facts and circumstances" and that the guidance was available for their assistance "but you will no doubt consider everything that is put in front of you, in particular those matters yet to be raised by my learned friend". The members of the Committee can therefore have been in no doubt that, while they were entitled to look to this document for guidance, it was certainly not to be considered determinative of any issue and that they were under an obligation to come to their conclusion having regard to the particular facts of the case before them.

The guidance does make clear that the sanction of erasure is reserved for serious cases, where the behaviour in question is so damaging to fitness to practise and to public confidence that erasure should be considered to be an appropriate outcome. Whether the facts of an individual case are considered to be that serious is, in each case, for the Committee to consider.

Furthermore, I am entirely satisfied that the Committee did have regard to the particular circumstances of this case in deciding whether it was necessary to impose the sanction of erasure. In a sense, this brings me back to the first submission, in which I have already dealt with the specific matters of which Mr Winter makes complaint in this regard. However, I would add that, having regard to the entirety of the determination, it is clear to my mind that all relevant matters were fully considered, that the tribunal was well aware of its duty to arrive at a conclusion on the basis of the particular facts of this case and that there is no basis for concluding that the Committee regarded theguidance as determinative in any way.

In this case the Professional Conduct Committee concluded that it was necessary, in the particular circumstances of this case, to impose the sanction of erasure. They considered that the policy of preserving public trust in the profession prevailed over the personal mitigation available to the appellant. They came to that conclusion having regard, I have no doubt, to the particular circumstances of this case. This was a conclusion which they were clearly entitled to reach. They did so after giving due consideration to all relevant matters. In my judgement, they came to a balanced decision, their decision involves no error of law and in these circumstances I conclude that there are no grounds for this court to interfere.

MR STERN: My Lord, I am instructed to apply for the respondent's costs. I understand that there is no dispute that the appellant should pay those costs.

MR JUSTICE LLOYD JONES: There is a schedule somewhere.

MR STERN: Yes, there is a schedule. I can take this fairly shortly, my Lord. Summary assessment of a total of just over £23,000. I gather that the appellant is happy to pay £20,000 and the respondent is not proposing to dispute that. So I think we are agreed, subject to your Lordship's agreement.

MR JUSTICE LLOYD JONES: That seems to me to be an entirely reasonable order to make. So I shall say that the appellant is to pay the costs of and occasioned by this appeal, which I summarily assess in the sum of £20,000.

MR WINTER: That is a VAT inclusive figure, my Lord.

MR STERN: It is, my Lord.

MR JUSTICE LLOYD JONES: That will be noted. I do not know whether the General Dental Council is registered for VAT, but if it is agreed between the parties that that is the appropriate figure, then I do not need to go into it.

MR STERN: It is agreed. I think it is partially registered. It is agreed. The total figure, which included VAT, was just over £23,000. Therefore, that is reduced to £20,000 by agreement.

MR JUSTICE LLOYD JONES: The sum to be paid is £20,000.

MR STERN: Yes.

MR JUSTICE LLOYD JONES: I am very grateful to counsel for their submissions. Thank you very much indeed.