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

MR JUSTICE SUPPERSTONE: The claimant applies under section 30(7) of the Dentists Act 1984 for an order terminating the immediate suspension of his licence to practise as a dentist.

That immediate suspension was imposed by the defendant's Professional Conduct Committee on 10 June 2016, in addition to an order that it had made earlier that day suspending him from practice for nine months with effect after 28 days under section 27B(6)(b) of the Act (that is, from 8 July 2016 to 7 April 2017).

Inspection visits by the Care Quality Commission and the Health and Safety Executive in the period between December 2013 and July 2014 led the defendant to commence an enquiry into the claimant's fitness to practise, which took place before the Professional Conduct Committee of the defendant between 6 and 10 June 2016. At the hearing the PCC considered an allegation pursuant to section 27(2)(a) of the Act that the claimant's fitness to practise was impaired by reason of misconduct. The charges faced by the claimant were particularised in a Notification of Hearing dated 6 May 2016.

The Committee accepted that the deficiencies identified could be properly grouped into three broad categories. The failings in the first category were related to medical emergencies. The Committee determined that the procedures the claimant had in place to deal with medical emergencies were ad hoc, informal and inadequate to meet the requirements of patient safety. The Committee observed that the claimant did not have adequate medical emergency drugs available over a significant period of time. Whilst a medical emergency had fortunately not occurred, if it had the outcome for patient safety may have been catastrophic.

The second category related to health and safety practices. The Committee found that the claimant's failings in respect of such practices, including his failure to have adequate policies, was indicative of a failure to have appropriate systems in place that met the standards required. The evidence led the Committee to the view that the claimant made conscious and uninformed decisions not to develop and implement the necessary policies and practices, as he considered the way he practised was sufficient, if not superior to recommended systems, to adequately protect patients. His failure to do so put patients at risk.

The third category related to statutory requirements. The Committee found that the claimant failed to comply with statutory requirements relating to the use of the X-ray machine in his practice.

In conclusion on misconduct the Committee considered the claimant's conduct breached the GDC's Standards and potentially compromised public safety. These failings were not isolated, and persisted over a significant period of time. The Committee considered that the claimant wilfully disregarded the regulations and laws as they applied to him, and therefore breached the trust that his colleagues and patients were entitled to place in him. The Committee determined that his admitted failings were serious and grave, and amounted to misconduct.

The Committee then went on to consider whether the claimant's fitness to practise is currently impaired by reason of his misconduct. The Committee considered that the failings admitted are remediable. It was noted that the claimant had made some changes to his practice. However, the Committee did not consider that the changes addressed all the key areas of concern. It noted that the claimant repeatedly gave evidence to the Committee that he did not consider the changes he had made to be necessary for patient safety. The Committee was of the view that the claimant had only made changes under sufferance, and it could not be confident that they would continue to remain embedded in his practice.

The Committee concluded that there are additional ongoing risk factors to the public, including that the claimant is not vaccinated against hepatitis B. The Committee observed this requirement is fundamental to protecting patients and guarding against potential risks, and the claimant had demonstrated no insight into why it is necessary.

The Committee, later in its reasons, returned to the issue of the claimant demonstrating a significant lack of insight, and said it was concerned that any changes the claimant had made are liable to be reversed should there be no further oversight from a regulatory body.

On the issue of impairment the Committee concluded:

Finally the Committee determined what sanction, if any, would be appropriate in light of the findings that it had made. The Committee took into account the mitigating and aggravating factors in this case. In mitigation it accepted that the claimant had a long, unblemished career of almost 60 years. He had no fitness to practise history. There is no evidence that he was motivated by financial gain. The Committee accepted that there was no evidence of any actual harm caused to patients. However the Committee considered that there were serious potential risks as a result of his misconduct. Although there had been some remediation, the evidence demonstrated that the changes he had made to his practice had been done reluctantly. The Committee said:

The Committee observed that the claimant had expressed limited remorse beyond expressing remorse that he had to go through these proceedings.

The Committee then said this:

Having determined that conditions would not be appropriate the Committee determined that an order of suspension is necessary and proportionate.

The Committee then invited submissions as to whether the claimant's registration should be made subject to an immediate suspension order, pending the substantive direction of the suspension order taking effect.

The Committee directed that pursuant to section 27B(9) of the Act the interim order of conditions currently in place upon his registration should be revoked.

In deciding whether to impose an immediate order the Committee said that it took into account the submissions made by Mr Micklewright, who appeared on behalf of the GDC, as he does before me, and counsel who appeared on behalf of the claimant.

The Committee noted that it had made a finding of current impairment and had identified a risk of repetition that created a significant risk of harm to patients. The Committee accepted that the interim order of conditions which it had revoked would nevertheless continue to have effect until the substantive direction of suspension comes into effect, however given the Committee's findings and the claimant's significant lack of insight, the Committee was not satisfied that the interim order of conditions would be sufficient to provide the necessary level of protection to the public. The Committee considered that an immediate order of suspension was necessary and proportionate, and consistent with the concerns that the Committee had set out in its determination.

It appears from the claimant's witness statement in support of his application and from the submissions made by Mr Gerard Rothschild, who appears on his behalf, that the purpose of the present hearing is to have the immediate order lifted so as to enable the claimant to wind up and/or hand over his practice's affairs in an orderly fashion. He is 84 years of age, a sole dentist in a practice that now has a relatively small but nevertheless loyal list of regular patients. There is, it is said, a serious prospect of the value of the practice's goodwill being irretrievably lost. It is said that these points were not emphasised to the Committee by the claimant's barrister at the time. The claimant says that he asked his barrister to give him an opportunity to address the Committee in relation to the sanction but was not allowed by him to do so. In his witness statement (at paragraph 19) the claimant says that counsel's approach at that stage "can only be described as one of capitulation. He had tried to argue and just gave up the ghost."

Mr Micklewright observes that this amounts to an allegation of incompetence against counsel, and that being so one would have expected where criticism is made of former counsel that a process similar to that adopted in criminal appeal proceedings should apply. Yet it appears that counsel has not been asked to respond to the criticism made of him. He has been made aware by Mr Micklewright that criticism has been made of his conduct. However that is not, in my view, sufficient. Not only is counsel being criticised in a public forum without having the opportunity to respond, but also absent a response from counsel the court is left with the allegations without knowing whether there is any basis for them.

In any event Mr Micklewright submits that even if the allegations are true and accurate, they are of no consequence. Not only does the claimant have to establish that the conduct of the advocate must be such that he or she took such decisions and acted in a way that no reasonable advocate might reasonably have been expected to act, but it must further be shown that that wholly inadequate conduct did affect the fairness of the process (see R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368 (Admin)).

The transcript of the hearing before the Committee in relation to the immediate suspension determination shows, Mr Micklewright submits, that counsel's submissions were appropriate in the circumstances (see transcript at D5-14D-G at page 98 of the bundle).

The claimant's counsel made clear that the application was opposed and he reminded the Committee of the decision in Davey v GDC HQ15X02545, 8 October 2015, and submissions were made as to its effect, in particular that an immediate order does not automatically follow. The Committee was reminded that some steps had been taken to remediate the practice and that from that some insight had been demonstrated. Further it was submitted that the claimant should be "given the opportunity to address those patients who have been booked to see him". Counsel also submitted that the Committee's expectations in terms of remediation during the substantive period of suspension would be more difficult or even frustrated by an order of immediate suspension. I consider these submissions, albeit succinct, to be focused and realistic in the light of the findings the Committee had made.

At paragraph 22 of his witness statement the claimant identifies the matters that, given the opportunity, he says he would have explained to the Committee if he had been able to put his case as to why an immediate suspension was completely unfair.

Essentially, the points that are made fall into two categories. First, that the order does not enable him to wind down his practice in an orderly fashion and affects the value of the practice's goodwill. Second, and in any event, it is said that the order for immediate suspension is plainly disproportionate for the eight reasons set out in para 8 of his witness statement. The claimant does not accept that the main nine-month suspension is proportionate in his circumstances. However there is presently no appeal against the main decision.

The claimant has to satisfy me that the order for immediate suspension is disproportionate. In support of his submission that it is, Mr Rothschild points to the fact that no patient has ever complained about the claimant. The matters with which he was "charged" are historical and, he says, have been remedied. The claimant prays in aid a Practice Visit Report of Mr Martin Wedgwood of 27 April 2016 and a later addendum to that report dated 25 May 2016 in this regard, which Mr Rothschild submits confirms that the practice is now a safe and caring environment. The claimant maintains that there is no real risk to patients and any perceived risk could be remedied if necessary in other ways, for example by the undertakings that he suggests in his witness statement.

The applicable legal principles are not in issue. The court is required to consider the decisions of the relevant Committee of the GDC and to decide if it was wrong. If it was, the court is to substitute its own decision for that of the Committee, although the powers that I have in relation to the immediate suspension are limited. However, the court should not interfere unless persuaded that the decision, whether in respect of a finding of misconduct or a sanction, was wrong, and similarly in relation to the finding of immediate suspension.

In Dad v General Dental Council [2001] 1 WLR 1538, Lord Hope, delivering the judgment of the Privy Council, said:

These principles apply equally when considering the need for the imposition of an immediate suspension order.

I bear in mind that the Committee had the benefit of hearing and seeing the claimant and witnesses on both sides. Mr Wedgwood gave evidence before the Committee. The Committee noted that Mr Wedgwood accepted he was not an expert, but relied on his long clinical experience in the relevant matters. It is clear from the findings made by the Committee that they did not accept that the claimant had remedied the deficiencies identified.

In deciding to make the immediate order the Committee identified, as I have noted, a risk of repetition of the identified failings that in its view created a significant risk of harm to patients. Given the Committee's findings, in particular with regard to the claimant's significant lack of insight, the Committee was not satisfied that an interim order of conditions would have been sufficient to provide the necessary level of protection to the public.

In my view, the Committee was entitled to reach that conclusion. The Committee can only be expected to deal with the submissions that are made to it. In any event, the eight points now made by the claimant do not persuade me that the Committee reached a wrong decision. The principal concern of the claimant (essentially made in points 1-3 and 8 in paragraph 8 of his witness statement) is that he cannot wind up his practice's affairs in an orderly fashion. I reject the submission of Mr Rothschild that section 40 of the Act prevents him from doing so. The third of the eight points is that by reason of the immediate suspension the Claimant does not have enough time to complete the care of his patients, find a successor and hand over to him or her. I appreciate the logistical problems with an immediate suspension, in particular in the context here of a one-person practice. However I agree with Mr Micklewright that the claimant is not prevented by section 40 from proceeding to find a successor to hand over to, or engaging a locum (so long as he receives no payment for services rendered).

In circumstances where the claimant says that he intended to retire this year but for these disciplinary proceedings, I consider it likely that his nurse (and here I deal with point 8), who is his sole employee and has been with him for some 30 years, would have known of his stated intention. Mr Micklewright accepts this was not a point considered by the Committee, however if the practice is sold she may well have the opportunity to continue working with the successor if she chooses to do so (assuming she has not already started to make alternative arrangements).

In the circumstances I am not persuaded that the effect of the immediate suspension on the value of the practice is other than minimal.

The three points made by the claimant as part of point 5 were considered by the Committee and taken into account. The claimant has offered undertakings in relation to the matters that form part of point 6. I have no power to accept these undertakings. In any event, the reasons given by the Committee for rejecting conditions apply equally to the undertakings offered, and I would not have accepted the undertakings even if I had power to do so.

Point 7 is not correct. The Committee has correctly construed the effect of section 27B(9) and (10) of the Act.

I am entirely satisfied that the immediate suspension order is necessary and proportionate. I do not consider the decision of the Committee to be wrong. Accordingly, this claim is dismissed.

MR MICKLEWRIGHT: My Lord, there is an application for costs.

MR JUSTICE SUPPERSTONE: Yes.

MR MICKLEWRIGHT: Does my Lord have the schedule of costs?

MR JUSTICE SUPPERSTONE: I do, somewhere. So, yours is the respondent's statement of costs?

MR MICKLEWRIGHT: It is, yes.

MR JUSTICE SUPPERSTONE: You are asking for the total of £4,138.20?

MR MICKLEWRIGHT: In fact, my Lord, I am going to submit and ask for a little more than that, and the reason for that is that the basis on which our client instructs us is at an hourly rate, as my Lord will have seen from the schedule. It was anticipated that likely attendance at the hearing, if my Lord looks at the relevant part of the schedule, would be for three and a half hours for two fee earners. That was an estimate premised on the estimated hearing length being two and a half hours with a bit of time either way and amendment if required. Of course, we have been here considerably longer than that. I would invite your Lordship to assess costs on the basis of six and a half hours' attendance by both fee earners. I have taken the liberty, or rather the solicitor who sits behind me has taken the liberty, of adjusting the figures on the copy of the schedule I have here. I only have one copy, I am afraid.

MR JUSTICE SUPPERSTONE: Show it to Mr Rothschild first and then pass it up.

MR MICKLEWRIGHT: Yes, of course. For your Lordship's information the grand total including VAT which is sought is £4,822.20.

MR JUSTICE SUPPERSTONE: Yes. The claimant's costs are in the sum of £9,480? Their costs schedule.

MR MICKLEWRIGHT: I believe so, yes.

MR JUSTICE SUPPERSTONE: Yes.

Mr Rothschild, first as to the principle? Entitled to their costs?

MR ROTHSCHILD: Clearly costs must follow the event.

MR JUSTICE SUPPERSTONE: Thank you. Costs accepted?

MR ROTHSCHILD: May I just take instructions?

MR JUSTICE SUPPERSTONE: Yes, of course. Certainly.

MR ROTHSCHILD: We would ask for clarification on the VAT position, which it is claimed can be recovered?

MR JUSTICE SUPPERSTONE: Yes. VAT, Mr Micklewright?

MR MICKLEWRIGHT: VAT will certainly be charged and will be, on my understanding, payable by the GDC to -- so on that basis, in my submission, VAT can be recovered from costs.

MR JUSTICE SUPPERSTONE: Yes.  Do you want to just confirm that with those sitting behind you?

MR MICKLEWRIGHT: Yes, if we may.

MR JUSTICE SUPPERSTONE: Yes. Either they pay VAT or they do not.

MR MICKLEWRIGHT: Complete confirmation cannot be provided but certainly, my Lord, VAT is usually something which is charged.

MR JUSTICE SUPPERSTONE: Most certainly, yes. Any reason for doubting VAT?

MR MICKLEWRIGHT: I simply do not know if the GDC is VAT registered. Subject to that, (Several inaudible words).

MR JUSTICE SUPPERSTONE: If they are not VAT registered, I am sure I can rely to them to remit the VAT element.

MR MICKLEWRIGHT: I am sure that can happen.

MR ROTHSCHILD: If the order could perhaps record the sum plus VAT?

MR JUSTICE SUPPERSTONE: Yes. Does the £4,822.20 include VAT or not?

MR MICKLEWRIGHT: It does. It is in the grand total box.

MR JUSTICE SUPPERSTONE: It includes it. Right, well, I will say I consider those costs to be reasonable. You are entitled to your costs in the sum of £4,822.20 including VAT. Of course, if VAT is not payable for one reason or another then that sum as to VAT element is not to be paid.

MR MICKLEWRIGHT: I am grateful, my Lord.

MR JUSTICE SUPPERSTONE: Thank you both very much.

MR MICKLEWRIGHT: My Lord, I have a draft order which I can hand up. Alternatively, that can be sent to your clerk if that would be of more assistance?

MR JUSTICE SUPPERSTONE: Yes. If you have it show it to Mr Rothschild. It should be very simple.

MR MICKLEWRIGHT: It is indeed very simple. Perhaps I could hand a copy up?

MR JUSTICE SUPPERSTONE: Yes, certainly (Handed up).

It is a draft order. Let us just approve it now, and then you can send in the typed version and I will then sign it. We will just amend it. So, it is £4,822.20 including VAT. Nothing to say about that, is there, Mr Rothschild?

MR ROTHSCHILD: VAT is applicable, or something like that. It is well recorded.

MR JUSTICE SUPPERSTONE: Yes, it is recorded.

Thank you both very much.

MR MICKLEWRIGHT: Thank you, my Lord.

MR JUSTICE SUPPERSTONE: Can I thank everyone else in court for staying late. Thank you very much. There is no urgency about the order, is there?

MR MICKLEWRIGHT: No, my Lord.

MR JUSTICE SUPPERSTONE: It is clear. Thank you very much.