Booth v General Dental Council

Frank Michael Booth is a dentist. In May 2014 the Professional Conduct Committee (the PCC) of the General Dental Council (the GDC) made certain findings against him and ordered that his name be erased from the register. This is his statutory appeal pursuant to section 29 of the Dentists Act 1984 (the Act) from two of those findings and from the sanction of erasure.

Mr Booth is now aged 65. He practised continuously as a dentist for about 40 years from 1973 until his erasure. Although the charges dated from 2003, the most serious, which involved a finding of dishonesty, was in December 2008. It is sad that his previously long and unblemished record should have ended in this way. Whatever the outcome on the issues in this appeal, the case is one of personal and professional tragedy.

In this case it is not alleged that there was unfairness or any other procedural irregularity, and it is not suggested that the reasons were insufficient or inadequate. They are, in fact, detailed and thorough. It is common ground between counsel that the simple test I must apply is whether the decision of the PCC was, in relation to each of the matters complained of, wrong. If it was wrong, then of course the decision on that matter cannot stand. If it was not wrong, then it must stand and I am not entitled to interfere.

There were five charges, although the primary charges, namely 1 and 2, were further subdivided. They all related to a single patient, known as Patient A. In 2003 she was aged about 83 and by the end of the period of the charges, 2011, she was about 91.

Charge 1 was that between 2003 and 2011 Mr Booth failed to provide a good standard of care to Patient A in a range of respects. He admitted that charge and all those respects. Charge 2 was that he failed to maintain appropriate standards of record keeping in a long list of respects. He admitted that charge and all those respects. These included at 2(h)

Charge 4 specifically related back to charge 2(h) and alleged that

Charge 3 was that Mr Booth charged a high fee and did not accept responsibility or offer appropriate refunds for certain specified items of treatment which were defective or inappropriate. He admitted the whole of charge 3. Charge 5 was that

When deciding upon the sanction the PCC said the following at internal page 16 of their reasons, now at bundle Tab 2: page 31. It effectively encapsulates the case:

All these matters first came to light when Patient A moved in 2012 from her own home to living in a residential home. Patient A, who had once worked as a book keeper, used to keep a detailed book or ledger of her daily income and expenditure. When she went into the residential home her daughter perused the book and saw the significant payments, apparently totalling about £32,000 in eight years, made by Patient A to Mr Booth / his practice. The daughter questioned the amount and purpose of them and an investigation ensued. In relation to charge 2(h) and the £3,000, the essential facts are as follows. In November 2008 Mr Booth decided to relocate his practice from one town to another. In December he rang Patient A to tell her he was moving his professional address and asked her whether she wished to remain a patient. She said that she did. He discussed with her on the telephone some future treatment for implants and invited her to pay him a deposit of £3,000. She sent to him a cheque for £3,000. The actual cheque has not been produced, but the named payee appears to have been F. M. Booth. The cheque was debited from the bank account of Patient A on 29 December 2009 (see her bank statement at bundle 2, Tab 11 page 450). Mr Booth told the PCC that he had paid the cheque into his practice account, and they appear to have accepted that evidence without documentary proof. I, therefore, approach this appeal on the basis that Mr Booth did indeed pay the cheque into his practice account and not into any personal or private account. On 7 January 2009 Mr Booth extracted Patient A’s UR2 and UR3 teeth and inserted two implants. Patient A paid to him a further £1,500. The patient’s dental notes for 7 January 2009 do record

The essential issue for the PCC on charge 4 was why had Mr Booth not recorded anywhere receipt of the £3,000, and was his failure to do so dishonest? He admitted, as I have said, that his failure anywhere to record the payment as a credit in Patient A’s record was both unprofessional and misleading, but denied that it was dishonest.

In regard to the issues of dishonesty and financial motivation the PCC said at internal page 4 of their reasons, now at bundle 1, Tab 2, page 19,

Pausing there, the committee did not further explain why they found the evidence “unconvincing”, nor identify any particular answer or answers in his evidence which were unconvincing. However the PCC are the statutory fact finding tribunal. They heard the oral evidence of Mr Booth over a sustained period of over a day, and I must and do keep that description “at times unconvincing” in mind.

The reasons of the PCC in relation to charge 4(c) and the allegation of dishonesty were as follows:

The gravamen of the findings is that Mr Booth had “deliberately omitted” (my emphasis) to record the payment. Since there could be no innocent reason or explanation for deliberately not recording the payment, Mr Simon Butler, who appeared on behalf of Mr Booth at the appeal (but had not appeared below), conceded that in the context of this particular charge and this particular case, “deliberate” is synonymous with “dishonest”. He strongly submits, however, that the committee were not justified in concluding that the omission to record the payment was deliberate, and submits that there was no evidence to justify a conclusion that it was not simply an innocent oversight or mistake.

Mr Butler does complain that nowhere during the oral evidence of Mr Booth was it expressly put to him either by counsel for the General Dental Council, Miss Bo-Eun Jung, or by any member of the PCC themselves, that Mr Booth had “deliberately” omitted to record the payment. In my view nothing turns on this, it being accepted that in the context of this case and charge “deliberate” and “dishonest” are effectively synonymous. The charge itself made express that the conduct was alleged to have been dishonest, and neither Mr Booth nor his lawyers can have been under any misunderstanding as to what was alleged.

More fundamentally, Mr Butler characterises as bizarre the section in the above passage that “…you yourself knew that your actions… would be regarded as dishonest. You knowingly chose not to record that Patient A had paid you £3,000 and there is no evidence that you ever accounted to her for it.”

The short submission of Mr Butler is that the comment that “there is no evidence that you ever accounted to her for it” is “bizarre” and wrong. Mr Booth did indeed extract two teeth and insert two implants on 7 January 2009 at which point he charged her, and recorded charging her, £1,500. Mr Booth said that his charge for inserting two implants would have been about £4,500 at that date and said, therefore, that she had implicitly, although not expressly in the records, been credited with the £3,000. There was evidence from an independent expert (himself a dentist) that he “would be looking at around £2,500 to £3,000 per implant fully restored.” (see bundle 1, Tab 4 page 140E). If that be right, then a charge of £4,500 was not excessive.

So Mr Butler submits that there was no attempt to keep the payment off the books altogether. It was paid into the practice account. The patient was in fact given credit for it, and accordingly the failure expressly to record it anywhere in her records cannot be said, on a balance of probability (the onus being upon the GDC to prove their case), to have been deliberate or dishonest.

On behalf of the GDC, Mr David Bradly (who also did not appear below) readily accepts that the onus was upon them to prove the dishonesty. Mr Booth did not have to prove or demonstrate anything. Nevertheless Mr Bradly points out that nowhere in his lengthy oral evidence does Mr Booth actually say or claim that there was an oversight or inadvertence or administrative error. He gave no evidence as to his book keeping or record keeping methods, and no evidence with regard to his office staffing or how this particular cheque can have been received and paid into his bank account (apparently paid in by Mr Booth himself) without any record being made. The only reference anywhere in his oral evidence to “error” was a short answer at Day 4 – 10 D, now bundle 1 Tab 6 page 267, where he said

Furthermore, Mr Bradly points out inconsistencies in the oral evidence of Mr Booth on the critical question of how, in December, he came to be asking Patient A for any advance payment at all. He had last seen her on 2 May 2008 and 23 October 2008. On each occasion his notes recorded “routine exam” and there was not the slightest indication in his notes that extraction and implants would soon be needed. He said in his oral evidence at Day 4 – 45 B, now bundle page 302, that at each of these “routine examinations” nothing abnormal had been detected.

In a passage at Day 3 –32 G – Day 3 – 33 B, now bundle 1, Tab 5 pages 207-208; Mr Booth said in chief:

Then at Day 3 – 41 C – E, now bundle page 216, there is a further passage, still in chief:

In that passage Mr Booth himself clearly agreed that £3,000 was the discounted fee, if a deposit was paid, for placing the implants. He said in terms that the £3,000 was “to get to the stage of having the implants placed, the abutments placed and the temporary bridge in place.” The £2,750 (viz £1,500 paid on 9 January and £1,200 “to pay at end of treatment”) was for the cost of the final restorative work and the abutments and the bridge.

Later, during cross examination there was the following passage at Day 4 – 6 A – C, now bundle page 263:

These passages do not stand at all easily together. Mr Booth presented a confusing, if not conflicting, picture of what precisely the £3,000 was intended to cover and whether there was or was not any discount in return for paying £3,000 in advance. The very fact of the inconsistencies was clearly put to Mr Booth in a later passage at Day 4 – 8 F to Day 4 – 10 D, now bundle pages 265 – 267. Mr Booth continued to give a somewhat confused account of what the £3,000, the £1,500 and the £1,250 were respectively intended to cover. These inconsistencies did, in my view, entitle the PCC to comment, as noted above, that the evidence was “at times… unconvincing”.

The PCC were clearly perplexed how Mr Booth could have been discussing implants or seeking any advance payment at all in December when nothing abnormal had been detected in the previous two routine examinations, one as recently as October. They were faced with confused and conflicting evidence as to the scope of the payment of the £3,000, what it was intended to cover, and whether or not there was any element of discount. It was admitted that the payment was never recorded to the credit of the patient. No explanation was given as to why not. In these circumstances it was open to the committee, in my view, to make the assessment or judgment that the failure to record was, at the time of the omission, probably deliberate and dishonest. They appear to have assimilated and grasped the evidence with care. In relation to charge 5 they were later to find dishonesty not proved, which demonstrates their capacity to discriminate. They heard the evidence of Mr Booth. I did not. I am unable to conclude that their conclusion of dishonesty was wrong.

I now turn to the second ground of appeal and the finding that the admitted conduct in charge 3 was not only unprofessional (admitted) but “financially motivated”. In relation to this finding I recognise, as I commented and discussed at the hearing, that there is something curious about an allegation that a dentist, or any professional person, has been “financially motivated”. However vocational and altruistic a professional person may be, he or she generally has a financial motivation in the work he or she does. Professional people work to earn fees or income. However I was assured by Mr Bradly on behalf of the GDC that being “financially motivated” is quite often charged by the GDC as an ingredient of a charge of misconduct, and that the PCC do consider financial motivation as an aspect of misconduct or unfitness to practice.

The reasons of the PCC for finding Mr Booth to have been financially motivated are at internal pages 8 and 9/8, now bundle pages 23 and 24,

Mr Butler does not criticise the committee’s interpretation of the words “financially motivated” at the outset of that passage. He accepts that failure to offer a refund for inadequate treatment may have been unprofessional, as was admitted, but submits that “to allege that the registrant was financially motivated by the omissions is simply going too far”. He says, further, that there was no evidence that the replacement treatment was “deliberate, repeated, large scale, highly organised and highly profitable”. All of that may be correct, but cannot be the test of whether the failures were financially motivated. At most it goes to the scale or gravity of the charge and the financial motivation.

During the oral evidence counsel for the GDC went through the repeat treatments at Day 4 – 19 to Day 4 – 21, now bundle pages 276 – 278. It was quite clear and frankly admitted by Mr Booth that a number of treatments did have to be repeated, in one case three times. Mr Booth effectively admitted that he had double, or on one occasion treble, charged the patient, but could give no explanation why. In total he accepted at page 277 F – 278 A that about £7,000 should have been refunded, but was not. In an answer at Day 4 – 22, now bundle page 279 D – E, he volunteered: “It is very difficult for me now because clearly… It is just indefensible, is it not? I mean, what can I say?”

In the light of that evidence it was, in my view, clearly open to the committee to conclude that Mr Booth had been financially motivated in the sense in which they had interpreted those words, namely putting his own financial interests before the best clinical and financial interest of his patient. He volunteered that his conduct had been indefensible and, frankly, could give no explanation for it. I am unable to conclude that the decision of the PCC on this point was wrong or not justified by the evidence.

Section 27B(6) of the 1984 Act prescribes a hierarchy of sanctions, namely, in summary: no action, reprimand, conditions of practice, suspension, or erasure. At internal pages 15 – 17, now bundle pages 30 – 32, the committee carefully and correctly considered each sanction in turn in ascending order of gravity. They concluded that “… your misconduct as a whole is so serious that it is fundamentally incompatible with you remaining on the Dentists Register. Accordingly, the committee has determined that the only appropriate and proportionate sanction in this case is that of erasure.”

If I had allowed the appeal on Ground 1 (dishonesty) then unquestionably the sanction would have to have been reconsidered by the committee as any element of dishonesty was no longer proved, and Mr Bradly did not suggest otherwise. However my conclusion is that all the primary findings of fact stand, and all the charges that the committee found proved remain proved.

Mr Butler submits that even on this basis erasure is disproportionate and wrong and that the committee should have selected either conditions of practice for up to three years or suspension for up to one year. He does not suggest that no action or a reprimand would have sufficed.

Mr Butler stresses that at internal page 16 of their reasons, now bundle page 31, the PCC stated that “your clinical failures in respect of Patient A are in principle remediable.” He submits, therefore, that Mr Booth should have been given the opportunity by conditions of practice to remedy them. This, however, overlooks the additional discrete findings of dishonesty and financial motivation which, the committee said, were serious. They said that there were no conditions that could address the dishonesty and financial motivation.

Mr Butler stressed that the finding of dishonesty related to “an isolated incident” during 8 years’ treatment of the patient. The committee did, however, acknowledge and appreciate that – see the reference to “a single transaction” in the last paragraph on internal page 16, bundle page 31. However they said they took a serious view of the dishonesty, particularly in view of the age and vulnerability of the patient which was “a further serious aggravating feature of the case”.

The committee used the words “exploited”, “in the course of a period of eight years”. Mr Butler questioned whether the period of exploitation was so long, but the fact is that the admitted catalogue of clinical failures in charge 1 did span 8 years, from June 2003 until November 2011, and the first of the matters in charge 3 related to root canal treatment in 2003.

Mr Butler’s overall submission is that “The circumstances in this matter did not justify or merit erasure from the register. The sanction was disproportionate and wrong”. I cannot agree. In my view, when account is taken of the whole catalogue of the charges, and their duration, and the finding of dishonesty in relation to an elderly and vulnerable patient, the committee were amply justified in deciding that only erasure suffices. I certainly cannot say that they were wrong.

This appeal must be dismissed on all grounds.