Professional Standards Authority for Health And Social Care v General Dental Council & Anor

Section 28 of the DA 1984 governs applications for restoration. Section 28(5) provides that such an application shall not be granted unless the applicant satisfies the PCC that (a) he is fit to practise as a dentist; and (b) he meets the requirements of s 15(3). This provides that a person shall not be entitled to be registered in the dentists’ register under unless he satisfies the registrar as to the following matters, namely:

Section 29 of the 2002 Act allows the Authority to refer specified disciplinary decisions made by medical regulatory tribunals to the High Court where it is dissatisfied with the outcome. By s 29(2)(c) a decision to restore a practitioner’s name to the register is a decision that can be referred.

Section 29(4) of the 2002 Act, as amended, has the effect of providing that where the PCC restores a person’s name to the register then the Authority may:

“(4)

… refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

(4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a)

to protect the health, safety and well-being of the public;

(b)

to maintain public confidence in the profession concerned; and

(c)

to maintain proper professional standards and conduct for members of that profession.”

As I have said, s 29(7) of the 2002 Act provides that where a reference is made under s 29(4), the case is to be treated by the court to which it has been referred as an appeal by the Authorityagainst the relevant decision (even though the Authoritywas not a party to the proceedings resulting in the relevant decision), and the body which made the relevant decision (as well as the person to whom the decision relates) is to be a respondent to the appeal.

The correct approach of the Court to a reference under s 29, at a time when s 29(4)(a) provided that the question was whether the decision was unduly lenient, was considered by the Court of Appeal in Ruscillo, supra, [69]-[83]. The principles relevant to this appeal are as follows; the paragraph numbers refer to that judgment. I have amended the CPR references in line with the up to date version of the rules.

The primary object of s 29 is not to penalise for misconduct. It is to protect the public and the reputation of the profession in question ([60]).

If the Court decides that the decision as to penalty was 'wrong', it must allow the appeal and quash the relevant decision, in accordance with CPR r 52.21(3)(a) and s 29(8)(b) of the Act. It can then substitute its own decision under s 29(8)(c) or remit the case under s 29(8)(d). It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR r 52.21(3)(b) and s 29(8)(d) of the Act ([71]-[72]).

In any particular case under s 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public ([77]). Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed ([78]).

Where an applicant for restoration has by his misconduct fundamentally fallen short of the necessary standards of probity and good conduct, a tribunal is required to address the issue of whether public confidence in the profession and professional standards would be damaged by restoring the applicant’s name to the register by considering first the evidence adduced in relation to remediation against the backdrop of the true nature and full extent of the misconduct and making appropriate findings and then by balancing its findings against each of the three limbs of the over-arching objective: see General Medical Council v Chandra [2018] EWCA Civ 1898.

In relation to fresh evidence, if the Council is led to believe that a case has been 'under prosecuted' or that relevant evidence has not been put before the tribunal with the consequence that the tribunal's decision is flawed, the Council should, in the first instance, make inquiries of the relevant health care regulatory body as to what occurred. There will be cases where it is in the public interest that additional evidence should be placed before the court on a reference under s 29. This may be necessary to ensure that a practitioner does not escape the sanctions that his conduct has made essential if patients are not to be exposed to risk ([81]-[82]).

Where an application is made to the Court to adduce additional evidence pursuant to CPR r 52.11(2) the Court should not apply the principles in Ladd v Marshall [1954] 1 WLR 1489. The principles in that case have no application to a reference under s 29. The fact that the evidence could have been, but was not, placed before the disciplinary tribunal can have no bearing on whether it should be admitted by the Court. The Court will, however, be concerned, just as the Council should be, to be sure that the introduction of such evidence is truly in the public interest ([83]).

It is also relevant to note the recent decision of the Court of Appeal presided over by the Lord Chief Justice (sitting with Sir Terence Etherton MR and Rafferty LJ) in BawaGarba v General Medical Council [2018] EWCA Civ 1879. At [67] the Court said that an appeal court should only interfere with such an evaluative decision on sanction if (a) there was an error of principle in carrying out the evaluation, or (b) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide.

The cases make clear that dishonesty in any health care professional is always to be considered as serious and as adversely affecting the public interest. That is because trust and honesty lie at the heart of the relationship between such a professional and the public. The cases establish the following principles. Findings of dishonesty lie at the top end of the spectrum of gravity of misconduct: Theodoropolous v General Medical Council [2017] EWHC 1984 (Admin), [35]. Where dishonest conduct is combined with a lack of insight, is persistent, or is covered up, nothing short of erasure is likely to be appropriate: Naheed v General Medical Council [2011] EWHC 702 (Admin), [22]. The sanction of erasure will often be proper even in cases of one-off dishonesty: Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin), [27]. The misconduct does not have to occur in a clinical setting before it renders erasure, rather than suspension, the appropriate sanction: Theodoropoulos, supra, [35]. Misconduct involving personal integrity that impacts on the reputation of the profession is harder to remediate than poor clinical performance: Yeong v General Medical Council [2009] EWHC 1923, [50]; General Medical Council v Patel [2018] EWHC 171 (Admin) at [64]. Personal mitigation should be given limited weight, as the reputation of the profession is more important than the fortunes of an individual member: Bolton v Law Society [1994] 1 WLR 512 at 519; General Medical Council v Stone [2017] EWHC 2534 (Admin) at [34].

The GDC’s Guidance for the Practice Committees, including Indicative Sanctions Guidance (effective 1 October 2016) says of dishonesty:

“48.

Patients, employers, colleagues and the public should be able to rely on a dental professional’s integrity. Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession. Examples of dishonesty in professional practice include, but are not limited to:

•

defrauding an employer or contracting body;

•

falsifying and/or improperly amending patient records;

•

issuing practice policies which unduly influence patients to receive expensive or unnecessary treatment;

•

misrepresenting the NHS position;

•

submitting or providing false references;

•

providing misleading information on a CV;

•

failing to take reasonable steps to ensure that statements made in formal documents are accurate;

•

misconduct in relation to research for example presenting misleading information in publications or dishonesty in relation to clinical trials.

49.

Dishonesty is serious even when it does not involve direct harm to patients (for example defrauding the NHS or providing misleading information) because it can undermine public confidence in the profession. The Privy Council has emphasised that ‘Health Authorities must be able to place complete reliance on the integrity of practitioners and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole’.

50.

The High Court has also held that, when considering impairment, a panel is entitled to take into account the way in which a registrant has conducted his or her defence and any dishonesty therein.”

In relation to restoration, the Guidance says:

“10.4

The burden of proof is on the applicant to satisfy the PCC that they:

•

are fit to practise. This means satisfying the PCC that not only do they have the necessary knowledge and skills to practise the profession safely and effectively, but also as to their identity, good character, necessary knowledge of English and health, as specified in the Act;

•

meets the requirements of any CPD rules relevant to their case; and

•

meets any other requirements as to education and training as directed by the PCC.

10.5

When considering the applicant’s application for restoration, the PCC must have regard to all three aspects of the over-arching objective of the Council, as set out in the Dentists Act i.e. the protection of the public via the pursuit of the following objectives:

•

to protect, promote and maintain the health, safety and wellbeing of the public;

•

to promote and maintain public confidence in the professions regulated under the Act; and

•

to promote and maintain proper professional standards and conduct for members of the dental professions.”

So far as Grounds 1 to 4 are concerned, the Authority submits that:

In light of Chandra, supra, the Authority submits in relation to Ground 5 that:

The GDC supports the Authority’s appeal and submits that the PCC’s decision should be quashed because the 2017 judgment was wrongly not placed before it, and that if it had considered it then it would (or alternatively could) have resulted in the PCC reaching a conclusion adverse to Mr Hussain on the central issues of whether he was fit to practise and/or of good character, and hence dismissing his application for his name to be restored to the Register. In any event, the PSA’s appeal should succeed on the basis that the PCC failed properly to appreciate and characterise the seriousness of Mr Hussain’s criminal conduct and the ongoing impact of that conduct on the public interest, and to address (adequately or at all) whether public confidence and the maintenance of professional standards would be damaged by restoring Mr Hussain to the Register.

It draws specific attention to s 1 of the DA 1984, which provides that the GDC’s overarching objective is the protection of the public, and the pursuit thereof involves the pursuit of the following objectives:

“(a)

to protect, promote and maintain the health, safety and wellbeing of the public;

(b)

to promote and maintain public confidence in the professions regulated under this Act; and

(c)

to promote and maintain proper professional standards and conduct for members of those professions”.

Further, s 28(5) of the DA 1984 provides that an application for restoration of a name to the Register shall not be granted unless the applicant satisfies the PCC that (amongst other things) he is fit to practise as a dentist and that he meets the requirements of s 15(3)(a) to (c). The latter requirements include at s 15(3)(b) that he is of good character.

The GDC’s Skeleton Argument sets out why it is that the 2017 judgment was not put before the PCC. This is also explained in the witness statement of Laura Thompson, a lawyer who works for the GDC. The facts are not disputed. The GDC accepts that

Ms Thompson explains in her witness statement that she received the 2017 judgment in November 2017 and briefly reviewed it and logged it onto the GDC’s case management system. She intended to carry out a full review later but did not do so: she says the judgment was ‘overlooked’ and so not included in the draft hearing bundle which she prepared in late April and early May 2018

I should make clear that Mr Steele, who argued the appeal before me on behalf of the GDC, was not the counsel below who agreed the compromise I have referred to.

The GDC submits that the key issues for the PCC were whether Mr Hussain was fit to practise and of good character, within the meaning of the legislation. It says that the 2017 judgment is evidence that even then Mr Hussain was behaving dishonestly to the extent of lying on oath in Court about his conduct in the period leading up to his conviction. It says this plainly casts considerable doubt on the evidence he gave before the PCC about the degree of insight he has into his previous dishonest conduct and about the risk of repetition. It wholly undermines the notion that he had ‘reflected extensively over the last seven years’ or that his release from prison had been ‘the turning point of that change’. If the PCC had had sight of the 2017 judgment, it would (or alternatively could) have resulted in the PCC reaching a conclusion adverse to Mr Hussain on the central issues of whether he was fit to practise and/or of good character, and hence dismissing his application for his name to be restored to the Register.

In any event, even leaving aside the 2017 judgment, the GDC says that the Authority’s appeal should succeed on Ground 5. The PCC failed properly to appreciate and characterise the seriousness of Mr Hussain’s criminal conduct and the ongoing impact of that conduct on the public interest, and to address (adequately or at all) whether public confidence and the maintenance of professional standards would be damaged by restoring Mr Hussain to the Register.

Mr Hussain submits that the Authority should not be permitted to amend its Appellant’s Notice to add Ground 5. He points out that by CPR r 52.17 and CPR r 52.21(5), the Court’s permission is required and that I should not grant permission because there is no evidence in support of the application and no explanation for its lateness.

On the principal issues, he says that the 2017 judgment did not go into evidence because of a perfectly proper course agreed between counsel and there was no serious procedural irregularity and the PCC decision was not rendered ‘unjust’ by the omission complained of. He says that although it is now said that with hindsight the better course would have been to seek to have the 2017 judgment in evidence that does not support the argument that this was a serious procedural irregularity: it shows

Further, he says that on 13 August 2018, the Authority determined that the decision was not one which no reasonable panel could have made, and it was not insufficient for public protection. It did not therefore exercise its statutory power to refer the case to court. He therefore says that the PCC decision was not ‘wrong’: it was a carefully considered one which it was entitled to reach. In circumstances in which the PCC had before it a wealth of information about his dishonesty and misconduct in the relevant period, it is submitted it is highly unlikely that knowledge of another event during this period would have added anything of material weight. He says there was plentiful evidence before the PCC to support his remediation and that there is no basis on which this court can intervene.

On behalf of Mr Hussain, Ms Neale accepts there is no closed definition of ‘serious procedural or other irregularity’ in CPR r 52.21(3)(b). It seems to me inescapable that what happened here can properly be so classified. I essentially agree with the submissions on behalf of the Authority, supported by the GDC, which I summarised earlier.

The starting point is that the 2017 judgment was plainly of relevance to the issue which the PCC had to decide, namely, whether Mr Hussain had remediated his dishonesty in the way that he claimed. On its face, it showed that he had not, because a judge sitting in the High Court found that in September 2017 he had given false evidence on oath during a trial in which he stood accused of fraudulent misrepresentation. That was a finding of dishonesty. In my opinion it is obvious that the judgment should have been deployed by the GDC before the PCC.

The first procedural irregularity was the failure by GDC to serve the 2017 judgment on those acting for Mr Hussain well in advance of the June 2018 hearing, when the initial hearing bundle was served. The matter was not rectified until 18 June 2018, when the bundle was updated. Ms Thompson’s evidence makes clear that this occurred because of a failure by the GDC to fully review the 2017 judgement when the case was being prepared for hearing. That was an error. It is plain that had the judgment been reviewed then it would have been served and relied upon. There was no considered tactical decision at that stage not to rely upon the judgment.

The second error was made by the counsel for the GDC at the hearing when he agreed a compromise whereby the 2017 judgment was not placed before the PCC. That was a serious error of judgment by him which cannot be justified, and no degree of hindsight is required for that conclusion. Ms Thompson’s witness statement states that counsel for Mr Hussain objected to the 2017 judgment because (a) the GDC had only recently indicated that two judgments were to be relied upon; (b) it was subject to an

As to the first reason, the restoration hearing began on 25 June 2018. By then, Mr Hussain and his legal team had had the 2017 judgment for around seven days. That was ample time for his instructions to be taken on it. He himself was, of course, fully familiar with it having been one of the parties to the litigation. If further time were needed then the proper course would have been for the matter to be raised before the PCC and for an application for an adjournment to be made by Mr Hussain.

As to the second reason, it is trite that a judgment has effect unless and until it is overturned on appeal (or if it is stayed pending an appeal). Hence, the fact that there was an appeal outstanding was neither here nor there. That is all the more so because the finding that Mr Hussain had given untrue evidence was one of fact made by the judge who heard the evidence, and so was unlikely to be overturned on appeal: see eg Watson Farley and Williams (a firm) v Ostrovizky [2015] EWCA Civ 457, [8], citing McGraddie v McGraddie [2013] 1 WLR 2477:

“It was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong.”

In short, it was not properly open to counsel for the GDC to take the course that he took, given the obvious relevance of the 2017 judgment. He should not have agreed not to rely on the 2017 judgment. The matter should have been raised before the PCC for a decision to be taken on the correct way forward, either by a decision on the admissibility of the 2017 judgment, or on an adjournment application, or both.

I have not overlooked the fact that ordinarily in civil litigation if a party at trial decides deliberately not to rely on a piece of evidence then an appeal court will be unsympathetic to an appeal based upon it. However, as I have noted, in Ruscillo¸ supra, the Court of Appeal said that on an appeal in medical regulatory proceedings the court should not apply the principles in Ladd v Marshall, supra, because they have no, or least a limited, application to a reference under s 29 because of the public interest. In this case I am satisfied that the introduction of the 2017 judgment is truly in the public interest given its direct bearing on the issues in this case. The passages I have referred to in Ruscillo specificallycontemplate an appeal being brought by the Authority on the basis of evidence that was not adduced by the GDC at a disciplinary hearing.

In her Skeleton Argument at [4.10] Ms Neale contends that in order to be a serious procedural irregularity what occurred must serious and be such as to not fall within the range of ’acceptable courses of conduct’. No authority is cited in support of this proposition. I need not decide whether Ms Neale’s formulation is correct, but even if it is, I consider what happened here can be so classified, for the reasons that I have given. The error in failing to serve the judgment well before the hearing and the inappropriate compromise agreement, taken together, were serious irregularities in the procedure which the GDC adopted for this restoration hearing. They were wholly unreasonable because they had the effect of depriving the PCC of important evidence.

Was there injustice as a consequence ? In my judgment, there was. The agreement that was reached had the effect of depriving the PCC of the most recent evidence of Mr Hussain’s dishonesty. That, in turn, meant that the PCC judged the evidence he called about his supposedly reformed character – in other words, his remediation – on a false and misleading basis.

The stark fact is that despite all the work Mr Hussain said he had done which was evidenced not just by him but also by his witnesses, in 2017 he was found by a judge sitting in the High Court to have given untrue evidence on oath.

There are a number of findings in the PCC’s determination which are at least arguably wrong in light of the 2017 judgment. In my assessment, these show the outcome was unjust. These findings include at p5 where the Committee said it considered Mr Hussain had demonstrated his ‘shame and remorse which led to [his] erasure in 2011 and the misrepresentations that [he] made to the Claimant in the sale of the Practice in 2018’. It undermines the point at p6 that his release from prison had been the turning point of his change. It counts against the finding (at p6) that he had ‘demonstrated insight’ into his dishonesty and ‘learned his lesson’. It shows that the Committee’s conclusion that his dishonesty only spanned the period from 2002 to 2010 was not correct: in fact, it went much further, into 2017.

If the 2017 judgment had been deployed in evidence then the witnesses called by Mr Hussain, namely Professor S and Dr B, would have been cross-examined about it and would have been required to justify, if they could, their conclusions about Mr Hussain's reformation in light of the judge's finding of recent dishonesty. Their evidence on this point would have been highly material to the issue the PCC had to determine.

Ms Neale argued that a judgment is of limited evidential effect as to the facts found, and cited Phipson on Evidence, Chapter 43, in support. That proposition may be true where the strict rules of evidence apply. But they do not apply before a PCC of the GDC. Restoration hearings are governed by Part 6 of the General Dental Council (Fitness to Practise) Rules Order in Council 2006 (SI 2006/1663). Rule 57(1) provides that a PCC may in the course of the proceedings receive oral, documentary or other evidence that is admissible in civil proceedings in the appropriate court in that part of the UK in which the hearing takes place. Importantly, however, Rule 57(2) provides that a PCC may also, at their discretion, treat other evidence as admissible if, after consultation with the legal adviser, they consider that it would be helpful to it, and in the interests of justice, for that evidence to be heard. The 2017 judgment would therefore have been potentially admissible.

She also argued that because the PCC had before it what she called ‘a wealth of information about [Mr Hussain’s] dishonesty and misconduct in the relevant period’ it was ‘highly unlikely that knowledge of another event during this period would have added anything of material weight’. I disagree. This submission misses the point. The point is not that the 2017 judgment concerned events a decade before, and so did not add much to what was known about Mr Hussain’s behaviour around that time. What it showed was that in 2017, when Mr Hussain had supposedly reformed, he was

Overall, I am satisfied that in this case there was a serious procedural irregularity which produced an unjust result. Also, although the appeal was not argued on this basis, I am also satisfied that the PCC’s decision was wrong within the meaning of CPR 52.21(3)(a) because it involved a number of findings of fact which the 2017 judgment undermines and therefore its evaluation was wrong, that is to say, it fell outside the bounds of what it could properly and reasonably have decided: BawaGaba, supra, [67].

I therefore allow the Authority’s appeal and, pursuant to s 29(8)(d) of the 2002 Act, I remit Mr Hussain’s application for restoration under s 28 of the DA 1984 to a differently constituted PCC for a fresh determination in line with this judgment.

This conclusion makes it unnecessary for me to determine the application to amend the Appellant's Notice to add Ground 5, or its merits.