Beata Kirschner v General Dental Council  EWHC 1377 (Admin)
The High Court has overturned a decision of a professional conduct committee of the General Dental Council (the PCC) on the basis that its factual findings regarding the respondent's state of mind were internally inconsistent and did not support a finding of dishonesty.
Mostyn J, whilst confirming that the Twinsectra/Ghosh test for dishonesty was accepted as the test to be applied in professional disciplinary proceedings, and whilst applying that test in the case in question, made obiter comments which questioned whether this test should in fact be used in such proceedings.
Background and PCC hearing
B, a dentist, saw three child patients and concluded that they each needed four fillings. She inserted two fillings per patient and undertook the remaining fillings after a hiatus of at least 62 days. She then claimed payment from the NHS for two courses of treatment per patient when, pursuant to her NHS contract, she should only have claimed for one course of treatment. This course of action was described as 'splitting'.
B gave evidence to the effect that she had been advised by colleagues that she was entitled to split claims in this way. However, the PCC found that B had dishonestly claimed £144 in respect of those three patients, and she was suspended for a year.
B appealed to the High Court against the PCC's finding of dishonesty, as well as the sanction of suspension.
B submitted that the following finding by the PCC was internally inconsistent and incoherent:
"The Committee however, taking into account the whole of the evidence, formed the view that whilst you had persuaded yourself that splitting claims was acceptable, in part because it did not harm your patients, you knew, at that time, that you were making claims to which you were not entitled under the contract".
Mostyn J agreed with B's submission, finding that: "This is an oxymoron. It is impossible to construe rationally as it simultaneously holds that the appellant had persuaded herself of the acceptability of making a split claim while knowing that she was not entitled to do so".
In relation to B's claim that colleagues had told her that 'splitting' was acceptable, the PCC had found that: "Although the Committee recognises that you may have received inappropriate advice from colleagues in the past, it does not consider it plausible that this would have been confirmed by the NHS Business Service Authority or that, as an intelligent capable professional, you would not have ensured that you understood the contract correctly in respect of this issue…".
Mostyn J found that this finding was also internally inconsistent, in that the PCC had accepted that B had received inappropriate advice regarding claim splitting, while at the same time finding that she had understood the true and correct position. The mention of the NHS Business Service Authority (BSA) confused matters further, because B had given clear evidence that she had not approached the BSA for advice on this matter.
Mostyn J found that because B had given clear evidence to the effect that colleagues had advised her that splitting the claims had been acceptable, the PCC could only have convicted her of dishonesty if it either a) found that her evidence was false or b) found that B had later received information which corrected her false belief. He went on to say: "Either way it was incumbent on the PCC to spell out with the utmost clarity that it found [B] to be lying when she stated that at the relevant time she held the operative belief that she was entitled to split the treatment".
Accordingly, the appeal succeeded and the case was remitted to the PCC to reconsider sanction.
Obiter comments regarding test for dishonesty
Whilst accepting that it would be "a step too far" to suggest that the Twinsectra / Ghosh test was not the correct test for dishonesty in disciplinary proceedings, Mostyn J expressed the view that there "should be but one test in all civil proceedings, whatever their nature", which should be the test in Barlow Clowes v Eurotrust. Unlike the Twinsectra / Ghoshtest, the test formulated in Barlow Clowes (and which applies in 'ordinary' civil proceedings) does not require the individual concerned to have had a subjective appreciation that their conduct was dishonest.