Holger Held v The General Dental Council  EWHC 669 (Admin)
The High Court has rejected an appeal by a dentist, H, against erasure and held that a Professional Conduct Committee (PCC) of the General Dental Council (GDC) had been entitled to proceed in his absence and that H had not been unfairly prejudiced by his absence at the initial hearing.
The court also rejected H's other grounds of appeal:
- that the PCC had failed to deal with the issues raised in a letter from H setting out his version of events, had failed to challenge the GDC witness, and had simply dismissed H's evidence as unreliable
- the failure to accept that the fact that allegations relating to 15 patients were withdrawn necessarily meant that the allegations against the remaining 26 patients should also be withdrawn
- that erasure was disproportionate and a lesser sanction was appropriate.
The court additionally refused to allow H to adduce fresh evidence at the appeal.
The charges against H were that his fitness to practise was impaired by reason of misconduct, namely that he had treated 41 patients during a period of six weeks when he had not had indemnity insurance. H accepted that he had not had indemnity insurance during the relevant period. H contended that, even though claims for payment had been made to NHS Dental Services using his Performer number, the treatment had actually been provided by a locum dentist as H had suffered a whiplash injury.
Hearing before the PCC
The hearing before the PCC had originally been listed to begin on 19 February 2014. On that day, H applied through his counsel for an adjournment which was granted, in part, to allow H to obtain evidence to rebut the allegations made against him. The hearing was re-listed for 27 May and 29 May 2014. By this time, H was unrepresented.
On the morning of 27 May 2014, H sent an email to the PPC and the GDC's representatives attaching a letter setting out his defence and stating that he was not well enough to attend the hearing and would be going to see a doctor. The letter was dated the previous day. The letter made it clear that H understood that the hearing may go ahead in his absence and asked that, in such circumstances, the PCC consider the submissions set out in the letter, which also included submissions as to sanction. The letter did not request an adjournment.
The PCC, after considering the cases of R v Jones  1 AC 1 and Tait v Royal College of Veterinary Surgeons  UKPC 34, decided that it was fair and in the public interest to proceed in H's absence.
It was clear from H's witness statement submitted in support of his appeal that he contended that the PCC should not have proceeded in his absence. This ground of appeal failed and it was held that the decision to proceed in absence could not be faulted. The judge commented that: "In my view what really happened….was that he [H] took a conscious decision not to attend… and decided instead to submit the defence letter to the PCC, the contents of which he hoped and expected would be sufficient to lead to the charge against him being dismissed. The reason he now challenges the PCC's decision on appeal is because he is aggrieved that this tactic has backfired on him."
Fresh evidence on appeal
H applied to adduce witness statements from nine of the patients who the PCC had found had been treated by him within the relevant period. This was opposed by the GDC. The test, set out in Ladd v Marshall , to be applied in determining whether to receive fresh evidence is that:
- it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial
- the evidence would probably have an important influence on the result of the case, though it need not be decisive
- the evidence must be apparently credible, though need not be incontrovertible.
H failed to satisfy the first of these conditions. He produced no evidence to show why he had not been able to obtain statements from the nine patients in time for the hearing before the PCC. In addition, it would be unfair to allow H to use the witness statements when he had failed to co-operate with the disclosure of the underlying patient records of those patients.
Further, the GDC had obtained a witness statement from the locum dentist contradicting the account of events put forward by H and supported by the patient witness statements. This evidence, if it were admitted, would need to be tested and the court would, quite inappropriately, be putting itself in the role of the first instance fact finding tribunal.
Further grounds of appeal
In relation to the way it had dealt with the evidence, the court noted that the PCC had made express reference to H's version of events when giving its decision. It was not necessary for the PCC to deal extensively with every matter raised by a defendant and H had not identified any significant matter raised in his defence letter that the PCC had not dealt with.
The transcript made clear that the evidence of the GDC's sole witness had been tested by questions from all three members of the PCC and by counsel for the GDC.
It was clear from the PCC's determination that the fact that H's letter had not been in the form of a signed statement had not been held against H. Rather, the letter had raised questions which the PCC could not explore with H due to his voluntary absence. H had also failed to provide supporting evidence such as patient records and medical evidence of his whiplash injury.
During the hearing, the GDC's witness, a member of staff of NHS Dental Services, accepted that H’s practice had withdrawn the payment claims that had been made in relation to 15 of the 41 patients referred to in the allegations. The PCC found the allegations regarding the remaining 26 patients proved.
H contended that, once the PCC had discounted the allegation in relation to 15 patients, it was inconsistent that it should not then also discount the allegations into the remaining 26 patients. H did not elaborate further and the judge stated that this was "because in my view there is no such logical inconsistency".
The PCC had been entitled to be informed about and to have regard to H's disciplinary history. The court accepted that, while suspension rather than erasure was a decision that another PCC might have taken, the decision to erase was not inappropriate.
The appeal was dismissed.