Davey v General Dental Council, Queen’s Bench Division [2015 WL 6757832]
Judgement date: 08 October 2015
In this case, Mr Davey made an application to the Queen’s Bench Division to remove or overturn the immediate suspension order made by the Professional Conduct Committee (PCC) of the General Dental Council (GDC) restricting his right to practise.
Mr Davey, a clinical dental technician had agreed to make dentures for a patient in circumstances which were outside the scope of his practice because he had not received a reference from a practising dentist from this particular patient, and had thereafter not kept adequate records of the treatment that he had given this patient on a number of occasions. When asked by the GDC to provide records, Mr Davey in the first instance did not provide the records that he had made, but provided amplified records which to the best of his recollection described what had happened on each and every attendance by the patient in question. Whilst it was not suggested that those records were concocted, it was clear that when Mr Davey provided those records to the GDC, he did so in response to a request for original records, and he did so in the initial hope of persuading the GDC that these were original records. Subsequently, Mr Davey did then provide the original records.
Mr Davey faced a number of charges of failing to provide appropriate care and treatment; acting outside the scope of his practice; failing to maintain an adequate standard of record-keeping; submitting patient records which were not contemporaneous; doing so dishonestly to try and convey inaccurately to the GDC that the records were genuine; and in that regard failing to co-operate with the GDC investigation.
On 30 April 2015, the PCC of the GDC found a number of complaints, with one very small exception either admitted or found proved. The PCC Panel concluded that in this particular case erasure would be disproportionate and that a period of suspension would be sufficient. In considering the length of the suspension the Committee considered the maximum length of suspension of 12 months was necessary given the seriousness of the misconduct, the need to mark its gravity, and the need to uphold public confidence in the professional and declare and uphold the proper standards of conduct and behaviour. Consequently, Mr Davey was made the subject of a 12-month suspension.
The Legal Advisor, following submissions for immediate orders commented that the test to be applied as to whether or not an immediate order is appropriate is the same test as has to be applied as to whether an interim order would be appropriate. He also advised the PCC Panel that an order can only be imposed for an immediate order if it is either necessary for the protection of the public or is otherwise in the public interest and that the Panel should have regard to your findings that Mr Davey's fitness to practise was impaired on public interest grounds. In addition, the Panel were reminded that an order must be necessary not just merely desirable, and that when an order is made on public interest grounds alone there is a high threshold to be reached. The Panel were also informed they should weigh Mr Davey's interests with the public interest giving effect to their determinations.
The PCC made an immediate order restricting Mr Davey’s right to practise. The effect of an immediate order, under Section 36U of the Dentists Act 1984, is to start a period of suspension immediately, and it removes the period of 28 days' grace whereby Mr Davey could continue to practise on the same basis as he had done up until then. Mr Davey had previously been subject to interim restrictions and supervision.
Mr Davey sought an appeal to the 12-month suspension on the ground that it was excessive. He did not seek to challenge either the findings made against him or the finding that the misconduct in question was sufficient to give rise to impairment. That appeal is listed to be heard on 9 December 2015.
Section 36U of the Dentists Act 1984 provides that on giving an order for suspension the PCC should be satisfied that to do so is necessary for the protection of the public or is otherwise in the public interest or is in the interests of that person. Master Bard commented that in this particular case it was not suggested that there were public safety issues involved, nor that it was in the interest of Mr Davey himself. Rather the PCC had decided that it was in the public interest for such an order to be made.
Public interest is defined in the General Dental Council's Scope of Practice document, and para. 5.11 makes clear that the PCC exists to protect the public interest which includes:
- the protection to patients, colleagues and the wider public from the risk of harm;
- maintaining public confidence in the dental profession;
- protecting the reputation of the dental professions; and
- declaring and upholding appropriate standards of conduct and competence among dental professionals.
Master Bard considered whether the test for immediate orders was the same as that as that for interim orders made prior to final PCC Hearings, especially when considering the identical wording in the Dentists Act 1984. He held that although the wording is the same, the context in which those orders will fall to be made is not the same. He considered that cases in which there is a risk to patients or any issue of harm or public safety are plainly ones where the PCC must be astute to ensure that that risk is reduced or minimised. Public interest issues are different.
Master Bard highlighted Mr Justice Davies’ judgment in the case of Sheikh v General Dental Council in that it demonstrated the differences between interim orders and immediate orders. This was that the importance of the detriment in reputational terms can no longer be a relevant feature protecting the registrant when charges have in fact been found proved against him. The reputational damage at that stage has inevitably been incurred and the impact on the right to earn a living which falls under consideration, which marks a significant difference.
Master Bard considered whether the Panel allowed it’s understandable deliberations on the earlier stages to carry through and to dominate its consideration of whether or not to make an immediate order. The only reason for the immediate order given was the gravity of the misconduct. Mr Davey’s representative submitted that gravity of misconduct on its own should not be the sole or determining criterion. He submitted that in a case where there are public safety issues, it is important for the registrant to cease to practise but where public interest alone is involved, it is not clear why this immediacy is required, or why it is necessary or even desirable for maintaining public confidence in the dental profession, protecting the reputation or declaring and upholding appropriate standards of conduct and competence among dental professionals.
Immediate Order Decision
It was held that it was not clear that the full extent of the impact of the immediacy order was weighed by the Panel. It was also not clear that the Draconian effect of a prospective appeal was considered, It was noted that if an appeal was lodged (as was the case) then none of the time spent “serving” that immediate order until the hearing of the appeal counts towards the relevant suspension. Therefore, if the appeal were to fail Mr Davey would have been suspended not only for the seven months or so from the end of April 2015 until the hearing in October 2015 but also for the continuing period of 12 months which would be the effect of the appeal failing unless the judge dealing with the appeal were to make some other different order.
Master Bard stated that the importance of the giving of reasons when an immediate order is made should not be underestimated. He commented that in this particular case where the reason that was given which was the gravity of the misconduct, may well be viewed as good reasons for all of the earlier stages of the proceedings, he could not see why the public interest which had up until then allowed Mr Davey to continue to practise (subject to restrictions and supervision) required that those provisions should cease immediately, rather than continue for 28 days until the suspension took effect or, if appealed, until the appeal was heard. The only reason given was the gravity of the misconduct, but it was not explained how the public interest benefitted to any significant degree, to a test of desirability let alone necessity, by the imposition of the immediate order.
Master Bard held that the application should succeed and the immediate order was therefore terminated.
This case acts as a salutary lesson for healthcare regulators to ensure that their decisions regarding immediate orders are proportionate and fully reasoned. The High Court demonstrated in this case that it was not afraid to interfere with decisions of a professional panel where necessary. This case acts as a prudent reminder that Panel’s must be careful when considering and providing reasons for immediate orders paying particular attention to public protection, the risk of harm, and the necessity of such orders.