Judgment date: 5 October 2012

Diclofenac dispensing dentist suspended for failing to comply with conditions

The Appellant, an experienced dentist, sought to appeal a suspension imposed at a review hearing earlier in the year. The matter was first considered by a Fitness to Practise Committee in 2011, who found that his behaviour amounted to misconduct. Particulars of the allegation included, inter alia, prescribing, dispensing and administering pain killers (diclofenac sodium or Voltarol) to patients in circumstances where it was not permitted, and failing to co-operate with the GDC’s inquiry that ensued. The FTP Committee imposed conditions on the appellant’s registration for one year, directing a review of these conditions before their expiration.

The review hearing committee heard evidence that the Appellant had breached a number of the conditions imposed upon him by the FTP Committee.  The Appellant accepted the breaches. The reviewing committee were not satisfied that he had provided a reasonable explanation for the failure to comply and did not consider the Appellant to have been genuinely committed to complying with the conditions. They concluded that, in failing to address the concerns of the previous Committee and by reason of a continued lack of insight, the Appellant’s fitness to practise was still impaired. They determined that a continuation of conditions would not adequately address the deficiencies in his practice and therefore, the only appropriate and proportionate sanction would be one of suspension for a period 12 months.

At the appeal hearing, the core submission by the Appellant was that “the Committee’s decision making process was flawed and that the Committee’s finding in the circumstances were unjust”. Amongst the submissions, it was stated that: 1) the Appellant had been unwell at the time of the review hearing, which adversely affected his ability to follow proceedings and present his case; 2) it was inappropriate of the Committee to have failed to warn the Appellant of the possibility of suspension; 3) the Committee failed to give adequate weight to the mitigating/ extenuating circumstances which affected the Appellant’s ability to comply with the conditions; 4) adequate weight was not afforded to the Respondent’s submission in opening that the GDC would be content if conditions were to continue; 5) implications of the suspension on the Appellant and/ or his practice had not been considered and 6) the Committee wrongly concluded that the Appellant had sufficient opportunity to comply with one of the conditions (to complete a personal development plan). Furthermore, the Appellant sought to rely on new material that had not been before the review hearing committee.

The Court allowed the admission of the new material, citing Sharab v Al-Saud [2009] which states that the “the court must seek to give effect to the overriding object of doing justice”, however, concluded that little weight could be given to the fresh material. In so doing, Allan Gore J chose to exercise his discretion, stating that nothing would be served in excluding the new material on technical grounds, despite any objections by the Respondent being sound in law. He went on to state that where a litigant’s ability to earn a living is threatened, he should be allowed the opportunity to deploy all arguments unless the opposing party would suffer irremediable prejudice.

Allan Gore J did not accept the submissions made by the Appellant and stated that, “a man who is subjected to conditions of practice, having been found not to engage with the investigatory process because of perceived attitudinal and behavioural issues found to amount to a lack of proper regard for authority, is not, in my judgment, possessed of insight when he comprehensively and seriously fails to comply with the conditions that have been imposed”. With regard to the proportionality of the sanction of suspension, he emphasised the purpose of a sanction as being there to protect patients, maintain public confidence in the profession and uphold proper standards of conduct and behaviour, weighted alongside considerations on the impact of a sanction upon a registrant. The fact that the longest suspension available was imposed he did not deem to be disproportionate, particularly since it was open to the Committee to impose a more severe sanction than suspension.

The Court dismissed the appeal and found that the review hearing committee, based on the evidence presented to it, came to a view that it was permitted to reach.

Mould v GDC further demonstrates the appeal courts’ unwillingness to interfere with decisions where specialist tribunals have exercised their professional judgment in reaching decisions in relation to sanction, unless they are considered to be clearly inappropriate or otherwise wrong. Furthermore, the case demonstrates that the admission of new evidence will not always be a matter of procedural law and judicial discretion will always be exercised in order to uphold principles of natural justice.