DP v General Dental Council [2016] EWHC 3181 (QB)

This case concerns the Investigating Committee (IC) of the General Dental Council’s (GDC) new power to conduct an internal review of its own decisions to issue warnings to registrants. It considers whether this new power of review is restricted to warnings issued by the IC on or after 13 April 2016.

Background

The general powers and duties of the GDC are set out in Part 1 of the Dentists Act 1984 (the Act). Section 27A of the Act deals with the duties of the IC and includes the following provisions:

“(1) Where the registrar refers an allegation under section 27 to the [IC] they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee.

(2) If the [IC] determine that the allegation ought not to be considered by a Practice Committee, the [IC] may-

(a) issue a warning or advice to the person who is the subject of the allegation regarding his future conduct, performance and practice…”

Section 27A(11) which introduced the new power of review, was inserted as an amendment to the Act by Article 7 of the General Dental Council (Fitness to Practice etc.) Order 2016 (the Order). The Order came into force on 13 April 2016. The newly created power under Section 27A(11) of the Act provides as follows:

“(11) The [IC] may review a determination made by them to issue a warning under subsection 2(a) on an application made-

(a) By the person to whom the warning was issued or the registrar;

(b)Before the end of the period of two years beginning with the date on which the determination was made.”

The GDC issued formal guidance as to the procedure to be followed in respect of the new power of review. The Guidance on the IC’s Power to review a Warning (the Guidance) included the following:

“B. The review process

4. In order for an application to review a warning to be valid under the terms of the Act, it must:

(i) be made either by the registrant or the Registrar (i.e. the GDC itself);

(ii) be made before the end of the period of two years beginning with the date on which the original determination was made; and

(iii) as the amendments to the Act were not intended to have retrospective effect, related to a determination to issue a warning made by [the IC] on or after 13 April 2016.” (emphasis added)

Facts

DP is a dentist. In 2015 he was the subject of a complaint from a former patient in respect of the treatment he gave her in 2011. A report prepared by a clinical adviser appointed by the GDC concluded that while the treatment DP had given the patient was clinically appropriate, there had been a failure to properly record information given to the patient about aspects of her condition and the treatment for it.

DP sent a response and representations via his solicitors to the GDC on 15 March 2016. The IC considered DP’s case, acting in accordance with the GDC’s rules and guidance in force at the time. On 11 April 2016 the IC determined that:

“Whilst the [IC] has determined that, in respect of this particular matter, there is no real prospect of a finding of current impairment being made by a Practice Committee, the [IC] also considers that any re-occurrence of the failure adequately to obtain and record discussions relating to risks and benefits of treatment and consent would give rise to fitness to practice concerns. As such the [IC] considers it appropriate to warn the Registrant…”

DP’s solicitors wrote to the GDC, setting out his grounds of challenge to the decision to issue him with warning on 13 May 2016. The letter requested the GDC to refer to the case back to the IC to conduct a review under the new power under section 27A(11).

The GDC responded by a letter dated 20 May 2016, informing DP that his application for review would not be able to be listed for consideration by the IC because the determination had been issued before 13 April 2016. DP’s solicitors sent a Pre-Action Protocol letter on 7 June 2016, giving the GDC notice that DP intended to challenge (i) the GDC’s refusal to refer DP’s application for internal review of the IC’s determination; and (ii) the determination itself.

Solicitors for the GDC, replied by a letter dated 27 June 2016. The letter accepted that the IC had “failed to provide adequate reasons or explanation to support their decision” but continued to maintain that the GDC did not have the power to refer the matter for internal review.

Judicial review proceedings were issued on 29 July 2016, challenging the GDC’s position with regard section 27A(11).

Discussion

The Court was invited to consider the correct interpretation of section 27A(11) and whether Parliament had intended to enact a provision with an element of retroactivity. Counsel for DP directed the Court’s attention to the decision in The Boucraa [1994] 1 AC 486 and other cases where the Court has interpreted provisions as having some retroactive effect. The Court, following the reasoning of Lord Mustill in The Boucraa, went on to consider issues of fairness to both registrants and complainants.

Mrs Justice May found that the wording of section 27A(11) was plain. It should be read simply and straightforwardly as granting a right on registrants to seek a review by the IC of an earlier decision to issue a warning, provided the registrants apply within two years of the IC’s decision. This right was conferred from 13 April 2016 and neither 27A(11) nor the Order contain any wording limiting the effect of the new power to determinations made by the IC after 13 April 2016. Accordingly, the power to refer an IC determination for internal review may be conducted in respect of warnings issued before it came into force. Mrs Justice May accepted that section 27A(11) may be said to be retrospective in application but that the retroactivity was limited.

On the issue of fairness, the Court found that the purpose of the new provision was to remedy an unfairness to registrants and that the intended benefit to registrants sufficiently outweighed any slight unfairness that be suffered by complainants.

The Court held that the GDC’s decision contained in the letter of 20 May 2016 and paragraph 4(iii) of the Guidance be quashed and ordered that the GDFC list DP’s application for review of the IC determination dated 11 April 2016.

Commentary

This decision will be particularly relevant to GDC registrants who have been issued with a warning by the IC two years prior to 13 April 2016. The Court has indicated that some 403 warnings were issued in this period.

More generally, the decision demonstrates the approach the Court is likely to adopt when interpreting the application of statutory powers afforded to regulatory bodies. In this case, the Court did not preclude retroactivity in the application of such powers, but where the issue of retroactivity falls to be considered, following the reasoning in The Boucraa, the Court will carefully consider the impact any retroactivity is likely to have on the affected parties.