X v General Dental Council (unreported)

Rule 9 of the General Dental Council’s (GDC) Fitness to Practise Rules empowers the Registrar to refer for review ‘all or part of a determination’ by the Case Examiners/Investigating Committee, if it is materially flawed or new information which may have led to a different determination has come to light, and such a review is either necessary for the protection of the public, necessary for the prevention of injustice to the dentist, or otherwise necessary in the public interest.

The facts of the case

At a PPC hearing in 2016, X admitted that his fitness to practise was impaired by reference to charges regarding the standard of care provided to a number of patients between 2010 and 2014. The sanction imposed was a period of 18 months conditional registration, including a requirement for supervision and completion of a supervised remediation programme.

Later in 2016, Case Examiners considered five further allegations against X:

  • Allegations 1 and 2 related to the standard of care provided for another group of patients between 2003 and 2015
  • Allegation 3 stated that X had acted dishonestly in charging for one item of treatment provided to one of those patients
  • Allegations 4 and 5 stated that he had failed to obtain informed consent for the treatment provided to two others

The Case Examiners’ decision was that there was no realistic prospect of allegations 3, 4 and 5 being proved. Additionally, that although there was such a prospect in relation to allegations 1 and 2, there was no realistic prospect of a finding of current impairment being made as X’s supervised remediation programme was well under way, there was a low likelihood of repetition, and the public was adequately protected. They therefore determined to close the complaint with no further action.

The GDC immediately began the process of a Rule 9 review.

It was not alleged that any new information had come to light: the Registrar advised X that he regarded the Case Examiners’ determination as materially flawed, in that the decision that there was no reasonable prospect of a finding of current impairment was inconsistent with the previous PCC determination. It sought X’s observations before a final Rule 9 decision was to be made.

X submitted observations in relation to allegations 1 and 2, and the Registrar subsequently referred the case back to the Case Examiners. However, they then determined that all five allegations should be referred to the PCC.

Judicial review

We were instructed to bring a claim for judicial review of that decision. The grounds of the claim were that the decision was unlawful, in view of the absence of any identified material flaw in Case Examiners’ previous decision in relation to allegations 3-5, and the Registrar’s failure to seek X’s representations in relation to a redetermination of those allegations.

The GDC conceded that the Case Examiners’ decision should be quashed, and that the case should be remitted to them in relation to allegations 1 and 2 only. It also agreed to pay X’s costs in bringing the claim.

Rule 9 review cases

The case is a reminder of the need in Rule 9 review cases for the GDC to identify with precision those aspects of an existing Case Examiner/Investigating Committee decision which the Registrar considers to be materially flawed, since (other than in cases where new information has become available) it is only by reference to such flaws, and in the presence of one of the three further qualifying conditions, that his discretion to activate the Rule 9 review process arises and provides a basis for a re-determination.