Stuart Lutton v The General Dental Council (2011) CSIH 62

The Inner House of the Court of Session, Scotland's supreme civil court, has confirmed that the decision of a regulator to issue a warning to a registrant is susceptible to judicial review and has stated that warnings must give reasons as to:

- why the warning is necessary;

- why any factual dispute between a patient and registrant has been resolved against the registrant;

- what it is about the registrant's behaviour which needs to be addressed, and

- why the registrant must address the behaviour identified.


A patient, Ms M, complained to the General Dental Council (GDC) about her dentist, Mr Lutton, and another dentist at the practice of which Mr L was the sole partner.

The GDC considered the complaint as an allegation that Mr L's fitness to practise was impaired, due to his conduct. Mr L denied all allegations of misconduct. Ms M responded to Mr L's comments. Mr L was not given the opportunity to reply to her response.

The GDC's Investigating Committee then wrote to Mr L stating that it had considered the allegations and his response; and had concluded that he 'had provided information to the patient that could potentially mislead her…'. The letter went on to issue a warning to the effect that he must ensure he communicate effectively; make sure information provided to patients is factually correct and does not have the potential to mislead; and undertake proper assessments of patients and consider specialist referrals in appropriate cases.

Mr L objected to the warning on the grounds that it did not give any reasons for the determination reached and did not explain how he had failed in his duties to Ms M.

Mr L asked for the decision to be reconsidered by a new Investigating Committee. The GDC refused, and Mr L applied for judicial review.

The hearing before the Outer House of the Court of Session

The GDC argued that:

- its decision was not amenable to judicial review;

- Mr L was barred from applying for judicial review because of delay in bringing the application and   his acquiescence to the warning; and

- there was no common law duty on it to give reasons for its decision to issue a warning.

The GDC failed on all three grounds, and the court ordered that the complaint be considered by a differently constituted Investigation Committee.

The hearing before the Inner House of the Court of Session

The GDC appealed against the decision of the Outer House on the basis of delay by Mr L, that it had given adequate reasons for its decision and that it would be unreasonable to impose a duty on it to provide detailed reasons in such circumstances.

The GDC failed. The court considered Mr L's response to the initial warning letter and the reasons for the time it had taken to issue judicial review proceedings, and found that the delay was not unreasonable, that there were no grounds on which the GDC had been prejudiced by the delay and that there were no circumstances that could lead the GDC to infer that Mr L had acquiesced to the warning.

In relation to the adequacy of reasons, the court noted the GDC's own guidance which stated that in order for a warning to enable the registrant to reflect on his behaviour and take steps to comply with professional requirements the warning must give reasons 'why the warning has been given, and in particular what conduct on his part has been found wanting'.

The court confirmed the judgement of the Lord Ordinary of the Outer House, who stated: 'Reasons need not be elaborate or lengthy, but they should tell the parties in broad terms why the decision has been reached'.