Professional Standards Authority for Health and Social Care v General Dental Council and Robert Michael John Endicott  EWHC 2280 (Admin)
Another PSA appeal, heard in May 2014, concerned dishonesty.
The PSA, with the GDC's support, appealed against the decision of a GDC Professional Conduct Committee (PCC) that, although a dentist had knowingly misled a patient, his conduct had not been dishonest.
The dentist, Mr Endicott, had been carrying out a course of dental treatment on a patient. At a time when the treatment was nearly complete, the patient attended another dental practice for emergency treatment. The dentist at the second practice made unfavourable remarks about the quality of the work, including fillings, done by Mr E.
The patient’s husband wrote to Mr E and put the other dentist's concerns to him. Mr E replied, saying that the work was not finished. He said that the reason the fillings he had done to date appeared rough was that they were provisional. He apologised for not having made that fact clearer to the patient.
Mr E faced a number of allegations before the PCC, including allegations relating to the standard of the treatment provided to the patient. These were either admitted or found proved. However, it was three further allegations, relating to the email exchanges with the patient, which led the PCC to a finding of impairment, and the imposition of a sanction of a reprimand.
On the evidence of Mr E’s previous exchanges with the patient and his own clinical notes, it was found by the PCC that by saying that the work was not finished, Mr E was misleading the patient – he had considered that the work was finished.
The PCC found that, whilst Mr E's email to the patient had in fact been misleading, and had been intended to mislead, his conduct had not been dishonest.
The PCC noted that:
- Mr E had been willing to complete the necessary work on the patient's teeth;
- Mr E had apologised for not making the status of the treatment clearer; and
- while the email was misleading, it did not meet the high threshold which was necessary for a finding of dishonesty according to the test in Ghosh¹. The PCC noted Mr E’s previous good character, and said it was inherently unlikely that he would have been dishonest.
The PCC imposed a reprimand, noting the serious view it took of Mr E’s conduct, but also noting the steps that Mr E had taken towards remediation, testimonies from other patients, and his previously unblemished record.
The PSA challenged the PCC's finding with respect to dishonesty, saying it was perverse, and that the sanction of a reprimand was unduly lenient.
The Court agreed with the PSA. It said that on a proper analysis, the three factors on which the PCC had relied in relation to dishonesty were either irrelevant or in fact supported a finding of dishonesty.
The first factor (that Mr E had been willing to carry out the necessary remedial work) was irrelevant to the question of whether or not he had misled the patient and, therefore, to the entire question of dishonesty.
The second factor (that Mr E had apologised for not being clearer about the status of the treatment) had in fact formed part of the deception because he had hoped that by apologising, the patient would believe his misleading statement about the treatment.
In relation to the third factor (a failure to reach the necessary threshold for a finding of dishonesty under the Ghosh test) the Court found that once the committee had found that Mr E had deliberately set out to mislead the patient, his previous good character was irrelevant to the objective limb of the Ghosh test.
The Court held that the PCC’s findings that Mr E had misled and had intended to mislead meant that the finding of the PCC that Mr E had not been dishonest could not be allowed to stand.
Despite the submissions of the PSA that the Court should substitute a finding of dishonesty, the matter was remitted to a freshly constituted PCC to determine. The judge (Mr Justice King) stated that he “was mindful of the strictures set out by the House of Lords in Twinsectra v Yardley and Others  UKHL 12, that the court should be slow to substitute its own findings of dishonesty for those of a specialist tribunal who has heard all the evidence. A finding of dishonesty is a grave conclusion”.
The judge made clear that, while he was quashing the finding that there had not been dishonesty and quashing the decision to impose a reprimand, no other part of the findings of the PCC were quashed.