Court considers again the fairness or otherwise of regulatory proceedings following a criminal acquittal

Judgement date: 29 July 2014

Dr Ashraf appealed the decision of a Professional Conduct Committee (the Committee) of the General Dental Council (GDC) that his fitness to practise was impaired by virtue of inappropriate and dishonest claims made by him to the NHS, and that his name should be erased from the register. 

Dr Ashraf had, prior to the hearing before the Committee, been prosecuted on an indictment containing three counts of fraud and theft in relation to the same NHS claims and had been acquitted by a jury on all counts.  Counsel on behalf of Dr Ashraf made an unsuccessful application to stay the disciplinary proceedings as an abuse of process in the month before the hearing.  It is the failure of the Committee to stay the proceedings that is the thrust of the present case, although there were further grounds of appeal regarding evidential findings of the Panel and their decisions on impairment and erasure.

Background

Dr Ashraf qualified as a dentist in 1996 and in 2002 became the owner and principal of a general dental practice in Bradford.  He was originally working under the then existing General Dental Services contract but from 1 April 2006 Mr Ashraf entered into a new NHS contract which provided a new basis for calculating remuneration through a mechanism whereby a contracting dentist was expected to provide an agreed amount of dental care, measured in ‘units of dental activity’ (UDAs).  UDAs are claimed in according to three bands of treatment: Band 1 including examination, assessment and planning of treatment (attracting 1 UDA); Band 2 covering everything in Band 1 plus additional treatments such as fillings and simple root canal work (attracting 3 UDAs); and Band 3 incorporating treatment covered by Bands 1 and 2 plus more complex procedures such as crowns and dentures (attracting 12 UDAs).

The GDC Hearing

Essentially, the allegations against Dr Ashraf concerned inappropriate and dishonest claims made in respect of UDAs and payment from the NHS over the period 2006 to 2008, which were broadly in three categories:

  1. Submitting claims for treatments that had not in fact been carried out;
  2.  Claiming for treatments at a higher band than was justified or ‘splitting’ a course of treatment into two separate claims which properly should have been covered by one;
  3. Failing to submit PDS1 forms.  These forms enable dentists to declare fees paid by the patient directly so the Dental Practice Board can deduct that amount from the NHS monies paid to the dentist.  It was alleged that Dr Ashraf had deliberately held back the forms so that deductions to his payments were not made when they should have been.

Suspicion was raised about the claims in 2007 and the matter was passed to the Dental Fraud Team in September 2007.  A counter-fraud investigation was led by Mr Jason Croft (who was a witness in both the criminal trial and the disciplinary hearing).  It was further alleged that Dr Ashraf had tried to frustrate that investigation by interfering with witnesses. 

Prior to the start of the hearing, Counsel for Dr Ashraf made an application that the proceedings be stayed as an abuse of process, on the basis that in light of the acquittals in the criminal trial it would be abusive for the GDC to proceed against Dr Ashraf on charges which mirrored the criminal charges.

The Committee rejected that application.  It noted that the GDC charges were wider than those in the criminal trial in that it was alleged before them that the claims were inappropriate as well as dishonest.  It was also said that the disciplinary charges were narrower in the sense that they concerned a smaller amount of patients.  The Committee accepted the legal advice given by the legal adviser, which was essentially that the doctrine of double jeopardy does not apply to disciplinary proceedings and that to try a matter where there had been a previous criminal acquittal was not inherently abusive.  This was especially so, it was said, due to the different burdens of proof applied to the respective proceedings. 

The hearing therefore continued and the Committee found that Dr Ashraf knew or ought to have known that claims were made for treatments that had not taken place, that he knew or ought to have known that claims for UDAs had been inappropriately split, that he had failed to submit 91 PDS1 forms without a legitimate reason and that he had caused or permitted attempts to be made to deter witnesses from giving evidence before the PCC. 

The Appeal

It was argued on behalf of Dr Ashraf that the Committee were wrong not to stay the proceedings, it being submitted that it would be unfair to pursue misconduct charges against him where he had been acquitted of substantially the same charges.  Counsel appeared to accept the advice of the legal assessor but said that the Committee had simply come to the wrong decision.  It was accepted as common ground that the fact of an acquittal in the criminal courts does not, of itself, make it inherently abusive for the same matter to be heard by a disciplinary panel. Counsel argued, however, that it is unfair to routinely subject professionals to both criminal and disciplinary proceedings in relation to the same subject matter.  He argued that there was a discretion to be exercised which in this case was wrongly exercised.  His experience showed, he argued, that professional conduct panels currently operate on the basis that it would never be unfair to pursue disciplinary proceedings after an acquittal.   He drew support for his submission from the dicta of Lord Justice Simon Brown in R(Redgrave) v Commission of Police for the Metropolis [2003] 1 WLR 1136. 

Consideration

The Court (Sir Brian Levison J and Mr Justice Cranston) considered the relevant case law on this issue, starting with the ratio of Redgrave (at paras 37-38) which makes it clear that there is no bar to the bringing of disciplinary proceedings in these circumstances, given that the purpose of the proceedings are different and due to the fact that the material before the different tribunals may well be different.   The dicta that then follows inRedgrave (at para 46) refers specifically to the 1999 Home Office Guidance on Police Unsatisfactory Performance, Complaint and Misconduct Procedures which outlines that it may be inappropriate to bring disciplinary proceedings after a criminal acquittal if the conduct under investigation is in substance the same and where the conduct so serious that it is likely that a higher standard of proof would be required or if a key part of the case has been resolved in favour of the officer.

The Court observed that since Redgrave there had been ‘repeated invitations to consider the effect of this commendation’ made to the Court, for examplePhillips v General Medical Council [2004] EWHC 1858 (Admin) and Sacha v General Medical Council [2009] EWHC 302.  In Sacha, a GP appealed a determination by the GMC of impairment and erasure, following an acquittal of the charge of indecent assault of a patient.  In that case the GMC had decided not to pursue the indecent assault charge and to limit the case to the failure to have a chaperone and to explain the purpose of the procedures and to gain consent.  Having outlined that there was no general principle that it would be unfair to bring disciplinary proceedings after an acquittal, Lloyd Jones J went on to observe that the GMC were ‘clearly correct in concluding that the allegation of indecent assault by way of internal investigation could not properly be the subject of disciplinary charges following the doctor’s acquittal on precisely this allegation’.

Counsel for Mr Ashraf placed reliance on this observation by Lloyd Jones J.  However the Court held that although these observations may well be ‘a high water mark, providing an example of where it could have been unfair to pursue certain charges in the particular circumstances…it cannot be said to support a general principle’.  It was held that;

‘With great respect to Lloyd Jones J, in this ex termpore decision, he had failed to reflect the true reason for the decision by the GMC …namely that the evidential basis for the allegation of indecent assault had disappeared because the expert evidence available to the GMC from an independent expert supported the suggestion that an internal examination may have been clinically indicated’ [30]

The Court noted that its assessment was also supported in Bhatt v General Medical Council [2011] EWHC 783, where is also found that the words of Lloyd Jones J in Sacha were limited to a fact-specific analysis of the case before him and weren’t intended to recognise any general principles.

The Court held that

‘It is essential that regulators are confident in exercising their discretion in these matters and the continued anxious citation of this line of authority ought to be discouraged.  In my judgement, the approach in paras. 37 and 38 of Redgrave, confirmed by Phillips, Sacha and Bhatt, is clearly correct.  Simon Brown LJ (at para.46 of Redgrave) was not enunciating the law but merely commending the approach as set out in guidance which, in any event, has since been altered’ [33]

The Court went on to clarify:

It is therefore important to confirm that although it is not inherently unfair to bring misconduct charges against a professional who has already been acquitted in the criminal courts, this does not mean that there will not be circumstances in which it may well be unfair to proceed…Without seeking to be determinative, it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS….This elaboration, however, is not intended to be definitive guidance: regulators must each determine how they go about achieving their regulatory objectives and, bearing those objectives in mind, faithfully apply the well-known principles engaged within the concept of abuse of process. [35]

This ground of appeal therefore failed, as did the supplementary ground of appeal in relation the findings of fact, impairment and sanction. 

The Court here puts an end to reliance on the dicta in Redgrave and inSacha being used as a means by which to undermine the general principle that it is not inherently unfair to pursue disciplinary proceedings after a criminal acquittal.  The Court lays down helpful guidance as to when it may, nevertheless, be unfair in the circumstances of the case, to carry on.  The facts of this particular matter did not fall into the category of when it would be unfair to do so.