In a decision handed down in the Court of Session in Scotland last week, Lady Wolffe held that the Investigating Committee (IC) of the GDC had incorrectly taken advantage of the General Dental Council (Fitness to Practice) (Amendment) Rules Order of the Council 2016, by allowing a determination that had been previously been set aside through judicial review, to proceed to the Investigating Committee without being referred to the Case Examiners, which it should have been.

The facts: DK v Investigating Committee of the General Dental Council 2018 CSOH 99

The case concerned a second judicial review brought by a dentist, known in the proceedings as DK. He was convicted for a speeding offence, and had self-reported this to the GDC. The IC gave their determination on 19 September 2016, which was confirmed on 19 January 2017. There was no material difference in the conclusions drawn on those dates. DK commenced judicial review proceedings, following which, the determination was ‘reduced’, i.e. set aside. The case went back to the respondent.

On 16 August 2017, DK received correspondence that the GDC ‘has now’ referred his case to the IC. DK had also received an email dated 11 September 2017 agreeing that the September 2016 decision has been excluded from the bundle that was to be passed to the IC.

A further decision was made on 29 November 2017, which held that whilst DK’s fitness to practise was not impaired, it was necessary to issue a warning. That warning was published by the GDC. The decision to issue the warning is the subject of the second judicial review proceedings.

A change to the rules

In between the decision on 19 September 2016 and the imposition of the warning on 29 November 2017, amendments were made to the GDC Fitness to Practice Rules. These took effect on 1 November 2016. Rule 9 was introduced, the effect of which was to ensure that any ongoing proceedings (i.e. where the IC have already begun considering allegations) would continue to be governed by the GDC Fitness to Practice Rules which applied before they were amended. The consequence of this is that ongoing proceedings would be determined by the Investigating Committee.

On the other hand, where a IC had not yet begun its considerations, the allegations were to be referred to the Case Examiners. This is an intermediate step designed to provide an ‘additional safeguard’ in favour of the petitioner before the case reaches the IC itself. In DK’s case, the IC had concluded their consideration of the speeding offence in September 2016, which was before the amended rules had come into force.

The findings

Lady Wolffe found that on a ‘fair’ reading of the record, the GDC’s own understanding was that the allegations were ‘required to be considered afresh’. The exclusion of the content of the first IC’s determination from the bundle was also evidence of the IC ‘excluding from their collective mind any knowledge of what had been done’ by the previous IC. As the first decision had already been concluded and reduced, before the coming into effect of the amended rules on 1 November 2016, there was nothing to be ‘saved’ for the purposes of the amended rules. In fact, once the first determination had been reduced, it had no legal effect and so the process must be picked up from the preceding stage, that is the Registrar’s decision to refer the matter.

Following the introduction of the new rules the referral should have been to the Case Examiners.

The irrationality challenge

In Scotland, a speeding offence can give rise to a conviction, and as such, there is a possibility that a dentist’s fitness to practice could be called into question. In England, the maximum measure that could be taken against a dentist found to have committed the same offence would be a fixed penalty notice, which falls below the threshold for a referral to the Committee. DK claimed that the decision to impose a warning was irrational on this basis.

Lady Wolffe opined that there were ‘weighty’ factors against the imposition of a warning, including the fact that DK had self-referred, had shown remorse, and this was a first offence. More interestingly, the disparity between the English and Scottish jurisdictions regarding penalty, and the fact there was no additional factor to justify a different disposal of the case rendered the decision irrational.

Publication of the warning

Lady Wolffe was critical of the GDC’s decision to publish the warning despite the fact that the decision to issue the warning was the subject of a challenge. She noted that by publishing the decision the GDC had ‘…in practical terms rendered nugatory the effect of overturning that sentence.’ Whilst she invited the GDC to consider reviewing its procedures to address that ‘unattractive feature’ it remains to be seen how the GDC will address that issue, if at all.

Challenges to decisions of the GDC’s Investigating Committee/Case Examiners are rare. Whilst the issues in relation to the interplay of the new and old rules in this case are unlikely to be repeated, this case addresses an important point of principle.

It is clear from the tone of the judgment that the court attached significant weight to a registrant’s entitlement to protect their professional reputation, including by availing of the Case Examiners’ stage when the rules allow for this additional protection. Indeed, this was a benefit of which DK had been ‘deprived’. It is incumbent on regulatory bodies to ensure that registrants are not deprived of the procedural protections afforded by the rules.

Regulators should also take care so as not to prejudge a registrant’s right to challenge the regulators decision-making. We note that even though the GDC had published the warning the Court protected the dentist’s identity in these proceedings.

Read the judgment by clicking here.