Hossack, R (on the application of) v The General Dental Council

In professional disciplinary proceedings, the questions whether proved facts amount to serious professional misconduct and what sanction should follow are distinct, even though some evidence may be relevant to both. Personal mitigation ordinarily concerns sanction, while previous misconduct may bear on the seriousness of later conduct. Where a postponed charge is heard with new charges, the disciplinary committee may consider the practitioner’s whole offending conduct, subsequent progress and mitigation before deciding whether registration should be suspended or erased. A committee must give sufficient reasons for its sanction, but need not address every mitigating point expressly if its reasons show that the material was considered and explain why the seriousness of the misconduct justified the outcome.

The claimant appealed under section 29 of the Dentists Act 1984 against the General Dental Council’s decision to erase his name from the register. Earlier proceedings had resulted in findings of serious professional misconduct and postponement of sanction. Later proceedings concerned serious deficiencies in the treatment of four patients and failure to maintain professional indemnity insurance. The postponed earlier charge and the new charges were considered together. The claimant argued that the Committee had misunderstood the relationship between serious professional misconduct and sanction, failed to take account of subsequent improvement and mitigation, and gave inadequate reasons for erasure. The central issues were the proper operation of rule 16(2) and the adequacy of the Committee’s reasons.

The appeal was dismissed. The Committee was entitled to direct erasure under rule 16(2) after considering the postponed charge and the new charges together.

1. Separate stages. The question whether proved facts amount to serious professional misconduct and the question of sanction require separate determination. The same evidence may sometimes bear on both questions. Previous misconduct may support a finding that repeated conduct is serious, whereas personal mitigation ordinarily concerns the appropriate penalty. The guidance in Campbell v GMC [2005] EWCA Civ 250 correctly identified that distinction. The apparent approach in Silver v GMC [2003] UKPC 33, which had caused confusion, did not require mitigation to be treated as determining seriousness.
2. Postponed and new charges. Rule 16(2) permits the Committee to consider the whole of the offending behaviour, including the earlier findings, the new misconduct, mitigating circumstances and steps taken since postponement. If suspension or erasure is required, simultaneous disposal of the old and new charges is appropriate because a lesser postponed sanction would be subsumed in the more serious sanction. Where a lesser outcome is suitable, separate or differently tailored disposal remains possible.
3. Reasons. A disciplinary committee must give reasons sufficient to tell the practitioner why the conduct justified the sanction and to show that material matters were addressed. Reasons need not be lengthy or expressly reject every mitigating submission. Here, the Committee had received and considered the evidence of subsequent improvement and continuing professional development. Its detailed explanation of the serious clinical failures, lack of adequate indemnity, poor record keeping and lack of insight explained why mitigation did not prevent erasure.
4. The decision was not shown to be flawed by failure to consider a material factor or by inadequate reasons. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.

General Dental Council Professional Conduct Committee: Following earlier findings of serious professional misconduct and postponed sanction, the Committee considered new charges together with the postponed charge and directed erasure on 29 October 2004.

High Court (Administrative Court): The statutory appeal under section 29 of the Dentists Act 1984 was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.