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

A professional disciplinary sanction must be proportionate to the facts properly found by the disciplinary tribunal. Where the tribunal corrects a material factual error, it must reconsider the sanction on the corrected basis and explain why the altered facts do or do not affect the outcome. The practitioner’s knowledge, the circumstances of the breach, efforts to remedy it, duration of the risk and relevant comparable decisions may all be material. New disciplinary guidance should not be applied retrospectively to conduct occurring before its publication. Where reasons are inadequate and erasure is wholly disproportionate, the appellate court may quash the sanction and substitute an appropriate lesser sanction.

The claimant appealed under section 29 of the Dentists Act 1984 against the Professional Conduct Committee’s decision to erase his name from the Dental Register. He admitted practising for approximately 21 months without professional indemnity cover, but maintained that he had believed an application for cover was effective until January 2004 and had thereafter made strenuous efforts to obtain insurance.

The Committee initially proceeded on the erroneous basis that he had admitted knowing throughout that he was uninsured. It later corrected that finding, but maintained that the correction had no bearing on serious professional misconduct or erasure. The central issues were whether the Committee had fairly and adequately reconsidered the sanction, whether erasure was proportionate, and whether later guidance could be applied retrospectively.

1. The appeal was allowed. The Committee’s decision to erase the claimant’s name was quashed, and an admonition was substituted. The defendant was ordered to pay the claimant’s costs, summarily assessed at £17,800 inclusive of VAT.
2. The Committee’s original error was capable of being remedied by further consideration, but the corrected factual basis required a genuine reconsideration of sanction. The distinction between knowingly practising without cover and practising in an erroneous but genuine belief that cover existed was potentially material. So too were the duration of any knowing exposure of patients to risk, the practitioner’s efforts to obtain cover, and whether any lack of knowledge was understandable, careless or the result of inadequate enquiries.
3. The Committee accepted that the claimant knew he lacked insurance for only part of the period, but did not explain what parts of his mitigation it accepted or rejected, or why the changed factual basis had no bearing on disposal. If it rejected his explanation, it had to say so and give reasons. The absence of adequate reasons was especially serious because the Committee had first announced its decision on an erroneous and highly adverse factual basis.
4. The later Guidance to the Professional Conduct Committee, published on 31 January 2006, could not fairly be applied retrospectively to conduct ending in May 2004. At the relevant time, the existing guidance indicated that practising without adequate cover might lead to a charge of serious professional misconduct, but did not prescribe erasure as the sanction.
5. In the absence of an absolute rule that practising without indemnity insurance required erasure, the sanction had to reflect the surrounding circumstances and the protective, rather than punitive, purposes of disciplinary sanctions. The comparable decisions, the claimant’s interim suspension, his subsequent insurance and his incident-free practice made further suspension unnecessary. Under section 29 of the Dentists Act 1984, the court therefore exercised its discretion to substitute an admonition rather than remit the matter.

• Professional Conduct Committee: On 20 June 2005, found serious professional misconduct and directed that the claimant’s name be erased from the Dental Register. The Committee later corrected the factual wording but maintained the sanction.
• High Court (Administrative Court): The erasure decision was quashed and an admonition substituted.