Hutchinson v General Dental Council

On an appeal by way of rehearing from a professional disciplinary tribunal, the High Court must decide whether the tribunal was wrong while giving appropriate weight to its specialist expertise and assessment of witnesses. A stay for abuse of process based on delay is exceptional and requires prejudice so serious that a fair hearing is impossible. Vagueness and delay should instead be considered when assessing the evidence. The civil standard of proof remains the balance of probabilities. Serious allegations require appropriately careful consideration and regard to inherent probabilities, but do not attract a heightened standard of proof. Findings based principally on witness credibility will ordinarily attract particular respect. Charges unsupported by sufficiently reliable evidence may be quashed, while credible findings on a specific and promptly reported allegation may stand.

Dr Alan Hutchinson appealed under section 29 of the Dentists Act 1984 against findings and an erasure order made by the General Dental Council’s Professional Conduct Committee. The Committee found proved charges concerning hygiene practices, including failure to wear gloves and wash hands, alleged misuse of dental instruments and burrs, and an alleged incident involving urination in a dental sink.

On appeal, some matters were admitted and the principal challenges concerned abuse of process, the standard of proof, the sufficiency of the evidence and sanction. The central issues were whether the delay and lack of specificity made a fair hearing impossible, whether the Committee applied the civil standard correctly, and whether its factual findings were wrong.

1. Appeal and approach. The appeal was by way of rehearing, but the court had to give appropriate weight to the Professional Conduct Committee’s specialist expertise and its advantage in hearing and seeing the witnesses. The same approach applied to factual findings and to sanction, where particular respect was due to the professional body’s judgment.
2. Abuse of process. A stay based on delay is a rare remedy, to be granted only in exceptional circumstances where serious prejudice makes a fair hearing impossible. The Committee identified and applied the correct test. The charges concerning occasional misuse of dental instruments were vague in their timing, but explicit as to the conduct alleged. The vagueness did not make a fair hearing impossible. The Committee was entitled to proceed, provided that possible prejudice from delay and lack of specificity was kept firmly in mind when assessing the evidence.
3. Standard of proof. Under rule 57(4) of the General Dental Council (Fitness to Practise) Rules 2006, the Council had to prove the facts on the balance of probabilities. There is one civil standard of proof. Seriousness, inherent improbability and the seriousness of consequences require appropriately careful consideration, not a different or heightened standard. The Committee had not misdirected itself.
4. Factual findings. The findings on charges 2(c), (d), (e) and (f), concerning dental instruments and burrs, were unsafe. The evidence was weak, unsupported by documentary evidence, affected by delay and lack of specificity, and did not satisfy the balance of probabilities. Those findings were wrong and were quashed. The finding on charges 10(a), (b) and (c) was different. The allegation was specific, promptly reported and documented, and the Committee expressly considered the civil standard before preferring the nurse’s evidence. Since the issue depended substantially on credibility, the Committee’s advantage in seeing and hearing the witnesses was decisive. Those findings were not wrong.
5. Order. The appeal was allowed in part. The matter was remitted to the Committee to reconsider sanction in light of the judgment.

• High Court (Administrative Court): The appeal under section 29 of the Dentists Act 1984 was allowed in part. Findings on charges 2(c), (d), (e) and (f) were quashed, the findings on charges 10(a), (b) and (c) were upheld, and sanction was remitted to the Professional Conduct Committee for reconsideration.
• General Dental Council Professional Conduct Committee: Following a four-day hearing, the Committee found the charges proved, found that the appellant’s fitness to practise was impaired, and ordered erasure.