Sadighi v General Dental Council

An apparent-bias challenge is determined by asking whether an informed and fair-minded observer would reasonably suspect a real possibility of bias. A former member of a professional regulator, who left that role several years before proceedings and had no part in bringing them, does not necessarily create such an appearance. Professional self-regulation is not inherently incompatible with impartiality. Dishonesty and lack of insight are distinct findings: a person may act dishonestly yet fail to appreciate the essential dishonesty of the conduct, and that lack of insight may aggravate sanction. On an appeal against sanction, the court should not substitute its own assessment unless the penalty is manifestly excessive.

The appellant, a dentist, appealed against a Professional Conduct Committee decision of the General Dental Council finding that he had dishonestly rewritten dental records and presented them as contemporaneous records. He challenged the composition and impartiality of the committee, relying on its appointment arrangements and the former membership of its chairman, Dr Leitch, of the Council. He also argued that the findings of dishonesty and lack of insight were inconsistent, and that a six-month suspension was excessive.

The central issues were whether the committee gave rise to a legally sufficient appearance of bias, whether the findings were contradictory, and whether the sanction was manifestly excessive.

1. Apparent bias. The relevant question was whether a reasonable and informed outsider would suspect that Dr Leitch was biased in favour of the prosecution. His membership of the General Dental Council had ended five years before the proceedings. He had played no part in deciding whether the prosecution should be brought. A reasonable observer might regard him as interested in maintaining professional standards, but would not reasonably infer that he favoured the prosecution of a particular dentist. The failure to disclose his former membership at the opening of the hearing therefore disclosed no apparent-bias defect.
2. Appointment arrangements. The interposition of an Appointments Committee was a material safeguard. Its members were not members or employees of the Council, and its rules required regard to natural justice. The impartial observer was not presumed to know every detail, but neither was he to be treated as ignorant of central matters bearing on impartiality. Professional self-regulation was not prohibited by domestic law.
3. Dishonesty and insight. The findings were not inconsistent. Dishonesty was assessed by the standards of ordinary honest people, on the evidence that the records had been composed after the event and supplied in a way liable to create a mistaken belief that they were contemporaneous. Lack of insight concerned the appellant’s failure to appreciate the essential dishonesty of the deception. It was an aggravating factor because it increased the risk of recurrence and could properly be considered in determining sanction.
4. Sanction and outcome. The court was bound by the approach in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, under which the professional body’s view of the appropriate sanction is entitled to primary weight. The question was whether the suspension was manifestly excessive. It was open to the Committee to regard the misconduct as sufficiently serious to justify the sanction imposed. The appeal was dismissed. The appellant was ordered to pay costs of £8,500, inclusive of VAT.

• General Dental Council Professional Conduct Committee: found the allegations proved and suspended the appellant from practice for six months on 14 November 2008.
• High Court (Administrative Court): dismissed the appeal against the findings and sanction under [2009] EWHC 1278 (Admin).