Kirschner v The General Dental Council

On an appeal from a professional disciplinary tribunal, the court applies the appellate threshold of wrongness, giving appropriate respect to the tribunal’s evaluative findings. In disciplinary dishonesty cases, the binding test remained the two-stage Twinsectra/Ghosh test: whether the conduct was dishonest by ordinary and honest professional standards, and whether the practitioner realised that it was dishonest by those standards. A tribunal must address any asserted honest belief with clarity. Findings that a practitioner believed conduct was permitted cannot coherently coexist with a finding that the practitioner knew it was dishonest, unless the tribunal explains why that belief was false or had ceased to operate. Inconsistent reasoning on that issue rendered the dishonesty findings unsustainable.

The appellant, a dentist, appealed under section 29(1)(b) of the Dentists Act 1984 against findings by the General Dental Council’s Professional Conduct Committee. The committee found that she had dishonestly submitted duplicate NHS claims for three child patients, totalling £144, and suspended her for one year. She did not challenge findings concerning clinical deficiencies or failure to co-operate.

The appeal was conducted under CPR 52.11 and CPR PD52D. The central issues were the applicable legal test for dishonesty in disciplinary proceedings and whether the committee’s factual findings satisfied that test.

1. Appeal allowed. The appeal was subject to CPR 52.11. Whether technically a review or rehearing, the appellate threshold was the same: the decision had to be wrong, or unjust because of serious procedural irregularity. The challenge concerned wrongness. An appellate court should review the merits while according appropriate respect to the lower tribunal and the nature of its decision, as explained in EI Du Pont De Nemours & Company v S.T. Dupont [2003] EWCA Civ 1368.
2. The applicable disciplinary dishonesty test remained the two-stage test stated in Twinsectra Limited v Yardley [2002] UKHL 12, as understood in R v Ghosh [1982] QB 1053, and preserved for disciplinary proceedings by Bryant v Law Society [2009] 1 WLR 163. The tribunal had to decide first whether the conduct was dishonest by the standards of ordinary and honest members of the relevant profession, and secondly whether the practitioner realised that it was dishonest by those standards.
3. The judge expressed strong reservations about retaining that test. He considered that there should be one civil test for dishonesty, based on the objective-standard approach in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, recently confirmed in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11. He nevertheless considered himself unable to disregard Bryant v Law Society at this level.
4. The committee’s reasoning was internally inconsistent. It accepted that the appellant had persuaded herself that claim-splitting was acceptable and might have received inappropriate advice, but also stated that she knew the claims were unauthorised. It made no clear finding that her asserted belief was false or had ceased to operate. If deliberate false evidence was alleged, the committee had to explain with the utmost clarity why and how it rejected that evidence, as stated in Phipps v GMC [2006] Lloyds Rep Med 345.
5. The dishonesty findings therefore failed under the applicable test. The court allowed the appeal, quashed those findings, and remitted the case to the Professional Conduct Committee to reconsider sanction.

The judgment records an appeal to the Administrative Court from findings and sanction imposed by the General Dental Council’s Professional Conduct Committee following disciplinary hearings held during 2014. The appeal was allowed, the dishonesty findings were quashed, and the matter was remitted to the committee to reconsider sanction.