Pope v The General Dental Council

On an appeal from a specialist professional tribunal, the court should respect findings of primary fact, especially those based on live evidence, but may intervene more readily on evaluative issues outside the tribunal’s professional expertise. The persuasive burden of proof remains on the party bearing it throughout and is applied to all the evidence at the end of the case. It does not add evidential weight to one side of the scales. A fact-finder may prefer a respondent’s evidence on particular issues without reversing the burden. Informal language in a lengthy determination does not establish legal error unless, read in context, it shows that the wrong burden or standard was applied. The need to take account of the seriousness of dishonesty allegations depends on the circumstances and omission of an express direction is not necessarily fatal.

The claimant, a dentist, appealed against the Professional Conduct Committee of the General Dental Council’s findings that he had committed 20 acts of dishonesty in claiming remuneration under primary dental services arrangements. The Committee had erased him from the register. The appeal proceeded as a rehearing under CPR PD 52D 19.1(1)(c) and (2), with intervention available where the decision was wrong or unjust because of serious procedural or other irregularity. The central issues were whether the Committee had misunderstood the burden and standard of proof, whether its language showed reversal or dilution of the burden, and whether it had applied the relevant regulatory definitions of a completed course of treatment correctly.

1. Appeal dismissed. The Professional Conduct Committee’s findings of dishonesty were not vitiated. The claimant was ordered to pay the GDC’s agreed costs of £8,017.20.
2. The appeal court must give appropriate weight to the specialist tribunal’s understanding of professional standards and to findings based on live evidence. Primary findings, particularly credibility findings, should be disturbed only where shown with reasonable certainty to be wrong. Deference may be moderated where the issue concerns judgment or evaluation outside the tribunal’s specialist focus: [2011] EWHC 783 (Admin).
3. The persuasive burden on each allegation remained on the GDC throughout. It could not shift to the claimant during the hearing because the evidence appeared compelling. The burden and civil standard were criteria applied to the whole body of evidence at the end of the case. The burden itself was not an additional piece of evidential weight: [1935] A.C. 462.
4. The Committee was entitled to find that the claimant’s account was more likely than not on particular issues. Expressions such as not being satisfied that an allegation had not occurred were, in context, no more than informal language. They did not demonstrate reversal of the burden. The Committee had been repeatedly directed on the burden and standard of proof, and its determination had to be read as a whole.
5. The guidance in Sharma v GMC [2014] EWCH 1471 did not assist the claimant. The significance of expressly directing the fact-finder that serious allegations may require stronger evidence depends on the case. Here, the legal advice addressed good character, the parties had made the relevant position clear, and the Committee made detailed and emphatic findings, having rejected other allegations. The regulatory definitions were not ambiguous in the circumstances relied upon. The claimant understood that further planned treatment generally prevented completion of the earlier course, yet repeatedly claimed as though separate courses had been completed.

• Professional Conduct Committee of the General Dental Council: found 20 of 31 dishonesty allegations proved and imposed erasure from the register.
• High Court (Administrative Court): dismissed the appeal and ordered payment of the GDC’s agreed costs.