Davey v General Dental Council

On an appeal by review against a professional disciplinary sanction, the court must respect the specialist tribunal’s assessment of sanction, particularly where the sanction protects public confidence rather than imposing retributive punishment. The tribunal must consider sanctions in ascending order of severity and select the least severe sanction that adequately addresses the identified issues and protects the public interest. The sequence is substantive, not merely formal. A reference to exceptional circumstances does not invalidate the decision where the tribunal has in substance followed the stepwise approach. Dishonesty in professional practice commonly warrants a severe sanction, often erasure, but each case remains fact-sensitive.

The claimant, a clinical dental technician, appealed under section 36 S of the Dentists Act 1984 against the Professional Conduct Committee’s decision to suspend him from the dental care professionals register for 12 months. He admitted treating a patient outside his scope of practice and keeping inadequate records. The Committee also found that he had dishonestly submitted non-contemporaneous records during the GDC investigation. The claimant accepted that his fitness to practise was impaired and challenged only the sanction, arguing that the Committee had approached the issue from the wrong end, failed to consider lesser or shorter sanctions, and imposed a disproportionate suspension. The appeal proceeded by review under CPR 52.11. The central issue was whether the Committee’s decision was wrong.

Appeal dismissed. The challenge was confined to sanction. The court reviewed the Committee’s decision rather than rehearing the matter, and gave due respect to its specialist assessment of sanctions directed principally to protecting patients, maintaining public confidence and upholding professional standards.

1. The Guidance required consideration of sanctions from the least restrictive upwards. The selected sanction had to be the least severe sanction that adequately addressed the identified issues while protecting the public interest. This was a matter of substance, not form.
2. Giele v GMC [2006] 1 W.L.R. 942 established the error in starting with erasure and asking whether exceptional circumstances justified descending to a lesser sanction. Here, however, the Committee considered reprimand and suspension in ascending order and stopped at suspension. Its subsequent reference to exceptional cases was merely part of its explanation for not imposing erasure, and did not show that it had reversed the required sequence.
3. The Committee was entitled, after identifying suspension as appropriate, to consider the length of suspension separately. Its reasons for selecting 12 months addressed the seriousness of the misconduct, the need to mark its gravity, public confidence and professional standards. The reasoning did not reveal a foregone conclusion.
4. The 12-month suspension was not disproportionate. The admitted scope-of-practice breach, inadequate records and deliberate dishonesty in creating a false impression of proper record keeping justified substantial weight being given to public confidence. Dishonesty is seriously damaging even without patient harm. The court applied the deferential approach identified in Raschid v GMC [2007] EWCA Civ 46 and was slow to interfere with a reasoned and logically consistent sanction. The observation in Nicholas-Pillai v GMC [2009] EWHC 1048 Admin that dishonesty will often properly attract erasure supported that conclusion, while leaving each case to be decided on its facts.
5. The Professional Conduct Committee’s sanction and reasoning were appropriate. The appeal was dismissed.

The judgment does not state a prior appellate decision. It records an appeal to the Administrative Court from the Professional Conduct Committee of the General Dental Council, which had imposed a 12-month suspension.