Held v The General Dental Council

An appeal under section 29 of the Dentists Act 1984 is by way of rehearing, but the appellate court should respect specialist factual and sanction decisions. A professional tribunal may proceed in a practitioner’s absence where notification has been given and the overall hearing remains fair. It must take reasonable steps to expose weaknesses in the regulator’s evidence, but need not cross-examine witnesses as an absent practitioner might. Fresh evidence will ordinarily be excluded where it could have been obtained for the original hearing, lacks necessary supporting material, or would require the appellate court to conduct a retrial. Failure to maintain professional indemnity insurance may justify erasure, particularly where there is inadequate insight or remediation.

Mr Holger Held appealed under section 29 of the Dentists Act 1984 against a determination of the General Dental Council’s Professional Conduct Committee. The Committee found that he had practised dentistry without professional indemnity insurance between 31 May and 11 July 2013, in relation to 26 patients, and ordered erasure from the register.

He challenged the decision to proceed in his absence, the assessment of the evidence, the treatment of claims relating to 15 other patients, and the proportionality of erasure. He also sought to adduce nine fresh patient statements. The central issues were whether the hearing had been fair, whether the fresh evidence should be admitted, and whether the findings and sanction were unsafe or inappropriate.

1. Appeal dismissed. The appeal was by way of rehearing. The court had the powers identified in Wasu v General Dental Council, [2013] EWHC 3782 (Admin), including dismissal, quashing, substitution or remission. The court should be slow to interfere with specialist factual findings, especially credibility findings, and should show particular respect to sanction decisions.

2. The Committee was entitled to proceed in Mr Held’s absence under rule 54 of the Rules. He had notice, had previously obtained an adjournment to prepare evidence, had not sought a further adjournment, and had submitted a detailed defence letter. Applying the guidance in R v Hayward, [2001] Q.B. 862, as approved in R v Jones, [2003] 1 A.C. 1, and applied in Tait v Royal College of Veterinary Surgeons, [2003] UKPC 34, the relevant question was overall fairness. The Committee took reasonable steps to test the regulator’s case, consistently with McDaid v Nursing and Midwifery Council, [2013] EWHC 586 (Admin), but was not required to cross-examine the witness as an advocate would have done.

3. The nine patient statements were properly excluded. Although the appeal was a rehearing, CPR Part 52.11 applied. The principles in Ladd v Marshall, [1954], remained persuasive, subject to the overriding objective. The evidence could have been obtained before the Committee; it was unsupported by the relevant patient records; and its admission would have required a remittal and effectively converted the appellate court into the first-instance fact-finder. The considerations of finality identified in Transview Properties v City Site Properties, [2009] EWCA Civ 1255, applied.

4. The Committee was entitled to distinguish between the 15 withdrawn claims and the remaining 26. Withdrawal of the former did not establish that the locum dentist had provided the treatment, nor did it logically require rejection of the evidence concerning the latter.

5. The sanction was not inappropriate. The Committee considered the available sanctions in sequence, applied proportionality, and was entitled to regard the absence of indemnity insurance, previous disciplinary history, lack of insight and failure to accept responsibility as serious. The court applied the restraint required by Raschid & Fatani v General Dental Council, [2007] EWCA Civ 46. Erasure was therefore upheld.

The judgment states that the appeal was brought directly to the High Court under section 29 of the Dentists Act 1984 against the Professional Conduct Committee’s determination dated 29 May 2014. The High Court dismissed the appeal.