Radeke v General Dental Council

In a professional disciplinary appeal, dishonesty must be established on the balance of probabilities by evidence sufficient to outweigh the inherent improbability of the allegation. The seriousness of an allegation does not create a higher standard of proof, but it affects the assessment of probability and the strength of evidence required.

An appellate court may give reduced deference to a disciplinary panel where the panel lacked the opportunity to see and hear the practitioner, although that deference is not eliminated. Clinical assessment tools must be used as aids to the ultimate safety decision, rather than treated as statutory schemes with automatic consequences.

Dr Radeke, a consultant in oral surgery, appealed under section 29 of the Dentists Act against the decision of the General Dental Council’s Professional Conduct Committee to erase his name from the Dental Register.

The appeal was confined to allegations that he had dishonestly given inconsistent accounts concerning the ASA status recorded for a patient who died after dental treatment. The Panel had found that he had misled the coroner and had been dishonest. The central issues were whether the alleged inconsistencies established dishonesty and whether the sanction could stand.

1. The appeal succeeded in part. The court held that the Panel was wrong to conclude that Dr Radeke had perjured himself at the inquest. His statements concerning whether Patient X had been assessed as ASA 2, 3 or 4 were neither inaccurate nor misleading in the respects alleged in charges 9(a) and 9(b).

2. The ASA classification was principally a tool for assessing suitability for intravenous sedation. Its categories were vague, addressed systemic disease only, and did not provide automatic consequences for the decision to operate. The practitioner had to consider whether it was safe to operate by taking all relevant features into account. The Panel and the coroner had treated the classification too mechanistically.

3. The absence of an obvious motive to lie, the opportunity for the alleged inconsistency to be challenged at the inquest, the passage of time, and the possibility of honest mistake all weighed against a finding of deliberate dishonesty. Applying the approach in Re: B [2008] UKHL 35, the seriousness and inherent improbability of the allegation required correspondingly cogent evidence, without altering the civil standard of proof.

4. The Panel was entitled to find that the assertion that the sedation nurse had completed the ASA entry was inaccurate. That finding related to charge 9(c), but the evidence was not materially misleading in the circumstances and had played no part in the coroner’s verdict. The finding under charge 11(b), so far as it related to charge 9(c), was quashed.

5. The sanction of erasure was quashed. The question of sanction was remitted to a differently constituted panel, having regard to the findings of the first Panel which remained undisturbed.

• High Court (Administrative Court): Appeal under section 29 of the Dentists Act against the Professional Conduct Committee’s decision to erase Dr Radeke from the Dental Register. The dishonesty findings were set aside in part, the sanction was quashed, and sanction was remitted to a differently constituted panel.