Peckitt v General Dental Council

An appellate court reviewing a professional disciplinary decision must conduct a secondary judgment. It must respect the tribunal’s specialist expertise and must not substitute its own view on sanction. Intervention is justified where the decision is wrong or unjust because of a serious procedural or other irregularity, including a material error of fact or law.

Where a regulator relies on another regulator’s determination, the second tribunal will ordinarily not revisit the underlying facts. Exceptionally, it must not ignore a determination that is manifestly flawed or perverse. Dishonesty combined with a lack of insight will frequently justify erasure from the professional register.

Professor Ninian Peckitt appealed against the decision of the General Dental Council’s Professional Conduct Committee to erase his name from the dental register.

The Committee relied on two matters: an earlier determination by the Medical Practitioners Tribunal Service erasing his name from the medical register, and five emails which it found to contain dishonest, inaccurate and misleading statements about the relationship between the General Medical Council and the General Dental Council.

The appeal concerned the scope of the High Court’s review, whether the Committee could rely on the earlier regulatory determination, whether it had properly assessed dishonesty and sanction, and whether the Committee had acted unfairly or irregularly.

1. The appeal was dismissed. Under section 29 of the Dentists Act 1984 and CPR 52.11(3), the court’s task was to decide whether the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity. The court was required to give close regard to the Committee’s specialist expertise. It was not exercising a resentencing jurisdiction or substituting its own view of the merits.

2. The governing principles stated by Mostyn J in Khan v GMC [2015] EWHC 301 (Admin), drawing on Raschid v General Medical Council [2007] 1 WLR 1460, were applicable. The appellate court could correct material errors of fact or law and could assess the application of legal principles, but remained secondary to the professional tribunal.

3. Under section 27(2)(g) of the Dentists Act 1984, impairment could arise by reason of another regulatory body’s determination, rather than by reason of the truth of the facts underlying it. Ordinarily, the second disciplinary tribunal should not revisit the first tribunal’s factual findings. In a rare case, however, the first decision might be so manifestly flawed or perverse that the second tribunal could not fairly adopt it without examination. No such exceptional case arose here.

4. The Committee was entitled to find that the five emails were dishonest. Its direction, based on Kirschner v GDC [2015] EWHC 1377 and the approach derived from Ghosh, was properly applied. The Committee was entitled to reject the explanation that the statements were merely hyperbolic opinions, particularly because the emails attributed statements to the General Dental Council which it had not made and were not copied to it.

5. There was ample authority that dishonesty combined with lack of insight would very frequently make erasure appropriate, including Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 and R (Farah) v GMC [2008] EWHC 731 (Admin). The Committee had considered the available sanctions separately in relation to each charge and was entitled to conclude that erasure was the only appropriate sanction.

6. The wider criticisms of the regulatory process and the existence of a general report criticising regulatory investigations did not establish that the Committee’s decision was wrong, unjust or procedurally irregular.

1. General Dental Council Professional Conduct Committee: on 22 January 2016 found impairment of fitness to practise and directed erasure from the dental register.
2. High Court (Administrative Court): dismissed the appeal against the Committee’s decision.