DP v General Dental Council

A statutory power introduced on a specified date may have limited retrospective application where its wording and purpose support that construction. The relevant question is whether applying the power to earlier events would produce unfairness so serious that Parliament cannot have intended it. Where a regulatory amendment creates a remedial review right, the absence of transitional wording does not restrict the right to post-commencement warnings if the underlying procedure remains materially unchanged.

The claimant, a dentist, received a written warning from the General Dental Council’s Investigating Committee. The Committee’s determination was made on 11 April 2016. From 13 April 2016, section 27A(11) of the Dentists Act 1984 gave the Committee power to review a warning determination on an application made within two years.

The GDC refused to list the claimant’s application because the warning pre-dated 13 April 2016. The judicial review concerned whether section 27A(11) applied to earlier warnings and whether the corresponding restriction in the GDC’s guidance was lawful.

1. Claim allowed. The GDC’s refusal to list the application and paragraph 4(iii) of its guidance were quashed. The GDC was ordered to list the claimant’s application for review.
2. Section 27A(11) confers, from 13 April 2016, a right to seek review of an earlier Investigating Committee decision to issue a warning, provided the application is made within two years of that decision. Neither the provision nor the General Dental Council (Fitness to Practice etc.) Order 2016 contains wording limiting the power to determinations made after commencement.
3. The construction involved limited retroactivity because the review power operated prospectively but could examine an earlier warning. Applying the principles stated in The Boucraa [1994] 1 AC 486, the court considered fairness, the degree of retroactivity, the rights affected, the clarity of the statutory language and the legislative context together.
4. The consequences relied on by the GDC were not absurd or sufficiently unfair to displace the plain statutory wording. The amendment conferred rights on registrants and did not remove actual rights from complainants or other interested persons.
5. The possible administrative burden on the GDC did not negative Parliament’s intention. There was insufficient evidence that the burden arising from earlier warnings was so onerous as to overcome the clear wording and remedial purpose of the amendment.