Professional Standards Authority for Health And Social Care v General Dental Council & Anor

In a regulatory restoration appeal, withholding material evidence may amount to a serious procedural irregularity where it deprives the disciplinary tribunal of evidence directly relevant to remediation, fitness to practise or character. The appellate court may admit fresh evidence in the public interest and is not constrained by the Ladd v Marshall principles. A restoration tribunal must assess remediation against the true nature and full extent of the original misconduct and address all limbs of the statutory overarching objective, including public confidence and professional standards. Where the tribunal’s evaluation was materially distorted by missing evidence, the decision may be quashed and remitted for fresh determination.

The Professional Standards Authority appealed under National Health Service Reform and Health Care Professions Act 2002, section 29, against the General Dental Council Professional Conduct Committee’s decision to restore Ikhlaq Hussain to the dentists’ register subject to conditions. Mr Hussain had been erased following convictions for conspiracy to defraud and had relied on evidence of extensive remediation.

The PCC had before it an earlier civil judgment but not a later High Court judgment finding that Mr Hussain had given false evidence in September 2017, after the alleged process of reform had begun. The appeal concerned whether the omission constituted a serious procedural irregularity, whether the later judgment should be admitted, and whether the PCC’s evaluative conclusions were wrong. The Authority also sought to add a ground concerning the seriousness of the misconduct and the public-interest limbs of the restoration decision.

1. Appeal allowed. The failure to place the 2017 High Court judgment before the PCC amounted to a serious procedural irregularity under CPR r 52.21(3)(b). The judgment was plainly relevant because it contained a recent finding that Mr Hussain had given false evidence on oath while allegedly reformed.
2. The GDC’s failure first to serve and review the judgment, followed by counsel’s agreement that it should not be placed before the PCC, deprived the PCC of important evidence. The fact that the judgment was subject to appeal did not justify withholding it. A judgment has effect unless overturned or stayed, and the finding concerning the truthfulness of evidence was a primary factual finding.
3. The omission produced an unjust result. It materially affected the PCC’s findings concerning remediation, insight, remorse, the period of dishonesty and the significance of Mr Hussain’s release from prison. The evidence of witnesses supporting his rehabilitation would also have required assessment in light of the later finding.
4. Under Ruscillo v Council for the Regulation of Health Care Professions [2004] EWCA Civ 1356, the purpose of a section 29 appeal is public protection and protection of professional reputation. The court may receive additional evidence where this is genuinely in the public interest and need not apply the Ladd v Marshall principles.
5. The PCC was entitled under rule 57 of the General Dental Council (Fitness to Practise) Rules Order in Council 2006 to receive evidence admissible in civil proceedings and, where helpful in the interests of justice, other evidence. The 2017 judgment was potentially admissible.
6. The decision was also wrong under CPR r 52.21(3)(a), applying BawaGaba v General Medical Council [2018] EWCA Civ 1879, because the evaluation fell outside the bounds of what the PCC could properly and reasonably decide in light of the missing evidence.
7. The application to amend the appeal notice to add Ground 5 did not require determination because the appeal succeeded on Grounds 1 to 4.
8. Mr Hussain’s restoration application was remitted under section 29(8)(d) of the National Health Service Reform and Health Care Professions Act 2002 and section 28 of the Dentists Act 1984 to a differently constituted PCC for fresh determination.

• High Court (Administrative Court): the Authority’s appeal from the PCC decision was allowed under National Health Service Reform and Health Care Professions Act 2002, section 29. The restoration application was remitted to a differently constituted PCC.