LUCY JANE WILLIAMS v THE GENERAL DENTAL COUNCIL

An appeal from a professional disciplinary tribunal is a rehearing. The appellate court may correct material errors of fact or law, but should remain cautious about disturbing primary factual findings based on witness credibility.

A finding of dishonesty requires the tribunal first to establish the person’s actual knowledge or belief as to the facts, and then to apply the objective standards of ordinary decent people. Procedural fairness in challenging dishonesty is context-sensitive. The allegations and their evidential foundations must be fairly disclosed and the professional must have a reasonable opportunity to answer them.

A professional disciplinary tribunal should identify accurately the statutory or contractual rule allegedly breached. Dishonesty cannot properly be inferred where the relevant regulations expressly permit the conduct or are materially ambiguous.

The claimant, a dentist, appealed under section 29 of the Dentists Act 1984 against findings and sanction imposed by the Professional Conduct Committee of the General Dental Council. The Committee had found various clinical and professional failings, including dishonesty concerning NHS claims, split courses of treatment and additional payments for wholly ceramic crowns. It erased her from the register.

The appeal challenged selected factual and dishonesty findings, alleged procedural unfairness arising from the conduct of cross-examination, and contended that erasure was disproportionate. The central issues were whether the Committee had applied the correct approach to dishonesty, whether the claimant had received a fair opportunity to answer the allegations, whether the NHS contractual and regulatory framework prohibited agreed additional payments, and what sanction was proportionate.

1. Appeal and appellate approach. The appeal was a rehearing under section 29 of the Dentists Act 1984, CPR PD52D and CPR rule 52.21. The court could correct material errors of fact or law and substitute or remit the decision. It remained cautious about disturbing primary findings dependent on witness credibility. The court upheld the dishonesty findings concerning patient S and the split course of treatment involving patient T.
2. Dishonesty. Applying Ivey v Genting Casinos UK Ltd [2017] UKSC 67, the tribunal must first determine the person’s actual knowledge or belief as to the facts and then decide dishonesty by the objective standards of ordinary decent people. The claimant’s conduct concerning patient S was properly found dishonest.
3. Fairness and cross-examination. The rule in Browne v Dunn (1894) 6 R 67 is flexible and depends on the context of modern proceedings. A party need not put every evidential detail in cross-examination where the allegations and principal evidential foundations were disclosed and fairly understood. The failure to put the relevant regulatory provisions and practice contract to the claimant was different and materially unfair in relation to the top-up allegations.
4. Top-up payments. Part 5, regulation 22 of the Contracts Regulations imposed restrictions on charges, but Schedule 3, paragraph 10 permitted a contractor, with the patient’s consent, to provide privately any part of a course of treatment, subject to stated qualifications. The practice contract contained the same permission. The Committee had not been shown the relevant regulations or contract and wrongly treated agreed voluntary mixed charging as prohibited. The dishonesty findings concerning patients T, U and V were therefore quashed.
5. Sanction. The proven misconduct was serious, but the claimant had undertaken extensive remediation, had shown insight, and the misconduct occurred during a short period in an unsupportive and poorly supervised practice. Erasure was disproportionate. The court quashed the erasure direction and substituted suspension for nine months from 19 January 2022. No further sanction could be imposed for the matters considered by the Committee.

• Professional Conduct Committee of the General Dental Council: findings made on 5 November 2021 and sanction decision made on 19 January 2022. The claimant was erased from the register.
• High Court (Administrative Court): appeal allowed in part under section 29 of the Dentists Act 1984. Specified dishonesty findings were quashed and erasure was replaced by a nine-month suspension.