The General Dental Council v Lucy Jane Williams

A judge is not bound by the parties’ agreed interpretation of legislation. However, natural justice requires the judge to warn the parties of the proposed alternative and invite submissions on both the legal issue and its consequences.

Under the NHS dental-contract regulations, the prohibition on charging privately for treatment provided under the contract must be read with the provision permitting private provision of any part of a course of treatment. The boundary depends on the treatment plan and the patient’s informed agreement; there is no unexpressed rule preventing mixed funding for work on one tooth. Dishonesty requires proof of the person’s actual state of knowledge or belief before applying objective standards.

The General Dental Council appealed against the decision of Ritchie J in [2022] EWHC 1380 (Admin). The respondent, a dentist, had been found by the Professional Conduct Committee to have acted dishonestly by charging additional private fees for ceramic crowns supplied alongside NHS treatment. The Committee had erased her from the register.

The High Court allowed the appeal in relation to patients T, U and V, quashed the dishonesty findings and substituted a nine-month suspension. Permission to appeal was granted after difficulties with a proposed consent order, in proceedings noted at [2022] EWCA Civ 1899. The Court of Appeal considered whether the judge could depart from the parties’ agreed interpretation, whether the relevant Regulations permitted the charging arrangement, and whether the dishonesty findings could stand.

Lord Justice Coulson delivered the leading judgment. Lady Justice Nicola Davies and Lady Justice King agreed. The appeal was dismissed on all three grounds.

1. Agreed legal position. The interpretation of the relevant legislation was a matter for the judge, notwithstanding the parties’ agreement. A judge who considers the agreed position mistaken must warn the parties and invite submissions on the alternative interpretation and its consequences. This is required by natural justice. The judge had done so, and there was no procedural unfairness. Expert evidence on the meaning of legislation would have been inadmissible: the question was one of law.
2. Charging arrangements. Regulation 22(2) of the National Health Service (General Dental Services Contracts) Regulations 2005 imposed a broad prohibition on fees for treatment under the NHS contract, subject to the NHS Charges Regulations. Paragraph 10(1) of Schedule 3 did not operate as an exception but had to be read with Regulation 22. It nevertheless expressly permitted the private provision of any part of a course of treatment with the patient’s consent.
3. The relevant boundary was determined by the agreement and treatment plan. There was no basis for the alleged rule that work on a single tooth could not be divided between NHS and private provision. A ceramic crown fell within paragraph (e) of Schedule 3 to the National Health Service (Dental Charges) Regulations. The patients’ agreements to pay the additional laboratory cost of the ceramic element were therefore permitted by paragraph 10(1), provided the statutory requirements concerning informed consent and the prohibition on misleading patients were satisfied.
4. Dishonesty. Applying the principle in Ivey v Genting Casinos (UK) Limited [2017] UKSC 67, the fact-finder had first to ascertain the respondent’s actual knowledge or belief as to the facts, then apply the objective standards of ordinary decent people. The respondent’s evidence that she did not know of the alleged prohibition was unchallenged. The Committee had not had the critical Regulations or contract before it, had relied impermissibly on expert evidence concerning their meaning, and had proceeded on the mistaken premise of a fundamental prohibition. The dishonesty findings therefore lacked a proper basis, regardless of the correct regulatory interpretation.

The nine-month suspension imposed by the High Court was not challenged and had been served.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 481, the appeal was dismissed.
• Administrative Court, King’s Bench Division: In [2022] EWHC 1380 (Admin), Ritchie J allowed the appeal in part, quashed the dishonesty findings concerning patients T, U and V, and substituted a nine-month suspension for erasure.