Nabeel Aga v The General Dental Council

The High Court dismissed the substantive challenges to the Professional Conduct Committee's (PCC) findings that the claimant had stalked and harassed a woman (V), that his fitness to practise was impaired and that suspension was an appropriate sanction. The principal legal issue concerned the statutory interaction between sections 27B, 29A and 30 of the Dentists Act 1984: whether time served under an immediate suspension order under s.30 should be set off against a subsequent direction for suspension under s.27B which "takes effect" under s.29A when an appeal is determined.

The court held that the statutory scheme should be read so as to avoid an interpretation that would allow a registrant effectively to serve a cumulative suspension exceeding the 12 month maximum in s.27B(6)(b) merely by virtue of having been immediately suspended and then having the substantive direction "take effect" after an appeal. Applying purposive and grammatical construction, the judge concluded that when a PCC makes a direction for suspension and at the same hearing an immediate suspension order, those instruments relate to the one suspension; time served under the immediate order must be deducted from the period of suspension directed by the PCC (or the direction should be drafted to make that clear).

Key statutory provisions: Dentists Act 1984 s.1, s.27B, s.29, s.29A and s.30.

Background and procedural posture: The claimant, a registered dental practitioner, appealed a PCC decision finding that he had stalked and harassed a woman (V), had failed to report an arrest and charge, and directing suspension for nine months with an immediate suspension order under s.30 Dentists Act 1984. The appeal was brought to the High Court under the appeal rights in s.29 DA84. The claimant accepted fault and that suspension was appropriate but challenged the length of the suspension and the Respondent's practice of treating immediate suspension served as cumulative with the substantive suspension direction.

Nature of the claim and issues:

• Whether the PCC's factual findings and conclusions on insight, repetition risk and risk to others were wrong or manifestly excessive;
• Whether the length of the nine-month suspension was disproportionate;
• Whether time served under an immediate suspension order should be deducted from the duration of a subsequent direction for suspension so that a registrant is not made to serve a suspension longer than the statutory maximum in s.27B(6)(b).

Facts and tribunal findings: The PCC found repeated harassment over several years in breach of police warnings and a later restraining order, a lack of meaningful insight and insufficient remediation, and a continuing risk to V and to other women who might become the object of the claimant's pursuits. The PCC imposed a nine month suspension and an immediate suspension under s.30.

Court's reasoning: The court accepted the PCC's findings on misconduct, impairment and risk (deference given to tribunal's assessment of insight and demeanour). On statutory interpretation the court examined the interaction of s.27B (power to suspend up to 12 months), s.29A (timing when a direction "takes effect") and s.30 (power to order immediate suspension). Applying grammatical and purposive construction and having regard to the Act's objectives (protection of the public, public confidence and proper professional standards), the judge concluded that the statutory scheme should not be read to permit cumulative suspensions that exceed the s.27B limit or that effectively penalise a registrant for exercising the statutory right of appeal. The words "takes effect" in s.29A do not require that a substantive suspension direction begin afresh after an appeal if an immediate suspension had already caused the registrant to be suspended; the suspension relates to the same period and the time already served under the immediate order must be credited against the overall period directed by the PCC. The court also held that the PCC should, as a matter of drafting and practice, make directions clear that immediate suspension periods will be set off against substantive suspension directions.

Relief granted: The court dismissed the appellant's substantive challenges to sanction but allowed the ancillary statutory interpretation challenge. The PCC's direction for nine months' suspension was set aside and replaced by a direction that the appellant be suspended for a total of nine months, with credit given for time already served under the immediate suspension order.

Wider implication noted: The court observed that the Respondent's prior practice of treating immediate suspension and the subsequent substantive direction as consecutive risked producing suspensions exceeding the statutory maximum and could penalise appellants for exercising their appeal rights; the preferable practice is to draft directions so that time served under immediate orders is credited.

Appeal allowed in part. The court upheld the PCC's findings of misconduct, impairment and that suspension was appropriate, and dismissed the appellant's substantive challenges to the length of the sanction. The court allowed the ancillary challenge on statutory interpretation concerning the interaction of s.27B, s.29A and s.30 DA84, ruling that time served under an immediate suspension order must be deducted from the period of a subsequent direction for suspension so that the total suspension does not exceed the statutory maximum; consequently the PCC's direction was set aside and replaced with a direction that the appellant serve a total of nine months' suspension with credit for time already served under the immediate order.

Appeal from a decision of the General Dental Council Professional Conduct Committee directing suspension for nine months and making an immediate suspension order under s.30 Dentists Act 1984. Appeal brought to the High Court under s.29 Dentists Act 1984; reported at [2023] EWHC 3208 (Admin).