Rekha Rani Photay, R (on the application of) v General Dental Council

An appeal under section 29 of the Dentists Act 1984 is by way of rehearing, but the court gives appropriate weight to a specialist disciplinary tribunal’s findings, particularly where they depend on live evidence. Expert evidence may assist on technical matters, but the tribunal must determine factual issues itself. A tribunal’s mistaken characterisation of expert evidence will not necessarily invalidate its decision if the findings remain grounded in the evidence as a whole. Dishonesty is assessed by the two-stage test in Ivey. Where serious dishonesty, lack of insight and a risk of repetition are established, erasure may be proportionate.

The claimant, a registered dentist, appealed under section 29 of the Dentists Act 1984 against a Professional Conduct Committee determination of the General Dental Council. The Committee found clinical failings, dishonesty in a clinical record, and deliberate alteration of a radiograph. It determined that her fitness to practise was impaired and directed erasure from the register.

The appeal challenged the Committee’s treatment of expert evidence, its findings concerning the claimant’s motive and the outcome of a root-canal procedure, and the sanction. The central issue was whether the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal dismissed. The court affirmed the Professional Conduct Committee’s determination and sanction of erasure.
2. Under section 29 of the Dentists Act 1984, an appeal is by way of rehearing. The court may dismiss, quash, substitute a permissible decision or remit the case. The question is whether the decision was wrong. Appropriate weight must be given to the specialist tribunal’s expertise and its opportunity to hear live evidence. Primary factual findings, particularly credibility findings, should not readily be disturbed.
3. The Committee had made an error in stating that the experts agreed that the radiograph had been deliberately scratched to create the appearance of a root filling. The experts had agreed that it had been tampered with and could not say how or by whom. That error did not determine the outcome. The Committee independently assessed the evidence, including the location of the alteration, the claimant’s connection with the tooth, the circumstances in which the radiograph was produced and the possible motive.
4. The experts were entitled to give evidence about the radiograph’s characteristics, its relationship to the treated tooth and the ordinary handling and interpretation of dental radiographs. The Committee was responsible for deciding whether the radiograph had deliberately been altered and by whom. Its conclusion was open on the evidence.
5. The Committee was also entitled to conclude that the claimant could not reasonably have believed that the tooth had been successfully obturated with gutta percha. The evidence of exposed pulp and caries, together with the distinctive appearance of gutta percha and the use of a rubber dam, supported the conclusion that any removal would have been apparent. The finding that she knew the clinical record was inaccurate was therefore not wrong.
6. The dishonesty test in Ivey applies to regulatory proceedings. The tribunal first determines the individual’s actual knowledge or belief as to the facts, then assesses honesty by the objective standards of ordinary decent people. In light of the serious and repeated dishonesty, lack of insight and risk of repetition, the sanction of erasure could not be regarded as wrong.

• General Dental Council Professional Conduct Committee: found clinical failings, dishonesty and impairment, and directed erasure from the register.
• High Court (Administrative Court): dismissed the appeal and affirmed the Committee’s decision.