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

An appeal from a professional disciplinary decision is a full rehearing, but appellate restraint remains appropriate for primary factual findings based on oral evidence. Sexual motivation is ordinarily inferred from the proved facts and surrounding circumstances. Sexual misconduct is always serious, but it covers a wide range of conduct and does not automatically require erasure.

When imposing sanction, a committee must engage with the applicable guidance, weigh aggravating and mitigating factors, and explain why the chosen sanction protects the public and maintains confidence in the profession. An immediate suspension order and a substantive suspension direction are distinct statutory measures. Time served under an immediate suspension order is not deducted from the substantive suspension period.

The General Dental Council’s Professional Conduct Committee found that Arthif Danial had committed inappropriate and sexually motivated misconduct towards three junior colleagues. It imposed a five-month suspension direction, subject to review, together with an immediate suspension order.

The Professional Standards Authority appealed against the findings and sanction, contending that erasure was required. Mr Danial appealed against the factual findings and sanction. He also argued that any period spent under the immediate suspension order should count towards the five-month suspension.

The central issues were whether the Committee’s factual findings and sanction were wrong or unjust because of serious procedural irregularity, and how the statutory suspension provisions operated after an unsuccessful appeal.

1. Factual findings. The Registrant’s appeal against the factual findings was dismissed. The Committee was entitled to assess the complainants’ credibility, distinguish inadvertent proximity from intentional touching, rely on consistency between written and oral evidence, and infer that later discussions had not contaminated the evidence. Good character had been properly directed upon and could be inferred to have been taken into account. The Committee’s reasons were sufficient to understand its conclusions.
2. Sexual motivation. Sexual motivation concerns conduct done in pursuit of sexual gratification or a future sexual relationship. It is generally proved by inference from primary facts and surrounding circumstances. The Committee was entitled to find that some conduct was not sexually motivated. However, the massage of Person 2 formed part of the same course of conduct as the sexually motivated hug and touching of her breast. The only reasonable inference was that the massage was also sexually motivated. The finding that this charge was not proved was set aside.
3. Sanction. The Committee’s reasoning on sanction was inadequate in several respects. It did not sufficiently explain the relative weight of aggravating and mitigating factors, expressly address the erasure guidance, or explain its conclusion that there was no deep-seated attitudinal problem. Nevertheless, the errors did not make the ultimate decision unlawful. Sexual misconduct is always serious, but it spans a broad spectrum. The conduct here, although serious and repeated, was not fundamentally incompatible with continued registration. Suspension was within the range of decisions reasonably open to the Committee and was sufficient to protect the public and maintain confidence in the profession.
4. Immediate suspension. The Court declined to follow Aga v General Dental Council and held that section 29A and section 30 of the Dentists Act 1984 create distinct measures. The immediate suspension order protects the public pending the appeal; the substantive suspension direction is the disciplinary sanction and takes effect when the appeal is dismissed. The period served under the immediate order is not deducted from the substantive suspension.
5. The Registrant’s appeal was dismissed. The PSA’s appeal was dismissed except that the finding concerning the sexual motivation of the massage was set aside. The five-month suspension direction therefore took effect from dismissal of the Registrant’s appeal.

General Dental Council Professional Conduct Committee: found misconduct, impairment and imposed a five-month suspension direction with review and an immediate suspension order.

High Court (Administrative Court): dismissed the Registrant’s appeal and dismissed the PSA’s appeal save for setting aside the finding that the massage was not sexually motivated. The suspension direction was upheld.