Professional Standards Authority for Health and Social Care v General Dental Council & Hussain [2019] EWHC 2640 (Admin)
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Professional Standards Authority for Health and Social Care v General Dental Council & Hussain [2019] EWHC 2640 (Admin) concerned an appeal by the Professional Standards Authority (the Authority) under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a decision by the General Dental Council’s Professional Conduct Committee (PCC) on 27 June 2018 to restore Mr Hussain to the dentists’ register subject to conditions. Mr Justice Julian Knowles allowed the appeal and remitted the matter for fresh determination.
In July 2010 Mr Hussain had been convicted of conspiracy to defraud between 2002 and 2006, having defrauded both the NHS (by enabling an unregistered dentist to practise and claim NHS fees) and patients (who believed they were receiving NHS treatment at NHS fees when they were not). He also concealed or destroyed patient records and rewrote others to conceal the conspiracy. He was sentenced to 30 months’ imprisonment concurrent on two counts. In November 2011 the PCC erased his name from the register. In June 2007 Mr Hussain had already been suspended for 12 months for separate misconduct, including sending intentionally misleading letters, threatening a former associate, and giving untrue explanations without any true insight into his actions.
In December 2010 judgment had been given in the High Court in civil proceedings (AG Family Care Limited v Hussain and Bachada) against Mr Hussain for deceit in the sale of a dental practice. The judge had found Mr Hussain a very unimpressive witness who gave deliberately false evidence and made a number of adverse findings about his conduct. In October 2017 HHJ David Cooke, sitting as a High Court judge, gave judgment in Dr Navdeep Dhaliwal v Hussain and Bachada concerning the sale of another dental practice (the Litchfield Road Practice) in January 2008. That trial had taken place in September 2017. The judge found that both defendants had been evasive in cross-examination and gave answers that were implausible and untrue, concluding that Mr Hussain had given false evidence on oath.
Mr Hussain applied for restoration to the register on 12 July 2017. He gave evidence in a witness statement signed in June 2017 about his extensive reflection on his past behaviour, his identification of necessary changes, and the importance of ethical and moral behaviour. He described mentoring, cognitive behavioural therapy to challenge his core values, completion of a postgraduate diploma in Dental Law and Ethics, and attendance on a programme examining ethical decisions through situational judgment exercises. He maintained that the pressures which had driven him at the time of his misconduct were no longer present.
The PCC hearing took place in June 2018. The PCC was provided with determinations from previous fitness to practise hearings, material from the 2010 Crown Court proceedings, Mr Hussain’s application documents, witness statements including from Professor S (a specialist in healthcare professional behaviour who said Mr Hussain had developed very considerable insight and did not pose a major risk of reoffending) and Dr B (who provided coaching and mentoring and said Mr Hussain had developed deeper self-awareness), and the December 2010 civil judgment. The PCC was not, however, provided with the October 2017 civil judgment. The PCC decided to restore Mr Hussain’s name to the register subject to conditions. It found his convictions very serious, involving conspiracy to defraud the NHS and patients over a protracted period with repeated dishonesty, and attempts to cover up offences. The PCC accepted that Mr Hussain had reflected extensively over the past seven years, with his release from prison being the turning point. It determined the risk of repetition was low because there had been no further misconduct since his erasure almost seven years previously and the pressures he faced between 2002 and 2006 were no longer present. The PCC considered his convictions were now spent under the Rehabilitation of Offenders Act 1974 and found him to be of good character for the purposes of section 15(3)(b) of the Dentists Act 1984. It imposed conditions including reporting to a workplace supervisor and limiting practice in accordance with that supervisor’s advice.
The failure to place the October 2017 judgment before the PCC arose through errors by the GDC. The judgment had been received in November 2017 but was overlooked when the hearing bundle was prepared in April and May 2018. It was not served on Mr Hussain’s solicitors until 18 June 2018, shortly before the hearing. At the hearing, counsel for Mr Hussain objected to the 2017 judgment being adduced on the grounds that the GDC had only recently indicated reliance upon it and it was subject to appeal. By way of compromise, it was agreed the December 2010 judgment would go before the PCC but not the October 2017 judgment. The GDC took the view that the 2010 judgment alone provided a sufficient basis for resisting restoration, but accepted with hindsight that the better course would have been to invite the PCC to consider the October 2017 judgment and determine its admissibility.
The Authority brought its appeal on four grounds: that the GDC failed to present and the PCC did not consider the October 2017 judgment in which Mr Hussain gave evidence found to be untrue (Ground 1); that finding was relevant to the PCC’s consideration of Mr Hussain’s fitness to practise, his conduct since conviction, and other matters (Ground 2); hence the PCC’s decision was taken on an incomplete evidential basis (Ground 3); if the PCC had been aware of that finding it would have explored it with Mr Hussain and the witnesses attesting to his insight and remediation (Ground 4). The Authority also applied to add a fifth ground that the PCC failed properly to characterise the seriousness of Mr Hussain’s conduct and its impact on the public interest, and failed adequately to address whether public confidence and professional standards would be damaged by restoration. The GDC supported the appeal.
Mr Justice Julian Knowles reviewed the statutory framework. Section 28(5) of the Dentists Act 1984 provides that a restoration application shall not be granted unless the applicant satisfies the PCC that he is fit to practise as a dentist and meets the requirements of section 15(3), which includes being of good character. Section 29(4) of the 2002 Act allows the Authority to refer a restoration decision to the court if it considers the decision is not sufficient for the protection of the public, which involves consideration of whether it is sufficient to protect health, safety and well-being, maintain public confidence in the profession, and maintain proper professional standards and conduct. Under section 29(7) the reference is treated as an appeal. The judge set out the principles from Ruscillo v Council for the Regulation of Health Care Professionals [2004] EWCA Civ 1356 regarding the appeal court’s approach, including that the primary object of section 29 is to protect the public and the reputation of the profession, not to penalise misconduct. The court may allow the appeal if it finds the decision was wrong or there was serious procedural irregularity. Where there has been a failure of process or evidence is taken into account on appeal that was not placed before the tribunal, the decision will inevitably need reassessment. The principles in Ladd v Marshall have no application to a section 29 reference; the court will admit additional evidence where it is truly in the public interest. The judge also noted General Medical Council v Chandra [2018] EWCA Civ 1898, which held that a tribunal considering restoration must consider the circumstances leading to erasure, make findings on remorse, insight and remediation, satisfy itself as to risk, and then have proper regard to the overarching objective. He referred to Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, which held an appeal court should only interfere with an evaluative decision on sanction if there was an error of principle or the evaluation fell outside the bounds of what the body could properly and reasonably decide.
The judge emphasised that dishonesty in a healthcare professional is always serious and adversely affects the public interest because trust and honesty lie at the heart of the relationship with the public. Findings of dishonesty lie at the top end of gravity of misconduct; where combined with lack of insight, persistence or cover-up, nothing short of erasure is likely to be appropriate. Erasure is often proper even for one-off dishonesty. Misconduct involving personal integrity that impacts on the profession’s reputation is harder to remediate than poor clinical performance, and personal mitigation should be given limited weight because the profession’s reputation is more important than an individual member’s fortunes. The GDC’s Guidance provides that dishonesty is serious even when it does not involve direct harm to patients because it can undermine public confidence; patients, employers, colleagues and the public should be able to rely on a dental professional’s integrity.
Mr Justice Julian Knowles held that what occurred here was properly classified as a serious procedural irregularity. The October 2017 judgment was plainly of relevance to whether Mr Hussain had remediated his dishonesty because on its face it showed he had not, a judge having found in September 2017 that he gave false evidence on oath during a trial in which he stood accused of fraudulent misrepresentation. The first procedural irregularity was the GDC’s failure to serve the October 2017 judgment well in advance of the June 2018 hearing, which occurred because of a failure to fully review the judgment when preparing the case. The second error was by GDC counsel at the hearing in agreeing a compromise whereby the October 2017 judgment was not placed before the PCC. That was a serious error of judgment which could not be justified. Neither of the objections raised by Mr Hussain’s counsel bore scrutiny: seven days was ample time for instructions to be taken on the judgment, and Mr Hussain was fully familiar with it having been party to the litigation; if further time were needed an adjournment application was the proper course. The fact an appeal was outstanding was irrelevant because a judgment has effect unless and until overturned on appeal, and a finding of fact by the trial judge was in any event unlikely to be overturned. It was not properly open to GDC counsel to take the course he did given the obvious relevance of the October 2017 judgment; the matter should have been raised before the PCC for decision on admissibility or an adjournment application.
The judge accepted that ordinarily in civil litigation if a party deliberately decides not to rely on evidence an appeal court will be unsympathetic to an appeal based on it, but held that in Ruscillo the Court of Appeal said that on appeals in medical regulatory proceedings the court should not apply Ladd v Marshall because of the public interest. He was satisfied that introduction of the October 2017 judgment was truly in the public interest given its direct bearing on the issues. The passages in Ruscillo specifically contemplated an appeal being brought by the Authority on the basis of evidence not adduced by the regulator at a disciplinary hearing. The error in failing to serve the judgment well before the hearing and the inappropriate compromise agreement, taken together, were serious irregularities wholly unreasonable because they deprived the PCC of important evidence.
Mr Justice Julian Knowles found there was injustice as a consequence. The agreement deprived the PCC of the most recent evidence of Mr Hussain’s dishonesty, meaning the PCC judged the evidence he called about his supposedly reformed character on a false and misleading basis. Despite all the work Mr Hussain said he had done, evidenced by him and his witnesses, in 2017 he was found by a High Court judge to have given untrue evidence on oath. A number of findings in the PCC’s determination were at least arguably wrong in light of the October 2017 judgment and showed the outcome was unjust. These included that Mr Hussain had demonstrated shame and remorse, that his release from prison had been the turning point of his change, that he had demonstrated insight and learned his lesson, and that his dishonesty only spanned 2002 to 2010. In fact it went much further, into 2017. If the October 2017 judgment had been deployed, Professor S and Dr B would have been cross-examined about it and required to justify their conclusions about Mr Hussain’s reformation in light of the recent finding of dishonesty; their evidence on this point would have been highly material.
The judge rejected the submission that a judgment is of limited evidential effect as to facts found. That proposition may be true where strict rules of evidence apply, but they do not apply before a PCC. Rule 57(1) of the General Dental Council (Fitness to Practise) Rules Order in Council 2006 provides a PCC may receive oral, documentary or other evidence admissible in civil proceedings, but rule 57(2) provides a PCC may also at their discretion treat other evidence as admissible if, after consulting the legal adviser, they consider it would be helpful and in the interests of justice; the October 2017 judgment would have been potentially admissible. The judge also rejected the argument that because the PCC had a wealth of information about Mr Hussain’s dishonesty in the relevant period, knowledge of another event during that period would not have added anything of material weight. That submission missed the point: the October 2017 judgment showed that in 2017, when Mr Hussain had supposedly reformed, he was still capable of giving untrue evidence on oath and so had not remediated his dishonest character in the way he claimed.
Mr Justice Julian Knowles was satisfied there was a serious procedural irregularity which produced an unjust result. Although not argued on this basis, he was also satisfied the PCC’s decision was wrong within the meaning of CPR 52.21(3)(a) because it involved a number of findings of fact which the October 2017 judgment undermined and therefore its evaluation was wrong, falling outside the bounds of what it could properly and reasonably have decided applying Bawa-Garba. The judge allowed the Authority’s appeal and, pursuant to section 29(8)(d) of the 2002 Act, remitted Mr Hussain’s application for restoration under section 28 of the Dentists Act 1984 to a differently constituted PCC for a fresh determination in line with his judgment. In short, the PCC’s decision to restore Mr Hussain to the register was set aside and remitted because a High Court judgment finding that he had given false evidence on oath in 2017 was not placed before the PCC, depriving it of highly material evidence directly undermining his claimed remediation of his dishonest character.
Ruscillo v Council for the Regulation of Health Care Professionals [2004] EWCA Civ 1356
Dr Navdeep Dhaliwal v Hussain and Bachada [2017] EWHC 2655
General Medical Council v Chandra [2018] EWCA 1898
General Medical Council v Chandra [2018] EWCA Civ 1898, [2019] 1 WLR 1140
Ladd v Marshall [1954] 1 WLR 1489
Bawa-Garba v General Medical Council [2018] EWCA CIV 1879, [2019] 1 WLR 1929, [2019] 1 All ER 500
General Medical Council v Theodoropolous [2017] EWHC 1984 (Admin), [2017] 1 WLR 4794
Naheed v General Medical Council [2011] EWHC 702
Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin)
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Absolute Living Developments v DS7 Ltd & Ors [2018] EWHC 171 (Ch)
Bolton v The Law Society [1994] 1 WLR 512
GMC v Stone [2017] 4 WLR 207, [2017] WLR(D) 681, [2017] EWHC 2534 (Admin)
McGraddie v McGraddie [2013] 1 WLR 2477, [2013] UKSC 58