General Dental Council v Mustafa [2019] EWHC 1062 (Admin)

General Dental Council v Mustafa [2019] EWHC 1062 (Admin) concerned an application by the General Dental Council under section 32(8) of the Dentists Act 1984 for a further extension of an interim suspension order originally imposed in June 2017. Her Honour Judge Alice Robinson, sitting as a judge of the High Court, granted the extension for a period of ten months.

The defendant dentist did not attend and was not represented, but the court was satisfied from correspondence that he was aware of the hearing and had made no application for an adjournment. The interim suspension order had initially been made following the defendant’s arrest for conspiracy to commit grievous bodily harm with intent and conspiracy to administer a noxious substance with intent. The first charge was subsequently dropped. On 12 April 2018, at trial, the defendant pleaded guilty to intentionally encouraging or assisting the commission of an indictable offence. He was sentenced to a twelve-month conditional discharge.

The circumstances of the offence were that the defendant had encouraged a patient to obtain GHB, commonly known as a date rape drug, with the intention of administering it to his wife to incapacitate her so that he could place her finger on her iPhone to unlock it, the purpose being to discover whether she was having an affair. In the event, no harm resulted because the defendant discovered the affair through surveillance rather than proceeding with the plan. The sentencing judge regarded the offence as serious but took what he described as an exceptional course, having regard to the absence of actual harm, the fact that the patient had already been seeking the drug for his own purposes, the defendant’s pre-trial custody equivalent to twelve months’ imprisonment, and the likelihood that he would lose his ability to practise.

Following conviction, the GDC made extensive efforts to obtain information about the criminal proceedings in order to progress its investigation. In April 2018, it wrote to the police seeking disclosure. The police indicated they would seek the defendant’s consent, but he did not respond. The police then advised in October 2018 that the defendant had objected to disclosure. In the meantime, the GDC learned that the defendant had applied for permission to appeal to the Court of Appeal. On 6 December 2018, David Edwards QC, sitting as a deputy judge, granted an extension of four months, having been asked for twelve. He observed the serious lack of progress to date and the hardship to the defendant, but considered that four months would allow the papers to be obtained from the police and the appeal process to reach a conclusion. On 22 February 2019, the Court of Appeal refused the renewed application for permission to appeal.

A month after the December 2018 order, the GDC decided that the defendant’s fitness to practise was potentially impaired, and the matter was referred to the Case Examiners under rule 5 of the General Dental Council (Fitness to Practise) Rules Order of Council 2006. On 12 March 2019, the Case Examiners decided that allegations of misconduct should be referred to the Professional Conduct Committee. The allegations included the encouragement of the patient to obtain GHB, the criminal conviction, failure to inform the GDC immediately of the charges, failure to cooperate with the investigation by not providing employment details, failure to maintain appropriate professional boundaries with the patient, and conduct lacking integrity and honesty. The relevant standards included the requirement to maintain professional boundaries, to inform the GDC of criminal proceedings, and to cooperate with investigations. The interim orders committee had periodically reviewed the suspension and confirmed it most recently on 28 February 2019, having regard to the serious nature of the conviction and the protection of the public.

The GDC now sought a further extension of ten months. The judge held that the court must act as primary decision maker, not merely review the GDC’s decision, applying the criteria in section 32(4) of the 1984 Act, namely the protection of the public, the public interest and the practitioner’s own interests, as set out in GMC v Hiew [2017] 1 WLR 2007. The onus lay on the GDC to satisfy the court on the balance of probabilities. The court was not to make findings of primary fact or consider the merits of the underlying allegations, only whether they justified prolongation of the suspension. The court was not bound by or required to defer to the opinion of the GDC.

Applying those principles, the judge found that the gravity of the allegations was extremely serious, involving the encouragement of a patient to obtain a noxious drug of unknown composition and potentially dangerous effects for the purpose of incapacitating his wife to access her phone, a gross breach of trust. As to the nature of the evidence, the defendant had pleaded guilty to the offence, so the allegations were not in dispute. The seriousness of the risk of harm to patients and the public interest were obvious. The defendant’s actions evidenced a potential for encouraging patients to obtain harmful drugs and to commit offences, as well as a willingness to breach the trust reposed in him by his wife. Given the GDC’s role in maintaining proper standards and public confidence, the nature of the conduct meant it would inevitably be contrary to the public interest for the defendant to continue practising pending resolution of the disciplinary proceedings.

As to the reasons for delay, the judge accepted, following GMC v Razok [2012] EWHC 2135 (Admin), that it was appropriate for the GDC to await the conclusion of criminal proceedings, which would sensibly inform the disciplinary process. It was reasonable to await the outcome of the appeal, which was only determined on 22 February 2019. However, the length of time taken to obtain information about the criminal proceedings was unreasonable and unnecessary; the GDC could at any stage have obtained a transcript of the trial under the Criminal Procedure Rules. The delays since the December 2018 order were also unreasonable. As to prejudice to the defendant, he had been unable to practise since June 2017, nearly two years, and was clearly unhappy, having indicated in correspondence that he was a good dentist, for which there was no evidence to the contrary, and that his patients needed him. He had apologised and invited the GDC to start a new page.

Balancing those considerations, the judge was satisfied that the interim suspension order should be extended. The previous short extension had been granted to enable information to be obtained about the criminal proceedings and to allow the appeal to conclude, both of which had now happened or were in train. The defendant’s objection to disclosure had caused delay to obtaining the papers from the police. Now that a decision had been taken by the Case Examiners to refer allegations of misconduct to the Professional Conduct Committee, a reasonable period should be allowed for that to occur. These were very serious allegations based on undisputed facts, and the protection of the public and the public interest heavily outweighed the prejudice to the defendant from continued interim suspension. Conditional registration would not adequately protect the public or the public interest.

As to the length of the extension, the GDC submitted that ten months was necessary to allow time for service of its case, the defendant’s response, and listing of the hearing, the earliest date for which was October 2019 and the latest March 2020. The judge held that if a shorter extension were granted, the GDC would simply have to return to court unnecessarily to apply for a further extension. The judge therefore granted the extension for ten months as requested, but made clear that the extension should not be regarded as an opportunity for the GDC to take its time. The court expected the disciplinary process to have been fully completed by then, and if the GDC sought any further extension, it would have to identify exceedingly good grounds for the court to contemplate granting one. In short, an interim suspension order preventing the defendant from practising dentistry was extended for ten months to enable serious allegations of misconduct arising from a criminal conviction to be determined by the Professional Conduct Committee, the protection of the public and the public interest outweighing the prejudice of continued suspension.

GMC v Hiew [2017] 1 WLR 2007
GMC v Razok [2012] EWHC 2135