Milerman v General Dental Council [2019] EWCA 2378 (Admin)

Milerman v General Dental Council [2019] EWHC 2378 (Admin) was an appeal by a dentist, Dr Marjana Milerman, against a decision of the General Dental Council’s Professional Conduct Committee (PCC) suspending her registration for six months. Murray J dismissed the appeal.

Dr Milerman had been registered with the GDC since 2004 and practised at CitySmile in London. Patient A, an NHS patient entitled to free dental treatment, attended appointments with Dr Milerman between April 2007 and October 2013 for periodontal disease. During this period Patient A was referred to a hygienist at the Practice for private periodontal treatment. In August 2013 Patient A complained, writing to Dr Milerman that she was concerned about being asked to pay for deep cleaning which she believed should have been available on the NHS. Dr Milerman responded by letter acknowledging dissatisfaction and stating that as a gesture of goodwill she could refund money paid for private deep cleaning, but that hygienist visits were necessary and were not available on the NHS at CitySmile. Patient A complained to the GDC in June 2014. The GDC’s investigation identified clinical failings in respect of a number of patients over several years and allegations of dishonesty concerning Patient A.

At the PCC hearing in July 2018, Dr Milerman admitted a large number of allegations following pre-hearing discussions between expert witnesses. The charges relating to Patient A included allegations at heads of charge (HoC) 20 and 22b that she had failed to provide Patient A with an NHS option for periodontal treatment provided privately by the hygienist and that this failure was misleading and dishonest. HoC 24 and 26b alleged that she had failed to provide an NHS option for deep cleaning she herself provided privately on 20 November 2012 and 31 May 2013 and that this failure was misleading and dishonest. HoC 25 alleged failure to obtain Patient A’s informed consent for that deep cleaning. Dr Milerman accepted that Patient A was entitled to free NHS treatment for clinically necessary treatment and admitted that she had not offered an NHS option. Her case was that she had misunderstood the NHS Regulations. In relation to the deep cleaning charges, Dr Milerman relied on a note made on 20 November 2012 stating “to have deep clean in pract[ice] or hospital (NHS)”. She maintained that she had discussed an NHS option with Patient A, who had declined it.

The PCC heard evidence from Mr Mashensky, the owner of the Practice, whom it found unreliable, evasive and inconsistent. The PCC found Dr Milerman to be of limited credibility as a witness. It noted that most of her answers appeared to be based on what she claimed she would normally do rather than what actually happened, suggesting poor recall. On occasions she appeared to change her evidence or amend it to align with expert evidence. She claimed to remember details of consultations from many years previously. The PCC preferred the evidence of the GDC’s expert, Dr Igoe, over that of Dr Milerman’s expert, Dr Caro, whom the PCC considered sometimes over-generous to Dr Milerman. Closing submissions were made on 23 July 2018 and the PCC deliberated before reconvening on 30 October 2018 to hand down its findings. It found proved the allegations of dishonesty in HoC 20, 22b, 24, 25 and 26b.

At stage two of the proceedings the PCC considered further material about Dr Milerman’s remediation of her clinical failings. The PCC concluded that while she had remedied her clinical deficiencies and there was little risk of repetition, a finding of impairment was nonetheless necessary to uphold standards in the profession. The PCC found her fitness to practise impaired and suspended her registration for six months. The suspension was stayed pending appeal.

On appeal Dr Milerman challenged the PCC’s findings of dishonesty and its consequential determination of impairment. In relation to HoC 20 and 22b, Mr Peacock for Dr Milerman submitted that the PCC’s reasoning was critically flawed. The PCC had stated that it did not accept that discussions with Patient A about an NHS option had taken place because had such discussions occurred Patient A would not have had reason to complain. Mr Peacock submitted this showed an almost complete absence of comprehension of the issues, since Dr Milerman had never asserted that such a discussion took place. Her case was that no such discussion occurred, the issue being why. Furthermore, it was unwise to speculate on Patient A’s reasons for complaining, particularly as she had not given evidence. Mr Peacock criticised the PCC’s reliance on the modest financial benefit to Dr Milerman from referring patients to the hygienist (a £11 referral fee per patient regardless of the number of visits) as giving a regrettable impression that the PCC wished to make an adverse finding rather than consider the evidence. He submitted the PCC had failed properly to consider the Practice Protocols and Dr Milerman’s evidence that she had misunderstood her obligations under NHS Regulations.

As to HoC 24, 25 and 26, Mr Peacock submitted that the PCC again relied improperly on the fact of Patient A’s complaint, a matter not advanced by the GDC and unsupported by evidence from Patient A. The PCC had analysed the note made on 20 November 2012 by concluding that the words “to have deep clean in pract or hospital (NHS)” clearly did not refer to a discussion about treatment already given. Mr Peacock submitted it was never put to Dr Milerman what the record could have meant if it did not refer to such a discussion, and the GDC had not suggested the entry was dishonest or not contemporaneous. Dr Milerman’s case was that her failure to record a discussion on 31 October 2012 was due to poor record-keeping, which formed a large part of the GDC’s case against her on clinical failings. The PCC did not give adequate consideration to her explanation. Mr Peacock also criticised a passage in the PCC’s findings referring to Dr Milerman’s letter of 23 August 2013 to Patient A and stating that the PCC was aware Dr Milerman knew she could have completed the treatment on the NHS “as you had done so previously”. This was not part of the case against her and was not put to her. The reference to what she “had done … previously” was unclear.

Mr Singh for the GDC accepted that the PCC’s reliance on the fact of Patient A’s complaint did not take the matter further and was not part of the GDC’s case, but submitted that any error was not material and the PCC had given sufficient other reasons for its conclusions. It was common ground that Dr Milerman had failed to provide Patient A with an NHS option for periodontal treatment and that Patient A was entitled to such treatment free of charge, confirmed by expert evidence. Dr Milerman admitted her failure meant she had failed to obtain informed consent and that it was misleading. Given the PCC’s conclusion on her credibility, it was entitled to reject her explanation that she did not appreciate she was required to provide an NHS option. Having rejected that explanation, it was open to the PCC to conclude the omission was deliberate. The clinical records showed Dr Milerman had carried out periodontal treatment on the NHS for Patient A on 30 June, 21 July and 8 September 2010, evidence that she was aware such treatment was available on the NHS at the Practice. The PCC was entitled to take this into account as supporting its view that her explanation was not credible. In cross-examination Dr Milerman had agreed the treatment was necessary and accepted she knew she could have carried it out on the NHS because she had done so. The PCC was entitled to rely on the modest financial benefit as providing an incentive, though no motive need be proved and absence of motive would not preclude a finding of dishonesty. The PCC was not bound to accept that the Practice Protocols supported Dr Milerman’s account, particularly as she said she had not seen them until disclosure. As to HoC 24 and 26b, the words “had done so previously” clearly referred to Dr Milerman having previously provided periodontal treatment to Patient A on the NHS. The PCC was entitled to conclude she was fully aware the necessary treatment could be carried out at the Practice on the NHS, and having rejected her evidence that she discussed an NHS referral with Patient A, it was open to the PCC to conclude her failure to discuss an NHS option was deliberate and therefore dishonest.

Murray J applied the established principles governing appeals under section 29 of the Dentists Act 1984, which proceed by way of rehearing but on constrained grounds. Findings of fact, particularly those founded on assessment of witness credibility, are virtually unassailable and an appellant must establish that the fact-finder was plainly wrong. Where the question is what inference to draw from specific facts, the appellate court is under less disadvantage, but dishonesty is a matter of inference and the degree of deference to be shown is diminished. The burden of proof before the PCC was on the GDC to the civil standard. Murray J noted the need for adequate reasons consistent with South Buckinghamshire DC v Porter [2004] UKHL 33.

Murray J held that Mr Peacock had not surmounted the high hurdle required when challenging factual findings. While the PCC’s reference to the fact that Patient A complained did not take the matter forward, the PCC provided sufficient reasons for concluding that Dr Milerman’s failure to provide an NHS option was deliberate and therefore dishonest by the standards of ordinary and honest members of the dental profession and of ordinary decent people. Murray J was somewhat uneasy with the relatively short treatment of the question of benefit to Dr Milerman given the paltry financial advantage, but accepted that motive need not be established before reaching a conclusion on dishonesty. Bearing in mind the significant advantage the PCC had over the court in fact-finding and the standard to be applied on appeal, and despite Mr Peacock’s attractive submissions, Murray J could not conclude that the PCC’s conclusion on HoC 22b was plainly wrong. The findings on HoC 20 and 22b were upheld.

As to HoC 24, 25 and 26, Murray J was satisfied the PCC gave adequate reasons for reaching its conclusion that Dr Milerman failed to offer Patient A an NHS option for deep cleaning at the Practice, for rejecting her account that she discussed an NHS referral with Patient A on any of the three relevant dates, and for concluding her failure to obtain informed consent was deliberate and dishonest. The words “had done so previously” clearly referred to Dr Milerman having previously provided periodontal treatment to Patient A on the NHS. Murray J rejected the submission that the finding on HoC 26b was flawed for the same reasons as HoC 22b. The reliance on Patient A’s complaint did not provide material support, but the PCC’s other reasons were sufficient to justify its conclusions on HoC 24 and 26b, bearing in mind the appellate standard. As the conclusions on HoC 25 and 26a relied on HoC 24, those findings were also upheld.

Mr Peacock confirmed there was no free-standing appeal against sanction if the dishonesty findings stood. As to the remaining issue concerning impairment based on clinical failings, Dr Milerman had been found to have committed or admitted numerous clinical failings in relation to several patients. The PCC found these were wide-ranging, related to multiple patients, occurred over a significant period, fell below or far below the standard expected, caused harm and had potential to cause further significant harm, and cumulatively amounted to a significant departure from the expected standard. The PCC determined the clinical failings were so serious as to amount to misconduct and were therefore capable of amounting to deficient professional performance. However, the PCC noted Dr Milerman had taken extensive steps to remedy her misconduct. Dr Igoe’s reports stated that the standard of remediation was very high, there were no concerns the changes had not been embedded, and outstanding concerns had been addressed. The PCC concluded Dr Milerman had remedied the deficiencies, there was little risk of repetition, and there was no need for a finding of current impairment on grounds of public protection in relation to the clinical failings. Nonetheless, the PCC concluded a finding of impairment was necessary to uphold standards in the profession, given that the clinical failings were basic, wide-ranging, persisted over a significant period, resulted in patient harm and put patients at risk of further harm.

Mr Peacock submitted the PCC was wrong to find impairment given it accepted Dr Milerman had completely remediated her failings and embedded necessary changes. The matters supporting the finding of impairment were relevant to misconduct or deficient professional performance, but as the clinical failings were completely remediated, the only justification for current impairment was the public interest. He relied on Chaudhary v GMC [2017] EWHC 2561 (Admin) as supporting the proposition that the various elements of the public interest should be weighed equally, whereas the PCC appeared to have allowed the perceived need to declare and uphold proper standards to outweigh the exceptional remediation work. Mr Singh submitted that Chaudhary held only that a proper balance of all three elements of the tri-partite public interest must be undertaken. The weight to be given to each element was a matter for the tribunal having regard to the particular circumstances. The PCC determined that despite the exceptional remediation and absence of public protection concerns, Dr Milerman’s misconduct meant it could not uphold the public interest without a finding of impairment. Murray J agreed with Mr Singh. There was nothing wrong with the PCC’s approach to impairment and no ground to interfere with its evaluative decision.

In short, the appeal was dismissed because the PCC gave adequate reasons for its findings of deliberate dishonesty and its determination of impairment, and those findings were not plainly wrong applying the appropriate appellate standard of review.

Milerman v General Dental Council [2019] EWHC 2378
Wasu v GDC [2013] EWHC 3782
Monibi v GDC [2014] EWHC 1911
Southall v GMC [2010] 2 FCR 77
Benmax v Austin Motor Co Ltd [1955] AC 370
Libman v General Medical Council [1972] AC 217
R (Campbell) v General Medical Council [2005] 1 WLR 3488
General Medical Council v Jagjivan [2017] EWHC 1247 (Admin), [2017] 1 WLR 4438
South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953, [2004] UKHL 33
Lavis v NMC [2014] EWHC 4803
Antony v NMC [2018] EWHC 2796
Jenyo v NMC [2016] EWHC 1708

Bawa-Garba v General Medical Council [2018] EWCA CIV 1879, [2019] 1 WLR 1929, [2019] 1 All ER 500
Health Care Professionals v GMC and Ruscillo [2004] EWCA Civ 1356
Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council, (2) Grant [2011] EWHC 927 (Admin), [2011] ACD 72
Asare v NMC [2014] EWHC 1151
Ghosh [1982] EWCA Crim 2; [1982] QB 1053
Alam v GMC [2015] EWHC 854
R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin)
Chaudhary v GMC [2017] EWHC 2561
Roylance v General Medical Council (No 2) [2000] 1 AC 311, [1999] 3 WLR 541
Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67; [2018] Crim LR 395, [2018] AC 391