R (Husband) v General Dental Council [2019] EWHC 2210 (Admin)
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R (Husband) v General Dental Council [2019] EWHC 2210 (Admin) concerned a judicial review by a dentist, Mr Husband, of two decisions of the Professional Conduct Committee (PCC) of the General Dental Council made during the course of fitness to practise proceedings. The claim succeeded in part and failed in part, Mr Justice Nicol quashing the committee’s first ruling but dismissing the challenge to the second.
Mr Husband faced disciplinary proceedings arising from treatment provided to a patient known as Patient A on 5 August 2015, when he administered sedation in two forms (oral Diazepam and intravenous Midazolam) whilst another dentist, Mr Hewitt, carried out dental work. Patient A complained in January 2016 that she had not been adequately advised that the amnesia she would experience might not be complete. The claimant was charged inter alia with failing to ensure Patient A had provided informed consent to sedation, specifically by not advising her adequately or at all that complete amnesia was not guaranteed (charge 2), and with inappropriately discussing sedation options with Patient A after she became distressed (charge 4).
After the GDC closed its case, both Mr Hewitt and the claimant made submissions of no case to answer under Rule 19 of the General Dental Council Professional Conduct Committee (Fitness to Practise) Rules 2006. Mr Husband’s submission advanced two distinct arguments. The first was that even if established by the evidence, the charges or some of them were not capable of constituting misconduct. On 14 January 2019 the PCC ruled that Rule 19 permitted a no case submission only in relation to disputed facts and did not permit the type of argument the claimant sought to advance. The second part of the submission, dealt with on 15 January 2019, was that on the evidence there was no case to answer in respect of charges 2 and 4. Directing itself by reference to the test in R v Galbraith [1981] 1 WLR 1039 and taking the evidence at its highest, the PCC rejected that submission and held that there was a case for the claimant to answer on both charges. In relation to charge 2, the committee noted a direct conflict in the evidence between Patient A and her wife (Ms B), who said they had not been told that complete amnesia was not guaranteed, and a clinical note made by Mr Hewitt indicating they had been so informed, but concluded that because the charge related to whether Patient A was adequately informed it was open to the committee to find the charge proved despite that conflict.
The GDC conceded that the PCC had misconstrued Rule 19 on 14 January. Mr Justice Nicol accepted the concession, emphasising that it was open to a dentist to argue that even if the factual allegation were made out on the evidence, it could not constitute misconduct. He therefore quashed that part of the decision and ordered that the matter be remitted to the PCC to consider the first ground on its merits.
The second ground of challenge, that the PCC’s rejection on 15 January of the no case submission in respect of charge 2 was irrational in Wednesbury terms, was disputed. Mr Husband contended that the note made by Mr Hewitt on 5 August 2015, which stated that Patient A had been told that amnesia was “normally the case, but not always,” was fatal to the GDC’s case. Professor Rob, the GDC’s expert, had confirmed that if that advice was given he would not be critical of either dentist. Mr Husband argued that because the GDC had not brought a separate charge alleging the note was inaccurate or dishonest, it was obliged to accept the note’s accuracy and uphold the no case submission. He also submitted that the evidence of Patient A and Ms B was hopelessly flawed. They had acknowledged that Ms B had experienced recall after sedation during treatment by another dentist a few weeks earlier, demonstrating they knew amnesia could not be guaranteed. Mr Husband complained that the PCC’s reasons did not adequately address how the lay witnesses’ evidence could stand against Mr Hewitt’s note and submitted their evidence was so weak it could not support the charge.
Mr Justice Nicol reviewed the authorities on no case submissions in the criminal context, noting that Galbraith remained the authoritative statement of principle and that the task was to decide whether the charge could be made out, not whether it would be. He held that the concept transferred usefully to the present disciplinary setting but observed that in the PCC context the standard of proof was the lower civil standard and the same body would determine both the no case submission and, if necessary, the ultimate question of fact. He endorsed the view, expressed by Carr J in Sharaf v General Medical Council [2013] EWHC 3332 (Admin), that when a professional disciplinary committee rejects a no case submission it should say as little as possible in giving reasons, to avoid giving any indication of how the evidence is being weighed at that stage.
On the question whether it was necessary for the GDC to bring a separate charge regarding the accuracy of Mr Hewitt’s note, Mr Justice Nicol agreed with the defendant that it was implicit in charge 2 that the note was inaccurate; no discrete charge was required unless dishonesty was alleged. The GDC had made clear it did not allege dishonesty on the part of either dentist. In any event, any unfairness from failure to plead a discrete charge would have fallen on Mr Hewitt, not Mr Husband. Fairness to the claimant required only that the GDC’s case be reasonably clear, and it was plain the GDC was inviting the committee to prefer the evidence of Patient A and Ms B over that reflected in Mr Hewitt’s note. The judge also noted that other parts of the medical records, including a form completed by Patient A on 22 July 2015 and Mr Husband’s own note of 5 August which referred to consent having been obtained “at assessment” (apparently the earlier meeting with Mr Hewitt alone), were capable of supporting the lay witnesses’ account.
Turning to the submission that the witnesses’ evidence was so flawed as to be incapable of belief, Mr Justice Nicol emphasised that the claimant faced a formidable hurdle. The rationality threshold was always a high one; it was heightened in the present context because the PCC included members with professional expertise, because the committee’s task at the no case stage was only to assess whether the evidence was capable of supporting the charge (not whether it did), and because the committee had seen and heard the witnesses give oral evidence, placing the reviewing court at a marked disadvantage. He held that matters such as the witnesses’ knowledge of Ms B’s earlier experience of incomplete amnesia, the wording of Patient A’s letter of complaint, and the absence of contemporaneous notes were all matters for the PCC to weigh. It was routine for a fact-finder to accept parts of a witness’s evidence but not others. Taken individually or cumulatively, Mr Justice Nicol was not persuaded that the PCC’s decision that there was a case to answer on charge 2 was irrational.
In short, the judicial review succeeded only as to the ruling of 14 January 2019, which was quashed and remitted for reconsideration, but failed in respect of the ruling of 15 January, which was upheld. The parties agreed there should be no order as to costs.
Galbraith [1981] 2 All ER 1060, [1981] 1 WLR 1039, 73 Cr App R 124
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
R (Mahfouz) v General Medical Council [2004] EWCA Civ 233
Tutin v General Medi cal Council [2009] EWHC 553
Johnson, Maggs v Nursing & Midwifery Council [2013] EWHC 2140 (Admin)
Sharaf v General Medical Council [2013] EWHC 3332
Shippey and Jedynak [1988] Crim LR 767