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[View ICLR summary:  WLR(D) 671]
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||Neutral Citation Number:  EWHC 3181 (Admin)
||Case No: CO/3826/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE MAY DBE
||- and -
||General Dental Council
Jeremy Hyam QC (instructed by Hempsons Solicitors) for the Claimant
Clive Sheldon QC (instructed by Clyde & Co) for the Defendant
Hearing dates: Thursday 24 November 2016
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice May:
- On 13 April 2016 an amendment to the Dentists Act 1984 came into force giving the Investigating Committee ("IC") of the General Dental Council ("GDC") power to conduct an internal review of its own decisions in relation to warnings given to registrants. In these proceedings the court is asked to decide whether the new power of review was restricted to warnings issued by the IC on or after 13 April 2016, or whether the amendment also gave a power of review in relation to warnings issued prior to that date.
- The general powers and duties of the GDC are set out in Part 1 of the Dentists Act 1984 ("the Act"). Section 27A of the Act deals with the duties of the IC and includes the following specific provisions:
"(1) Where the registrar refers an allegation under section 27 to the [IC] they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee.
(2) If the [IC] determine that the allegation ought not to be considered by a Practice Committee, the [IC] may-
(a) issue a warning or advice to the person who is the subject of the allegation regarding his future conduct, performance and practice; and
(b) issue advice to any other person involved in the investigation on any issue arising in the course of the investigation
(3) If the [IC] issue a warning under subsection (2)(a), they may, if they consider it appropriate to do so, direct the registrar to enter details of that warning in the entry in the register relating to the person who is the subject of the allegation."
- It was common ground before me that a warning issued by the IC has important and potentially adverse implications for a registrant. Warnings may be published or unpublished, but in either event a registrant is obliged to inform his or her insurers and any employer of the existence of any warning on their record.
- The Claimant in this case ("DP") is a dentist. In 2015 he was the subject of a complaint made to the GDC by a former patient in respect of treatment he gave to her in 2011. The GDC appointed a clinical adviser, Mr Keith Millington, to prepare a report. The detail of Mr Millington's report dated 17 November 2015 is not relevant for present purposes; in summary he concluded that although the treatment DP had given was clinically appropriate, there had been a failure properly to record information given to the patient about aspects of her condition and the treatment for it.
- DP's solicitors sent a response and representations on his behalf by letter to the GDC dated 15 March 2016. Thereafter the IC, purporting to act in accordance with the GDC rules and guidance then in force, considered DP's case and decided to resolve and close it by issuing a written warning; the IC's determination to that effect was dated 11 April 2016 and notified to DP by letter dated 15 April 2016. The IC's determination concluded that:
"Whilst the [IC] has determined that, in respect of this particular matter, there is no real prospect of a finding of current impairment being made by a Practice Committee, the [IC] also considers that any re-occurrence of the failure adequately to obtain and record discussions relating to risks and benefits of treatment and consent would give rise to fitness to practise concerns. As such the [IC] considers it appropriate to warn the Registrant…
..On this occasion however, the [IC] is of the view that it is not appropriate or necessary to publish the warning in this case because the issues identified in this case occurred more than four years ago and appear to be isolated…
The Registrant is reminded that this warning will form part of his fitness to practise history…
We will write to your employers and NHS regional team to inform them that you have been given a written warning and have closed the case…"
- DP was dissatisfied with the IC's decision to issue him with a warning. By letter dated 13 May 2016 his solicitors set out grounds of challenge and invited the GDC to refer the case back to the IC to conduct a review pursuant to the newly-created power under section 27A(11) of the Dentists Act 1984. That section provides as follows:
"(11) The Investigating Committee may review a determination made by them to issue a warning under subsection 2(a) on an application made –
(a) By the person to whom the warning was issued or the registrar;
(b) Before the end of the period of two years beginning with the date on which the determination was made. "
- By letter dated 20 May 2016, Alison Collins, caseworker for the GDC, informed DP that his application for review of the IC's determination to issue him with a warning would not be able to be listed for consideration by the IC. Ms Collins went on to explain that this was because:
"Under [the Act] a warning can only be reviewed by the [IC] if the application is made:
- by the registrant who was issued with the warning or by the Registrar (the Registrar means the GDC);
- within two years of the date of the decision; and
DP's solicitors responded sending a Pre-Action Protocol letter dated 7 June 2016 giving notice of DP's intention to challenge (i) the GDC's refusal to refer to the IC DP's application for an internal review of the IC's determination in his case; and (ii) the determination itself. The response dated 27 June 2016 from Clyde & Co, for the GDC, continued to maintain that the GDC had no power to entertain DP's application for review given that it related to a determination made prior to 13 April 2016, but accepted that the IC had "failed to provide adequate reasons or explanation to support their decision" and further that "the rationale behind the decision of the [IC] to find that there was a real prospect of misconduct being established, and accordingly issue a warning, was not clearly articulated".
- in relation to a warning issued on or after 13 April 2016" (emphasis added)
The present judicial review proceedings were subsequently issued on 29 July 2016, the grounds by then being limited to challenging the GDC's position in relation to the effect of s.27A(11). No review was sought of the IC's determination itself in the light of the GDC's earlier acceptance that the IC's determination in DP's case had been flawed.
In giving permission, the single Judge, Nicola Davies J, granted anonymity to DP in these proceedings, on account of the fact that the warning given in his case was an unpublished warning. Her order remains in place; accordingly I have continued to adopt the same initials in this judgment.
The procedure for issuing warnings prior to the changes introduced in 2016
It is unnecessary in this judgment to set out in full the GDC's rules and guidance dealing with the procedure for considering complaints under the system which existed before the changes introduced earlier this year. The sequence of events which used to be followed may be summarised as follows: a complaint made to the GDC went first to the Registrar. The common practice was then for the Registrar to send the case to a clinical adviser for comment. If, having received the report from the clinical advisor, the Registrar took the view that the complaint amounted to an allegation of impaired fitness to practise the complaint, together with the clinical advisor's report, would be sent to the registrant for their response. The clinical advisor's report would also be sent to the complainant. Once any responses from the registrant and the complainant had been received, all the material gathered in this process would be referred to the IC. There were then a number of courses open to the IC, including that of issuing a warning as provided for by s.27A(2) of the Act.
Prior to 13 April 2016 the sole means of challenging the IC's decision to issue such a warning was by way of judicial review proceedings.
Amendment introducing a power of review by the IC
A head of steam built up over the years pressing for a change to this regime. It was recognised that the system for issuing warnings had the potential for unfairness. Moreover the only means of challenge, by judicial review in the High Court, had inherent limitations (in terms of time limits for applying and the extent of information that could be considered by the court) and was expensive, both for the GDC and the registrant. On 18 January 2016 the Parliamentary Under Secretary of State, Lord Prior of Brampton, explained the thinking behind the introduction of the new provision for review as follows:
"This order will also introduce a power to enable the [IC] and the case examiners to review their determination to issue a warning. A registrant will be able to request such a review within two years of the original decision to issue the warning. At present, there is no mechanism through which a registrant who is issued with a warning can appeal this decision with the GDC. Instead, the only route of appeal open to them is to apply for judicial review. This can be costly for both the registrant and the GDC and stressful for the registrant. Warnings can remain on an individual's record for a number of years, for as long as the warning has been issued, and accessed by patients and employers. Providing individuals with a route of appeal that does not require application for a judicial review is a fairer and more proportionate approach"
(Hansard, 18 January 2016; column GC3)
The changes were introduced in two stages: provision for an internal review procedure came into effect from 13 April 2016. Some months later, in November 2016, new rules came into force which included a "minded to" procedure and other changes to the regime for the handling of complaints and the issuing of warnings, also setting out the procedure for exercise of the new review power. Between April and November 2016 the procedure for internal reviews was set out in formal guidance issued by the GDC (see further below).
Section 27A(11) introducing the new power of review was inserted as an amendment to the Act by Article 7 of the General Dental Council (Fitness to Practice etc.) Order 2016 ("the Order"). The Order was signed on 12 April 2016 and came into force the following day, 13 April 2016. There were no transitional provisions.
The formal guidance issued by the GDC as to the procedure to be followed in respect of the IC's new power of review was set out in Guidance on the Investigating Committee's Power to review a Warning ("the Guidance"). The Guidance included the following specific directions:
"B. The review process
4. In order for an application to review a warning to be valid under the terms of the Act, it must:
(i) be made either by the registrant or the Registrar (i.e. the GDC itself);
(ii) be made before the end of the period of two years beginning with the date on which the original determination was made; and
(iii) as the amendments to the Act were not intended to have retrospective effect, related to a determination to issue a warning made by [the IC] on or after 13 April 2016"
Issue in these proceedings: proper interpretation of s.27A(11)
By this application for judicial review the Claimant seeks to challenge:
(1) The GDC's decision notified to DP by the letter from Alison Collins dated 20 May 2016 refusing to list his case before the IC for consideration, on the basis that it was unlawful, the GDC having materially misdirected itself as to the power of the IC to conduct a review in his case; and
(2) Paragraph 4(iii) of the Guidance, as representing an impermissible and erroneous limitation on the power of review enacted by s.27A(11).
Both grounds of challenge turn on the single question of the proper statutory interpretation of s.27A(11).
The competing arguments
Mr Hyam QC, for the Claimant, submitted that the wording of s.27A(11) is clear, creating a review power exercisable from 13 April 2016 in respect of any determination to issue a warning made within two years of the application for a review being made. DP's application, made on 13 May 2016, was well within the two-year period allowed for by the section, the IC having made its determination in his case on 11 April 2016, just over one month before.
It is immediately apparent that there is an element of retroactivity in the interpretation of s.27A(11) contended for by Mr Hyam. Mr Sheldon QC, for the GDC, agreed that on its own this would not be a sufficient reason to dismiss the claim: in the words of the single judge, Kerr J, when refusing to set aside permission earlier granted by Davies J: "retroactivity is not an all or nothing issue but a matter of degree".
In some cases, the court will be satisfied that Parliament intended to enact a provision having an element of retroactivity. The decision of the House of Lords in The Boucraa  1 AC 486 concerned a new provision introduced by way of amendment to the Arbitration Act 1950 empowering arbitrators to dismiss an arbitration claim for want of prosecution. The issue was whether the arbitrator had been entitled to dismiss the claim in that case in reliance on delay which had occurred prior to the date upon which the amendment came into force. The House of Lords held that he had. In response to the case that permitting such reliance would necessitate interpreting the provision as having retroactive effect, which (it was said) Parliament could not have intended, Lord Mustill said as follows (at 524C):
"The real contest on the present appeal was not whether section 13A was retrospective in the ordinary sense, but whether a provision which was undeniably prospective in the conferring of powers enabled those powers to be exercised by reference to acts or omissions which had taken place before the new section came into force."
Lord Mustill then cited from the judgment of Sir Thomas Bingham MR (as he then was) in the Court of Appeal before continuing, at 524G-525H:
"My Lords, it would be impossible now to doubt that the court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of every legal rule is no more than fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person's acts or omissions after the event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a stature which appears to have this effect, to make sure that this is what Parliament really intended.
Precisely how the single question of fairness will be answered n respect of a particular stature will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the stature has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect f the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of restrospectivity are sop unfair that the words used by Parliament cannot have been intended to mean what they might appear to say."
Other examples cited to me of occasions where the court has interpreted provisions as having some retroactive effect included the cases of Makanjuola  1WLR 1348 and Chebaro  2 WLR 1090. Mr Hyam directed me particularly to Chebaro, at 131B-C where Balcombe LJ emphasised the use of past and present tenses in the wording of the section in that case as negating any intention on the part of Parliament to restrict the operation of the provision to future circumstances only. The same also can be said of the wording of s.27A(11) here, Mr Hyam submitted, where the past tense is used together with present tense, viz "The [IC] may review…the determination was made..."(emphasis added).
Mr Hyam pointed to the absence of any explicit wording in the section or the Order restricting its application to determinations made after the date on which the Order came into effect. On the contrary, Mr Hyam suggested, given that the purpose of the amendment was essentially curative, remedying an unfairness to registrants in circumstances where there was a general appreciation that unfairness existed, the only sensible conclusion must be that the amendment was intended to take effect as widely, and in respect of as many determinations, as possible, subject only to a two-year time-limit. If Parliament had intended to restrict the effect of s.27A(11) to determinations made by the IC after 13 April 2016 then it could easily have said so, for instance by means of transitional provisions, but it did not.
Mr Sheldon, for the GDC, contended that the Claimant's case as to the proper interpretation of s.27A(11) would lead to absurdity and also to unfairness, in the following ways:
i) Registrants would be able to seek a review of a determination made at a time when no one knew that a power of review existed.
ii) Registrants who had been out of time to seek a review (in some cases, perhaps, as much as 21 months out of time) would overnight have a right to challenge returned to them.
iii) In many cases the IC's determination would have stood, unchallenged and unchallengeable, for a considerable length of time (up to 21 months) only for a registrant now to be able to seek to re-open and review that determination.
iv) In such cases, complainants and others would have had a "reasonable expectation" that the warning would stand given that the time for an application for judicial review would long ago have passed.
v) If s.27A(11) were to have the effect contended for then some registrants would only have had a matter of 1 or 2 days to put in their application for review.
Mr Sheldon argued further that giving s.27A(11) the retrospective effect contended for would lead to a huge administrative burden on the GDC which Parliament cannot have intended: he pointed to the fact that the IC made 403 determinations leading to a warning (including DP's) in the 2 years prior to 13 April. He indicated that if all the registrants to whom such warnings had been given were suddenly to make an application for review then the GDC would be required to engage further staff and devote considerable resources to dealing with the influx of applications.
Discussion and conclusions
I disagree that the consequences described by Mr Sheldon are properly to be characterised as absurd, in the sense of unworkable, impracticable or inconvenient, as discussed at section 312 of Bennion on Statutory Interpretation, 6th Edn. If Parliament intended, as it undoubtedly did, that registrants should have the power to challenge warnings given after 13 April 2016 (subject to a two-year limitation), I do not see how it can properly be said to be absurd that it should have intended registrants to be able to do so in respect of warnings issued before that date where the procedure for referring cases to the IC and the grounds for a warning remained the same both before and after 13 April 2016. All that was introduced was a right of review of the IC's decision. The fact that the 3-month period for seeking judicial review may have elapsed did not alter the character or effect of the determination in any case, or the warning given pursuant to it.
The length of time over which a determination may have stood unchallenged was a consequence of the two-year time limit: s.27A(11) necessarily contemplates that a determination made by the IC may be in place for up to two years before being challenged. I do not, therefore, regard the consequences of an interpretation conferring some retroactivity as leading to absurd results. The fact that some registrants may have had a short time after 13 April within which to apply for review is similarly a result of the decision to impose a two-year time limit; moreover, as I have already indicated, there was considerable advance notification of the availability of the new power of review and of the time limit attaching to it, which would have allowed registrants to prepare in advance so as to be ready to lodge their application within the time limit.
Mr Sheldon also relied upon what he maintained would be unfairness resulting from the interpretation for which DP contends: he argued that complainants, employers, NHS boards and the public generally would, once the time for bringing judicial review proceedings had passed, have a reasonable expectation that the warning was final. The decision to issue a warning, Mr Sheldon emphasised, was a quasi-judicial decision, in respect of which the public generally were entitled to look for certainty. If s.27A(11) were to have retroactive effect that would undermine the certainty of the position in relation to warnings issued and recorded at a time when there was no internal review available. Mr Sheldon pointed out that none of the cases permitting a degree of retroactivity has concerned a provision affecting decisions of a quasi-judicial body.
Mr Sheldon argued that complainants notified prior to 13 April 2016 that the IC had issued a warning to the registrant about whom they had complained would only have expected that a registrant might seek a review within the far shorter period of 3 months. Once that time had passed, a complainant would have lost the opportunity to make a "responsive" application for judicial review challenging the IC's decision to issue a warning rather than referring the complaint to a Practice Committee (responsive, because of course any complainant dissatisfied with the IC's decision to issue a warning rather than to refer could themselves have taken the initiative in seeking judicial review).
I am not satisfied that these considerations are sufficient to displace the plain effect of the wording of s.27A(11). As Mr Hyam pointed out in his admirably succinct reply, the section does not impact upon any actual rights held by complainants or others. The amendment confers rights upon registrants, it does not remove rights from complainants or others. The highest that Mr Sheldon could put it was that the "reasonable expectations" of complainants as to certainty of outcome may be dashed if the section were to operate retrospectively in the way contended for.
As to these "reasonable expectations", the following points occur: firstly, the new review power had been under discussion for some years, so that the final enactment could have come as no surprise to those affected by it. Second, such expectations as any complainant might have had would only be dashed where the IC decided that it had been wrong to make the determination it did; it is difficult to see how a complainant or any other party could justly feel aggrieved about an injustice being righted. Third, the process of review set out in the Guidance and, from November 2016, the new rules, contemplates full involvement by complainants and any other interested parties in the review process, giving them the opportunity to comment on the matters said by the registrant to render the IC's determination wrong or unfair. Further, as Mr Hyam pointed out, under the Guidance any application for review is first subjected to a threshold consideration examining whether proper grounds for review exist. It is only if an application were to pass this threshold stage that it would proceed to a full review and only at that point would a complainant be notified that the case was to be re-considered. Lastly, any slight unfairness that could be said to arise to complainants or others as a result of a warning given prior to 13 April 2016 proceeding to full review is in my view heavily outweighed by the adverse impact on registrants of warnings remaining on their record in cases where the IC's decision was properly reviewable.
I agree also that there is no special significance to be attached to the fact that s.27A(11) concerns a quasi-judicial decision. I consider the principles developed by Lord Mustill in The Boucraa to be of general application, irrespective of the subject matter of the statutory provision in issue.
Finally, whilst I can easily appreciate that there may, in principle, be an administrative burden cast on the GDC if there were to be a sudden influx of applications for review given the 403 warnings issued in the two years prior to 13 April 2016, I do not have information, other than this bare figure, which might assist me in understanding the existence or extent of any actual burden. I have not been told, for instance, how many other applications (if any) the GDC has received in addition to DP's, dating from that two-year period, or what steps the GDC has, or may have to, put in place to deal with them. I am unable to accept, therefore, that the burden represented by warnings already issued prior to 13 April 2016 is so onerous as to negative Parliament's intention otherwise manifest in the clear wording of the section.
In my view s.27A(11) is to be read simply and straightforwardly as conferring a right upon registrants, from 13 April 2016, to seek review by the IC of an earlier decision to issue a warning, provided only that registrants apply within two years of the IC's decision. Neither s.27A(11) itself nor the Order inserting it into the Act contains any wording limiting the effect of the amendment to determinations made by the IC after 13 April 2016. There is an element of retroactivity in construing the provision in this way: although the power of review may only be exercised after 13 April 2016, such a review may be conducted in respect of warnings issued before it came into force, to that extent only s.27A(11) may be said to be retrospective in application. However, following the reasoning of Lord Mustill in The Boucraa, there is no unfairness arising from such limited retroactivity, there being no persons with pre-existing rights which could be adversely impacted. Moreover in circumstances where the purpose of the new provision was to remedy unfairness to registrants, the intended benefit to them so outweighs any slight unfairness which may be occasioned to complainants that I can find no reason to suppose Parliament intended the amendment to operate other than in the way the wording of s.27A(11) plainly suggests.
For these reasons the GDC's decision contained in the letter from Ms Collins dated 20 May 2016 and paragraph 4(iii) of the Guidance will be quashed and there will be an order requiring the GDC to list DP's application for review of the IC's determination dated 11 April 2016.
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