[View without highlighting]
[Printable RTF version]
[Buy ICLR report:  1 WLR 1926]
Preiss v. General Dental Council (GDC)  UKPC 36 (17 July 2001)
Privy Council Appeal No. 63 of 2000
David Preiss Appellant
The General Dental Council Respondent
THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL DENTAL COUNCIL
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 17th July 2001
Present at the hearing:-
Lord Bingham of Cornhill
Lord Cooke of Thorndon
[Delivered by Lord Cooke of Thorndon]
- By section 29 of the Dentists Act 1984 a person notified under section 27(4) that the Professional Conduct Committee (PCC) has determined that his name shall be erased from the register or that his registration shall be suspended has a right of appeal to Her Majesty in Council against that determination. The scope of the appeal is unrestricted by any catalogue of grounds, and in their report the Judicial Committee have wide powers of recommendation. In the present case the appellant, a registered dentist, appeals from a determination of the PCC made on 28th September 2000 suspending his registration for twelve months in consequence of a finding by them that he had been guilty of serious professional misconduct. By virtue of section 30(2) the determination has not taken effect during the pendency of the appeal.
- Although the right of appeal is against the suspension and the Act does not appear to provide for an appeal from a finding of serious professional misconduct not followed by erasure or suspension (which would not be a frequent occurrence) it was not in dispute at the hearing of this appeal that the appellant is entitled to challenge before the Judicial Committee of the Privy Council the finding of serious professional misconduct leading to the suspension. Their Lordships readily accept that view. It is necessary to make the statute work. Otherwise the value of the right of appeal could be greatly diminished.
- The disciplinary charges against the appellant all related to his treatment of one patient. A married lady then in her sixties (Mrs H), consulted him in January 1992. He was then in his forties, carrying on a sole practice and specialising in advanced restorative dentistry. The Board has studied the evidence recorded at the hearing before the PCC. The evidence shows that she then had various back teeth missing, so that she could bite with her front teeth only. She had a poorly fitted bridge over her upper front teeth. It was constantly being dislodged. She was a bruxist. Under dentistry some gagging response also occurred. She suffered from emotional and family problems after the death of a grandson in 1993. For rheumatic problems she was treated with voltarol, a drug which may have aggravated the condition of her mouth. The appellant found her a nervous patient. He had her take the sedative temazepam (valium) on some of the occasions of her treatment by him. From the outset she was adamantly against having dentures. Also she required a nice smile.
- After his initial examination of her mouth, the appellant recorded her oral health as poor; but x-rays indicated that the bone condition was good. In consultation with a colleague he worked out for her an elaborate, long-term, treatment plan, involving extensive crown and bridge work. This was typed out and discussed with the patient and her husband. The estimated cost was about £8000. She decided to go ahead. In his evidence the appellant accepted that his plan was very ambitious, and that plaque control and the maintenance of general oral hygiene were crucial. One of his expert witnesses called the plan heroic. The plan provided for three-monthly sessions with a hygienist. An extraordinary feature of the case is that, after one early visit to the appellant's hygienist, there seem to have been no more over the years. The appellant accepted that it was his responsibility to make sure that she saw a hygienist every three months. He gave no satisfactory explanation of his failure in that respect. His clinical notes do record, however, various requests to her to make hygiene appointments and her failure to keep them. The patient's evidence about that and other matters was generally vague, but she claimed to have missed no appointments that were made for her. To what extent she realised the importance of oral hygiene or tried herself to maintain it is far from clear. The appellant had advised her to use fluorigard and other preparations.
- Over the five years of her treatment by the appellant her dental health deteriorated dramatically, with a developing pattern of worsening plaque, rampant caries, bleeding and a large abscess. Ultimately all her teeth had to be extracted, first the top teeth, then the bottom ones. She wears complete dentures. From the patient's point of view the treatment was thus a complete, painful and stressful failure. From the dentist's point of view the position is best summed up in paragraph 16 of the appellant's statement of case before the Board:-
"The Appellant accepted in evidence, and it is acknowledged on his behalf, that his concern to fulfil this patient's passionate desire for restoration of her teeth overrode in this isolated case his professional judgment. In the result it is accepted on his behalf that his performance fell short of the highest standards to which he aspired, and to which hitherto he has always adhered. Neither the course of treatment nor its ultimate outcome conformed with his original goal, or that of his patient."
- The disciplinary charges were detailed. Some of the allegations were admitted by the appellant through his counsel at the beginning of the PCC hearing. Some were ultimately found by the PCC not proved, others proved. In the result the established allegations were as follows, those admitted being identified below:
"That being a registered dentist:
In relation to the treatment you provided to Mrs [H] between January 1992 and March 1997 you failed to provide the high standard of care to which a patient is entitled and thereby neglected your professional responsibilities to this patient in that:
(a) you failed … adequately to control tooth decay after December 1994 [admitted], when the health of the patient's remaining teeth and gums should have been your first priority. [It is not clear whether this last limb was either admitted or found proved; but on the evidence it was clearly made out.] As a result of this failure you did not ensure that the patient's oral environment was appropriate for the placement of complex crown and bridge restorations;
(b) you diverged significantly from your original written treatment plan of 30th January 1992, without obtaining the patient's consent, in an inappropriate manner in that:
(i) you failed to ensure that adequate plaque control was maintained with regular treatment by your hygienist prior to providing crown and bridge work; [admitted]
(ii) you failed to ensure that investigation into the root canal status of upper right 3, 2 and 7 was carried out by an endodontist;
[As to (ii), the foregoing is the appellant's interpretation of the relevant finding of the PCC after an amendment to the charge during the hearing. The Board does not understand this interpretation to be challenged by the respondent.]
(iii) you provided bridge work to upper and lower jaws at the same time; and
(iv) you failed to investigate the condition of the nerves in the patient's lower teeth;
(c) you failed to allow a sufficient interval between providing temporary crowns and bridges and permanent units;
(d) you provided linked crowns to the patient's lower teeth of inappropriate design."
- The PCC found that the allegations thus proved and admitted constituted serious professional misconduct. Their Lordships interpret this as a finding that cumulatively the established allegations amounted to such conduct, not that each of them by itself did so. In announcing the determination of the Committee as to penalty the chairman said:
"The Committee has directed the Registrar to suspend the registration in the Dentists Register of Mr David Preiss for a period of twelve months. The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended from the Dentists' Register 28 days from this date for a period of twelve months. The Committee has been particularly concerned by a number of issues in this case, in particular:
- the failure to ensure that the state of the patient's oral health was appropriate in view of the ambitious treatment plan;
- the failure to explain the divergences from the original plan, to a patient who was frequently sedated, which resulted in an absence of consent, whether informed or not, on the part of the patient;
- the delay in referring the patient to another practitioner when it was apparent that significant problems had developed.
The Committee considers that because of the gravity of the facts found proved in this case, particularly those involving standard of care, consent and duty to refer, it is necessary in the public interest to suspend the name of Mr David Preiss from the Dentists Register."
For the appellant an attack was mounted against various aspects of the disciplinary procedure. The Board sees no substance in the contentions that the PCC went beyond the charges or gave insufficient reasons for their decision. The other points merit further consideration.
This part of the argument for the appellant is founded on natural justice and article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998. Article 6(1) begins with the declaration that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Since the decision of a majority of the European Court of Human Rights in Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 it has been accepted that a decision of a professional tribunal affecting the right to practise the profession is a determination of civil rights and obligations. The appellant accepts that the points taken under article 6(1) cannot succeed if the Board is itself prepared to conduct a complete rehearing of the case, including a full reconsideration of the facts and of the question whether the facts found amount to serious professional misconduct. Their Lordships consider that the position is no different under the common law rules of natural justice applicable to proceedings before domestic tribunals: compare Calvin v Carr  AC 574.
As the Board has undertaken such a complete rehearing (a subject to which their Lordships will return), to discuss the appellant's points might seem unnecessary; but, for several reasons, it is as well to do so. First, a disciplinary system in which a hearing satisfying article 6(1) could be secured only by going as far as the Privy Council could not be commended. Secondly, the right is to have such a hearing within a reasonable time. Although there has been no suggestion of undue overall delay in this instance, that might not always be the case. Thirdly, it has recently been emphasised in a judgment of an English Divisional Court (Regina v Secretary of State of the Environment, Transport and The Regions, ex parte Holding & Barnes plc, 13th December 2000) that the proceedings as a whole have to be considered in deciding whether article 6(1) is satisfied. While again this does not apply to the instant case, there may be some risk of unpredictable circumstances where even a full Privy Council rehearing is not enough. Last, the General Dental Council has embarked on a programme of constitutional reform. Some observations on the disciplinary structure as it has operated in the past may be useful.
The very fact that changes are being made means that it is not essential to do more than draw attention to some vulnerable features of the past system. The Board is certainly not purporting to give comprehensive advice, which is not its function, but is merely identifying areas of concern correctly highlighted by the argument for the appellant.
For authority the appellant relied chiefly on three cases. In Stefan v United Kingdom (1997) 25 EHRR CD 130, which related to proceedings before the Health Committee of the General Medical Council, the Commission by a majority found a complaint inadmissible on the ground that the jurisdiction of the Privy Council, although in that case confined to questions of law, provided a sufficient safeguard in the particular circumstances. The Commission was concerned, however, that no attempt appeared to have been made to ensure that the members of the Health Committee determined cases independently of the General Medical Council's general policies; that members appeared to be appointed ad hoc rather than for a particular term; and that the President of the Council played an extensive, though not necessarily direct and personal, role in the earlier investigation of complaints.
Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting  IRLR 208 is an example of the existence of a right of appeal to a court of full jurisdiction (in that case the Court of Session in Scotland) saving a professional disciplinary system from failure to comply with article 6.1. But in judicial review proceedings, brought in an endeavour to prevent continuance of the disciplinary proceedings, Lord Mackay of Drumadoon in the Outer House of the Court of Session similarly expressed concern about a number of aspects of the system. He thought it objectionable that members of the Preliminary Proceedings Committee and the Professional Conduct Committee could move backwards and forwards between the two roles, though not in the same case. That apparently could not occur, however, in the dental disciplinary system. Other factors which he saw as detracting from the Professional Conduct Committee's appearance of independence were that prosecutions before them took place in the name of the Central Council and might involve considering whether the practitioner charged had complied with a code of conduct made by that Council. Something to the same effect could be said of the procedure in the present case, except that a breach of a formal code was not charged.
Another authority invoked for the appellant was the decision of the European Court of Human Rights holding that the impartiality of the Royal Court of Guernsey hearing a development application was vitiated because the Bailiff, who was the sole judge of the law in the case, had presided over the States of Deliberation when the background legislation was enacted. This was regarded as creating a fatal doubt "however slight its justification". The case is more distant from the present on the facts but does illustrate the strictness with which the closely-linked requirements of independence and impartiality are coming to be insisted upon. McGonnell v United Kingdom, 8th February 2000; application no. 28488/95. See too the perhaps more obvious case Findlay v United Kingdom (1997) 24 EHRR 221 (pervasive roles of senior officer convening court martial). Such insistence reflects more than an aspiration for justice. There is also the goal of creating or preserving public confidence in the professional institutions.
The common law tests for apparent bias have fluctuated to some extent over the years, albeit with differences probably more semantic than substantial for the purposes of most cases. R v Gough  AC 646 in the House of Lords was widely understood to have upheld a test (real danger in the eyes of the court) rather less strict than the main competing formula (reasonable suspicion in the eyes of a notional informed observer). In In re Medicaments and Related Classes of Goods (No 2)  1 WLR 700, Lord Phillips of Worth Matravers MR, giving the judgment of the Court of Appeal in England has said, 726-727:
Beyond noting that much must depend on what degree of knowledge is attributed to the informed observer, the Board does not propose to take the discussion of principle further. Having outlined the state of the authorities, all of which are persuasive but not strictly binding in the Privy Council, the next step is to outline the structure of the disciplinary system set up by the Dentists Act 1984 and the General Dental Council Rules and Regulations 1998, as subsequently amended, made thereunder and approved where that Act requires by the Privy Council. A third set of provisions are the General Dental Council Professional Conduct Committee (Procedure) Rules made by Order in Council in 1984 (SI 1984, No 1517).
"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, … The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
By section 1(2) of the Act, so far as relevant, it shall be the general concern of the Council to promote high standards of professional conduct among dentists. Section 2 provides for committees of the Council, among them the Preliminary Proceedings Committee (PPC) and the Professional Conduct Committee. Paragraph 10 of schedule 1 provides that the PPC shall consist of the President and five other members of the Council of whom one shall be a person not a registered dentist; the President may appoint one or two additional members of the Council for any particular case. The President did not in fact sit in the PPC in the present case; their Lordships were given to understand that it had become the practice for him not to do so. By paragraph 11 the PCC shall consist of the President and ten other members of the Council of whom at least five shall be elected members of the Council, and two shall be neither elected members nor registered dentists. The President did preside in the instant case. He had also acted as Preliminary Screener; the practitioner was evidently unaware of this until his solicitors made inquiry after the PCC decision. The seven other members of the PCC who sat were all members of the Council.
The office of Preliminary Screener is not provided for in the Act. The function derives from paragraph 4.11.1 of the General Dental Council Rules and Regulations. Thereby, if the Registrar receives information or a complaint in writing from which it appears to the Registrar that a question arises whether the conduct of a dentist has amounted to serious professional misconduct, he shall submit the complaint or information to the Preliminary Screener. Under paragraphs 4.11.2, 4.11.3 and 4.11.4 the Preliminary Screener has the function of setting in train proceedings before the PPC "unless he or she considers that the matter need not proceed further". The Preliminary Screener also has a discretion to raise the question of interim suspension if it appears to him that the PPC may wish to make an order for this. A document issued for the guidance of dentists by the General Dental Council in 1997 entitled General Dental Council: Maintaining Standards states that "The President acts as Preliminary Screener and considers whether the conviction or complaint may suggest evidence of serious professional misconduct" and "If it is considered that there may be a case to answer, the matter is referred to the Preliminary Proceedings Committee". Information provided on the Council's website is to the same effect as regards the screening function but does not mention that the President acts as the Preliminary Screener.
By section 27 of the Act of 1984 it is a function of the PPC to decide whether the case of a person alleged to have been guilty of serious professional misconduct ought to be referred to the PCC. It is for the PCC to determine such cases. Apart from certain criminal convictions, which may in themselves result in discretionary erasure or suspension, only charges of serious professional misconduct may be considered by the PCC. The Health Committee has powers under section 28 in relation to serious impairment of fitness to practise; these are outside the scope of the present case.
The contention for the appellant that the role of the Preliminary Screener is prosecutorial cannot be accepted. It is more akin to the role of examining justices or a judge ruling on a submission of no case to answer. But that by no means disposes of the appellant's points under article 6.1. In the opinion of the Board, when the participation of the President both as Preliminary Screener and as chairman of the PCC is seen in conjunction with the predominance of Council members in both the PPC and the PCC, and in conjunction moreover with the fact that the disciplinary charge is brought on behalf of the Council, the cumulative result is an appearance and a real danger that the PCC lacked the necessary independence and impartiality. Only the ultimate right of appeal to Her Majesty in Council saves the day. At the hearing of this appeal the Board was informed that the Government and the Council are reviewing the disciplinary arrangements. A circular from the Council to all registered dentists, enrolled dental hygienists and dental therapists, dated 1st December 2000, states that among decisions made by the Council on 14th November 2000 was that the Council should have a separate panel of professional and lay people (Fitness to Practise Panel) to serve on the Health and Professional Conduct Committees. If this means a divorce between the general policy - making functions of the Council and the distinctive function of adjudicating on disciplinary charges, it will go far to remove the difficulties that have arisen. Without further details, their Lordships can say no more.
With regard to article 6.1 it should be noticed that since the hearing of the present appeal a majority of the House of Lords has decided in Regina v Lambert  UKHL 37 that Convention rights as to the burden of proof did not apply retrospectively to invalidate a conviction at a trial which occurred before most of the Human Rights Act 1998 came into force: the trial judge's summing up was held to have been correct as the law stood at the time and could not now be successfully challenged on appeal. That decision is distinguishable. The PCC hearing did take place before article 6.1 came into operation in the United Kingdom; but, as was argued for the appellant at the Privy Council hearing, he has the benefit of the retrospective provisions in section 22(4) of the Human Rights Act. The General Dental Council is a public authority within the meaning of sections 6(1) and 7(1). It is the action of the Council, in bringing disciplinary proceedings under a system allegedly not complying with article 6.1, of which he complains. In Lambert there was no question of the prosecuting authority having acted unlawfully.
A breach of the Procedural Rules
A separate point arises under the 1984 Procedure Rules. Rule 11(2) provides:
After the President had announced the findings of the PCC on the detailed allegations and an adjournment of half an hour, counsel on each side addressed the PCC on whether those findings should lead to a finding of serious professional misconduct. Next, after the PCC had retired to deliberate, the chairman announced the decision that the appellant was guilty of serious professional misconduct and the suspension for twelve months (the maximum term). The chairman said that this concluded the case. Counsel then appearing for the appellant, who had represented him throughout the hearing, then asked for a short adjournment so that he could speak with counsel for the Council and the legal assessor. After doing so he explained to the Committee that he had been expecting an opportunity to address them further (but "shortly") and to refer to the "very eloquent and glowing terms" of the testimonials that had been put in evidence. (They extended to 46 pages.) The legal assessor stated, however, that the Committee were functus and could not re-open, adding that if the chairman thought it appropriate at least to indicate for the record whether or not the testimonials were taken into account, that might well be an appropriate way of dealing with it. Acceding to this suggestion, the chairman said that for the record he was satisfied that the testimonials presented as part of the evidence were taken into account in their deliberations. Counsel for the appellant expressed thanks, and the hearing concluded.
"Where in a case relating to conduct the Committee have found that the facts or any of them alleged in any charge have been proved to their satisfaction (and have not on those facts recorded a finding of not guilty) the Chairman shall invite the complainant or the Solicitor, as the case may be, to address the Committee, and to adduce evidence as to the circumstances leading up to the facts in question, the extent to which such facts are indicative of serious professional misconduct on the part of the respondent, and as to the character and previous history of the respondent. The Chairman shall then invite the respondent to address the Committee by way of mitigation and to adduce evidence as aforesaid. The Committee shall forthwith consider and determine whether in relation to the facts found proved as aforesaid the respondent has been guilty of serious professional misconduct. If they determine that the respondent has not been guilty of such misconduct in relation to some or any of such facts they shall record a finding to that effect."
The steps required by rule 11(2) were thus not closely followed, and the chairman was in breach of the rule in failing to invite the appellant or his counsel to address the Committee by way of mitigation. A similar mishap occurred in Selvanathan v General Medical Council (Privy Council Appeal No. 21 of 2000; 11th October 2000) but in that case, once the omission was pointed out, the solicitor for the accused doctor was given an opportunity to say all that he wished; and the Committee then deliberated further on the question of penalty. The Privy Council found that the procedure was not unfair.
In the present case there was no protest from counsel for the dentist at the manner in which the breach of the rule was dealt with. Nor is there any affidavit from him as to what more he would have said in mitigation. But the question of penalty was very important in this case, for the description already quoted of the testimonials is not exaggerated and, although there had been continuing culpable conduct on the appellant's part, it involved no dishonesty and was evidently an isolated case in the course of a busy practice. (The appellant had a list of some 1200 patients.) The breach of the rule is not to be dismissed as insignificant.
The Privy Council's assessment of the facts
As indicated at the outset of this judgment, the provisions of section 29(1)(a) and (3) of the Dentists Act 1984 appear manifestly designed to give a full right of appeal to Her Majesty in Council, extending to questions of fact as well as law and not limited even as to matters of degree or discretion, though as with most such general appeals the Judicial Committee will have to be satisfied before allowing an appeal that the decision of the PCC has been shown to have been wrong. It would be unusual for the Board to hear oral evidence, and allowance must be made for any advantages that the PCC has derived from seeing and hearing the witnesses; but this does not mean that for the purposes of article 6.1 the Board lacks full jurisdiction over the case.
Since the coming into operation of the Human Rights Act 1998, with its adjuration in section 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted. In Ghosh v The General Medical Council (Privy Council Appeal No. 69 of 2000; 18th June 2001) the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council  AC 217, 221, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships' view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances. In the instant case the weaknesses already identified in the dental disciplinary structure and the failure to comply with rule 11(2) go to diminish any reluctance that the Board might otherwise have in differing from the PCC. Against this background the Board now gives its own opinion on the case.
It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence. Having formed their own view of the evidence, their Lordships do not hold that any of the findings of the PCC on the detailed allegations were wrong, but they consider that in the context of the treatment of this particular patient the specific shortcomings established against the appellant vary in gravity. The core and most serious shortcoming was summarised by the PCC as failure to ensure that the state of the patient's oral health was appropriate in view of the ambitious treatment plan. That is covered specifically by charge (a) as to the period after December 1994 and charge (b)(i). It was an elementary and grievous failure warranting the description of serious professional misconduct. The Board does not consider that in this case the other charges that have been established come within that description, either individually or collectively. Some or all of them may well have constituted simple professional negligence, and they are part of the setting in which the seriousness of the appellant's conduct has to be judged; but the findings directly related to oral health are dominant.
On the issue of penalty, a collection of further testimonials was placed before the Board for the appellant. They have been provided after the decision of the PCC. In the light of the unusual history of this case, the Board will take them into account. There are 52 from patients of the appellant and 16 from professional colleagues who have either referred patients to him, often in difficult cases, or had connections in practice with him in some other way. Together with the testimonials that were before the PCC, they comprise a large and solid body of testimony to his customary skill and dedication as a specialist dentist. There is some force in a submission in the case for the appellant, signed by Mr Badenoch QC and Miss Rose:
The only penalties expressly provided for in the legislation and delegated legislation are erasure and suspension. But the General Dental Council's guidance publication Maintaining Standards, previously referred to, include in paragraph 8.22 other options available to the PCC, the first of which is "(i) the Committee may conclude the case with an admonition". Likewise the Council's website says that there is an option to give a warning. It was not argued on either side before the Board that the option so claimed does not exist in law. In professional disciplinary legislation it is not uncommon for express provision to be made for admonition or censure. While express provision is desirable, their Lordships are prepared to hold that in the dental disciplinary system it is implied.
"That for every professional man whose career spans, as this appellant's has, many years and many clients, there is likely to be at least one case in which for reasons good and bad everything goes wrong – and that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record."
In the opinion of their Lordships to suspend the appellant from practice would be neither necessary nor just. This is an exceptional case where the right to practise should not be interfered with despite a finding of serious professional misconduct. They will humbly advise Her Majesty that the appeal ought to be allowed to the extent of limiting that finding to charges (a) and (b)(i), as already explained, and replacing the suspension by an admonition. The respondent Council should pay the costs of this appeal.
Copyright Policy |
Donate to BAILII