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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Henning v General Dental Council [2022] EWHC 175 (Admin) (28 January 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/175.html Cite as: [2022] EWHC 175 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM A DECISION OF THE
PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL DENTAL COUNCIL
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ABRAHAM JOHANNES HENNING |
Appellant |
|
- and - |
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THE GENERAL DENTAL COUNCIL |
Respondent |
____________________
Peter Mant (instructed by The General Dental Council) for the Respondent
Hearing date: 19 January 2022
____________________
Crown Copyright ©
Mrs Justice Hill:
Introduction
The facts
Head of charge 1(a) alleged that the Appellant did not carry out sufficient diagnostic assessments prior to commencing treatment of Patient A on 16 January 2015, in that he did not carry out a general dental assessment adequately or at all;
Heads of charge 1(b)(i)-(ix) alleged that the Appellant provided a poor standard of orthodontic treatment to Patient A in nine different respects from 16 January 2015 to 3 July 2017;
Heads of charge 1(c)(i)-(vii) alleged that the Appellant did not adequately respond to the concerns which Patient A expressed about her treatment on seven different occasions;
Head of charge 1(d) alleged a failure to manage Patient A's pain effectively on 11 January 2017;
Head of charge 2 alleged a failure to maintain adequate professional boundaries with Patient A;
Heads of charge 3(a)-(c) alleged a failure to treat Patient A with dignity and respect in respect of three comments made on 3 April 2017; and
Heads of charge 4(a)-(d) alleged failures to maintain an adequate standard of record keeping in respect of Patient A's appointments.
2.1 Communicate effectively with patients – listen to them, give them time to consider information and take their individual views and communication needs into account.
4.1 Make and keep contemporaneous, complete and accurate patient records.
7.1 Provide good quality care based on current evidence and authoritative guidance.
7.3 Update and develop your professional knowledge and skills throughout your working life.
The grounds of appeal
The legal framework
(i) The nature of the appeal
"(1) The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. 'Re-hearing' is an elastic notion, but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the "Wednesbury" test.
(2) That said, the appellant has the burden of showing that the Tribunal's decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it 'the weight that it deserves': Meadow [128] (Auld LJ, citing Dupont [96] (May LJ))."
"...whilst noting the observations of Warby J in Dutta at §21(1), on the balance of authority there is little or no relevant distinction to be drawn between "review" and "rehearing", when considering the degree of deference to be shown to findings of primary fact: Assicurazioni §§13, 15 and 23. Du Pont at §§94 and 98 is not clear authority to the contrary. Rather it supports the proposition that there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. Nevertheless, if less deference is to be shown in a case of rehearing (such as the present case), then, again I will assume this in the Appellant's favour".
(ii) Appeals against findings of fact
"12. First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. The present case concerns findings of primary fact: did the events described by the Patient A happen?
13. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge's more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to 4. I accept that the most recent Supreme Court cases interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of "review" rather than "rehearing", there is little distinction between the two types of cases for present purposes (see paragraph 16...).
14. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to "virtually unassailable" in Southall at §47 is not to be read as meaning "practically impossible", for the reasons given in Dutta at §22.)
15. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:
- where "any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions": per Lord Thankerton in Thomas v Thomas approved in Gupta;
- findings "sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread" per Lord Hailsham in Libman;
- findings "plainly wrong or so out of tune with the evidence properly read as to be unreasonable"...Casey at §6 and Warby J (as he then was) in Dutta at §21(7);
- where there is "no evidence to support a ... finding of fact or the trial judge's finding was one which no reasonable judge could have reached": per Lord Briggs in Perry after analysis of McGraddie and Henderson.
In my judgment, the distinction between these last two formulations is a fine one. To the extent that there is a difference, I will adopt, in the Appellant's favour, the former....".
(iii) The judicial determination of facts
"i) Gestmin:
We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of "flash bulb" memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
Events can come to be recalled as memories which did not happen at all of which happened to somebody else...
The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. "This does not mean that oral testimony serves no useful purpose... But its value lies largely... in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth".
"17. First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents: Dutta §§39 to 42 citing, in particular, Gestmin andLachaux.
18. Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta §42 and Khan §110, the balance of authority supports this view: Gupta §18 and Southall at §59.
19. Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant): Chyc at §23. There is no rule that corroboration of a patient complainant's evidence is required.
20. Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless, the task of the court below is to consider whether the core allegations are true: Mubarak at §20".
"...whilst...it is a common practice in Tribunal decisions on fact, there is no requirement for the disciplinary body to make, at the outset of its determination, a general comparative assessment of the credibility of the principal witnesses. Indeed, such a practice, undertaken without reference to the specific allegations, has been the subject of recent criticism in Dutta at §42 and Khan at §§106 and 107. In my judgment, consideration of credibility by reference to the specific allegations made is an approach which is, at least, equally appropriate".
(iv) Appeals against findings of misconduct, impairment and sanction
(v) The requirement to give reasons
"26. As regards reasons concerning the credibility of witnesses
(1) Where there is a dispute of fact involving a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary. In English v Emery, Lord Phillips stated that "it may be enough to say that one witness was preferred to another, because the one manifestly had a clearer recollection of the material facts or the other give answers which demonstrated that his recollection could not be relied upon". On the other hand, Southall at §55, and Gupta at §13 and 14 suggest that even such limited reasons are not necessarily required in every case...
27....an appeal court will not allow an appeal on grounds of inadequacy of reasons, unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge's reasoning and to "identify reasons for the judge's conclusions which cogently justify" the judge's decision, even if the judge did not himself clearly identify all those reasons: see English v Emery Reimbold §§89 and 11".
Ground 1: Findings of fact
The Appellant's case
The Respondent's case
Discussion and conclusion
(1): Head of charge 1(c)(vii)
"The Committee was satisfied from the evidence of Patient A that she did raise concerns with you at this appointment regarding the orientation of two of her front teeth, which she considered were slanting. It was Patient A's evidence that you responded by saying "that's how they were to start with dear". Patient A stated that she recalled being "furious" and saying, "so after 2 and a half years and four thousand pounds they are no better, they are actually worse".
You stated in your evidence that you did not recall the precise details of the conversation that you had with Patient A on this date, but you referred to a follow-up letter that you sent to her, dated 19 July 2017 which, you stated, set out a summary of your discussions with Patient A at the appointment on 3 July 2017.
The Committee had regard to that letter of 19 July 2017, which it found did set out in details responses to Patient A's concerns, including her concerns about the occlusal slant. However, the Committee considered the wording of this head of charge as its [sic] stands, which is whether you responded adequately to the patient's concerns on the date in question, namely 3 July 2017.
In addition to Patient A's account, the Committee had regard to the clinical records. It noted that there was no evidence within them to indicate that there had been any discussion regarding the concerns raised by the patient on that day. In all the circumstances, the Committee was satisfied on the balance of probabilities, that you did not respond adequately to the patient's concerns at the time she raised them" (Determination, pp.13-14).
(2): Head of charge 1(d)
"It was the evidence of Patient A that she "yelped" in pain when you pushed titanium wire into the bracket of her lower incisors during treatment. In your oral evidence, you initially stated that you did not recall the patient being in pain, but later accepted that she had "yelped" in pain as she described, as you mentioned this in your witness statement.
It was the opinion of Professor Willmot that you did not manage Patient A's pain effectively during the procedure you undertook. He stated that he would have expected a reasonable practitioner to explain the likely sequelae and if necessary, prescribe and appropriate analgesic. The Committee also noted Mr Bellman's evidence that when placing wires on the lower incisors, it was not uncommon to cause transitory pain to a patient. He was therefore not critical in this regard.
The Committee preferred the evidence of Professor Willmot. It considered that there was a continuum of care that you should have provided to the patient, which should have included setting an expectation about pain, as well an apology, advice and aftercare, including recommended painkillers if the pain persisted. The Committee noted from Patient A's witness statement, the graphic description of the pain that she said she experienced. She stated that "There was absolutely no apology" and that all you said was "I hate to have to do that to you". Whilst the Committee noted your evidence that you did apologise for the pain caused, it took into account that there is no reference to the incident in the clinical records. In all the circumstances, the Committee was satisfied on the balance of probabilities that you did not manage the patient's pain effectively at this appointment" (Determination, p.14).
(3): Head of charge 1(c)(ii)
(4): Head of charge 1(c)(iv)
"This head of charge relates to Patient A's request that you consider moving some of the brackets on her upper teeth so that they would correctly align. Patient A stated that she made this request after having seen another orthodontist for a second opinion. Her evidence was that without any measurement, you declined to move the brackets stating, "they are fine where they are". Patient A stated in her oral evidence that you said this verbatim. You stated that you could not recall saying this to Patient A, but that if you did, you would have explained to her why you considered it appropriate for the brackets to remain where they were.
The Committee found that Patient A's evidence on this issue was clear and compelling. It considered that it was more likely than not that she did raise this concern with you and that you responded as she said, without any explanation. In the Committee's view, your response was not adequate. Patient A was sufficiently concerned to have sought a second opinion, which was her right, and this should have been respected. The patient should have left this appointment with a full understanding as to why your professional opinion differed from the other orthodontist she had seen. The Committee was satisfied from Patient A's evidence that this was not the case. In reaching its decision the Committee also took into account the absence of any reference to such a discussion in the clinical records" (Determination, pp.11-12).
"This head of charge relates to Patient A's concern that she had swallowed part of the wire that had been used to secure the brackets on her teeth. It was this concern that initiated her return to see you on this date, following her visit to a hospital Accident and Emergency department. The Committee noted Patient A's evidence as contained within her witness statement that, at the appointment, she elaborated on her concerns, which included her complaints that she thought "the assessment was poor which led to no securing of the wire, which is why it slid through the brackets, dug into my cheek and eventually broke. I would not have swallowed it if it had been tightened/ secured". Patient A stated that you listened without comment or apology and then walked out of the room.
The Committee took into account your denial that this happened. It was your evidence in your witness statement that you recalled being alerted by Witness 4 of Patient A's concern about swallowing the wire, and that you informed the patient that the wire was soluble in stomach acid and unlikely to be harmful. You stated that to the best of your recollection, Patient A was "content and reassured".
Whilst the Committee had regard to your evidence, and the evidence of the witnesses who worked with you at the Practice that walking out on a patient would not have been in your nature, it preferred the evidence of Patient A on this matter. It considered that it would have been very clear to you at that appointment that Patient A was unhappy with a number of issues, and it was satisfied that it was more likely than not, that you did walk out when she confronted you. The Committee also took into account that, despite your evidence of Patient A being reassured, there is little or no reference to any conversation in the clinical records; just an indication that no wire was broken. In all the circumstances, the Committee found this head of charge proved" (Determination, pp.12-13).
Materiality
Ground 2: Impairment
The Committee's Determination
"...the Committee did regard the fact that you have been out of clinical practice for almost three years to be a matter of concern when assessing the extent of your remediation. The Committee took into account that the issues in this case relate to matters of clinical assessment, clinical technique, record keeping and patient communication. In its view, these are all concerns that can only be assessed as remedies, if there is evidence to indicate that they have been embedded in one's clinical practice. The Committee has received little or no independent assurance, such as peer reviews and verified audits in the areas of concern to demonstrate that the remediation he had undertaken has made any difference to your day to day clinical practice.
Therefore, whilst the Committee appreciated your significant efforts towards remediation, and noted the comments of Professor Willmot's evidence in this regard, it considered that in the absence of any up to date evidence regarding the standard of your practice, there is a risk of repetition. The Committee acknowledged the fact of your retirement and the impact of this on your ability to provide such evidence. However, it had regard to the case of Clarke and took into account that it must assess your current fitness to practise, irrespective of your retirement. The Committee noted that you remain on the Dentists Register, and as such, have the potential to return to practice. Accordingly, the Committee determined that a finding of impairment is necessary for the protection of the public.
The Committee next considered the wider public interest. It took into account that wide-ranging and serious findings have been made in this case, and there is little or no evidence of embedded learning. The Committee was of the view that public confidence in the dental profession would be seriously undermined if a finding of impairment were not made in these circumstances. It also considered that such a finding is required to promote and maintain proper professional standards".
The Appellant's case
The Respondent's case
Discussion and conclusion
Ground 3: Sanction
The Committee's Determination
The Appellant's case
The Respondent's case
Discussion and conclusion
Conclusion