Aga: General Dental Council Succeed in Court of Appeal

The Court of Appeal held that Ritchie J misconstrued the provisions of the Dentists Act 1984 when, following a hearing of a dentist’s appeal he quashed a 9 months’ suspension order imposed under section 27B(6)(b) and substituted for it a direction that he be suspended for a total period of 9 months, from which the duration of the suspension already served under an immediate suspension order shall be deducted: General Dental Council v Aga [2025] EWCA Civ 68  Nicola Davies, Stuart-Smith, Whipple LJJ

Giving the leading judgment, Nicola Davies LJ was satisfied that the judge misconstrued the relevant sections of the 1984 Act in treating a substantive period of suspension and the immediate period of suspension as if they were one continuous period of suspension, which he stated should be subject to an aggregate upper limit of 12 months.

The judge had identified what he considered to be a ‘problem’, namely, that as a consequence of the imposition of an immediate section 30 immediate suspension order, should a dentist appeal and the appeal take 4.5 months to be heard, as this one did, the GDC interpreted the 9 months’ suspension direction, which “takes effect” when the appeal was dismissed, as 9 months without any deduction for the suspension already served. Thus, on the GDC’s interpretation of the 1984 Act, the total suspension would be increased from 9 months to 13.5 months which was more than the 12 months maximum permitted by section 27B(6)(b) of the 1984 Act.

He concluded it did not result in the suspension starting again but that the suspension already in place under the immediate order continued under the directions order and expired at the time which had been determined by the PCC.

Since then Morris J in Professional Standards Authority for Health and Social Care v General Dental Council and Arthif Danial [2024] EWHC 2610 (Admin) (‘Danial’) decided that he did not agree with Ritchie J and considered there was a powerful reason for him to depart from the decision in Aga. He noted that Ritchie J did not have the benefit of oral argument whereas he had received seven sets of written submissions and had listened to a day of oral argument.

In her Ladyship’s judgment the correct interpretation of the language of sections 27B, 29A and 30 of the 1984 Act were inconsistent with the reasoning of Ritchie J and his conclusion that only one period of suspension was imposed.

If the judge was correct in his interpretation of the sections, it would undermine the overriding objective which underpinned the provision governing PCC hearings. It had the potential to undermine the ability of a registrant to remediate the failings which led to a finding of misconduct, one purpose of a review hearing.

It could also negate the purpose of a review directed under section 27B(6)(b) as such a review may not occur if the combined period of a directed and ordered suspension exceeded 12 months. Thus a dentist subject to a review, could return to practice without satisfying a PCC that their fitness to practise was no longer impaired. This would ride roughshod over the carefully drafted provision of the 1984 Act which at their core reflected the need to protect the public. Put shortly, the judge’s interpretation of these provisions of the 1984 Act was wrong. It followed that Morris J was correct in his interpretation of these sections.

Finally, should a judge choose to raise a point not advocated by either party, which was contrary to the established practice of a professional disciplinary tribunal and which had implications which went beyond the parameters of the instant case, the fair and sensible course would be to invite the parties to provide both written and full oral submissions before any determination was made by the court.

Stuart-Smith LJ agreed that there was a degree of overlap between the criteria for making a direction for a substantive suspension and the criteria for imposing an immediate suspension. Although he accepted the interpretation that the court endorsed may have the effect of extending the period during which a dentist’s registration was suspended, that did not seem to him to be either unfair or contrary to the public interest. It was always open to the dentist to request a review of his case before the conclusion of the period of the substantive suspension or for the Council in an appropriate case to initiate the review itself. As always, the touchstone would be the protection of the public.