General Dental Council’s Unsuccessful Appeal
5 May 2023
The Court of Appeal unanimously dismissed an appeal by the General Dental Council against a decision of Ritchie J who allowed in part an appeal by a dentist against a decision of the appellant’s Professional Conduct Committee, in particular relating to top-up payments and related findings of dishonesty concerning three patients: General Dental Council v Williams [2023] EWCA Civ 481 King, Coulson, Nicola Davies LJJ
For a better understanding of the judge’s decision please read Dental Panel’s Defective Reasoning – Barry Baines and/or the first instance decision: Williams v The General Dental Council [2022] EWHC 1380 (Admin) Ritchie J
The case is unusual in that before the judge the parties submitted an agreed consent order, allowing the appeal by consent, because they agreed that the judge’s interpretation of the relevant Regulations was wrong. The difficulties which arose from that agreement were (i) although the appeal was being allowed, it was proposed that the order that the judge made remained unchanged; (ii) furthermore, and more significantly, there were concerns about the making of a declaration that the judge’s interpretation of the relevant Regulations was wrong in circumstances where there would be no oral argument.
The three issues which arose on the appeal were (a) was the judge entitled to determine the proper interpretation of the relevant Regulations despite the fact that the parties before him were agreed on another interpretation? (b) was the judge’s interpretation of the relevant Regulations correct? (c) regardless of the correct interpretations of the Regulations, was the judge wrong to quash the findings of dishonesty.
The proper interpretation of the Contracts Regulations was a matter of law and therefore a matter for the judge. As a general proposition, a judge is not bound to decide an issue of law in a particular way even if the parties are agreed between themselves as to the answer: see Zuckerman on Civil Procedure, 4th Edition §7.7.
A judge would be acting contrary to his or her judicial oath if he decided a matter of law in the way that the parties had agreed if he thought the parties were mistaken. That was particularly so where the issue of law had wider implications. The judge’s concern about the possible error of law was linked to the PCC’s determination that, because the respondent had acted contrary to what it called “a fundamental tenet” of NHS charging, she must have been dishonest. On that view of the determination, if there was no such fundamental tenet, there could be no dishonesty.
The judge, in accordance with the requirement of natural justice to ensure that no-one was left with a result which they did not expect and had not been given a chance to address, warned the parties that his interpretation of the Regulations might be different from theirs, and asked for assistance in the form of written representations.
Giving the judgment of the Court, Coulson LJ rejected the argument that the judge should have invited the parties back for oral submissions. It was difficult to see how prejudice could have been caused by inviting written submissions.
The judge was quite entitled to set out his own interpretation of the relevant Regulations, even though it differed from that of the parties. He gave them an opportunity to address the point, they took it, and there was no procedural unfairness.
The Regulations were not at all straightforward. It appeared that they had been accepted for many years as having a particular effect but, until the judgment below, no-one had troubled to analyse the actual words they used. The judge concluded that they did not mean what the appellant had always assumed them to mean.
The judge was right. The “work on a single tooth” argument relied on by the PCC and then the appellant before the judge and the Court of Appeal was simply not what the Contracts Regulations provided. These were not simply unclear Regulations concerned with what a dentist could and could not be paid, but unclear Regulations which had been used as a basis for professional misconduct hearings and, as in this case, findings of dishonesty which led to erasure.
The judge’s interpretation of the Regulations was pivotal to his decision to quash the findings of dishonesty, therefore the findings of dishonesty had to be quashed. But in the Court’s view the findings of dishonesty could not have been sustained in any event.
It seemed extraordinary the PCC, which was charged with investigating what was said to be a dishonest breach of the relevant Regulations, did not have copies of those critical documents before it.
Some of the expert evidence before the PCC went to what the relevant Regulations meant. That evidence was inadmissible, To rely on expert evidence as to what the relevant Regulations meant, without even a sight of the Regulations themselves, was a manifest error.
It was repeatedly asserted throughout the PCC determination that it was a “fundamental tenet” of the Regulations that no mixing of fees was permitted by the Regulations for work on a single tooth, but that was not what the Regulations said.
That misapprehension fundamentally infected the determination. The PCC found that the dentist knowingly breached the Regulations and was thereby dishonest. She said in evidence that she did not give any conscious thought to whether she was in breach of the relevant Regulation and, once she had discussed it with her former supervisor who told her that she must not do it, she stopped. None of that evidence was challenged in cross-examination.
It was impossible to see how there was a proper basis for a finding of dishonesty. The respondent’s state of mind (see Ivey v Genting Casinos (UK) Limited [2017] UKSC 67; [2018] AC 391 §74) was critical to the issue before the PCC as to whether her conduct was honest or dishonest.