In April 2015 the General Dental Council (“GDC”) published new guidance to its Professional Conduct Committee on the appropriate sanctions in relation to certain conduct. In the recent case of Jonathan Davey v General Dental Council  EWHC 3594 (Admin) the High Court considered some implications of the guidance in relation to dishonesty.
The GDC periodically issues guidance to its Fitness to Practise panels on appropriate sanctions. The expectation is that panels will adopt the guidance and the corollary of that is that failure to adhere to such guidance may give rise to grounds of appeal.
Previous guidance on dishonesty and sanction
In November 2009 the GDC published its ‘Guidance for the Professional Conduct Committee’ explaining that the document “provides guidance for the Professional Conduct Committee (PCC) on exercising its powers in relation to fitness to practise matters. This guidance is not exhaustive and will be reviewed from time to time in the light of experience and any relevant case law”.
In the earlier sanctions guidance dishonesty was one of a number of categories of conduct for which there was something akin to a presumption in favour of erasure following a finding of dishonesty:
In the circumstances outlined in the guidance given below, a decision not to erase would require careful justification. That said, the commentary under each heading cannot cover every situation and each case must be considered on its own merits. The following guidance highlights behaviours which are so damaging to a registrant’s fitness to practise and to public confidence in dental professionals that erasure should be considered to be the appropriate outcome:
Patients, employers, colleagues and others have a right to rely on registrants’ integrity. Important choices about treatment options and significant financial decisions can be made on the basis not only of registrants’ skill but also of their honesty. Dishonesty, particularly when associated with professional practice, is highly damaging to a registrant’s fitness to practise and to public confidence in dental professionals.
It is perhaps worth of note that ‘a decision not to erase would require careful justification’ and that the behaviour was so damaging to a registrant’s fitness to practise and to public confidence in dental professionals ‘erasure should be considered to the appropriate outcome.’
The guidance arguably approached dishonesty as a state of mind or attitude rather than a label to attach to certain past conduct: ‘Dishonesty, particularly when associated with professional practice, is highly damaging to a registrant’s fitness to practise’. Part and parcel of that is that the guidance made no differentiation between different kinds or degrees of dishonesty; dishonesty was enough in itself.
The new sanctions guidance
The new document effective from April 2015 is ‘Guidance for the Professional Conduct Committee, including Indicative Sanctions Guidance’ (This was further updated in October 2015, but not materially so in relation to the issues in this article) The document explains that;
“The aim is to provide guidance for panels on exercising their powers in relation to fitness to practise matters and on considering what sanction to impose following a finding that the registrant’s fitness to practise is impaired. This guidance outlines the decision-making process and the factors which should be considered when deciding on sanction.”
Appendix A to the guidance sets out the ‘Indicative Sanctions Guidance’ for the PCC and paragraph 52 sets out the general guidance in relation to how dishonesty should be viewed and lists different sorts of conduct within the umbrella of dishonesty:
48. Patients, employers, colleagues and the public should be able to rely on a dental professional’s integrity. Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession. Examples of dishonesty in professional practice include, but are not limited to:
- defrauding an employer or contracting body;
- falsifying and/or improperly amending patient records;
- issuing practice policies which unduly influence patients to receive expensive or unnecessary treatment;
- misrepresenting the NHS positions;
- submitting or providing false references;
- providing misleading information on a CV;
- failing to take reasonable steps to ensure that statements made in formal documents are accurate;
- misconduct in relation to research for example presenting misleading information in publications or dishonesty in relation to clinical trials.
49 Dishonesty is serious even when it does not involve direct harm to patients (for example defrauding the NHS or providing misleading information) because it can undermine public confidence in the profession. The Privy Council has emphasised that “Health Authorities must be able to place complete reliance on the integrity of practitioners and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole”.
In relation to sanction and whether erasure is indicated, the new guidance is less prescriptive than its predecessor:
“7.34 Erasure is likely to be appropriate when the behaviour is fundamentally incompatible with being a dental professionals and involves any of the following:
• serious departure(s) from the relevant professional standards;
• where serious harm to patients or other persons has occurred, either deliberately or through incompetence;
• where a continuing risk of serious harm to patients or other persons is identified; the abuse of a position of trust or violation of the rights of patients, particularly if involving vulnerable persons;
• convictions or findings of a sexual nature, including involvement in any form of child pornography;
• serious dishonesty, particularly where persistent or covered up;
• a persistent lack of insight into the seriousness of actions or their consequences.”
It is of note that in this guidance erasure is indicated not for dishonesty per se but for ‘serious dishonesty’, and also makes reference to the whether the conduct was ‘persistent or covered up’.
The latter reference mirrors that of the General Medical Council (“GMC”) guidance indicating erasure for ‘dishonesty, especially where persistent and/or covered up’ (GMC ‘Sanctions Guidance’ April 2015 at paragraph 88(h)). Interestingly, however, the GMC guidance does not make reference to any concept of ‘serious dishonesty.’
There is arguably some merit in a less prescriptive approach, particularly in
• Getting around the rigidity of the previous approach
• Making it easier for panels to make findings of dishonesty.
• Acknowledging that there are lots of different types of case that include elements of dishonesty and that there is a need to focus on the merits of individual case.
The new guidance may also lead to fewer dentists being erased as a consequence of dishonesty and for an increase in sanctions up to and including suspension.
Another consequence, however, of a less prescriptive approach is that it may lead to increasing challenge to decisions to erase on the basis of whether the misconduct amounted to ‘serious dishonesty’ and/or whether the PCC applied the correct approach to sanction.
Davey v General Dental Council
In this case the Appellant appealed against a determination by the PCC that he be suspended from the dental care professionals register for twelve months.
The Appellant was a clinical dental technician and the case arose out of his seeking to cover up evidence of his working outside the “Scope of Practice” document produced by the GDC. In particular, he was prohibited from fitting dentures to patients who had some remaining natural teeth unless they had been referred to him by a dentist. Between July 2013 and January 2014, however, the Appellant treated a patient who had some remaining natural teeth but had not been referred to the Appellant by a dentist. Despite this, the Appellant saw her many times and knew throughout that he should not be doing this.
Following a complaint, the appellant tried to cover up inadequate record keeping by submitting records which he had written up after the date of the GDC's request thereby deliberately and dishonestly creating a false impression of good practice. Two months later the original, deficient records were submitted to the GDC by the Appellant's solicitors.
The Appellant faced allegations relating to treating his patient outside his scope of practice, keeping inadequate records, dishonestly submitting non-contemporaneous records and thereby failing to cooperate with the GDC investigation.
The allegations of dishonesty were found to have been proved in circumstances where the Appellant had gone to some lengths to cover up his fabrication by using different pens to make it look as though the relevant entries had been made at different times. The sole challenge in the appeal was the sanction imposed to suspend the Appellant from the dental care professionals register for twelve months.
Mr Justice Turner reviewed the new sanction guidance outlined above then considered the reasoning of the PCC, which had been articulated as follows:
“Given the serious nature of your misconduct which included dishonesty, the Committee concluded that it would be insufficient and inappropriate to conclude this case by taking no action. For the same reasons the Committee determined that it would be inappropriate to conclude this case with a reprimand. The Committee considered that a reprimand would not be sufficient to uphold public confidence in the profession or convey the seriousness of your misconduct.
The Committee next considered the imposition of a suspension of your registration. Whilst the Committee was mindful that where there has been a finding of dishonesty erasure would normally be appropriate, the Committee identified the following factors in your case which it considered placed it into a residual category of exceptional cases where erasure was not necessary. These factors are the following:
i. There was no financial loss or actual harm to any patient.
ii. Your dishonesty was relatively short lived in that having submitted non-contemporaneous notes in March 2014, you thereafter submitted the original notes through your solicitor in June 2014; and
iii. The allegation of dishonesty against you resulted from your voluntary admission that the notes which you had submitted to the GDC in March 2014 were not contemporaneous.
For these reasons the Committee considered that in this particular case erasure would be disproportionate and that a period of suspension would be sufficient. In considering the length of suspension, the Committee considered the maximum length of suspension of 12 months was necessary, given the seriousness of the misconduct, the need to mark its gravity and the need to uphold public confidence in the profession and declare and uphold proper standards of conduct and behaviour.”
There were four grounds of appeal, including that the PCC had erred in law as it directed itself that in cases of dishonesty erasure would normally be appropriate and it should consider whether there were exceptional circumstances such that erasure was not necessary. Consequently, it was argued that the PCC had thereby failed properly to adopt the correct approach to the question of sanction by considering the least restrictive sanction first and only moving to a more restrictive sanction if it was satisfied that a lesser sanction was not appropriate.
Turner J cited Giele v GMC  1 W.L.R. 942 and the judgment of Collins J held at paragraph 26 that:
“The panel had to approach the question of sanctions starting with the least severe. It was not a question of deciding whether erasure was wrong but whether it was right for the misconduct in question after considering any lesser sanction. Furthermore, it was wrong to ask whether there were exceptional circumstances to avoid erasure. Exceptional circumstances would only avoid the possibility of erasure. That is not surprising since what is exceptional will depend on the facts of a particular case. But in my judgment it was in this case and will in most cases be unhelpful to talk in terms of exceptional circumstances. The panel must look at the misconduct and the mitigation and decide what sanction is appropriate…”
At paragraphs 16-17 Turner J concluded in relation to this point that
“In the light of these observations, the PCC's reference in this case to “exceptional cases where erasure was not necessary” was infelicitous but I am not satisfied that it renders its decision wrong. The PCC correctly considered, in turn, the sanctions available to it in ascending order of severity and stopped at the sanction of suspension. The later reference to the more serious sanction of erasure was not, metaphorically speaking, a stepping down from the top of the staircase but merely part of the reasoning behind the choice not to ascend to the next step.
In Giele, the PCC reached the top of the stairs and remained there on the basis that exceptional circumstances would have to be made out to permit it to descend. This was clearly wrong and flew in the face of the Guidance. Here, in contrast, the PCC proceeded up the staircase and stopped when it reached the appropriate level of sanction. It is to be noted that paragraph 7.5 of the Guidance specifically provides that “having established the sanction they are minded to apply, the Committee should also consider the next most severe sanction to satisfy themselves that the sanction they are minded to apply is appropriate.” Thus, although it might be said that the PCC's reference to exceptional circumstances in this case was, in the words of Collins J, “unhelpful” it was not fatal”.
Turner J then went on to reject the other grounds relied upon by the Appellant that; the PCC had thereby failed properly to consider any alternative to 12 months suspension and the appropriate length of any period of suspension, and that the imposition of a period of suspension for 12 months was in any event disproportionate.
In rejecting the argument that the sanction was disproportionate, Turner J stated at paragraph 25:
“The Guidance rightly records that dishonesty is highly damaging to the dental professional's fitness to practise and to public confidence in the profession. The decided cases demonstrate that erasure will be a frequent consequence of a finding of dishonesty albeit with each case to be decided on its own facts. As Mitting J observed in Nicholas-Pillai v GMC  EWHC 1048 Admin at paragraph 27:
These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty”.
Turner J concluded that decision of the PCC relating to sanction and the reasoning behind it were entirely appropriate and the Appellant had no legitimate grounds upon which successfully to challenge them.
It is clear from this judgment that PCCs must consider how to approach sanction in dishonesty cases with increasing care. Firstly, the ‘up the stairs’ approach should always be adopted, that is to say that regardless of whether dishonesty has been proved the panel should look at sanction in ascending order of seriousness.
Secondly, a finding of dishonesty does not avoid the need for the PCC to consider the proportionality of sanction by a careful and measured look at all the circumstances of the case, aggravating and mitigating factors.
Thirdly, it is implicit from the judgment that the PCC had to some degree misdirected itself by adopting the old approach that ‘where there has been a finding of dishonesty erasure would normally be appropriate.’ PCC panels will have to ensure that they no longer adopt such an approach.
Lastly, it is implicit from Davey that determinations that the threshold for the more serious sanctions such as suspension and erasure will need to be justified by reference to the guidance. In particular, any decision to erase may well be open to challenge without a finding that the conduct amounted to not just dishonesty but serious dishonesty.
What amounts to ‘serious dishonesty’ may give rise to further appeal cases and may potentially become problematic for both PCC panels and the higher courts.
Certainly, the presumption that dishonest conduct will lead to erasure is a thing of the past. It is outside the scope of this article to consider whether this will have a beneficial or detrimental effect on the standards and standing of the dental profession. It is likely however that, for better or worse, more dentists found to be dishonest will continue to practise.