GDC makes successful appeal - can impose longer sentences

The Court of Appeal says “As always, the touchstone will be the protection of the public” - The GDC makes a successful appeal in immediate orders case .... even if that means individual registrants are prevented from practising by long suspensions.

“Finally, although I accept that the interpretation that we are endorsing may have the effect of extending the period during which a dentist's registration is suspended, that does not seem to me to be either unfair or contrary to the public interest……... As always, the touchstone will be the protection of the public.”

So said Lord Justice Stewart-Smith in the Court of Appeal in agreeing with the leading judgment given by Lady Justice Nicola Davies in the General Dental Council’s recent appeal against a judgment given by Mr Justice Ritchie. General Dental Council v Aga [2025] EWCA Civ 68 (04 February 2025) The GDC had challenged Mr Justice Ritchie’s analysis of how immediate suspensions should be treated when an appeal raised by a dentist that had been suspended for nine months by the Professional Conduct Committee also has an immediate suspension imposed. That immediate suspension meant the dentist was suspended until the appeal had been decided. If the appeal is not successful, the period of suspension ordered by the PCC comes into effect on that date. Mr Justice Ritchie decided that the suspension, as a whole, should not extend more than 12 months, the maximum suspension allowed under the Dentists Act and the time served under the immediate suspension should be taken into account if the appeal is not successful. The GDC disagreed with this view. Dental Professionals have had a brief period thinking that the immediate period of suspension could be offset against the substantive period of suspension. This interpretation has been soundly rejected. There was a clear steer given in a different High Court case Professional Standards Authority for Health and Social Care v General Dental Council & Anor [2024] EWHC 2610 (Admin) (16 October 2024) where the judge analysed the case law, deciding that Mr Justice Ritchie was wrong.

The Court of Appeal has settled the argument once and for all. A substantive order for suspension comes into effect after the 28 days allowed for an appeal to be lodged, or once an appeal has been decided.

The statutory purpose of the GDC is to protect the public. This is not new, but historically dentists have been under the misguided view that because the GDC is funded entirely by registration fees that the GDC was some sort of membership organisation, where the members could elect the leaders (Council members) and the President would be one of them. The last vestiges of that GDC disappeared in 2006 when the last significant overhaul of the Dentists Act 1984 happened.

Given the Court of Appeal’s clear statement that public protection takes precedence over the fate of any individual registrant, it is crucial to registrants that the GDC only puts their livelihood and mental health at risk with its fitness to practise procedures when the public is properly in need to protection.

There have been a number of cases that have gone all the way through to hearings when at then end, even though some of the facts have been proved, the facts didn’t amount to misconduct, or if they did, there was no current impairment. In other words, a case could run for many years with immense stress and worry only to be closed without any action.

The GDC really needs to look again at the threshold that it uses to commence an investigation. Cases that will never make the “serious” misconduct threshold should be closed on initial assessment. Only cases where there are allegations that care has fallen far below an acceptable standard should be continued. In other words, if the clinical reviewers find that care has fallen “below” rather than “far below”, the case should be closed without any anxiety by the GDC. “Below an acceptable standard” can never reach the threshold for “serious” misconduct.

The Fitness to practise rules say that the Registrar must investigate a complaint or other information received in relation to a registered dentist or a registered dental care professional… and must determine whether a complaint or information amounts to an allegation.  An “allegation” means that the fitness to practise of a registered dentist or registered dental care professional is impaired. That impairment may be because of misconduct, deficient performance, criminal conviction or by a decision of another regulator.

In its advice sheet to registrants facing an FTP investigation the GDC states that “We investigate serious concerns about a dental professional’s practice, health or behaviour as part of our public protection role.” The problem is that many investigations appear to dental professionals as being anything other than “serious”.  Mrs Justice Yip explained the legal view of misconduct in the recent case of a Doctor that was involved in the Just Stop Oil protests Benn v General Medical Council [2025] EWHC 87 (Admin) (22 January 2025) She said

“To that extent, the concession made in this case and in earlier authorities that there is no meaningful distinction between "misconduct" in the current statutory regime and "serious professional misconduct" is correct. It is a straightforward proposition to say that misconduct that is not serious will not impact upon a doctor's fitness to practise.”

There is hope though. In a recent PCC case, the registrant admitted he had made a mistake in how mixing NHS and private options were given to a patient. The Committee decided that the facts admitted and proved, amounted to misconduct, but in the light of his reflective statement and evidence of remediation, the registrant’s fitness to practice was not impaired. The committee said this in its public decision on the case:-

“The Committee determined that a regulator that acknowledges that practitioners can make mistakes, learn from them, and return to safe practice, is a regulator able to build confidence in the public that it is a fair and proportionate organisation that does not unduly punish people. By not finding current impairment, the Committee was satisfied that it would maintain public