High Court Quashes GDC Erasure Decision, As ‘Mixing’ Comes Under The Spotlight
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- Published: Wednesday, 05 October 2022 08:57
- Written by Chris Tapper
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For the second time in three years, a decision by the General Dental Council’s Professional Conduct Committee has been overturned by the High Court.
Mr Justice Ritchie ruled that the decision made by the PCC to erase a young dentist early in 2022, was “Disproportionate and unnecessary.”
Justice Ritchie quashed the GDC’s decision, saying “Suspension is enough for these proven charges for this young and repentant dentist.”
The judge said “The erasure sanction of the PCC shall be quashed and in its place the Appellant’s registration will be suspended for 9 months from the date of the decision of the PCC.”
The dentist faced various charges, but she admitted to the PCC that she charged three patients ‘top up fees,’ “So that they could obtain better tooth crowns than are provided in the normal course on the NHS,” the High Court hearing said.
The High Court heard that the dentist “Quite openly and without any deception or coverup, discussed the benefits of ceramic crowns and offered to provide ceramic crowns to the patients on the NHS but with a top up fee to be paid by the patients for the difference in price between the porcelain bonded crowns and the wholly ceramic crowns. All of the patients agreed.”
The court transcription continued “These agreements were written in the clinical notes. The benefit of this arrangement for the patients was that they were receiving an NHS service and paying the normal small, fixed contribution for that service to obtain their crowns, but also paying a small top up fee to obtain the better crowns.”
“The alternative, which would have been worse for the patients, would have been for the Appellant (the dentist) to have refused to provide the ceramic crowns on the NHS (because they were just needed for oral health) and to have advised the patients that they could only buy them privately from a private dentist or indeed pay for them privately at the Appellant’s practice. That would have cost the patients considerably more.”
The High Court transcription said “It was said by the experts in evidence and repeated by the PCC in their decision that ‘the Regulations’ prohibit top up fees.”
“The Appellant’s defence was that she did not know that this was prohibited by the Regulations. The Appellant submitted that to establish dishonesty the PCC needed to find that she knew that top up fees were prohibited by the Regulations.
But Justice Ritchie said “In my judgment to determine this issue the PCC should have been shown all of the Regulations allegedly broken.”
There were a number of charges made against the dentist by the GDC and the full High Court transcript can be found here.
Judge Ritchie said “The charges which have been proven are undoubtedly serious ones. Dishonesty in dealing with the NHS claims process and failing to communicate properly with patients over charging are serious matters. Failing to make proper clinical notes and diagnose caries likewise can be serious.”
“I agree with the PCC that all of the sanctions below suspension are not relevant to such serious charges and would not be sufficient.”
“I also agree with the PCC that the Appellant has shown remarkable endeavour in retraining herself to ensure her clinical failings including note taking, spotting caries and reporting on x-rays which she made over her first 11 months of practice do not recur.”
However, in my judgment in all of the circumstances of this case the sanction of erasure for this young dentist is too harsh and is unnecessary in the circumstances of this set of proven charges. My reasoning is as follows.
“The findings of dishonesty over top up payments are quashed, so the scope of the breaches of professional standards is narrower than the PCC was considering.”
“These misconducts were nearly all committed over a short period between December 2017 and August 2018 in the Practice which did not provide the Appellant with any induction training or any continuing training or any clear guidance on NHS claims and under a principal dentist with whom the Appellant had a difficult and unsupportive relationship.”
“There was little if any evidence of supervisory support provided by [the principal] to this young dentist. I consider that I can take judicial notice that young professionals including dentists need guidance in their first job and later on as well,” the judge said.
The High Court case prompted the British Dental Association to issue a warning to practitioners of the dangers of ‘topping up’ when mixing NHS and private treatment.
In a blog written by Dr Len D’Cruz, Dr Kevin Lewis and Dr Victoria Michell, the BDA said “Consent remains key to delivering NHS and private care as part of any treatment plan. ’Topping up’ NHS banded charges is not permitted under regulations nor sound ethics.”
The blog continued “A challenge for dentists operating in a mixed economy is the contractual rules around what is available on the NHS as well as what guidance the GDC offers in these situations.”
“Mixing of NHS and private treatment has been permitted for the same course of treatment and on the same tooth since 2006 when the 1992 NHS regulations were superseded by the 2005 GDS and PDS Regulations.”
“Whilst it is permissible for a dentist to provide any part of a course of treatment privately if they have first obtained the patient’s consent, they must not advise the patient ’that the services which are necessary in his/her case are not available from the dentist under the [NHS] contract’ or ’seek to mislead the patient about the quality of the services ’under the contract’.”
The full BDA blog can be accessed here.
In 2019, Mr Justice Julian Knowles criticised the General Dental Council’s Professional Conduct procedures after highlighting a “serious procedural irregularity” which allowed a fraudulent dentist to be restored to the dental register.
The judge referred the dentist’s application for restoration, back to a “differently constituted” Professional Conduct Committee (PCC) after it was found the original PCC which allowed the dentist to be restored, was not presented with important evidence of the dentist’s most recent dishonesty, by the General Dental Council itself.
The appeal against the PCC’s decision was brought by The Professional Standards Authority for Health and Social Care (PSA) which brought the appeal case to the High Court, opposing the decision of the Professional Conduct Committee to restore dentist Ikhlaq Hussain to the dental register.
In July 2010, Mr Hussain was convicted of conspiracy to defraud between 2002 and 2006, related to his Worcestershire dental practice. He was later sentenced to 30 months imprisonment at Birmingham Crown Court, while his business partner Mr Jaspal Bachada, also a dentist, was sentenced to 20 months.
Mr Hussain was convicted of defrauding the NHS by allowing Mr Bachada to perform NHS dental treatment at the Droitwich surgery and secure payment from the NHS for the treatment, despite knowing that Mr Bachada’s application to join the performer’s list had not been granted.
As a consequence, the NHS was misled into paying the fees for the treatment when it had actually been provided by other dental practitioners.
Unbeknown to the PCC at the time they considered Mr Hussain’s application for restoration, Mr Hussain had been found by a judge to have given false evidence during a civil action against him and Mr Bachada, in October 2017, regarding the sale of another dental practice in the West Midlands. They were alleged to have made false representations regarding turnover at the practice.
Judge Knowles heard that the GDC had withheld evidence from the PCC hearing Mr Hussain’s application for restoration to the registration – in order to avoid possible adjournment.
“By way of compromise and with a view to the hearing not being delayed by procedural objections (including the possibility of an adjournment), it was agreed between the GDC and Mr Hussain that the First (2007) Judgment, but not the Second (2017) Judgment, would go before the PCC.”
The full GDPUK report of that case can be found here.
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