A warning about warnings
Legal Development 08 October 2018 08 October 2018
UK & Europe
The General Dental Council now has a mechanism for seeking a review of a warning issued by the investigating committee (now case examiners). But if it is a published warning, should publication be suspended until the review is concluded?
In this case the review was refused and we sought judicial review of the decision to issue a warning. But when the court quashed the warning, the GDC sent it back to another investigating committee – who issued another warning. Would it be worthwhile launching a second judicial review?
The practitioner was convicted of a speeding offence in Scotland and duly reported it to the GDC. This was a minor offence and the same facts in England would not have necessitated self-reporting. An investigating committee decided to issue a published warning. The practitioner sought an internal review of this decision. Despite the review request, the GDC proceeded to publish the warning. The GDC then refused the application for review.
These decisions were successfully challenged in an unopposed petition for judicial review. Following this, the registrar decided to refer this to a further investigating committee. That committee decided to issue another warning. However, in the period between the first decision and its reduction, the General Dental Council (Fitness to Practise) Rules 2006 were amended. Under the amended rules, the matter ought to have been referred to case examiners. A second petition for judicial review was brought against the decision to issue another warning. We argued that it was not competent for the case to have been referred to the investigating committee, and that the decision to issue a warning was irrational.
The court agreed that the matter ought to have been referred to the case examiners. This was enough to determine the merits of the petition. Although the court did not have to consider irrationality, it proceeded to do so.
The court observed that in the scale of things, this was not a serious offence and resulted in one of the lowest criminal disposals. In England, the offence would have been dealt with by way of Fixed Penalty Notice. In Scotland, it was classed as a conviction. A dentist in England who committed the same offence would not have been issued with a warning. There was a disparity between the two jurisdictions, and in the absence of some additional factor to justify it, a warning was irrational.
In issuing the second warning, the GDC also failed to take into account the effect of delay resulting from the first, flawed procedure.
The court also noted that the GDC had proceeded to publish the first warning, notwithstanding that the decision had been challenged. In doing so, they prejudged that review and negated the effect of overturning it. The court described this as an "unattractive feature" of the GDC's procedure, which might be worthy of review.
While the case was effectively determined on an interpretation of the GDC rules, the wider point was the GDC's inconsistent approach to Scotland and England – and their attitude to reviews of published warnings. It ought to be fundamental that when a published warning is reviewed publication is suspended until the review is concluded. Here, it was not. The trenchant criticism from the court should encourage a rethink.
Although the decision is currently unpublished, we will certainly be drawing attention to it in future cases where practitioners find themselves in a similar position.