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A risky appeal: actual risk of harm to patients is neither here nor there

  • Market Insight 10 December 2020 10 December 2020
  • UK & Europe

  • Healthcare

In 2010 X developed a health condition that meant, under the Department of Health guidance in place at the time, he could not practise dentistry. He did not tell his employers about his condition. He continued to treat patients. He was ultimately erased from the dental register. X appealed on the basis that there was no evidence that his health condition posed a real risk to patients.

A risky appeal: actual risk of harm to patients is neither here nor there

X v The General Dental Council

X was a dentist. In 2010 he developed a health condition that meant, under the Department of Health guidance in place at the time, he could not practise dentistry. He told the medical staff treating him that he was a receptionist. He did not tell his employers, a health board, about his condition. He continued to treat patients – contrary to the guidance – even through a number of employment changes. He further made false declarations that he did not have any underlying health conditions. In 2016 the dentist's health condition was discovered and he was referred to the GDC.

The charges considered by the GDC related to the dentist's misleading and dishonest behaviour. The dentist admitted dishonesty for his failure to disclose the health condition that developed in 2010. The dentist submitted that the appropriate sanction was a suspension order. The committee found that the dentist had deplorably put his own interests ahead of his patients' interests. There was a risk of harm to patients. The dentist's actions were fundamentally incompatible with remaining on the register. The public interest would not be served by an order of suspension.

X appealed to the Court of Session. One main thrust of the appeal was that there was no evidence that the dentist's health condition posed a real risk to patients. It was also submitted that the committee should have concluded that the impact of the initial shock upon the appellant’s judgement and sensibilities extended to his conduct in subsequent years. This was said to dampen the significance of the admitted dishonesty.

The court gave these submissions short shrift. The court considered the appellant's position proceeded on a misunderstanding of the committee's approach. The court was satisfied that the committee was concerned not just with actual risk to patients but also the dentist's dishonest actions. In ordinary parlance his conduct exposed his patients to a risk of harm. Whether a patient was exposed to an actual risk or not was not necessary. The court held that the appellant's insistence that the committee was talking of an actual risk of harm as opposed to the potential for harm was artificial and wrong.

In relation to the continuing dishonesty the court considered that, given the length of time this covered, it would have taken "strong and clear evidence" to overcome the view that the dentist was responsible for his own conduct. Though there was evidence of a limited period of initial shock there was no evidence of prolonged shock.

Appeals to the Scottish courts against decisions of professional regulatory committees are few and far between. This judgment highlights that, like their English counterparts, the Scottish courts will rarely intervene with a professional committee's decision. That is especially so when the decision is said to be "commendably clear and straightforward". Those facing dishonesty allegations before the GDC will note that, despite admitting dishonesty and proposing a sanction of suspension, the dentist was still erased. However some solace can be taken from the number of serious aggravating factors that the committee took into account.

End

Themes:

Additional authors:

Chris Dunn

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