Case Law Updater | June 2023

Professional Regulation Case Law Updater – by Joseph Sinclair and Rachel Pain.

General Dental Council -v- Williams [2023] EWCA Civ 481

Interpretation – Natural Justice – Procedural Fairness

The registrant was subject to charges concerning the provision of ceramic crowns to patients at an additional charge to porcelain bonded crowns on the NHS. This was said by the GDC to be an impermissible mix of payment structures per the National Health Service (General Dental Services Contracts) Regulations 2005 (“Regulations”). The registrant accepted it was inappropriate, but that she did not know top-up fees were not permitted and denied dishonesty. The Professional Conduct Committee found that dishonesty had been proven.

On appeal to the High Court, Mr Justice Ritchie found that his interpretation of the Regulations was different to the parties who were in agreement. The Regulations permitted the conduct complained of. He invited submissions from the parties who produced a joint note and allowed the appeal in part. The GDC appealed. It was for the Court of Appeal to decide whether: (a) the judge was not entitled to determine the interpretation of the Regulations where the parties were agreed; (b) his interpretation of the Regulations was correct; and (c) the findings of dishonesty were properly quashed [12].

Coulson LJ held that a judge is not bound to decide an issue in a particular way. He would be acting contrary to his judicial oath if he thought the parties were mistaken and did nothing. However, the judge must inform the parties of their preliminary view and invite them to address the underlying proposition and consequences ([24-27]):

[27] At root, this is a requirement of natural justice. The giving of a warning, and the invitation of submissions on the point, is a necessary step for all courts and decision makers, so as to ensure that no-one is left with a result which they did not expect and had not been given the chance to address.
…

[31] I conclude, therefore, that the judge was quite entitled to set out his own interpretation of the relevant Regulations, even though it differed from that of the parties. Furthermore, the judge was alive to the importance of giving the parties an opportunity to address the point. He gave them that opportunity and they took it.

In respect of (b) and (c), the court found that the Regulations did not preclude two courses of treatment to be carried out on one tooth with each falling under different charging schemes. In this case, the patients wanted ceramic crowns which were more expensive. Both the dentist and patients had reached pragmatic agreement to pay privately [35-58]. Given the findings on the Regulations, the dishonesty allegation had to be quashed [67].

Golden v NMC [2023] EWHC 619 (Admin)

Non-participation – appeals 

The registrant was an independent midwife subject to disciplinary proceedings for the provision of services in France. He did not attend his final hearing or take part in it. Nor did he engage in preliminary hearings or case-management procedure. He appealed the findings of fact, the determination that his fitness to practise was impaired, and the sanction of striking off.

[25 [After reviewing the authorities at [22-24]] I glean from these rulings that where a practitioner fails to engage with the NMC in preparation for the final hearing, fails to provide a bundle of documents to be relied on or witness statements for the hearing and fails to attend, the FTPP does not have to guess what the practitioner wants to put before the FTPP for the final hearing. Nor does the NMC have to sift through the historic case correspondence or the historic documents previously sent by the practitioner during, for instance, the interim suspension hearings and appeals from interim orders, to construct evidence files which the practitioner himself has not identified, provided or prepared for the final hearing. This is so when the practitioner is refusing to engage contrary to his duty to cooperate and in particular when he is being positively obstructive or disruptive to the process.

Lambert-Simpson v Health and Care Professions Council [2023] EWHC 481 (Admin)

Social Media – Offensive Comments – Psychologist Suspended – HCPC

Appeal by way of a rehearing following the suspension of a registered psychologist following posts on social media.

It was alleged that the Registrant’s fitness to practice was impaired by reason of misconduct, having posted inappropriate or offensive comments and posts on social media, one of which was found to be racially motivated. The Registrant stated he believed the comments had been on a small, closed group and had arisen out of attempted humour.

The panel took into account HCPC guidance on social media, quoting the following passage:

“Be polite and respectful, and avoid using language that others might reasonably consider to be inappropriate or offensive. Use your professional judgement in deciding whether to post or share something. Remember that comments or posts may be taken out of context, or made visible to a wider audience than originally intended”.

The panel stated that it was his responsibility to ensure his posts were not available to all and that the duty applies whether posting publicly or in a closed group

On appeal the Registrant submitted that the panel failed to properly take into account his autism. However, the court did not find anything wrong procedurally, noting that breaks had been allowed and that he did not at the time link the conduct in issue to his autism.

The Registrant also challenged the panel’s finding on racial motivation, stating that his personal motivation had not been hostile. The court found nothing wrong or unjust in the findings, and agreed that the sanction of a four-month suspension order was appropriate and necessary. The appeal was therefore not upheld on any of the issues.