Shoosmiths won a Court of Session (Scottish High Court) appeal against the General Dental Council's (GDC) decision to strike a dentist off the dental register.
The dentist, Dr N, has now been restored to the dental register with only a GDC reprimand in place of the original strike off sanction. This means he is once again free to practise as a dentist without any restriction.
Dr N worked as an Associate in the practice of the now infamous dentist, Joyce Trail, for 18 months between 2011 and 2012. Subsequently, following a five-week Trial, Ms Trail was found guilty of defrauding the NHS out of £1.4m and sentenced to seven years imprisonment. Prior to the Trial, Dr N had been completely unaware that Ms Trail was facing criminal charges.
Dr N came to the attention of the GDC in March 2012 when the GDC wrote to Ms Trail regarding a complaint that had been received from the next of kin of a deceased patient, Patient A. Ms Trail provided a detailed response to the GDC in which she stated that she had never met or treated Patient A and that Patient A had in fact been under the care of her Associate, Dr N. This was all untrue. To support her contentions, Dr Trail instructed Dr N to re-write Patient A's dental records in his handwriting, with no explanation for why she needed this to be done.
General Dental Council Proceedings
When the GDC contacted Dr N, he provided them with a full and candid explanation of what had happened in terms of his re-writing Patient A's records. The GDC then commenced an investigation into Dr N. Dr N was eventually charged with misconduct (dishonesty) and his case was listed for a three-day hearing before the GDC's Professional Conduct Committee ("PCC").
Dr N instructed a direct-access barrister to represent him at his GDC hearing. The direct-access barrister dropped out of the case shortly prior to the hearing, explaining that he had accidentally double-booked himself for the dates of the hearing. The direct-access barrister also gave Dr N some poor advice - to either not attend the hearing at all, or to attend and represent himself.
Dr N repeatedly applied to the GDC to postpone the hearing until he could find a new legal representative for the relevant dates. Those applications were all refused by the GDC.
During April 2014, Dr N's case came before the PCC. Despite Dr N's representations, the PCC elected to proceed with the hearing in his absence. All allegations were found proved. The PCC determined that Dr N's actions amounted to misconduct, that his fitness to practise was impaired and that his name should be struck off the dental register.
Dr N then realised he should seek out specialist GDC solicitors and approached Shoosmiths for advice.
After reviewing all the evidence and the transcript of Dr N's GDC hearing, we were able to advise him on grounds of appeal with a realistic prospect of success.
We commenced an appeal in the Court of Session (Scottish High Court) and asked the Court to quash the PCC's decision on a number of grounds, including that:
- the GDC Legal Assessor had failed to properly advise the PCC about proceeding with a hearing in the absence of a registrant;
- the PCC's decision to proceed with the hearing in the absence of Dr N was wrong;
- the PCC's decision to strike off Dr N was wholly disproportionate;
- the legal advice provided to Dr N by his direct-access barrister was of a poor standard.
Ultimately, Dr N's appeal was successful. The decision to strike Dr N off the dental register was quashed and the GDC was ordered to conduct a new PCC hearing. The GDC also paid a contribution to Dr N's legal costs of the appeal.
Over a year following the original PCC hearing at which he was struck off the dental register, Dr N's new PCC hearing took place at the GDC in London. On this occasion, with the benefit of expert legal representation, the hearing concluded with Dr N being given a reprimand for his 'limited and wholly isolated' misconduct. A reprimand is the lowest possible GDC sanction and enabled Dr N to return to practice without restriction.
Following the hearing, Dr N wrote to us expressing his profound gratitude.
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