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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sharma, R (on the application of) v The General Dental Council [2010] EWHC 3184 (Admin) (10 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3184.html Cite as: [2010] EWHC 3184 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10th November 2010

1. MR JUSTICE OUSELEY: The appellant Mr Sharma is a registered dentist. On 27 January 2010 the General Dental Council's Professional Conduct Committee found him guilty of misconduct in his treatment of patient A, found his fitness to practice impaired and imposed conditions on his registration governing how he practised for an initial period of 12 months. The appellant accepted the findings of fact and does not appeal against the finding that he was guilty of misconduct. He does, however, appeal under section 30 of the Dentists Act 1954 and CPR 54 against the finding that his fitness to practice was impaired and against the imposition of conditions.
2. It is sufficient at this stage to set out what the Professional Conduct Committee said in its determination about Mr Sharma's treatment of patient A, and 70-year old lady:

"You admitted all of the allegations made against you and these were found proved. The facts relate to wide-spread deficiencies in your treatment of a single patient, Patient A, over a period of five months.

Patient A attended the Leckhampton Dental Practice on 19 March 2008 to receive clinical treatment from you relating to the fitting of implants. At consultations between yourself and Patient A prior to this appointment, you did not make a note of the radiological examination. You also failed to provide the patient with a written treatment plan and did not obtain informed consent for the appropriate treatment, in that you did not provide Patient A with sufficient information about the proposed treatment.

At the appointment on 19 March 2008 you failed to obtain written consent before putting Patient A under sedation. Your clinical treatment was inadequate in the placing of the implants, as three of these were placed in such a way as to penetrate her maxillary air sinus. Following this appointment, you failed to provide adequate after care to Patient A in that you did not furnish Patient A with a set of dentures that were fit for purpose.

You have admitted, and it has been found proved, that your conduct and treatment of Patient A was inappropriate and not in her best interests.

You were dismissive of Patient A's concerns and dealt with her complaints in relation to her treatment in a way you now admit was unprofessional, inappropriate and not in Patient A's best interests. Additionally, you have admitted that you failed to take appropriate responsibility for the problems with Patient A's treatment, instead setting out treatment options which were incur additional charges. You have admitted that this behaviour was unprofessional, inappropriate and not in the best interests of Patient A."

3. The PCC then turned to the question of whether the facts found constituted misconduct, concluding in these terms:

"the Committee has concluded that your decision to proceed with invasive treatment on a patient, who had suffered sinus infections in the past, without fully explaining the risks of such treatment, was a serious matter. This was aggravated by your use of conscious sedation without your patient's written consent. In addition, you failed to provide Patient A with dentures which were fit for their purpose and you behaved in a disrespectful and unprofessional manner towards Patient A. Whilst your conduct related to only one patient, there was a catalogue of errors and failings rather than one isolated event. The Committee concluded that these acts and omissions, taken together, were a serious falling short of the standards to be expected of a dentist and amounted to misconduct."

4. The next stage was for the PCC to consider whether Mr Sharma's fitness to practice was impaired by reason of that misconduct. It had to examine that issue as at the date of hearing, and so consider whether the misconduct was remediable and what evidence it had received of efforts by the appellant to remedy the misconduct. The Committee was aware that it was only at the last minute that the appellant had accepted that the facts alleged against him were correct. It concluded on impairment of fitness to practice as follows:

"The Committee was advised to consider whether the misconduct was remediable, and had been recommend deed and was unlikely to be repeated. It took into account the guidance given in the case of Cohen v GMC by Silber J. at paragraph 65.

Whilst the Committee accepts that the misconduct is capable of being remedied, it is not satisfied that this has taken place. You did not put before the committee any evidence that you had engaged in any training to address issues relating to communicating with patients, obtaining their informed consent or handling complaints.

The Committee is not satisfied that you have sufficient insight into the failings identified in this case.

The committee has therefore determined that your fitness to practise is impaired by reason of your misconduct."

5. The final stage was for the PCC to decide on sanctions. There was a brief debate before me, to which I shall come, on whether the decision that someone's fitness to practice was impaired necessarily meant that sanctions had to follow. The PCC concluded:

"the Committee has taken into account the public interest, which involves the protection of patients, the maintenance of proper standards of behaviour, and the upholding of public confidence in the profession. It has balanced the public interest with your own interests and has taken into account the principle of proportionality.

The Committee has read the testimonials and has taken them into account. It accepts that you have enjoyed a high professional and clinical reputation. However, having regard to the seriousness of your failings in this case, the Committee has concluded that it would be wrong to conclude this case without taking action on your registration.

The Committee does not consider that a reprimand would be a sufficient sanction in this case.

The Committee went on to consider whether appropriate conditions could be devised. It concluded that it would be proportionate and appropriate to impose a set of conditions which are intended to address the deficiencies in your practice."

6. The PCC then went on to impose conditions which in essence required the appellant to put himself under suitable work place supervision, to obtain three monthly reports from a professional colleague, to limit his practice as required by his supervisor and to submit a personal development plan dealing with the deficiencies in his practice concerning communication with patients, obtaining informed consent and conflict resolution.
7. Although that decision has been suspended pending appeal, the appellant has in effect been subject to that regime through the immediate interim imposition of conditions which have in effect made his registration conditional. The conditions as originally imposed gave a role to the Postgraduate Dean; the conditions in that respect were recognised as inappropriate and had to be modified.

The court's role

8. The PCC is a specialist committee which includes dentists, here, three dentists. It has considerable familiarity with the standards of practice required of a dentist, of what acts impair fitness to practice and what is an appropriate sanction in respect of any impairment. Where the issue on an appeal to this court concerns their evaluation or judgment on a matter where their informed professional opinion has guided their decision, the court has to give careful thought to that before being persuaded that their decision in that respect is wrong, see for example Zygmunt v the General Medical Council [2008] EWHC Admin 2463 at paragraph 2 and Cheatle v the General Medical Council [2009] EWHC 645 Admin at paragraph 15. Those observations apply to both the issues here. First, did the now unchallenged misconduct by the appellant mean that his fitness to practice was impaired? The latter concept is not defined by statute, but nonetheless may readily be discerned by a professional body. Second, what sanction if any is appropriate? That is obviously an area in which the professional judgment of the PCC is valuable.
9. I divide the questions in that way because of the language of section 27B(6) of the Dentists Act 1984, which governed the investigations by the PCC. It states:

"If a practice committee determine that a person's fitness to practice as a dentist is impaired they may, if they consider it appropriate, direct..."

Erasure, suspension, conditional registration or a reprimand. To my mind that suggests that sanction is not a necessary legal consequence of a finding that fitness to practice is impaired, although it may be the obvious and common consequence. That is how the PCC here approached its task, although paragraphs 21 and 31 of the General Dental Council Guidance for PCCs clearly assumes that formal action must follow from such a finding. They provide:

"21. The PCC must first decide whether the registrant's fitness to practise is impaired to the extent that the formal action should be taken with regard to his or her registration.

31. Where fitness to practice is impaired by reason of misconduct to a relatively minor degree and the PCC is thinking of issuing a reprimand, it should consider whether it would provide adequate public protection in this case. A reprimand might be appropriate if the circumstances are such that there is no risk to the public or to patients which requires either rehabilitation or restriction of practice rights."

10. The only relevance of this point to this case is in the way in which the minimum degree of deficiency necessary to amount to an impairment of the fitness to practice is determined by the obligation to impose at least a reprimand. A deficiency warranting less is not an impairment at all if the guidance is correct.
11. Miss Lambert for Mr Sharma contended that there was no basis for the PCC to include that his fitness to practice was impaired at all or impaired to that necessary threshold degree. The PCC was concerned with the future, not with past conduct. Its concern for the future was not with punishing the appellant for past misconduct, but was with impairment of fitness to practice as at 27 January 2010, looking to the future. Impairment was to be measured by the risk that that continued impaired fitness to practice might pose to the individual patient in particular, or to the public. She submitted that the PCC had ignored the following factors and in consequence had reached an irrational decision. Indeed, properly considered, she submitted, it could only conclude that fitness to practice was not impaired.
12. The appellant had had 20 years of professional practice without complaint. His misconduct, serious though it was, concerned the mistreatment of only one patient. There had been no complaints after the event. He had taken steps to reduce his workload, to rationalise the consent forms and processes so they did not vary with the particular practices from which he was working. He had almost stopped using mini-implants, which was what had led to this patient's difficulties. He had expressed unreserved apologies and had accepted his failures. His work was tested by the Dental Council's own audit process.
13. The decision in Cohen v General Medical Council [2008] EWHC 581 Admin was a good example of where significant error or misconduct in a otherwise unblemished career had been held by the High Court not to involve impairment of fitness to practice, contrary to the GMC's own view. She further submitted that the PCC had ignored testimonials from dentists who referred patients to him for his very specialist implantology work, and had only considered them at the stage of deciding the sanction, not at the stage of deciding fitness to practice.
14. Miss Lambert relied on many of the same points when she submitted that the PCC's decision on sanction was irrational, and had ignored relevant considerations. There is, of course, considerable overlap between what is relevant to impairment and what is then relevant to whether reprimand or other, remedial sanctions are required. But in addition, she submitted that if any sanction were necessary at all, it was disproportionate to impose more than a reprimand. There was no evidence of any clinical failing which might be repeated, and the sanctions were not addressed to that anyway. There was no pattern of repeated deficiencies, or evidence that supervision was necessary. There was no likelihood of repetition in relation to the obtaining of informed consent, because Mr Sharma knew what to do without being told or supervised, and he had changed the work patterns which had created this problem. He did not need a personal development plan or training in relation to behaviour towards patients and their complaints. He accepted that he had been at fault on what, the evidence had shown, had been a one-off occasion.
15. The lack of thought given by the PCC to sanctions was evident in its condition, giving the Postgraduate Dean a role which it ought to have realised she could not and would not play. Moreover, no reasons had been given why the lowest sanction, reprimand, had been rejected. Paragraph 31 of the guidance envisaged a reprimand where impairment was minor or where there was no risk to the public.
16. Miss Lambert's case that a reprimand would have sufficed is stronger than her contention that this misconduct showed no impaired fitness to practice or one not warranting sanction, but her starting points are too narrowly drawn, first in her approach that risk to patient is the sole focus of the judgment as to whether fitness to practice is impaired.
17. I accept Miss Harris' submission for the GDC, not really contested in the end by Miss Lambert, that the concept of impaired fitness to practice is broader than a risk to his individual patients from impairment. It also includes impaired fitness, whereby practice without sanction would undermine public confidence in the profession, or undermine the maintenance of proper standards of professional conduct. Impaired fitness to practice is measured by the effect which continued practice, without correction or remedy, would have on those objectives which the GDC seeks to maintain. This is the thinking within paragraph 62 of Cohen v General Medical Council, above.
18. Miss Lambert is also too narrow in her approach to the appellant's misconduct. The failings, which he accepted fully, warranted the description of them by the PCC as showing widespread deficiencies over several months of treatment. This was not a one-off incident, nor did it involve mere oversight.
19. The clinical information as to the available thickness of the upper jaw bone was either not examined or ignored, as was the patient's pre-existing sinus problem. Mr Sharma should have known that the implants risked failure and the exacerbation of the patient's sinus problems. He provided no written treatment plan. He provided no written or sufficient information about the advantages, disadvantages and risk of mini-implants as opposed to conventional implants. He obtained no informed consent, either for the treatment itself or for the sedation during treatment. This is a significant short falling.
20. I accept Miss Harris' point that this was not just an oversight on one or two occasions. The failings were such that in reality he ignored important parts of the process of obtaining informed consent. He also failed in aftercare, to ensure that the dentures fitted properly. He threatened to walk out of the surgery, saying that he was finished with her and then tried to charge her for completing the treatment that she had already paid for.
21. I turn to impairment of fitness to practice. It was rightly a matter of concern that the facts were not admitted until the hearing, and indeed I am surprised and concerned that this was not seen as misconduct. I accept that the appellant hardly does any mini-implants now, but techniques have changed, rather than the appellant forming a view that mini-implants were beyond his capability. I do not accept that this particular feature of mini-implants were part of the problem to be remedied simply by stopping undertaking that work.
22. The value of the responses of Mr Sharma, such as reducing his workload and altering his practices was, as Miss Harris pointed out, rather dependent upon the extent to which the appellant had analysed correctly why he had failed in those respects and had analysed correctly his ability through those means to address them. The information about those changes was conveyed to the PCC by counsel, and not through any statement or oral evidence from Mr Sharma enabling the PCC to test how far he had shown true insight into what the committee saw as the cause of the problems and to test how far what he was doing genuinely addressed those deficiencies. There was no objective, supportive written material demonstrating his workload management for the future, how the written treatment and consent system now operated was operating satisfactorily to redress the informed consent deficiency, and there was no written or objective material to explain why he had behaved the way he had towards this patient to show that what he was now doing addressed his cavalier and disrespectful attitude towards a wholly justifiable complaint.
23. This patient was a referral patient, too. That rather undermines the submission that because Mr Sharma's practice was a referral practice, and thus subject to a degree of professional oversight from the referring dentists, concerns about future problems with patients could be allayed. Granted the appellant had not behaved like this in such a way as to lead to a complaint before or after his treatment of patient A, that it is difficult to see that that of itself shows that what happened here, in relation to a treatment plan and informed consent, was a mere one-off. People may not complain if nothing goes wrong. There is no doubt that this is a excellent dentist in clinical terms.
24. The PCC may wrongly have ignored the testimonials when considering the question of impairment of fitness to practice, but I have read them. I have reservations about how weighty they can be in an absence of a clear acceptance by each author that Mr Sharma did what he accepted he did and in the absence of comment on why that still meant that remedial action for the future was not necessary.
25. I accept that Mr Sharma has a justified and high professional clinical reputation, but I do not consider that in the circumstances it was wrong to hold that his fitness to practice was impaired. It is significant that the particular area of communication with patients covering informed consent and complaints was not the subject of specific evidence as to what the appellant was doing, his workload and rationalising of the forms apart. The PCC was given no information, and I have none, as to how the BDCC audit process might address those issues. The concern which it had about the appellant's lack of insight into his behaviour goes to the heart of the adequacy of his analysis of his own problems, and self-selected remedies. It would be quite wrong for the PCC and me to approach what happened in relation to the complaints, as if it was an isolated act of rudeness. Granted, the impairment of fitness to practice does not relate to clinical risk, but his fitness to practice is impaired through the identified deficiencies in communication, in respect of the obtaining of informed consent and dealing fairly with complaints. Those are all necessary parts of professional practice as a dentist for the protection of the patient, the maintenance of proper standards and the upholding of confidence in the profession. In those respects, he has remediable deficiencies which have not been shown, as at 27 January 2010, to be remedied.
26. I turn to sanction. I was at one time attracted by Miss Lambert's submission that a reprimand was all that was required to bring home to Mr Sharma the gravity of his conduct, and that would be sufficient to deal with his impairment to practice, but I am in the end not persuaded that the PCC's view was wrong. The conclusion on sanction in this case stems very much from the analysis of what the nature of the impairments are, whether they are remedied by the appellant's own acts and if not, what is required. I am persuaded that the conditions were not imposed as a punitive measure, imposed because a reprimand was seen as too "soft". Conditions were imposed because a reprimand was not adequate to deal with the impairments identified.
27. There was a catalogue of different failings. The appellant's attitude towards the the patient and proper communication procedures before, during and after treatment, was at the heart of it. I give less weight than Miss Lambert asks to the fact that the appellant's patients are referral patients, and thus there is a correcting mechanism in the nature of his practice through policing by professional colleagues, since, as I have said, the patient in question herself was a referral patient.
28. Clinical care and excellence does not of itself solve the problems of ignoring the need fully to inform and then obtain informed consent, nor with dealing so dismissively with a justified complaint. He needed to show a commitment to dealing with that -- putting it broadly -- communication issue. In many ways the appellant's degree of insight is crucial not only to the impairment, but also the future consequence by way of sanction. I also conclude that I ought to give considerable weight in this respect to the view of the PCC. The reference to the Postgraduate Dean in condition two was an error which the PCC should have avoided, but I regard it as insignificant for my judgment as to whether the decision was considered, unduly hasty, or wrong. I consider it insignificant in terms of its possible effect on the essence of the PCC's judgment on the merits. Supervision was necessary. It forget that the appellant was not a NHS, but rather a private, dentist for which the Postgraduate Dean would have no role, but that does not go to the essence of its view that supervision was necessary.
29. Accordingly I am not persuaded that the PCC decision was wrong, and subject to one point, this appeal is dismissed.
30. The point upon which I would like brief submissions concerns the effect of the conditions now taking effect with nearly one year having passed with the appellant under effective supervision. Miss Harris, what is the position?
31. MISS HARRIS: The position now is that the substantive order takes effect from today's date, the date from which the dentist is notified, and they run for a 12-month period with a review to take place after 12 months. If one looks at the conditions themselves, one can see that the review requirement is not in fact one of the conditions, it is in fact a separate order or separate requirement imposed once those conditions take effect, so in my respectful submission it would appear that there is no condition within the condition, or no requirement within the conditions, that the conditions be reviewed say in January next year, when in effect they started.
32. MR JUSTICE OUSELEY: Well, I do not like that. It does not seem to me, having had these interim conditions imposed, that Mr Sharma should now have to wait longer than was intended before the review take place, particularly as the nature of what is required would, my provisional view is, probably be dealt with adequately by a year's conditions, unless something very severe was shown up to the contrary. I am not inclined to regard it as appropriate simply to dismiss the appeal and allow the conditions to roll on for another year.
33. MISS HARRIS: My Lord, without wishing to interrupt, may I make this observation: your Lordship will have seen that there is provision within the Act and the rules for a matter to come for early review, and it was that provision that was invoked when it was necessary to bring the case back before the PCC on 4 March in order to amend condition two to achieve workability. The provision is slightly odd insofar as it allows the Dental Council to bring the case back for review, but it does not allow a request by the registrant himself. However, it is, and of course it is a matter that your Lordship can indeed make an observational ruling about, it is open to the Dental Council to -- I have not of course taken specific instructions -- to request that this matter return for a review, say at the end of January, which would be an early review so far as the substantive order was concerned, but it would then be the 12-month period that your Lordship has indicated you feel would have been the appropriate period in this case. Otherwise, as your Lordship observes, these conditions will run until November next year.
34. MR JUSTICE OUSELEY: Well I am not going to allow that. I am going to alter the conditions in such a way at least that they end on 27 January, and you will have to review them before then. I am looking at page 62.
35. MISS HARRIS: Of the transcripts, my Lord?
36. MR JUSTICE OUSELEY: Yes. Where it says under 13 "these conditions will apply for a period of 12 months". If those conditions take effect as from today I will alter that, so that the conditions apply until 27 January and will be reviewed shortly before that. Because as I understand it he has been doing all these things, has done the PDP, and you will be in a position to grapple with the issue straight away.
37. MISS HARRIS: My Lord, can you forgive me, something is being communicated to me.
38. MR JUSTICE OUSELEY: Yes, of course.
39. MISS HARRIS: It was simply for clarification, I do not need to say anything more about that to your Lordship.
40. MR JUSTICE OUSELEY: I do the not think it is appropriate for me to impose a complete guillotine at the end of the year. If that is what you were going to suggest, Miss Lambert, I think that is a matter for the consideration of the PCC as to what happens. If you are right everything will now be in order. If you are not, if there is a significant ongoing problem, then that will have to be addressed or the decision further appealed. What I propose to do is to order that the conditions will apply until 27 January and will be reviewed shortly before the end of that period. If you look at the paragraph, at letter C on page 62, the change will be just to the order that these conditions will apply until 27 January 2011. Save for that alteration -- I think I need to allow the appeal to that extent only, but to other than that the appeal is dismissed -- I think making that alteration is entirely appropriate from what I have heard and the conclusions I have reached.
41. MISS HARRIS: May I raise one matter? Your Lordship having dismissed the appeal but to that small extent, may I make an application for costs?
42. MR JUSTICE OUSELEY: Not so small to Mr Sharma, I suspect.
43. MISS HARRIS: In terms of the substantive issues that were argued, may I make an application for the respondent's costs, to be assessed if not agreed between the. Parties, an estimated total of costs has already been provided to the other side. There are some amendments to be made in relation to there being a second day and the preparation was also only estimated.
44. MR JUSTICE OUSELEY: Miss Lambert?
45. MISS LAMBERT: I don't resist the order in principle. I don't invite your Lordship to arrive at a costs order today, if we agree, subject to detailed assessment.
46. MISS HARRIS: Yes, thank you.
47. MR JUSTICE OUSELEY: If you are both content with that I will send it off for detailed assessment. The order is payment by the appellant of the respondent's costs subject to detailed assessment.