The Judicial Committee of the Privy Council Decisions

v.

The General Dental Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 23rd March 2000, Delivered the 13th April 2000

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Present at the hearing:-

Lord Hope of Craighead

[Delivered by Lord Hope of Craighead]

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1. This is an appeal against a determination of the Professional Conduct Committee of the General Dental Council on 14th May 1999 directing the Registrar to suspend the appellant’s registration in the Dentists’ Register for a period of 12 months in consequence of the proof against him of two convictions for offences under the Road Traffic Act 1988. At the conclusion of the hearing of the appeal their Lordships announced that, for reasons to be given later, they had decided humbly to advise Her Majesty that the appeal should be allowed, that the determination of the Professional Conduct Committee should be set aside and that the judgment of the Committee should stand postponed under rule 11(4) of the General Dental Council Professional Conduct Committee (Procedure) Rules Order of Council 1984 until 14th May 2001. The following are the reasons which their Lordships now give for their report.

 

2. The charge which was set out in the Notice of Inquiry, as amended at the outset of the hearing before the Professional Conduct Committee, stated that the appellant had been convicted of the following offences: (1) that he was on 29th May 1997 at Glasgow Sheriff Court convicted, after pleading guilty, on one charge of driving whilst disqualified and was fined £500 and disqualified from driving for one year and (2) that he was on 1st July 1997 at Lanark Sheriff Court convicted, after pleading guilty, on one charge of reckless driving and one charge of failing to produce insurance documents and was fined a total of £850 and disqualified from driving for 18 months. The Committee were informed that the offences which were the subject of the second head had been committed on 19th October 1996, and that the offence which was the subject of the first head had been committed on 7th May 1997. They were also informed that the appellant had had four previous convictions for speeding offences committed between 27th September 1995 and 7th October 1996. These had culminated in his being disqualified from driving under the "totting-up" provisions on 2nd December 1996. It was his disqualification in respect of these offences which was the subject of the conviction referred to in the first head of the Notice of Inquiry. At the time when he committed the offences which were the subject of the conviction referred to in the second head he had not yet been disqualified from driving and he was not yet without insurance.

 

3. In a letter dated 16th March 1999 written on his behalf by his solicitor, Dr. P. Abernethy, the appellant admitted the convictions referred to in the Notice of Inquiry and disclosed a further conviction in March 1998 in Lancaster Magistrates’ Court, after pleading guilty, on a charge of driving whilst disqualified and a charge of driving without insurance. On this occasion he was fined £2,500 and disqualified from driving for twelve months.

 

4. The case for the Council was that the appellant had been guilty of behaviour which was liable to bring the profession into disrepute or to undermine public confidence in the profession. On the appellant’s behalf Dr. Abernethy invited the Committee to display leniency or to postpone judgment for 12 months under rule 11(4) of the Procedure Rules. She described him as a young, enthusiastic and caring dentist who had bought three practices in Glasgow, where there was a high ethnic need for which he felt he could provide. She said that he had acquired significant financial responsibilities including mortgage payments for a property which he had bought for his parents who lived in Birmingham. His father had suffered two strokes in 1992 and was still in need of a lot of physical care. He felt obliged to go to Birmingham almost every weekend to assist his family in looking after him. This had put a strain on his marriage as his wife did not want to spend her weekends in Birmingham. He had felt under a great deal of pressure during the period when he committed the offences while driving between Glasgow and Birmingham.

 

5. The appellant then gave evidence to the Committee. He admitted that his driving record was disgraceful, and for this he expressed regret and apologised. He now realised that he had been irresponsible in the amount of commuting which he had been doing between Glasgow and Birmingham. He said that he had neglected his driving because of his other problems and that he had now learned his lesson. He asked to be given a chance to prove that this was so. It is plain from the Committee’s determination that they were not persuaded that he should be given that opportunity.

 

6. In his submissions to the Board in support of the appeal Mr. McCullough accepted that the appellant’s driving record had been deplorable, but he submitted that the penalty which the Committee had decided to impose was very harsh, wrong and unjustifiable. He also submitted that the Committee had erred as a matter of procedure because they had failed to consider and determine the question whether to postpone judgment which they were required to consider by rule 11(3) of the Procedure Rules, that their determination was open to challenge on the ground of their failure to give reasons and that there were grounds for thinking, in view of questions put by a member of the Committee as to the conduct of the appellant’s practice as a dentist which was not the subject of any charge against him, that the Committee had taken irrelevant matters into account. For the Council Miss Vaughan Jones said that the qualities which the public were entitled to expect from members of the profession were sound judgment, responsibility, reliability and probity and that the appellant’s convictions showed that he was lacking in each of these qualities. His repeated disregard of the speed limit and of the insurance requirements of the Road Traffic Act 1988 showed a cavalier approach to risk, and his convictions for driving while disqualified by order of the court amounted to moral turpitude. The Committee was entitled to regard this as disgraceful conduct which justified their decision to suspend the appellant’s registration for twelve months, which is the maximum period allowed by rule 11(5).

 

7. Their Lordships do not need to dwell on Mr. McCullough’s subsidiary arguments. There is no basis for the proposition that the Committee failed to consider the question of postponement. The point had been raised with them expressly by Dr. Abernethy in the course of her submissions. The determination announced by the Chairman at the end of the hearing did not mention it. But the purpose of the announcement was to inform the appellant of the order which the Committee had decided to make, not matters which they had considered and rejected. Furthermore, as a general rule a Professional Conduct Committee is under no obligation to give reasons for its determination. In Evans v. General Medical Council (unreported) 19th November 1984, Privy Council Appeal No. 40 of 1984, Lord Keith of Kinkel said that the giving of reasons for sentence was neither necessary or desirable. Their Lordships are content to adopt the same approach in this case. They note that in Stefan v. General Medical Council [1999] 1 WLR 1293, in which it was held that the Health Committee of the General Medical Council were obliged to give reasons, Lord Clyde said at p. 1297A-B that their Lordships expressly refrained from expressing any view as to the giving of reasons by the Professional Conduct Committee. As for the line of questioning by the member which Mr. McCullough said had introduced matters which were irrelevant, this was directed to a legitimate concern that the appellant’s conduct showed that he was inclined to obey the law only when it suited him and that this attitude might extend to his professional activities as a dentist. Although the only matters raised in the Notice of Inquiry were the appellant’s convictions on the two occasions to which it referred, the Committee were entitled to consider the whole context. This was relevant in assessing the gravity of the offences before they reached their determination as how they should dispose of the case.

 

8. The critical question, in their Lordships’ view, was whether the circumstances of the case were such that it could reasonably be said that the penalty of suspension for a period of twelve months was wrong and unjustified. It is well established, for very good reasons, that the Board will not interfere with the exercise of the discretion of the Professional Conduct Committee in matters relating to penalty. The assessment of the seriousness of the misconduct upon proof of a conviction is essentially a matter for the Committee, in the light of their experience of the range of cases which come before them. They are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of the misconduct. As a general rule therefore the Board will be very slow to interfere with decisions of the Committee on matters relating to penalty. As Lord Upjohn said in McCoan v. General Medical Council [1964] 1 WLR 1107, 1113, no general test can be laid down, as each case must depend on its own particular circumstances. But it is clear that the Committee are not entitled to arrive at a decision which can reasonably be said to be wrong and unjustified.

 

9. So far as the facts and circumstances of this case are concerned, the appellant’s record of driving offences during the period in question was plainly a deplorable one. But the issue in the present case was not whether he should be punished for those offences, for which he had already been dealt with by the imposition of appropriate penalties in the courts, but whether he was fit to continue in practice as a dentist. In Ziderman v. General Dental Council [1976] 1 WLR 330, 333A-B Lord Diplock observed that the purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.

 

10. Section 27(1) of the Dentists Act 1984 places no restriction on the nature or gravity of the criminal offences for the conviction of which a registered dentist may have his name erased from the register or have his registration suspended for such period not exceeding twelve months as may be specified. Nevertheless it is proper to have regard to their nature and gravity when decisions are being taken as to the appropriate penalty and its consequences. In this respect there is room for a distinction between cases where the penalty is imposed for conduct which the Committee have held is serious professional misconduct and cases, such as the present, where the penalty is imposed upon proof of a conviction. The extent to which the nature or gravity of the offence of which the dentist has been convicted is likely to bring the profession into disrepute or to undermine public confidence in the profession is primarily one for the Committee. But it is a matter on which their determination may more readily be regarded as reviewable by the Board than it would if the Committee had been dealing with a case of conduct which in their view amounted to serious professional misconduct.

 

11. In the present case what the Committee had to do was to balance the nature and gravity of the offences and their bearing on the appellant’s fitness to practise as a dentist against the need for the imposition of the penalty and its consequences. It was also necessary for them to have regard to rule 11(4) of the Procedure Rules, which enables the Professional Conduct Committee, in appropriate cases, to postpone sentence for a period to give the dentist an opportunity to show that he has rehabilitated himself.

 

12. The offences displayed a pattern of conduct which could be related entirely to the appellant’s practice of spending his weekends in Birmingham, as each of them was committed in the course of his journeys between there and Glasgow. The Committee were provided with an explanation for that conduct which, although it did not excuse the offences, was capable of providing a context for them which was relevant to the question of the appellant’s fitness to practise as a dentist. As against the obvious point that his convictions for repeated speeding offences and for driving while disqualified and without insurance indicated a disregard for the law and a readiness to act in breach of orders made against him by the court, it could be said that no other criminal convictions or conduct which might amount to serious professional misconduct had been alleged against him. A period of well over a year had elapsed between the date of his latest offence and the hearing before the Committee, from which it might reasonably be inferred that he had indeed learned his lesson and was unlikely to repeat these offences.

 

13. As for the consequences of the suspension of the appellant’s name from the register, they could be regarded when compared with the nature and gravity of the offences as so severe as to be draconian. The Committee were aware that the appellant had three practices in Glasgow which depended upon his ability to practise if they were to continue to operate. Their Lordships were informed that, in addition to his net loss of revenue amounting to about £55,000 per annum before tax, the appellant would be faced with liabilities amounting to about £33,000 per annum in respect of leases of premises and finance charges for equipment which could not easily be disposed of. Against that he would have no earnings to set off against these costs during his period of suspension, and he would continue to incur substantial loss of revenue during the period which would be required for him thereafter to rebuild his practices. Such consequences can properly be regarded as inevitable where the nature or gravity of the offence indicates that a dentist is unfit to practise, that rehabilitation is unlikely and that he must be suspended or have his name erased from the register. In cases of that kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of the penalty to the individual. But in the present case, where there is a real possibility of rehabilitation and there are no other grounds for doubting the appellant’s fitness to practise as a dentist, their Lordships were of the view that the consequences were so far out of keeping with what was needed that it could reasonably be said that the penalty of suspension from the register for twelve months was wrong and unjustified.

14. Their Lordships were of the opinion that the appropriate course for the Committee to have taken would have been to postpone judgment for a suitable period to enable the appellant to demonstrate his ability to refrain from committing further offences against the Road Traffic Act 1988. They considered that a period of two years from the date of the determination would have been appropriate, and that an order to that effect should be substituted for that which was made by the Committee. If the appellant commits any further such offences during this period, the Committee will be entitled to take the view that the imposition of the penalty of suspension from the register is amply justified. But the absence of any further offences during that period, when taken together with the period of more than a year during which he refrained from offending prior to the hearing of his case by the Committee, may reasonably be taken to indicate that the case can be concluded without the imposition of any further penalty.