The claimant was a dentist and the defendant was the professional body responsible for monitoring the conduct of dentists. The professional conduct committee of the defendant (“the PCC”) found various charges to be proved against the claimant.
The charges related to patients seen by the claimant for crown treatment. In each case, the patient was offered a porcelain bonded crown on the NHS. However, the patients were advised by the claimant that a better-looking ceramic crown could be provided for an additional fee, to be paid privately. The amount of the additional fee was modest: it varied between £30 and £65. That was to cover the additional laboratory costs of a ceramic crown. Laboratory costs were deducted from the monthly payments the claimant’s practice received from the NHS. Thus, without the additional payment, the practice was financially worse off if it offered ceramic as opposed to porcelain crowns. It was described by the judge as “the difference in price between the porcelain bonded crowns and the wholly ceramic crowns”.
The PCC Determination proceeded on the basis that it was impermissible to mix the payment structure of the NHS and private payments as the claimant had done. It was accepted by the claimant that her conduct was “inappropriate”, but she maintained that she did not know that what the defendant called “top-up fees” were not permitted. Dishonesty was firmly denied. In each case, however, the PCC had gone on to find that dishonesty had been proved and erased the claimant’s name from its register.
On the claimant’s appeal to the High Court, the judge allowed the appeal in part, in particular relating to “top-up” payments and related findings of dishonesty concerning three patients. A central feature of the judge’s conclusion was his view that, contrary to the agreed position of the parties before him, the relevant regulations (the National Health Service (General Dental Services Contracts) Regulations 2005 (SI 2005/1361; “the Contracts Regulations”) did not prohibit the conduct complained of. In particular, the judge stated that he could not support the finding of the PCC, whatever the experts said or agreed, that voluntary mixing was banned by the Regulations. It was on that flawed basis that they had rejected the claimant’s defence of genuine belief.
The defendant appealed on the grounds, inter alia, (i) was the judge entitled to determine the proper interpretation of the relevant Regulations despite the fact that the parties before him were agreed on another interpretation ? (ii) Was the judge’s interpretation of the relevant Regulations correct ? (iii) Regardless of the correct interpretation of the relevant Regulations, was the judge wrong to quash the findings of dishonesty in respect of the three relevant patients ?
On the appeal —
Held, appeal dismissed. The judge was right to hold that the ‘work on a single tooth’ argument, relied on by the PCC was simply not what the Contracts Regulations provided. The claimant’s actual state of mind was critical to the issue before the PCC as to whether her conduct was honest or dishonest. In the absence of any challenge to her evidence that she did not know of the so-called “fundamental tenet”, the PCC had erred in law in finding dishonesty.
It appeared that there was a good deal of expert evidence at the hearing. Obviously, some expert evidence was necessary. But it appeared that some of the expert evidence went to what the relevant regulations meant. That evidence was inadmissible and to rely on expert evidence as to what the relevant regulations meant, without even a sight of the regulations themselves, was a manifest error.
It was repeatedly asserted, throughout the PCC hearing and throughout the Determination, that it was a “fundamental tenet” of the Contracts Regulations that no mixing of fees was permitted by the Regulations for work on a single tooth. That was not what the Contracts Regulations said. Accordingly, the PCC operated throughout on an important misapprehension of the Regulations themselves.
The misapprehension fatally infected the Determination in all sorts of ways. For example, the PCC concluded that, because it was a fundamental tenet of NHS charging, it would have been taught to dentists, so that the claimant should not only have known about it, but did in fact know about it. In consequence, the PCC found that she knowingly breached the Contracts Regulations and was thereby dishonest. That line of reasoning was not only wrong as a matter of interpretation, but it was contrary to the unchallenged evidence given by the claimant to the PCC. She said that she did no private work in her foundation year. She did not believe that the mixing of NHS and private work was part of any training that she received at her practice. She did not give any conscious thought to whether she was in breach of the relevant regulations and, once she had discussed it with her former supervisor, who told her that she should not do it, she stopped. Crucially, none of it was challenged. It was not suggested to her that she was lying or was in some other way mistaken about what training she had or had not received or what her experience had been. Moreover, the expert evidence at the hearing was not entirely clear-cut on the question of the training the claimant would have received and the knowledge that she could have been expected to have acquired. In those circumstances, it was impossible to see how there was a proper basis for a finding of dishonesty.
Accordingly. on the unchallenged evidence before the PCC, the findings of dishonesty should never have been made whatever view was formed of the meaning of the Contracts Regulations (paras 65, 66, 68–77. 83–84, 85, 86).
Per curiam. This is an important issue for the defendant because it may very well be that there are other disciplinary cases arising out of top-up fees. But if that is right, then it is even more important that the misapprehension about what the Contracts Regulations say, under which the defendant appears to have been operating for many years, is resolved now. It must not be forgotten that these are not simply unclear Regulations concerned with what a dentist can and cannot be paid, but unclear Regulations which have been used as a basis for professional misconduct hearings and, as in this case, findings of dishonesty which led to erasure (paras 64, 85. 86)
Zoe Johnson KC (instructed by GDC Legal Advisory Service) for the defendant.
Robert Kellar KC (instructed by Hempsons Solicitors) for the claimant.
Mark Vassall as Advocate to the court.