Henning v General Dental Council [2022] EWHC 175 (Admin) (28 January 2022)

The Appellant, Abraham Henning, is an orthodontist who retired in 2018 but who continued to be registered with the General Dental Council (GDC).  On 27 May 2021 the GDC’s Professional Conduct Committee (“the Committee”) determined that his fitness to practise was impaired by reason of misconduct and imposed a sanction of suspension for six months with review.
The Appellant appealed against the Committee’s findings, its decision that his fitness to practise as a dentist was impaired and the sanction imposed.

All the allegations relate to one patient, ‘Patient A’ who he treated between January 2015 and July 2017.

The charge of misconduct against the Appellant was alleged that he

  • did not carry out sufficient diagnostic assessments prior to commencing treatment of Patient A;
  • provided a poor standard of orthodontic treatment to Patient A in nine different respects from 16 January 2015 to 3 July 2017;
  • did not adequately respond to the concerns which Patient A expressed about her treatment on seven different occasions;
  • failed to manage Patient A’s pain effectively;
  • failed to maintain adequate professional boundaries with Patient A;
  • failed to treat Patient A with dignity and respect; and
  • failed to maintain an adequate standard of record keeping in respect of Patient A’s appointments.
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Dr Henning’s first ground of appeal sought to argue that the Committee erred in its factual findings in respect of certain allegations principally relating to Patient A’s credibility.

Mrs Justice Hill however turned down this ground of appeal, saying:

It was accepted that Patient A had raised concerns about the orientation of her teeth during the consultation on 3 July 2017. The main area of dispute on this head of charge was whether, once Patient A had expressed her concerns, the Appellant said, “that’s how they were to start with dear”. Patient A recollected this comment. The Appellant did not, but gave an account based on his “general recollection” and a letter sent to Patient A after the consultation.

In addition, Patient A’s evidence about the consultations on 6 March 2017 and 3 July 2017 has to be seen in the context of the number of other issues in the case. She had given a witness statement for the Committee which ran to some 40 pages of single-spaced text and she gave evidence for over a day. Her evidence traversed a large number of consultations and other contacts with the Appellant and his staff.

Hill J continued:

In light of this context, I accept the Respondent’s submission that Patient A’s evidence with respect to Witness 4’s [member of staff in the room] identity did not necessarily undermine her credibility to the extent relied upon by the Appellant… Even if it did raise a question about her credibility, Byrne at [26(2)] indicates that the Committee was not required to conduct a general assessment of Patient A’s credibility and “map over” issues in relation to her credibility on one issue to other issues in the case.

On the second ground relating to the finding of impairment, Hill J commented:

Given the Appellant’s retirement from practice, this was an inevitably difficult exercise, as his counsel recognised in oral argument.

However, the Committee plainly grappled with – and indeed largely accepted – the points in the Appellant’s favour on the impairment issue, principally his insight and his efforts at remediation, including the positive views of the Respondent’s expert on the latter.

It is also fair to infer that the Committee was cognisant of the fact that the Appellant’s failings related to the treatment of a single patient only, in the context of an otherwise lengthy and unblemished career.

The Committee was best placed to determine where the balance lay between the competing positions advanced by the parties on the impairment issue, not least because the matters in issue here reflected misconduct constituted by a failure to reach proper standards in treating patients, not matters such as dishonesty or sexual misconduct, and an assessment of what the public interest required (Southall [2005] at [11] and Khan at [36(c)]).

Finally, on the ground relating to the sanction, Hill J again turned down the ground of appeal, saying:

As with the finding on impairment, the fact of the Appellant’s retirement made the Committee’s decision on sanction difficult.

The Committee correctly directed itself to the relevant guidance on sanctions, and properly considered them in increasing order of gravity.

The Committee was entitled to conclude, based on the lack of evidence of the Appellant having the necessary structure and support network, that conditions were not, yet, practical and workable in this case.

The Committee was therefore entitled to consider that a suspension with review was the appropriate sanction, bearing in mind the twin purposes of protecting individual patients from risk and the wider public interest.

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