Dad v The General Dental Council [2021] EWHC 1376 (QB) (25 May 2021)

Dentist with “eventful” regulatory history lose appeal against erasure from the General Dental Council (GDC) register for misconduct. Mr Arfan Dad failed, on a number of occasions, to declare offences and criminal investigations when applying for restoration to the General Dental Council (GDC) register.

Background

Mr Dad was removed from the GDC register in 2006 for non-payment of the annual fee which he says was a deliberate decision. He was being investigated at the time by National Services Scotland Counter Fraud Services (NSS CFS) over a business rates fraud, and faced criminal proceedings.

He applied, successfully, for restoration in February 2007. But the criminal proceedings had not by then concluded, and he did not declare them in his application. He was convicted of fraud offences in October 2007. His name was subsequently erased from the Register in 2010, on the grounds of the convictions and his failure to declare. He had also failed to declare some earlier road traffic convictions from 1997-98.

He applied to be restored again in January 2018.  He declared his convictions, but not his regulatory history.  However, in or around November 2018 Mr Dad was made aware that he was subject to another NSS CFS investigation, with a view to criminal proceedings, in relation to the submission and reimbursement of non-domestic rates. He did not update the information in his application for restoration to reflect the fact that he was being investigated.

His restoration hearing took place in June 2019. He was restored to the Register with conditions imposed on his practice. Because of the lapse of time since he had applied at the beginning of 2018, he was then asked to update his details by resubmitting a further restoration application form. He did so on 19th June. He declared his convictions and his full regulatory history. He did not declare the still current NSS CFS investigation. The GDC were notified of it shortly afterwards. They brought misconduct proceedings against him, charging him with failure to declare.

It is these proceedings which are the subject matter of the present appeal.  Mr Dad says the decision is wrong, and unjust because of serious procedural irregularity. Mr Dad says the Professional Conduct Committee (PCC) was obliged, on reviewing the GDC’s case, to conclude that Mr Dad had no case to answer, and the decision to continue was a serious procedural irregularity which rendered the entire process unfair.

Interpreting the Duty to Declare

Mr Dad submitted that he had no case to answer (NCA). This was put on the basis that the PCC had been given no sufficient material on which it could properly conclude that Mr Dad’s failure to declare the NSS CFS investigation was either misleading or dishonest. That was because, on a proper interpretation of his application form, it did not require him to declare it in the first place. The NSS CFS investigation was neither a ‘police investigation’ nor ‘proceedings or investigations by a regulatory or licensing body’ and the PCC had been given no basis on which it could properly conclude that it was.

Mrs Justice Collins Rice commented in her judgement that:

The parties agree that the duty to declare must be sought in the application form itself. I am told there is no free-standing duty, derivable from any applicable professional code, to declare an investigation like this to the GDC, nor any other external source for what must be declared on a restoration application. It is all a matter of interpreting the form, and what it required Mr Dad to declare. A narrow and a broad interpretation are in contention.

Agreeing with the GDC’s narrower interpretation, Rice J stated:

Which of these is the better approach depends on clarity about what kind of question is being addressed here. The PCC’s Legal Adviser characterised it as ‘a question of interpretation and not law’. I respectfully agree.

She continued:

“The risks of misinterpreting the duty are asymmetrical. The risks of under-declaration are substantial – to an applicant, to the proper administration of the application process, and hence to the public if the GDC does not perform its gatekeeper function properly. Applicants are deliberately placed in regulatory jeopardy of under-declaration. They have the knowledge demanded by the form and essential to the process. The exercise must be undertaken seriously. There are commensurate sanctions for failure to do so.

“The converse risks of over-declaration are relatively minor. There is administrative inconvenience to the GDC in being given irrelevant material.”

Commenting on the correct approach to take by dentist, Rice J said “they need to think purposively”.  She said this “does not imply an unfair imbalance of power or jeopardy for the reasons given: an applicant is fairly required at least to think, to acknowledge the professional context, and if in doubt to (a) check and (b) err on the side of declaration” which she noted in “not an oppressive duty.”

Concluding her judgement, Rice J noted that:

“Mr Dad accepts that if he had a duty to declare then it was dishonest and misleading of him not to have done so. For the reasons set out, I am satisfied that it was open to the PCC to conclude, on the basis of the facts found and on a proper interpretative approach, that Mr Dad had a duty to declare the latest NSS CFS investigation. That conclusion was not ‘wrong’.”

Consequently, Mr Dad’s appeal was dismissed.

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