Petitioner and Respondent: Wolffe QC; Macpherson, solicitor-advocate; Simpson & Marwick WS

Respondents and Reclaimers: Dunlop QC; Anderson Strathern LLP

29 September 2011

Introduction

[1] The reclaimers, in this reclaiming motion, are the General Dental Council. By an interlocutor of 3 June 2011 the Lord Ordinary, Lord Doherty, reduced a decision of the reclaimers of 7 May 2010 and remitted the issue, with which that decision was concerned, to a differently constituted investigating committee of the reclaimers than the one which had issued the original decision.

[2] The decision in question related to the respondent who is a dental surgeon, registered under the Dentists Act 1984. It was communicated to the respondent in a letter of 7 May 2010 (page 44 to 45 of the Appendix). It resulted from a complaint made to the reclaimers by a patient of the respondent about his conduct in treating her. The Dentists Act 1984, by section 1 makes provision for the constitution and general duties of the reclaimers. Section 1(2) provides:

"The Council shall, when exercising their functions under this Act, have a general concern -

(a) to promote high standards of education at all its stages in all aspects of dentistry; and

(b) to promote high standards of professional conduct, performance and practice among persons registered under this Act."

By virtue of section 26B of the 1984 Act the reclaimers are directed "to prepare and from time to time issue guidance as to the standards of conduct, performance and practice expected of registered dentists." Section 27(5) provides that the reclaimers' registrar shall refer allegations to the reclaimers' Investigating Committee where the allegation is made against a registered dentist that his fitness to practice as a dentist is impaired. Section 27(2) defines for the purposes of the Act when a person's fitness to practice should be regarded as "impaired" Section 27A prescribes the powers and duties of the reclaimers' Investigating Committee in the following terms:

"(1) Where the registrar refers an allegation under section 27 to the Investigating Committee they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee.

(2) If the Investigating Committee determine that the allegation ought not to be considered by a Practice Committee, the Investigating Committee may -

(a) issue a warning or advice to the person who is the subject of the allegation regarding his future conduct, performance and practice; ..."

Section 27A(3) provides:

"If the Investigating Committee issue a warning under subsection (2)(a), they may, if they consider it appropriate to do so, direct the registrar to enter details of that warning in the entry in the register relating to the person who is the subject of the allegation."

Section 27B makes provision as to the powers and duties of the Practice Committee of the reclaimers.

[3] The General Dental Council (Fitness to Practice) Rules Order of Council 2006 (SI2006 No.1663) expands upon the foregoing statutory provisions in, inter alia, the following respects. Regulation 3 provides:

"The registrar shall consider a complaint or other information in relation to a registered dentist...and shall determine whether a complaint or information amounts to an allegation."

Regulation 4 then provides:

"(1) Where the registrar determines that a complaint or information amounts to an allegation, he shall send a notification to the respondent and the maker of the allegation (if any) accordingly.

(2) The notification sent under paragraph (1) shall -

(a) contain a summary of the allegation;

(b) subject to rule 7(3) be accompanied by a copy of the documents in the registrar's possession which relate to the allegation;

(c) invite the respondent to respond to the allegation with written representations addressed to the Investigating Committee within a period which the registrar shall specify in the notification; and

(d) where the allegation has been made by a person, inform the respondent that representations received from them may be disclosed to that person for comment."

Regulation 6 provides:

"The Investigating Committee may, subject only to the requirements of relevance and fairness, admit any documentary evidence, whether or not that evidence would be admissible in any proceedings in a court."

Regulation 7(1) provides:

"Subject to paragraph (2), upon consideration of an allegation the Investigating Committee may determine -

(a) to adjourn the consideration of the allegation and direct the registrar to carry out such inquiries as the Investigating Committee shall specify;

(b) that the allegation ought not to be considered by a Practice Committee but no warning or advice ought to be given under subparagraph (c) or (d);

(c) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent or to any other person involved in the investigation on such advice as the Investigating Committee may issue in accordance with Section 27A(2) or 360(2) of the Act (the Investigating Committee);

(d) that the allegation ought not to be considered by a Practice Committee and that the matter should be closed by the communication to the respondent of such a warning as the Investigating Committee may issue in accordance with section 27A(2)(a) or 360(2)(a) of the Act; or

(e) that the allegation ought to be considered by a Practice Committee.

Parts 3 to 8 of the rules provides for the procedure to be adopted by a Practice Committee in considering allegations. They shall hold a hearing in respect of allegations referred to them (rule 12). The hearing includes a factual inquiry with both parties having the right to call witnesses and to cross-examine the other party's witnesses (rule 19). The Practice Committee is required to make findings in fact (rule 19(11) and (12)). Rule 57 makes provision as to the rules of evidence which apply before a Practice Committee.

[4] It is to be noted that the decision as to whether or not an allegation is referred to a Practice Committee lies entirely with the Investigating Committee. It is to be assumed that they will make such decisions having regard, inter alia, to the perceived seriousness of the allegation in question. A decision not to refer the allegation to a Practice Committee means that the consideration of the allegation is dealt with as a "paper" exercise.

The circumstances of the present case

[5] In the present case a patient (M) of the dental practice of which the respondent was at the time the sole partner, complained by email to the reclaimers about treatment and advice given to her by the respondent and another dentist in the practice. That email was copied by her to the respondent. Discussions then took place to clarify what in fact the complaint amounted to. What was described as an assessment sheet was prepared by the reclaimers which sought to summarise M's allegations. It was considered by the reclaimers that M's complaints fell to be considered as amounting to an allegation that the respondent's fitness to practice was impaired due to conduct. They summarised the allegations in the assessment sheet, which is pages 14 to 15 of the Appendix, as follows:

"Mr Lutton failed to appraise M of the details of her course of treatment, particularly with regards to extractions.

Mr Lutton failed to discuss alternative treatment options with Mrs M.

Mr Lutton advised Mrs M that the periodontal treatment she requires is not available on the NHS."

They then set out the "standards guidance" it was alleged had been contravened by the respondent. This document, along with a copy of the information which the reclaimers had received from M was sent to the respondent. The respondent was asked to provide written observations on these documents by 25 March 2010. In the document, which forms pages 26 to 30 of the Appendix, agents acting for the respondent set out his observations in considerable detail. Any allegations of misconduct were denied and detailed responses to these were provided. It was maintained, on the respondent's behalf, that he had acted in M's best interest at all times and had fully complied with the reclaimers' ethical guidance "including standards for dental professionals and principals of dental team working".

[6] M, in due course, provided written comments on the respondent's observations and denials. There was no opportunity given to the respondent to reply to these. On 7 May 2010 in the letter which forms pages 44 to 45 of the Appendix the reclaimers' Investigating Committee wrote to the respondent informing him that, having considered the allegations and the denials, the observations made on behalf of the respondent by his agents and the comments made thereon by M, the Committee had decided that "On this occasion, you shall not be summoned to attend an inquiry held by a Practice Committee of the Council. However the Committee has decided to issue you with a written warning." The letter then proceeded in the following terms:

"The Committee noted the allegations and considered that you failed to communicate effectively with the patient regarding her treatment and her options. The Committee considered that you provided information to the patient that could potentially mislead her regarding the periodontal treatment requested by informing her that it was not available on the NHS.

The Committee warns you in the future to:

· Ensure that you communicate effectively with patients at all times; always provide written treatment plans to patients and advise them of treatment options available.

· Ensure that information provided to the patient is factually correct and does not have the potential to mislead.

· Ensure that you undertake proper assessments of patients at all times.

· In future give consideration as to whether a specialist referral is required, whether NHS or private and, if appropriate, ensure it takes place."

The respondent gave instructions to his agents to reply to the reclaimers. They did so, on 21 May 2010, in a letter which is page 48 of the Appendix. After having referred to the reclaimers' determination and, quoting therefrom, they stated:

"Our client is extremely concerned that the Investigating Committee have considered it appropriate to issue him with a written warning. The passage quoted above is entirely lacking in specification. It does not provide Dr Lutton with fair notice of how it is being said he failed in his duties towards the patient. It does not state how it is considered that Dr Lutton failed to communicate effectively with the patient. It does not state what information the Committee considers was provided to the patient that could potentially mislead her. Further, the Investigating Committee do not give any reasons for why they have come to the conclusion which they have."

After having contended that the lack of specification and failure to provide reasons in the reclaimers' letter were fundamental flaws in their decision, the agents asked for an undertaking that the matter would be referred to a fresh Investigating Committee for them to consider, which failing, the agents had the respondent's instructions to institute judicial review proceedings. On 25 May 2010 (page 49 of the Appendix), the reclaimers wrote to the respondents seeking to clarify certain matters relating to their determination which was reaffirmed. The respondent's solicitors replied, on 27 May 2010 (page 50 of the Appendix) to the effect that they were now seeking his instructions.

[7] The respondent gave instructions to seek review of the reclaimers' decision by way of judicial review. It was necessary to obtain legal advice as to if, and how, this could be done and the assistance of the respondent's defence union had to be sought. The process whereby the defence union considered whether or not to support the respondent's case took some time. Eventually, by letter dated 8 October 2010, addressed to the respondent's solicitors (number 52 of the Appendix) the defence union wrote to the effect that they were prepared to support the respondent in bringing judicial review proceedings. They apologised for the delay in reaching that decision. Thereafter the present petition was raised.

[8] The respondent's pleas-in-law are, inter alia, to the following effect:

"1. The respondent's decision to issue the Petitioner with a written warning being irrational or based on error, the decision should be reduced.

2. The respondent having failed in any event to give reasons for the decision to issue the petitioner with a written warning, the decision should be reduced."

The reclaimers tabled a plea of mora taciturnity and acquiescence.

The reclaimers' case

[9] Before the Lord Ordinary the reclaimers' counsel sought to argue that the decision in question was not amenable to judicial review, but that ground of resisting the petition, which was unsuccessful before the Lord Ordinary, was not pursued before this court. In addition an argument was advanced by the reclaimers before the Lord Ordinary that there was no duty, at common law, upon them to give reasons for determinations of the kind with which the present proceedings are concerned. That argument also failed before the Lord Ordinary and was not re-opened before this court. The Lord Ordinary repelled the reclaimers' plea in relation to mora, taciturnity and acquiescence. He also considered the respondent's attack on the reclaimers decision to be well founded to the extent that they required to give adequate reasons for their decision and this had not been done in the circumstances in their letter of 7 May 2010.

[10] Senior counsel for the reclaimers, in addressing this court in support of the reclaiming motion, in the first place argued that the Lord Ordinary had been wrong in failing to dismiss the petition by sustaining the reclaimers plea as to mora, taciturnity and acquiescence. The decision in question which was being attacked was issued on 7 May 2010. The petition for judicial review was not served on the reclaimers until 18 November 2010. Decisions of the kind in question, to which the present proceedings relate, were not appealable to the courts. Those decisions of the reclaimers' Professional Conduct Committees or Practice Committees which were appealable to the court, under section 29 of the 1984 Act, had to be appealed within 28 days from the date on which the notification of the decision was served. It was submitted that it was unacceptable that a person, such as the respondent, should be able to wait over six months to serve proceedings for judicial review of a decision when other appealable decisions would have been required to have been appealed against within 28 days. The Lord Ordinary had failed in his reasoning in relation to mora, taciturnity and acquiescence to give appropriate weight to this factor. There had been delay and it was clearly undue delay.

[11] The leading case, now, on the plea of mora etc in the field of administrative law, it was submitted, was Somerville v Scottish Ministers 2007 SC140. In that case Lord President Hamilton referred to the obiter dictum of Lord Hope in R (Burkett) v Hammersmith and Fulham London Borough Council (2002) 1 WLR 1593 at page 1613, para 63, where his Lordship stated, under reference to the law of Scotland:

"It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice."

Lord Hope had referred in that judgment to an opinion of Lord Nimmo Smith in Singh v Secretary of State for the Home Department 2000 SLT 533 where Lord Nimmo Smith, in turn, had referred to an opinion of Lord President Kinross in Assets Co Limited v Bain's Trustees (1904) 6F 692 at page 705. Lord Nimmo Smith described Lord Kinross as providing the classic definition of the plea of mora, taciturnity and acquiescence before quoting the following sentence from the opinion itself:

"But in order to lead to such a plea receiving effect, there must, in my judgment, have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party."

In his opinion in Somerville Lord President Hamilton, at page 180, refers to an opinion of Lord President Rodger in Swann v Secretary of State for Scotland 1998 SC 479 where at page 487 his Lordship said, in the context of an application for judicial review, where the plea of mora etc had been taken:

"...we have explained that in our view the respondent was not prejudiced by any lapse of time before the proceedings began. In these circumstances we do not consider that any delay was such that the petitioner should be denied the right to pursue these proceedings".

Lord President Hamilton in his opinion in Somerville at page 182 having said that the court was prepared to adopt the passage from Lord Nimmo Smith's opinion in Singh, referred to by Lord Hope, nevertheless continued:

"...we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred".

Lord Hope, however, appeared to consider that either acquiescence or prejudice was a necessary ingredient and it may also be difficult to reconcile what Lord President Hamilton had to say with what Lord President Kinross said in Assets Co Limited but, in any event, we are content, for present purposes, to proceed on the basis that for the reclaimers to succeed on this matter they have to demonstrate acquiescence on the part of the respondent. Reference was made by counsel for the reclaimers also to the case of United Cooperative Limited v National Appeal Panel for Entry to the Pharmaceutical List 2007 SLT 831. Counsel for the reclaimers accepted that he could not point to any real prejudice to the reclaimers arising from the delay in the bringing of the present proceedings. He also accepted that the plea of mora etc had an equitable flavour to it. His main point was that in a situation where the statutory rights of appeal available in respect of other types of decision was one month, the respondent had unduly delayed in bringing the present proceedings after the decision had been notified. That amount of delay could be said to amount to the respondent having acquiesced in the decision in question.

[12] In addressing the reclaimers' remaining ground of appeal, which was directed at the Lord Ordinary's decision to the effect that the reclaimers' reasons, in support of their decision, were inadequate, the following points were made. Something in excess of one thousand complaints were lodged per year with the reclaimers. In the immediately preceding year over two hundred of these had resulted in a warning letter being issued. It would not be appropriate to impose a substantial burden on the reclaimers with regard to the detail that had to be produced in such warning letters. In the present case the letter, read as a whole, could be seen as saying to the respondent that he was bad at communicating with his patients and that he should seek to improve his skills in that respect. There had been no oral hearing. Had there been, the decision letter might have required more detail. There was no finding of "guilt", as such, in the letter which would have required more to be said than what was said. In Gupta v General Medical Council (2002) 1 WLR 1691 the Privy Council held that there was no general duty on Professional Conduct Committee of the General Medical Council to give reasons for its decisions on matters of fact, particularly where the decisions depended essentially on resolving questions of credibility of witnesses. That case, however, it was accepted, was concerned with a decision given after a hearing of evidence and where the transcript of the proceedings was made available to the aggrieved parties to be read together with the full reasoned decision of the Committee. Senior counsel for the reclaimers submitted that, in the present case, the respondent had had access to all the relevant documents and the allegations had been fully set out for his consideration. The decision letter read in that context made it clear why the reclaimers had considered it necessary to issue the warning they did issue.

[13] The court did not find it necessary to call on counsel for the respondent to reply.

Decision

Mora, taciturnity and acquiescence

[14] We consider that the Lord Ordinary's decision on this aspect of the case was well founded. As he observed the respondent had never indicated any assent or acquiescence when provided with the relevant decision. Instead, through his agents, he made it clear that he intended to challenge it. There was some delay in raising the proceedings but that was because of the need to obtain legal advice about whether judicial review was open, the merits of the matter and the engagement of the defence union. There was no question of the reclaimers having suffered prejudice as a result of any delay, or having relied on the respondent's failure to process matters, in the previous months, to alter their position. As has been repeatedly said mere delay is not enough for such a plea to succeed. Senior counsel for the reclaimers' main point, as noted, was that the delay fell to be considered as unreasonable and amounting to acquiescence, having regard to the periods of time provided for in relation to appeals, in relation to other kinds of decision. That, in our judgment, is nothing to the point. The question is whether the delay in the context of bringing the petition for judicial review, and having regard to all the circumstances of the case, amounted to an inference of acquiescence in the decision. For these reasons and those given by the Lord Ordinary, we are satisfied that there were no circumstances from which such inference fell to be drawn.

Adequacy of reasons

[15] As regards the reclaimers' attack on the Lord Ordinary's decision that their letter did not contain adequate reasons for their decision, we note in the respondent's written note of argument, the reference to the reclaimers' guidance for the Investigating Committee at para 29

"The IC may issue a warning in respect of future conduct, performance or practice. The warning will enable the registrant to reflect on his or her activities and take steps to ensure compliance with Standards for Dental Professional and GDC requirements".

As is noted in the respondent's written note of argument "A warning can only fulfil this function if reasons are given which communicate to the practitioner why the warning has been given, and in particular what conduct on his part has been found wanting". It is not clear from the wording of the decision letter whether or not all three of the specific allegations initially noted by the reclaimers made against the respondent were supported or not by them. In the warning section of the letter the respondent is warned that in future he must advise patients "of all treatment options available" but there is nowhere in the document mention made specifically as to what options, in the present case, he should have set out which he did not set out. There is no specification provided in the next element of the warning that he is to "ensure that information provided to the patient is factually correct and does not have the potential to mislead". In our opinion the respondent has, justifiably, been left asking what information provided to the patient in question was factually incorrect or which had the potential to mislead. The next direction is that the respondent should "ensure that you undertake proper assessments of patients at all times". There is no explanation given why this should be said and what facts were found to be established by the reclaimers which make this warning necessary. In broad terms, as the Lord Ordinary said, if, as appears to be the case, the reclaimers accepted, at least to some significant extent, M's allegations, there is no basis at all set out in the letter as to why they were driven to prefer her account rather than the respondent's, on disputed matters. We agree, too, with the Lord Ordinary that the case of Gupta, relied on heavily by the reclaimers, does not assist in this respect. As the Lord Ordinary stated at paragraph 51 of his opinion:

"In Gupta there had been a hearing where witnesses gave evidence, and the Committee was in a position to assess their credibility and reliability. The outcome of the Committee's assessment was apparent from the Committee's determination of the various parts of the charge. No further explanation was necessary. There was an obvious, proper and transparent basis upon which they were able to accept or reject witnesses' evidence - they had seen and heard the witnesses and were well equipped to assess their credibility and reliability. Here, by contrast, the Committee did not hear the petitioner and M give evidence. On the contrary it was faced with contradictory accounts of events in the correspondence submitted to it. Notwithstanding that, it made a decision which was based upon it having accepted one account and having rejected the other. No explanation of the basis upon which it felt able to do so has been provided."

We should stress that we very much take on board the administrative burden which the respondent appears to have with regard to the number and nature of allegations that they have to process. The procedure of issuing a warning rather than having matters aired before the Practice Committee is no doubt, as intended to be an expedited way of dealing with what appears to be the less serious allegations. We can see how difficult it may be to reach a determination in such cases when such a process has been adopted. Nevertheless, once it has been concluded that the appropriate way forward is to issue a warning letter, we are of the opinion that the warning must convey to its recipient why it was considered necessary and, where that involves resolving factual dispute between the practitioner and the patient why, in broad terms, that dispute has been resolved against the practitioner if that is in fact what has happened. The warning letter should state with some precision, however briefly, what it is that has been identified in the practitioner's conduct that requires to be addressed and why it is thought necessary for him to address such matters as a result of the allegation received rather than leave the issue simply " in the air", as we consider has happened in the present case. If the warning issued by the reclaimers is to be efficacious then its recipient must be told clearly why his conduct or practice has been held to be deficient so that the steps required to be taken by him to address the deficiencies in question can be understood and seen to be justified. Otherwise the warning will be ineffective. In a nutshell, and as the Lord Ordinary said at paragraph 55 of his opinion:

"Reasons need not be elaborate or lengthy, but they should tell the parties in broad terms why the decision has been reached".

We consider that the reasons given by the reclaimers in the present case fall short of that requirement.

[16] For all the foregoing reasons the reclaiming motion is refused.