Dr David Kerr Black v Professional Conduct Committee of the General Dental Council - [2013] HCJAC 39 ? 30 April 2013

This is an appeal against a decision of the Professional Conduct Committee of the General Dental Council (GDC) to erase the pursuer's name from the Dentists Register under section 27B(6)(a) of the Dentists Act 1984.

Grounds for striking off: Mr Black held no membership of a defence organisation or indemnity insurance against claims of patients arising out of his practice as dental practitioner since November 1997 despite being in practice throughout. At that time, the GDC issued guidance stating that membership of a defence organisation or indemnity insurance was obligatory for practitioners.

The appeal was dismissed.

In his opinion Lord Bracadale rejects the appellant's contention that this was a case not involving clinical judgement which therefore gave the court more power to interfere with the GDC's decision. Instead the opinion affirms Dad v General Dental Council [2010] CSIH 75 that the court should be slow to interfere with a decision of a professional conduct tribunal as to what is necessary for the protection of the reputation of the profession.

The court held that:

1. The committee did not err in concluding that the appellant's current and future fitness to practise was impaired as a result of misconduct. In this the court relied on the opinion in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council, Paula Grant [2011] EWHC 927 (Admin) [74], that ‘in determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances'.

Therefore the Council was entitled to strike off Dr Black despite the fact that he has since taken out insurance that covers past as well as future clients i.e. the actual potential of harm to patients has been addressed. The committee had also properly directed itself in coming to it conclusion to have regard to the attitude of the appellant which was such that it can be said that he would not have taken out insurance at all had he not been found out as part of an unrelated investigation.

2. The sanction imposed by the committee was not excessive and disproportionate to the culpability of the appellant's conduct. In the context of considering the need to protect the public and uphold proper standards of behaviour so as to maintain public confidence in the profession the potential for patients to be disadvantaged was an important consideration but not a determining one. The committee correctly relied on Guidance for the Professional Conduct Committee and was not required to consider the fact that no patient had actually been disadvantaged by the absence of insurance as a mitigating factor in their decision to erase Mr Black from the register. It was entitled to regard erasure as proportional to the protection of the reputation of the profession.

3. The committee did not fail to give adequate reasons for the sanction it imposed, and in the event that it did so fail, that failure did not vitiate its decision.

The committee, applying its specialist knowledge, had taken a very serious view of the admitted behaviour of the appellant over many years. It transparently enquired into but did not find any basis for justifying not erasing the appellant's name from the register.

In obiter, Lord Bracadale drew attention to the The Dentists Act 1984 (Amendment) Order 2005/2011. These amendments include a new section 26A, which introduces a statutory requirement for adequate and appropriate insurance cover – also defined in the Order. Failure to comply with these requirements may lead to the name of the dentist being erased from the register. While the section has not yet been brought into force, the fact that Parliament has considered it appropriate to introduce legislation making the requirement for insurance a statutory requirement was taken by the court as indicative of how seriously the matter is taken.