MDDUS writes to GDC urging reconsideration of “unlawful guidance” following high court ruling

MDDUS has written to the General Dental Council urging it to reconsider its attempt to sideline a High Court ruling that a double jeopardy aspect of professional conduct sanctions is wrong and unfair.

 

Mr Justice Ritchie ruled the regulator’s interpretation, treating an immediate suspension order as separate from a substantive suspension order was, in effect, a punishment for appealing.

 

The GDC has responded by declaring its own intention to apply for permission to appeal this ruling. It has advised its professional hearings panels to “continue to follow current guidance until the appeal is heard”.

 

In the letter, MDDUS chief executive Chris Kenny warned that the GDC’s actions were potentially unlawful: “It is not open to the GDC to choose to set that judgement aside, unless and until the Appeal Court determines that a mistake in law has been made. Until then, panels must be bound by the current judgement.”

 

The High Court ruling came after MDDUS appealed on behalf of one of its members against a decision by the Professional Conduct Committee (PCC) of the GDC.

 

The dentist being defended was potentially facing a suspension from practise that would be four-and-a-half months longer than the time initially imposed and longer than the 12-month legal maximum.

 

The judge undertook a detailed analysis of GDC legislation to decide if their interpretation of the statute meant that the ‘time served’ principle did not apply to an immediate suspension order.

 

Mr Justice Ritchie’s pivotal court ruling could mean that future registrants can be certain ‘time served’ while awaiting an appeal will be part of any final suspension order.

 

Rachael Bell, interim head of dental at MDDUS, said:

 

“The GDC has effectively said its panels should operate like it’s business as usual. That shows a shocking and unusual lack of respect for a High Court judgement.

 

“In our view, until its appeal is heard, the GDC must comply with the standards they set their own registrants and respect the rule of law as it currently stands.

 

“Whilst we fully appreciate the need to protect the public, regulation must reflect the current state of the law, and no regulator is above that fundamental tenet.” 

 

Notes to Editor:

The GDC’s statement ‘Seeking clarity on the interpretation of when immediate and substantive suspension orders commence and expire’: Seeking clarity on the interpretation of when immediate and substantive suspension orders commence and expire (gdc-uk.org)

The letter sent today to the GDC from Chris Kenny, chief executive of MDDUS:

Gurvinder Soomal, Interim Chief Executive, General Dental Council

Dear Gurvinder,

I am writing to express our very strong concerns about the press release issued on 3 January headed "Seeking clarity on the interpretation of when immediate and substantive suspension orders commence and expire" and to seek the immediate withdrawal of your proposed related guidance. MDDUS represented the registrant in the case which the GDC has chosen to take to appeal.

We welcomed Mr Justice Ritchie’s decision to allow a new ground of appeal as part of his judgement and will be submitting that this should stand when the case is heard. If the decision is overturned, then, as has long been the case with the previous interpretation, a penalised registrant could be left in a position of facing a significantly longer period of suspension overall than a panel has judged that their conduct merits, purely because of delays in administrative processes.

This does not pass any plausible test of fairness or natural justice. Far from being a generally accepted “longstanding interpretation,” it is clear that the GDC position has always been open to challenge and the Court has now found it to be mistaken.

Of even greater concern, however, is the fact that you have advised panels to continue to follow current guidance until the appeal is heard. The law is now quite clear. It has been adjudged by the High Court. It is not open to the GDC to choose to set that judgement aside, unless and until the Appeal Court determines that a mistake in law has been made. Until then, panels must be bound by the current judgement.

For the avoidance of doubt therefore, our submissions in all similar cases will make clear that we consider your proposed guidance to be unlawful and hence that any panel that chose to follow it would both be failing in its own duties and undermining its independent status.

We do, of course, respect the GDC's ability to take the relevant case to appeal in order to seek clarity. We urge you, however, to take all steps to expedite that hearing, given the uncertainty which your press release has caused.

Even more importantly, we urge you without delay to withdraw the guidance to panels, both to avoid creating potential chaos and uncertainty should, as we hope, Mr Justice Ritchie’s interpretation be maintained and, above all, to ensure that penalties remain proportionate and lawful.

Given the importance of this issue, we are releasing this letter to the press and bringing our concerns to the attention of the PSA.

Yours sincerely

Chris Kenny