Introduction
The decision late last year by Ritchie J in Aga v GDC caused uproar in the regulatory and professional discipline worlds.
In a 32-page judgement Ritchie J determined, contrary to established practice, that in cases where immediate suspension is imposed by a Professional Conduct Committee (‘PCC’) under section 30 of the Dentists Act 1984 following a substantive sanction of suspension having been imposed (under section 27), the period of suspension spent awaiting appeal counts towards the ultimate suspension imposed.
The decision is a significant one given that it has turned the previously followed interpretation on its head but more so because of the GDC reaction to it. The GDC has launched an appeal against the judgement and in the interim has directed tribunals to effectively ignore it. In a statement published on 4 January 2024 the GDC said this:
“Until [the determination of the appeal], we have informed independent Committees of the Dental Professionals Hearings Service that the GDC’s submission at hearings is likely to be that the existing guidance remains applicable, and we have drawn their attention to other higher court authorities on the matter. We have also reiterated that the substantive sanction, immediate order and/or any directions are a matter for the Practice Committee to determine in each case as they consider appropriate.”
The facts of the case
Dr Aga faced disciplinary proceedings for his behaviour in stalking and harassing a woman and for failing to report his arrest and charge by the police to the GDC. A Professional Conduct Committee found the various charges against him proved, that his fitness to practice was impaired due to his misconduct and directed that he serve a 9-month suspension. An immediate order was imposed under section 30 of the 1984 Act.
Dr Aga appealed against the length of the suspension and the imposition of an immediate order (via various grounds of appeal). His appeal against sanction was ultimately dismissed. However, by that point, he had already spent those four and a half months suspended from practice by virtue of the immediate order imposed.
The legislation
The relevant legislation reviewed by Ritchie J was sections 27B, 29A and 30 of the 1984 Act.
Section 27B(6) is the statutory power for the PCC to suspend dentists following a PCC hearing. The maximum period of suspension is 12 months.
Section 29A is entitled ‘taking effect of directions for erasure, suspension, conditional registration etc.’ and sets out when sanctions ‘take effect’ in all possible scenarios following the imposition of the sanction. The sanction takes effect either at the end of the statutory time limit for lodging appeals if no appeal is brought (28 days or relevant extension period) or at the conclusion of the appeal (whether by way or withdrawal or dismissal).
Section 30 provides for the making of immediate orders for erasure, suspension, or conditional registration. The PCC can order that a sanction commences immediately rather than when the ‘taking effect’ provisions in section 29A come into play.
The judgement
Ritchie J considered that the 1984 Act did not expressly deal with the issue of whether a period of suspension served under an immediate order was to be deducted from the overall suspension period to be served. He also considered that no court had fully determined the issue of the interplay between sections 27B, 29A and 30 of the 1984 Act before [see paragraphs 41-43 and 56].
The GDC’s position was that substantive suspension does not start running until the above ‘taking effect’ provisions come into force meaning that any time spent on an immediate order awaiting determination of an appeal does not count towards the overall sanction. This means that, in reality, a dentist suspended and subject to an immediate order who files an appeal could be suspended for a period far longer than the period actually imposed by the PCC at sanction and even longer than the statutory maximum 12 months prescribed by section 27B. Ritchie J considered that this interpretation was incorrect. The key points of his analysis are below:
– The statutory maximum 12 months suspension (section 27B) would be circumvented by the GDC’s interpretation. [92]
– The GDC’s interpretation is unfair and has the effect of punishing a registrant for seeking to appeal. Professional conduct and standards are not maintained by this approach which is contrary to natural justice. [93]
– There is a difference between the words ‘takes effect’ (as used in section 29A) and ‘starts’. There is only one suspension which starts when it takes effect (if there is no immediate order) or when the immediate suspension order is made. [94-95]
– The immediate order and substantive order are one suspension, not two separate suspensions. [96]
Ritchie J concluded by holding that the “only correct and lawful way” for the PCC to pass a direction for suspension when considering an immediate order would be to “ensure that it is worded so as to credit any time served under any immediate order for suspension against the duration of the direction for suspension”. [98]
It was specifically noted [at 101] that Ritchie J was not making a ruling in relation to the effect of interim suspensions prior to the substantive hearing.
The impact
Clearly, this interpretation is significant. What is concerning, however, is the GDC’s decision to direct tribunals to follow the previously existing guidance which does not contain reference to Aga, and does not set out Ritchie J’s conclusion that the PCC must word suspension directions to the effect that time spent on an immediate order will be deducted from the overall suspension.
There is no clear legal basis upon which the GDC can decide to ignore this judgement. Its statement refers to previously existing ‘authorities’ but does not say which ones. Ritchie J has set out a detailed analysis of the authorities in his judgement and determined that they do not deal with the interpretation issue as their ratio. It cannot be right the GDC can ignore an inconvenient judgment. It plainly is opening itself up to further legal challenges.
This decision affects not only the GDC but also other regulators. For example, the GMC follows legislation (the Medical Act 1983) that provides for the making of immediate orders in almost identical wording and has the same statutory maximum period for suspension. The GMC has thus far been silent on the ruling and how it intends to direct its tribunals to apply it.
Other regulators, such as the NMC, do not make provision for immediate orders but only interim orders which can be made pending appeal. On a pure statutory interpretation analysis the same difficulties would not apply.
Finally, the judgement focuses solely on directions for suspension. The impact his decision will have on immediate orders for conditional registration is not made clear. All sections of the Act referred to in Ritchie J’s judgement also deal with conditional registration. There is no logical reason why suspension should differ to conditional registration – both are an impediment to a dentist’s ability to practice unrestricted. However, part of Ritchie J’s reasoning as to why the 1984 Act should be interpreted in the way he has, is because of the 12 month statutory maximum for periods of suspension which should not be circumvented by the appeals process. The statutory maximum for conditional registration is three years and (all being well) most appeals are unlikely to take the period outside three years. This issue will also need to be considered on appeal.
Practitioners eagerly await the outcome of the GDC’s appeal against the decision of Ritchie J. Will there be any legal challenge launched against the GDC in the interim?
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