Does the time spent on an immediate suspension order count as part of the overall period of substantive suspension imposed on a registrant?
Before Aga v General Dental Council [2023] EWHC 3208 (Admin), the answer appeared to be “no”. An immediate order was distinct from a substantive direction of suspension.
Aga then threw a cat amongst the pigeons. It reasoned – there was only one overall suspension. This started when the immediate suspension order started, and it ended when the period of time specified in the suspension direction ended. It was wrong to make a suspension direction and an immediate suspension order which had the effect of increasing the length of a registrant’s suspension just because the registrant appealed. It considered the suspension direction did not follow consecutively after the expiry of the immediate suspension order.
This decision has been subject to considerable debate, and in the instant case the PSA submitted that Aga was wrongly decided. Morris J agreed.
The issue was essentially one of statutory construction. The Dentists Act 1984 (“the Act”) made a clear distinction between a “direction” of substantive suspension by the committee, and an “order” of immediate suspension. There was not a single suspension, as suggested by Aga.
s. 30(3) sets out when an immediate order starts and finishes. It states:
“(3) Where, on the giving of a direction, an order under subsection (1) or (2) is made in respect of a person, his registration in the register shall, subject to subsection (6), be suspended or made conditional, as the case may be, from the time when the order is made until the time when—
(a) the direction takes effect in accordance with section 29A; [this section deals with the imposition of the substantive sanction]
(b) an appeal under section 29 against the decision giving the direction is determined under section 29(3)(b) or (c); or
(c) following a decision on appeal to remit the case to a Practice Committee, the Practice Committee dispose of the case.”
This makes clear the immediate suspension order and the suspension direction run consecutively. The immediate order runs from the time of its imposition “until the time when” (a) the substantive order comes into effect under s. 29, or (b) an appeal is determined, or (c) the case is remitted and determined. One “direction” of suspension follows the other “order” of suspension.
The court advanced other points of criticism. This article does not attempt summarise all these arguments. Significantly, the court considered there was no reason in principle why an immediate suspension order could not last longer than the substantive suspension direction. This was the effect of Nursing and Midwifery Order 2001 art.31(2) which allows for an 18 month interim suspension order to cover any appeal period, even though such an order would be longer than the maximum period of a 12 months substantive suspension the NMC can impose. If this situation does create unfairness resulting from a dentist being suspended for longer for having exercised their right to appeal, that is for Parliament to consider and address, not the courts.
So we now have two inconsistent High Court decisions. Aga is due to be heard by the Court of Appeal in January 2025 where this issue may finally be resolved.
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