Decision of the Court of Appeal in GDC v Nabeel Aga [2025] EWCA Civ 68

Yesterday the Court of Appeal handed down its judgement in GDC v Nabeel Aga [2025] EWCA Civ 68, a case concerning the interpretation of the ‘immediate order’ and ‘substantive sanction’ provisions of the Dentists Act 1984 (‘the 1984 Act’) and how they interact.

The Court heard an appeal from the decision of Ritchie J[1] where he had decided that time spent on an immediate suspension order did count towards the substantive suspension order imposed. Time spent suspended therefore started running from the day the immediate suspension order was imposed and ran whilst awaiting appeal.

Ritchie J’s original decision

Dr Aga, a dentist, was found to have impaired fitness to practice due to his misconduct. The Professional Conduct Committee (‘PCC’) directed that he serve a 9-month suspension. An immediate order was imposed under section 30 of the 1984 Act.

Dr Aga lodged an appeal which took four and a half months to be determined. His appeal against sanction was ultimately dismissed and he had spent those four and a half months suspended from practice by virtue of the immediate order imposed.

During the hearing an issue arose as to the interpretation of the sections of the 1984 Act dealing with substantive suspension directions, when the suspension is deemed to take effect and whether an immediate order for suspension counts towards the overall substantive sanction.

Ritchie J concluded that the immediate suspension order and substantive suspension order were one continuous period of suspension and that time spent on an immediate order awaiting appeal would count towards the overall period of suspension to be served. He reached this conclusion for the following reasons:

1. The statutory maximum 12 months suspension (section 27B) would otherwise be circumvented. [92]
2. An alternative interpretation would be unfair and had the effect of punishing a registrant for seeking to appeal. [93]
3. There was a difference between the words ‘takes effect’ (as used in section 29A) and ‘starts’. [94]
4. The immediate order and substantive order are one suspension, not two separate suspensions. [96]

Cases following Ritchie J’s decision

Since Ritchie J’s decision in late 2023 there have been two other appeals, heard by Morris J, which touched upon similar issues. These are set out in the body of the judgement of the Court of Appeal and are not repeated here. In brief, Morris J decided that Ritchie J’s interpretation was wrong and that the period of time spent on an immediate suspension order did not count towards the overall period of substantive suspension.

The Court of Appeal considered the decisions of Ritchie J and Morris J.

The Court of Appeal’s decision

The Court of Appeal held (with judgements from Nicola Davies LJ and Stuart-Smith LJ, with whom Whipple LJ agreed) that Ritchie J was wrong in his interpretation of sections 27B, 29A and 30 of the Dentists Act 1984 and favoured the interpretation of Morris J.

The following points were made in the judgements of Nicola Davies LJ and Stuart-Smith LJ:

1. A direction for suspension and an order for immediate suspension are distinct. They do not constitute one period of continuous suspension [42].
2. Substantive suspension imposed under section 27B(6)(b) is imposed pursuant to a ‘direction’ whereas the imposition of an immediate suspension under section 30 is imposed by means of an ‘order’. The direction and order are made at different stages of the fitness to practice process. The PCC has no power to make an order for immediate suspension unless and until a direction has been given for erasure or for suspension [43].
3. There is no clear distinction between the considerations the PCC must apply when considering whether to impose a substantive sanction / what sanction to impose; and whether to impose an immediate suspension order. The trigger for a substantive sanction direction is that a registrant’s fitness to practice is impaired and that a sanction is required in accordance with the overriding objective[2]. For an immediate order the consideration is whether it is necessary for the protection of the public or otherwise in the public interest or the interests of the registrant [44]. The considerations overlap.
4. There is no meaningful distinction between the words ‘take effect’ and ‘start’ as identified by Ritchie J. Section 29A(2)(a)(b) and (c) identify when a direction for suspension shall take effect, namely: after the statutory appeal period if no appeal is brought, at the withdrawal/striking out of an appeal or at the dismissal of an appeal. The language is clear and mandatory [45]. The word ‘start’ does not appear in the operative provisions of the Act [58].
5. The section 30 powers are not ‘parasitic’ on a section 27B direction for suspension. A direction made under section 27B, whether for suspension or erasure, is a ‘condition precedent’ and until satisfied the powers under section 30 simply do not arise [46].
6. The section 27 and 30 powers are “wholly separate”. [46] There is a clear difference between the two procedures required for a substantive sanction and an immediate order. For substantive suspension the registrar must amend the register. For immediate suspension there is no action required by the registrar. Immediate suspension is not susceptible to appeal under section 29 but a registrant could apply to the court for an order terminating the order (section 30(7) [57].
7. The wording of section 30 identifies the start and end dates for a period of immediate suspension. It starts ‘forthwith’ (section 30(1)). When it ends is set out in section 30(3)(a)(b) and (c) namely, when the direction takes effect in accordance with section 29A, when an appeal is determined, or if following a decision on appeal the case is remitted to the PCC, when the PCC disposes of the case [47].
8. There is nothing in section 30 which identifies a time limit for the duration of an order [47].
9. The statutory maximum period of suspension (12 months) identified in section 27B(6)(b) only applies in respect of a direction made under that section. Other parts of the 1984 Act identify ways in which that period of suspension can be extended, for example under section 27C(B) suspension can be extended up to a further 12 months following a review hearing. This is consistent with the overriding objective [48]. An order for immediate suspension under section 30 is not subject to the time limit of 12 months mentioned in section 27B(6)(b) [57].
10. The 1984 Act makes no provision for an immediate order of suspension to be set off against the substantive sanction of suspension. Any amendment to this scheme is a matter for Parliament [49].

In concluding, Nicola Davies LJ remarked that the correct interpretation of sections 27B, 29A and 30 of the 1984 Act is inconsistent with Ritchie J’s conclusion that only one period of suspension is imposed. If that were right, it would undermine the overriding objective. It has the potential to undermine the ability of a registrant to remediate failings that led to the finding of misconduct because in reality the suspension could have been ‘served’ before the final determination of any appeal and before any review hearing by the PCC. Therefore, a registrant could return to practice before the PCC had determined that their fitness to practice was no longer impaired.

Stuart-Smith LJ concluded that there is no unfairness in the interpretation as now endorsed by the Court of Appeal:

“Finally, although I accept that the interpretation that we are endorsing may have the effect of extending the period during which a dentist’s registration is suspended, that does not seem to me to be either unfair or contrary to the public interest. It is always open to the dentist to request a review of his case before the conclusion of the period of the substantive suspension or for the Council in an appropriate case to initiate the review itself. As always, the touchstone will be the protection of the public.” [60]

Impact on registrants

The point of law considered in this appeal was held to be a point of general public importance which would not only apply to the GDC. For any regulator with immediate order provisions prescribed as they are in the 1984 Act (for example, the General Medical Council), this interpretation will apply.

The judgement of the Court of Appeal confirms that there is no reduction to an overall period of suspension for time spent awaiting appeal. This could in reality mean that a registrant is suspended from practice for a period far exceeding that initially imposed by a PCC, and exceeding the statutory 12 months. It is unlikely that this will come as a shock to practitioners or registrants and has in fact long been the established practice of the GDC, though undoubtedly registrants will feel that this creates unfairness, despite the reasoning of the Court of Appeal that it does not.

[1] Nabeel Aga v The General Dental Council [2023] EWHC 3208 (Admin)

[2] Protection of the public, upholding public confidence in the profession and maintaining proper professional standards