Duty to declare – How much is too little?

Further to our recent article “Cautions, Convictions and Fitness to Practise”, in the recent case of Dad v GDC, the High Court commented on the correct approach registrants should take when considering their declarations.

Dad v The General Dental Council

Dad v The General Dental Council [2021] EWHC 1376 (QB)

Mr Dad was removed from the GDC register in 2006 for non-payment of the annual fee.  At the same time, he was being investigated by National Services Scotland Counter Fraud Services (NSS CFS) over a business rates fraud, and faced criminal proceedings.

He applied, successfully, for restoration in February 2007. But the criminal proceedings had not by then concluded, and he did not declare them in his restoration application. He was convicted of fraud offences in October 2007. His name was subsequently erased from the Register in 2010, on the grounds of the convictions and his failure to declare. He had also failed to declare some earlier road traffic convictions from 1997-98.

He applied to be restored again in January 2018.  He declared his convictions, but not his regulatory history.  However, in or around November 2018 Mr Dad was made aware that he was subject to another NSS CFS investigation, with a view to criminal proceedings, in relation to the submission and reimbursement of non-domestic rates. He did not update the information in his application for restoration to reflect the fact that he was being investigated.

His restoration hearing took place in June 2019. He was restored to the Register with conditions imposed on his practice. Because of the lapse of time since he had applied at the beginning of 2018, he was then asked to update his details by resubmitting a further restoration application form. He did so on 19th June. He declared his convictions and his full regulatory history. He did not declare the still current NSS CFS investigation. The GDC were notified of it shortly afterwards. They brought misconduct proceedings against him, charging him with failure to declare.

The GDC’s Professional Conduct Committee (PCC) ordered erasure of Mr Dad’s name from the Register, and immediate suspension until the coming into force of the erasure.

Appeal

The focus of the appeal is that the PCC’s alleged failure to recognise that Mr Dad was not under any duty to declare the NSS CFS investigation.

Section 3 of the GDC form Mr Dad filled in to apply for restoration – in 2018 and again in 2019 – has a section headed ‘Health and self-declaration’. A number of questions follow. They begin:

1. Have you been convicted of a criminal offence and/or cautioned (other than a protected conviction or caution) and/or are you currently the subject of any police investigations which might lead to a conviction or a caution in the UK or any other country?

If yes, please give details on a separate sheet, including the approximate date, offence, authority which dealt with the offence and any circumstances that the Council should be aware of in consideration of your application.

Mr Dad said “Yes” to this question.

2. To the best of your knowledge, have you been or are you currently subject to any proceedings or investigations by a regulatory or licensing body in the UK or any other country, including student fitness to practise?

If yes, please give details on a separate sheet of the proceedings undertaken or contemplated, including the approximate date of the proceedings, country where proceedings were undertaken and the name and address of the licensing or regulatory body concerned.

Mr Dad said “No” to this question.

Section 3 of the form ends with the following declaration including a statement that: “I will advise the GDC of any future criminal proceedings/police investigations, convictions or cautions and any future health conditions which arise which affect the safety of patients I treat and/or those they work with, and/or my ability to do my job safely.”

Mr Dad said “No” to the question above on the basis that the NSS CFS investigation was neither a ‘police investigation’ nor ‘proceedings or investigations by a regulatory or licensing body’.

Ruling

Both parties in the proceedings agreed that the duty to declare must be sought in the application form itself. Mrs Justice Collins Rice noted there is “no free-standing duty, derivable from any applicable professional code, to declare an investigation like this to the GDC” and therefore “It is all a matter of interpreting the form” for which a narrow and a broad interpretation are in contention.

The narrow interpretation suggests that the NSS CFS is not a ‘regulatory or licensing body’ and therefore a declaration was not necessary.

The broad interpretation suggests that the form, and the sequence of questions, has to be read as a whole and in context, which is, keeping in mind its statutory ‘over-arching objective’ to protect the public, to assess fitness to practise, including looking at why an applicant is not already on the Register. The form, and the duty to declare, must therefore be given a sufficiently purposive and capacious interpretation to include the NSS CPS investigation. It was a criminal investigation, for the NHS, into the activities of a health professional in the administrative conduct of his practice.

Mrs Justice Collins Rice agreed that the broad interpretation was the correct one.

In her ruling she made the following comments [Emphasis added]:

The risks of misinterpreting the duty are asymmetrical. The risks of under-declaration are substantial – to an applicant, to the proper administration of the application process, and hence to the public if the GDC does not perform its gatekeeper function properly. Applicants are deliberately placed in regulatory jeopardy of under-declaration. They have the knowledge demanded by the form and essential to the process. The exercise must be undertaken seriously. There are commensurate sanctions for failure to do so.

The converse risks of over-declaration are relatively minor. There is administrative inconvenience to the GDC in being given irrelevant material. There is some risk to the applicant of disclosing adverse material unnecessarily, but it should not be overstated. Against the poor impression created by adverse material can be set the good impression created by conscientious candour. Restoration procedure is engineered to ensure an applicant is not prejudiced by irrelevant history.

The bullseye of the GDC’s target is plain: convictions, prosecutions, police investigations, professional regulatory history must certainly be declared. But are there outer rings on the target where interpretative effort is needed, or is the duty to declare otherwise definitively excluded?

They ask applicants to think, carefully and responsibly, about what they need to declare and to act accordingly.

Commentary

Whilst in this case the audience to which the form is addressed is limited to dentists not on the Register, the general principles of this ruling may have broader relevance to health and care professionals. 

Mrs Justice Collins Rice acknowledged that is some instances, the duty to declare is clear and straightforward (i.e. police investigations, convictions or cautions etc.).  However, this is not always the case and in circumstances where health and care professionals are not sure, they should view their circumstances and duty to declare in the wider context of maintaining public safety and confidence in the profession and err on the side of declaring.  This is clear in her ruling where she sets out the right approach:

They need to think purposively. That does not imply an unfair imbalance of power or jeopardy for the reasons given: an applicant is fairly required at least to think, to acknowledge the professional context, and if in doubt to (a) check and (b) err on the side of declaration. That is not an oppressive duty. The pull of the public protection dimension and the intention of the GDC will prevail over the specificity or silence of the form, to impose a duty to declare what is clearly relevant.