Mr Justice Ritchie ruled that the GDC’s interpretation of when an immediate suspension “takes effect” is wrong and, in this case, unfair to the Appellant.

Aga v General Dental Council

In this case, the Appellant, a registered dental practitioner, appealed against a ruling of the Professional Conduct Committee (PCC) of the General Dental Council. The Appellant was found to have stalked and harassed a woman whom he wanted to have a sexual and marital a relationship with (V) and to have failed to report his arrest and charge by the police for harassment of her.

The Appellant accepted the factual findings and the rulings that his fitness to practise was impaired by his actions and attitude, and accepted that suspension from registration was an appropriate sanction.

The Appellant, amongst other things, appealed the GDC’s interpretation and practice relating to the effect of the interaction between the immediate suspension order and the direction for suspension on the total duration of his suspension.

“Taking effect” of a suspension

Richie J noted that the GDC’s sanctions guidance “… creates a problem.” Saying:

“It does not make clear whether the period of immediate suspension served is deducted from the sanction period of suspension. It may be read as implying that the full suspension takes effect (the words used are “substantive suspension”) when the appeal is dismissed.”

To illustrate the point, Richie J explained:

“If a dentist appeals and the appeal takes 4.5 months to be heard, as this one did, the GDC interpret the 9 month suspension direction which “takes effect” when the appeal is dismissed as the full 9 months without any deduction for the suspension already served. The Guidance omits to state this, but the Respondent submits that the direction to suspend will then run for its full term and there is no set off for the suspension already served under the immediate order. So, on the Respondent’s interpretation of the DA84, that means the total suspension will be increased from 9 months to 13.5 months (in this case) which is more than the 12 month maximum permitted by S.27B of the DA84.”

Difference between “takes effect” and “start”

Whilst Ritchie J refused the appeal on all the grounds sought, he allowed the appeal on “the ancillary ground relating to the GDC’s practice or interpretation of making the duration of the direction for suspension consecutive to the duration of the duration of the immediate order for suspension”, saying:

“The direction for suspension for 9 months shall be set aside and in its place I direct that the Appellant shall be suspended for a total of 9 months, from which the duration of suspension already served by the Appellant under the immediate suspension order made by the PCC shall be deducted.”

In coming to this conclusion, Ritchie commented:

“Specifically in relation to suspension, the PCC is not permitted to pass a sanction of over 12 months suspension. On appeal the duration of the suspension may be reduced. However, any appeal may fail and the period of suspension determined by the PCC may stand. If there is no s.30 immediate suspension order in place, then the dentist will serve the suspension which will start after the appeal is lost. All of that makes good sense.”

“The problem which has been identified is the effect of an immediate suspension order when an appeal is dismissed. If the GDC’s interpretation of the Sections is correct, for this Appellant, he will have served 4.5 months of suspension already and will then have to serve another 9 months if the appeal is dismissed. That is a total of 13.5 months. In my judgment, such an interpretation breaches the statutory ban on any suspension being over 12 months and is in effect a punishment for appealing which is contrary to established principle. The effects of the interaction of the Sections does not permit for a longer duration of suspension … I consider that the GDC’s interpretation of the Sections drives a coach and horses through the statutory 12 month maximum on the PCC’s power to impose suspensions which cannot have been the intention of Parliament.”

“I consider that GDC’s interpretation of the Sections is unfair to the Appellant. It effectively increases the PCC’s carefully measured and titrated sanction just because he has appealed. I do not consider that professional conduct and standards are maintained by such an approach, which results in registrants considering that they are being treated unfairly in relation to appeals because their sanction is increased by the very act of appealing. Therefore, I consider that this interpretation is contrary to one of the main objectives of the Act. Furthermore, in my judgment it is contrary to natural justice to penalise an appellant just for the act of appealing (not the substance of the appeal), when the right to appeal is provided by statute.”

“… in my judgment there is a difference between the words “takes effect” and “start”. In the Sections the legislators used the words “takes effect” so as to distinguish between the ending of the effect of the immediate order for suspension and the commencement of the effect of the direction for suspension. However, there was only one suspension and it only started once.”

“In my judgment, after a final hearing, when a direction for suspension is made and an immediate order for suspension is made, there is only one suspension made under the Act. The Sections do not expressly state that a suspension starts only when the direction for suspension “takes effect”, so I do not consider that the express words determine when the suspension starts. In my judgment, applying a normal and sensible interpretation of the words “takes effect” in S.29A, in accordance with the 12 month maximum in S.27B(6)(b), and to match the true context in which a S.30 order is made, which is parasitic, the Appellant’s suspension started when the immediate suspension order took effect.”

Effect of the judgement and commentary

This judgement confirms that a Suspension Order and an Immediate Suspension is, in effect, one sanction and therefore the length of the sanction (i.e. the length of the suspension) applies equally.  This means that the length of suspension “takes effect” when the Order is made.  The effect of an immediate suspension is that, as the term suggests, the dentist is suspended with immediate effect and must cease practise immediately.  If they decide to appeal and the appeal hearing takes months to be heard, the time it has taken for the appeal to be heard counts towards the whole suspension period.

Where the GDC got it wrong is that they did not consider the suspension to have taken effect until after the conclusion of any appeals to the sanction.

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