>A High Court Judge has criticised the General Dental Council’s Professional Conduct procedures after highlighting a “serious procedural irregularity” which allowed a fraudulent dentist to be restored to the dental register.
A High Court Judge has criticised the General Dental Council’s Professional Conduct procedures after highlighting a “serious procedural irregularity” which allowed a fraudulent dentist to be restored to the dental register.
Mr Justice Julian Knowles, sitting in a Queen’s Bench Administrative Court hearing, referred the dentist’s application for restoration, back to a “differently constituted” Professional Conduct Committee (PCC) after it was found the original PCC which allowed the dentist to be restored, was not presented with important evidence of the dentist’s most recent dishonesty, by the General Dental Council itself.
The Professional Standards Authority for Health and Social Care (PSA) brought the appeal case to the High Court, opposing the decision of the Professional Conduct Committee to restore dentist Ikhlaq Hussain to the dental register.
In July 2010, Mr Hussain was convicted of conspiracy to defraud between 2002 and 2006, related to his Droitwich Dental Practice in Worcestershire. He was later sentenced to 30 months imprisonment at Birmingham Crown Court, while his business partner Mr Jaspal Bachada, also a dentist, was sentenced to 20 months.
Mr Hussain was convicted of defrauding the NHS by allowing Mr Bachada to perform NHS dental treatment at the Droitwich surgery and secure payment from the NHS for the treatment, despite knowing that Mr Bachada’s application to join the performer’s list had not been granted.
As a consequence, the NHS was misled into paying the fees for the treatment when it had actually been provided by other dental practitioners.
Mr Hussain was also found guilty of defrauding patients. He misled them into the belief that they were receiving NHS treatments at health service fees when they were not, and patients were being charged higher fees than those normally charged under the NHS.
Between them, Mr Hussain and Mr Bachada reportedly defrauded the NHS of more than £80,000, while patients were swindled out of an estimated £3,000 - £4,000.
It was also found that Mr Hussain concealed or destroyed some patient records and re-wrote others in an attempt to foil discovery. Following his conviction, Mr Hussain’s name was erased from the register in November 2011, for a minimum of five years.
Of Mr Hussain, Chairman Helen Potts, said:
“This was a blatant breach of trust in relation to both patients at the practice and the NHS. You received direct financial gain from your criminal behaviour. The committee had no difficulty in finding that your fitness to practice is impaired and was in no doubt that your conviction undermines public confidence in the dental profession and proper professional standards.”
That PCC committee also heard how in June 2007 Mr Hussain was suspended for 12 months by the GDC for serious professional misconduct while at another practice in Warwickshire, which included allegations of misleading and intending to mislead patients and fellow professionals. That decision of the 1st June 2007 was initially appealed but was subsequently withdrawn and the suspension took effect from July 2008 to July 2009.
Appeal Against Reinstatement
The appeal by the Professional Standards Authority for Health and Social Care was originally heard in May of this year, but the Approved Judgement was published on 18th October. Although the GDC was named as the first respondent in the hearing, and Mr Hussain the second respondent, the GDC supported the Authority’s appeal and submitted that the PCC’s decision to restore Ikhlaq Hussain “should be quashed.” Mr Hussain opposed the PSA’s appeal.
In 2017 Mr Hussain applied for his name to be restored and a hearing of the Professional Conduct Committee was held at the GDC, on 27 June 2018.
The PCC considered the witness statement supplied by Mr Hussain in July 2017. The statement gave evidence about the reflection he had undertaken regarding his past behaviour and outlined the steps he had taken to identify the changes he needed to make. He also said he had identified the importance of ethical and moral behaviour. He said he had undertaken mentoring with a Dr B to retrain his ethical approach and had also undergone cognitive behavioural therapy to challenge his core values. Mr Hussain had also completed a postgraduate diploma in Law and Ethics.
At that hearing, following consideration of the above testimony, the Professional Conduct Committee decided to restore Mr Hussain to the register with conditions imposed for 12 months, because it felt that he had remediated his dishonesty.
Unbeknown to the PCC at the time they considered Mr Hussain’s application for restoration, Mr Hussain had been found by a judge to have given false evidence during a civil action against him and Mr Bachada, in October 2017, regarding the sale of another dental practice in the West Midlands. They were alleged to have made false representations regarding turnover at the practice.
Of Mr Hussain and Mr Bachada, His Honour Judge David Cooke said: “Both of them, when dealing with their own actions and motivations in the sale process, gave answers that in my view were implausible and untrue.”
The Authority, supported by the GDC, said the PCC’s decision to restore Mr Hussain was “flawed because it failed to take relevant evidence into account.”
In the Approved Judgement document, Justice Knowles said Mr Hussain had “been found by a judge sitting in the High Court to have lied on oath in civil proceedings relating to his practice at a time when he had, on this case, become a reformed person.”
In its appeal against the PCC’s decision, the Authority asserted that because the PCC did not see the civil case judgement and Judge David Cooke’s remarks, “the PCC’s decision to restore Mr Hussain’s name was taken on an evidential basis which was incomplete.”
The Authority also said: “The PCC failed to have adequate regard to the nature and seriousness of Mr Hussain’s convictions, and its decision is wrong. Mr Hussain’s dishonesty went to the heart of dental practice, impacting upon patients and the public purse, to the detriment of patients’ interests and public confidence in the profession, all in Mr Hussain’s own interests. In order to further his own interests in escaping the consequences of his dishonesty Mr Hussain withheld, destroyed and re-wrote patient records. In response to such conduct the most robust affirmation of the acceptable standards is required. No dentist who has chosen to further his own interests in this way should remain on or be restored to the register.”
The evidence of Mr Hussain’s dishonesty during the 2017 adverse civil court case was not presented to the PCC considering restoration since it was initially ‘omitted in error’ from the bundle of papers served on Mr Hussain’s solicitors in advance of the PCC hearing scheduled for 27th June 2018, although it had been in the GDC’s possession since November 2017.
Included in the bundle at that time, was a judgement from a previous civil case which also had an adverse judgement against Mr Hussain. That case predated the original PCC hearing at which Mr Hussain was removed from the dental list, by about 11 months and that PCC was not given sight of that judgement at the time of its hearing.
That case was heard in 2010 and concerned the sale of the Droitwich practice in which the frauds were perpetrated. The practice was sold to AG Family Care Ltd in 2008 and that Claimant asserted he was deceived about the value of the goodwill value of the practice, discovering on completion of the sale that the practice was not private, but NHS, and was not profitable. Although the claimant sold the practice on, the claimant incurred a loss of £697,000.
The Judge described Mr Hussain’s involvement in the sale of the Practice as amounting to “gross duplicity.” The Judge went on to state “If there had been any honest mistake about the representations made, then one would have expected them to do so. In my judgement, it is a clear indication that their representations were intentionally deceitful and intended to be relied upon.”
Judgement Erroneously ‘Overlooked’ By The GDC
Laura Thompson, a lawyer who works for the GDC explained in a witness statement, the reason why the 2017 judgement was delivered late to Mr Hussain’s solicitor. ‘She received the 2017 judgment in November 2017 and briefly reviewed it and logged it onto the GDC’s case management system. She intended to carry out a full review later but did not do so: she says the judgment was ‘overlooked’ and so not included in the draft hearing bundle which she prepared in late April and early May 2018.’
On the 18th June, the bundle was updated to include the documents related to the adverse 2017 civil case judgement, which was subject to an appeal by Mr Hussain. These papers were served on Mr Hussain’s solicitors.
“On 27 June 2018, prior to the commencement of the hearing, there was a discussion between Counsel for the GDC, Counsel for Mr Hussain and the Legal Assessor to the PCC. Counsel for Mr Hussain objected to either of the Judgments being put before the PCC on the basis that the GDC had only very recently indicated that it intended to rely upon them, and further that the Second (2017) Judgment was at that stage subject to an appeal.”
Evidence Withheld From PCC To Avoid Possible Adjournment
“By way of compromise and with a view to the hearing not being delayed by procedural objections (including the possibility of an adjournment), it was agreed between the GDC and Mr Hussain that the First (2007) Judgment, but not the Second (2017) Judgment, would go before the PCC.
The GDC took the view at the time that the result from the 2007 case alone (taken together with Mr Hussain’s criminal conviction for conspiracy to defraud and other fitness to practise history) provided a sufficient basis for resisting Mr Hussain’s application for restoration, in circumstances where the findings made in the earlier case were very serious.
The GDC said in court documents: “With hindsight, and having regard to the manner in which the PCC approached the issues in its decision dated 27 June 2018, the GDC recognises that it should have invited the PCC to consider the Second (2017) Judgment, notwithstanding the possibility that Mr Hussain might raise a procedural objection.”
“The better course would have been to leave it to the PCC to determine the admissibility of the Second (2017) Judgment and the significance and weight to be attached to it (for example if Mr Hussain was pursuing an appeal in relation to the Judge’s findings that he had given evidence that was untrue).”
The GDC submitted “that the key issues for the PCC were whether Mr Hussain was fit to practise and of good character, within the meaning of the legislation. It says that the 2017 judgment is evidence that even then Mr Hussain was behaving dishonestly to the extent of lying on oath in Court about his conduct in the period leading up to his conviction. It says this plainly casts considerable doubt on the evidence he gave before the PCC about the degree of insight he has into his previous dishonest conduct and about the risk of repetition. It wholly undermines the notion that he had ‘reflected extensively over the last seven years’ or that his release from prison had been ‘the turning point of that change’. If the PCC had had sight of the 2017 judgment, it would (or alternatively could) have resulted in the PCC reaching a conclusion adverse to Mr Hussain on the central issues of whether he was fit to practise and/or of good character, and hence dismissing his application for his name to be restored to the Register.
“Serious Procedural Irregularity”
Justice Knowles said: “The stark fact is that despite all the work Mr Hussain said he had done which was evidenced not just by him but also by his witnesses, in 2017 he was found by a judge sitting in the High Court to have given untrue evidence on oath.”
The Judge disagreed with the PCC’s determination that Mr Hussain had demonstrated his ‘shame and remorse’ at events that led to his 2011 erasure.
Justice Knowles said: “It undermines the point at…that his release from prison had been the turning point of his change. It counts against the finding…that he had ‘demonstrated insight’ into his dishonesty and ‘learned his lesson.’ It shows that the Committee’s conclusion that his dishonesty only spanned the period from 2002 to 2010 was not correct: in fact, it went much further, into 2017.”
The Judge went on, “Overall, I am satisfied that in this case there was a serious procedural irregularity which produced an unjust result.” I therefore allow the Authority’s appeal and… I remit Mr Hussain’s application for restoration under s 28 of the DA 1984 to a differently constituted PCC for a fresh determination in line with this judgment.”
“The GDC has quality assurance measures in place throughout its fitness to practise process. Our approach is under continual review and where learnings are identified they are shared with relevant teams. With regards to PSA v GDC and Hussain, a GDC case review identified an error, it was brought to the PSA’s attention and the GDC supported the PSA in their appeal of the restoration determination in the High Court.”
The Bar Council did not respond to three requests for an opinion on whether it is common or acceptable practice for Counsel on opposing sides to agree to withhold evidence from medical and dental disciplinary professional bodies?
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