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Dentist challenged Committee’s jurisdiction

06 Dec 2013

Ed Madden, BL, looks at a recent UK High Court case in which a dentist challenged the jurisdiction of a General Dental Council disciplinary committee to consider fraud charges against him.

Femi Julius Abiodun Fajemisin, who qualified as a dentist in Nigeria, practised in East London. In 2009, the General Dental Council (GDC) commenced disciplinary proceedings against him in respect of allegations that he had submitted fraudulent claims for the treatment of elderly residents at a number of nursing homes. A hearing before the Professional Conduct Committee (the PCC) of the Council was scheduled to take place in September 2011.

Voluntary withdrawal
In May 2011, Mr Fajemisin applied to the Council for his name to be voluntarily removed from the register. He indicated that he was ceasing practice as a dentist and intended to return to Nigeria. The Registrar refused his application on the basis that it was in the public interest that the allegations made against him be fully investigated. That reflected the Council’s policy of retaining on the register the name of a dentist who is subject to fitness to practise proceedings.

The disciplinary hearing was due to commence on September 12, 2011. That morning, an adjournment was sought on Mr Fajemisin’s behalf on the basis that he had been admitted to hospital. The hearing was adjourned for a few days to see whether he would recover in sufficient time for the hearing to be resumed.

Eventually, the PCC accepted that the hearing could not proceed at that time and it was re-scheduled to begin on October 30 of the following year. On November 15, 2011, Mr Fajemisin again applied for voluntary removal of his name from the register. Once again, the Registrar refused his application.

Continuing professional development
In the meantime, Mr Fajemisin had been obliged by the Council to complete his ‘CPD hours’ by December 31, 2011. In this regard, the Council required all registered dentists to complete 250 hours of continuing professional development over a period of five years. Mr Fajemisin failed to complete his CPD hours in the relevant time period and the Council corresponded with him on a number of occasions concerning the matter.

No replies were received by the Council, including no reply to a final notice dated March 5, 2012; this informed Mr Fajemisin that unless evidence was received by April 4, 2012 that he had satisfied the relevant requirements, his name “will” be removed from the register on April 5, 2012.

Shortly after the final notice was sent to the dentist, a member of staff in the Registrar’s Office who dealt with CPD compliance issues sent an e-mail to the Fitness to Practise Team (FTP Team) asking if he was the subject of disciplinary proceedings. A member of the Team responded that Mr Fajemisin had been involved in such proceedings, but that the case had been marked ‘closed’. As will be apparent, that information was incorrect; the disciplinary proceedings were due to resume in October 2012.

Disciplinary hearing
Before a final decision was made about removing Mr Fajemisin’s name from the register, the member of staff in the Registrar’s Office asked the FTP Team to confirm that the dentist’s name could be removed. On April 13, 2012, the Team responded in the affirmative. On the same day Mr Fajemisin was notified that the Registrar had decided that his name would be removed from the register on May 11, 2012. He was informed that he could appeal the decision but that he had to do so not later than May 10, 2012. Mr Fajemisin did not submit an appeal.

Although the decision had been made to remove his name from the register on May 11, 2012, his name was not removed on that date. Instead, a final check was made with the FTP Team to see whether his name could be removed. On that occasion the Team responded that his name was to be retained on the register. Once the true position concerning the FTP proceedings became known, no steps were subsequently taken by the Registrar to remove his name from the register in connection with the CPD issue.

For some reason, Mr Fajemisin was not informed about the mistake until September 12, 2012. On that date the Registrar advised him that although he had previously been notified that his name would be removed on May 11, 2012, no further action was being taken at that time since he was subject to FTP proceedings.

The disciplinary hearing went ahead on October 30, 2012. Mr Fajemisin did not attend. At the commencement of the hearing, his counsel argued that since a decision had been made that his name would be removed from the register on May 11, 2012, the PCC had no jurisdiction to hear the case. Having deliberated on the matter, the PCC ruled that Mr Fajemisin was still a registered dentist and that the hearing could proceed.

On November 13, 2012 the PCC found eight of the nine allegations against him proved, including an overarching allegation of dishonesty. It concluded that his behaviour amounted to misconduct which impaired his FTP and directed that his name be removed from the register with immediate effect. Mr Fajemisin appealed the decision to the High Court.

When the matter came on for hearing in October 2013, it was common ground that the disciplinary jurisdiction of the Council extends only to registered dentists. It followed that if a respondent to an allegation is not registered at the time the allegation is considered by the PCC, that body has no jurisdiction to examine the matter. The question as to whether Mr Fajemisin had ceased to be a registered dentist on foot of the letter of April 13, 2012 was, therefore, of the utmost importance. Whether he had ceased to be a registered dentist depended on whether the Registrar’s decision that his name would be removed from the register on May 11, 2012 could be revoked.

Unjust rewards
Giving his judgment in the case, Mr Justice Keith said the decision that Mr Fajemisin’s name would be removed from the register occurred because, by reason of mistake, the member of staff who made the decision on behalf of the Registrar was “ignorant of the true facts”. The question for the Court was whether in those circumstances the law permitted the Registrar to revisit the decision of April 13, 2012 by deciding not to implement it.

In the event, the judge decided that the Registrar had the power to revisit her decision. The outcome did not result in any injustice to any person. While Mr Fajemisin was not told until September 12, 2012 that the Council had failed to implement the decision to remove his name from the register, it was not the case that he thought that the disciplinary proceedings were not going ahead as scheduled.

In this regard, he had not appreciated until shortly before the hearing on October 30, 2012 that the removal of his name from the register (had that occurred), would have resulted in the FTP proceedings being discontinued. Mr Justice Keith remarked that if Mr Fajemisin’s appeal were to succeed, his “opportunistic reliance on a windfall of which he was the unintended beneficiary” would have been unjustly rewarded.
The Court went on to dismiss the appeal.

Reference: [2013] EWHC 3501 (Admin)

Date: 
6 December 2013

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