2025-02-10 16:53:28
In a news item on 18 December 2023, we reported on the case of Aga v General Dental Council. In that case, the GDC’s fitness to practise panel had decided after a final hearing to suspend the practitioner. All healthcare regulators have an overarching objective of the protection of the public, and the procedures in all healthcare fitness to practise cases, including those heard by the General Pharmaceutical Council’s Fitness to Practise Committee and the Pharmaceutical Society of Northern Ireland’s Statutory Committee, provide that a decision to suspend or remove from the register will not take effect during the 28-day appeal period and, in the event of an appeal, will not take effect until the appeal has been disposed of. However, fitness to practise tribunals have power to impose an immediate suspension during the appeal period and pending the final determination of any appeal direction, if satisfied that to do so is necessary for the protection of the public or is otherwise in the public interest.
The General Dental Council’s Professional Conduct Committee (PCC) had found that Dr Aga’s fitness to practise was impaired by misconduct (harassing conduct and failing to notify the GDC of a restraining order imposed by a magistrates court). The sanctions available to the PCC were the same as those available to all healthcare regulators, including removal from the register and suspension for a period of up to 12 months. The PCC imposed a 9-month suspension from practice. Dr Aga appealed against the sanction.
By the time the Aga appeal was heard by Mr Justice Ritchie in the High Court, Dr Aga had been suspended for over 12 months, even though the Fitness to Practise panel did not have power to impose a suspension of more than 12 months. This led the judge to find that the imposition of an immediate post-hearing suspension had the effect of starting the substantive suspension which was the sanction the panel had decided on, and that the suspension was for longer than the 12 months period than permitted by the legislation.
The decision in Aga caused something of a stir among healthcare regulators, with at least one regulator stating that it would not follow the decision of Mr Justice Ritchie. In January 2024, we reported that the General Dental Council had decided to appeal against the decision in Aga and, since then, another High Court judge has held that the decision in Aga was wrong.
In General Dental Council v Aga [2025] EWCA Civ 68, the Court of Appeal has ruled that Aga was wrongly decided. The Court of Appeal held that the outcome was a matter of statutory interpretation, and that Mr Justice Ritchie had approached the case incorrectly. In the Court of Appeal, Lady Justice Nicola Davies pointed to the different purposes of a suspension that was a sanction following a finding that the registrant’ fitness to practise was impaired, and a decision to impose an immediate suspension during the appeal period. In deciding to impose a sanction of suspension following a finding of impairment, the PCC had regard to whether the misconduct was remediable, whether it had been remedied and took account of the respondent’s insight and the risk of repetition. It also had regard to the wider public interest which includes a need to uphold and declare appropriate standards of conduct and behaviour, so as to maintain public confidence in the profession and its regulation. The same considerations would apply to a sanction of suspension imposed by the committees of the GPhC and PSNI. There is an overlap with the grounds for an immediate suspension pending an appeal, but there were two distinct suspensions at different stages of the fitness to practise process. If it was unfair to prolong the suspension as a result of a suspension during the appeal period, this was a matter for Parliament to address, not the courts.
Lady Justice Nicola Davies pointed out that if Mr Justice Ritchie’s decision were correct,
“it would undermine the overriding objective [of the protection of the public]. It has the potential to undermine the ability of a [registrant] to remediate the failings which led to the finding of misconduct, one purpose of a review hearing. It could also negate the purpose of a review…as such a review may not occur if the combined period of [sanction of suspension and a suspension during the appeal period] exceeded 12 months. Thus, a [registrant] subject to a review, could return to practice without satisfying a PCC that their fitness to practise was no longer impaired. This would ride roughshod over the carefully drafted provisions of the [legislation] which at their core reflect the need to protect the public.”
Lord Justice Stuart-Smith agreed with Lady Justice Nicola Davies and added:
“although I accept that the interpretation that we are endorsing may have the effect of extending the period during which a [registrant’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 [regulator] in an appropriate case to initiate the review itself. As always, the touchstone will be the protection of the public.”
Lady Justice Whipple agreed with both judgments.