Dentist who concealed medical condition for six years loses appeal against removal from register

The appellant, X, challenged a decision of the Council’s Professional Conduct Committee on the grounds that the Committee had erred in its approach to the risk he posed to patients, and at other points in its reasoning.

The appeal was heard in the Inner House of the Court of Session by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Woolman.

Discovered by chance

Following his diagnosis of a viral health condition, the appellant was permitted to practise as a dentist subject to annual viral load testing. Due to an administrative error he was not called for monitoring by his employers’ occupation health department between April 2008 and December 2011. He continued practising as normal during this time.

In July 2010 the appellant was diagnosed with a second virus that, under the then-current Department of Health Guidelines, prevented him from practising dentistry. He continued to treat patients, albeit with a reduced number of exposure prone procedures. As a result of therapy, by December 2010 his viral load in respect of the second health condition was undetectable.

As a result of DoH guidance changes, dentists with the appellant’s second condition became permitted to practise dentistry from January 2014 onwards if they were registered as such and their viral load remained at undetectable levels. Despite this, the appellant continued to conceal his condition.

The second health condition was discovered by chance in December 2016 when one of his colleagues saw computer records indicating the appellant was attending a particular clinic. Following his suspension by the Health Board, the matter was referred to the GDC, which made a number of charges to the effect of misleading and dishonest behaviour amounting to misconduct which impaired the appellant’s fitness to practise.

The appellant admitted dishonesty in respect of his failure to disclose the second health condition. The Committee held that the failure to comply with the monitoring requirement for the first condition was serious and posed a risk to patients, and that his conduct in respect of the second condition amounted to serious misconduct. As a result, he was removed from the register.

It was submitted for the appellant that there was no evidence that the appellant’s condition prosed a real risk to patients. The expert evidence was that transmission was an extremely unusual event. Further, the diagnosis had a “snowball” effect on the appellant, who became trapped by a lie made when he was in shock which continued to affect him for several years, and no proper consideration was given to the option of suspending him.

Counsel for the appellant accepted that the court had limited scope for interfering in the decision of a specialist body of this kind. However, the serious error made by the Committee as to patient risk removed any scope for deference.

Balanced decision

The opinion of the court was delivered by Lord Malcolm. On the Committee’s approach to risk, he said: “It is clear that the Committee was concerned about the appellant’s actions and failings, not just whether any patient was exposed to a risk above a particular level. The guidance in respect of the second health condition, both before and after 2014, and the requirement for monitoring the first health condition, were aimed at patient protection. In ordinary parlance his conduct exposed his patients to a risk of harm.”

He continued: “It was not a necessary step in the Committee’s reasoning that a patient was exposed to a ‘palpable’, ‘clamant’, or ‘actual’ risk of harm. If there was a possibility of harm as a result of the appellant’s actions, he created a risk of such; and this remains true whether it did or did not come about. And for present purposes it matters little if throughout the risks were low.”

Addressing the Committee’s alleged error in failing to conclude that the “snowball” effect on the appellant extended to his conduct in subsequent years, he said: “This was quintessentially a matter for the Committee to weigh up and reach a decision. Given the continuing dishonesty of a serious nature over a period of years while the appellant continued as a dentist, and indeed gained additional specialist private work, it would have taken strong and clear evidence to overcome the entirely understandable view that for the bulk of that time he was responsible for his statements and conduct.”

The remaining grounds of appeal were dealt with briefly. Lord Malcolm said of these: “The Committee’s decision is commendably clear and straightforward. The appellant would have no difficulty in understanding all of it, and in particular why erasure was directed. Much of what is said amounts to no more than a disagreement with findings, reasons, and conclusions which were matters for the specialist judgement of the Committee. It had regard to all relevant considerations, weighed them, and reached a balanced decision which cannot be categorised as plainly wrong or manifestly inappropriate.”

For these reasons, the appeal was refused.