EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lady Smith Lord Bracadale	[2013] HCJAC 39 XA105/12 OPINION OF THE COURT delivered by LORD BRACADALE in the appeal by DR DAVID KERR BLACK Appellant; Against a decision of the Professional Conduct Committee of the General Dental Council _____________

Appellant: Cheyne; Francis Gill & Co

Respondent: R Dunlop QC; Anderson Strathern

30 April 2013

Introduction

[1] The appellant is a dentist. In this appeal under section 29 of the Dentists Act 1984 (the 1984 Act) he challenges a decision of the Professional Conduct Committee (the committee) of the General Dental Council (the respondents), made after a hearing on 6 June 2012, to erase his name from the Dentists Register under section 27B(6)(a) of the 1984 Act.

The charge

[2] The charge faced by the appellant before the committee was as follows:

"David Kerr Black, a dentist, registered as of 15 Newton Place, Glasgow, Lanarkshire G3 7PY, BDS St And 1969 is summoned to appear before the Professional Conduct Committee on 6 June 2012 for an inquiry into the following charge:

That being a registered dental practitioner;

(1)  At all material times you were practising as a dental practitioner, including from premises at 15 Newton Place, Charing Cross, Glasgow G3 7PY.

(2)  Between May 1993, alternatively November 1997, and January 2012 you were not indemnified or insured in respect of claims from patients arising out of your practice as a dental practitioner.

And that in relation to the matters set out above, your fitness to practise is impaired by reason of your misconduct."

Before the committee the appellant accepted the terms of paragraphs 1 and 2. He did not accept that his conduct amounted to misconduct or that his fitness to practise was impaired. The committee found that the actions of the appellant amounted to misconduct and concluded that his fitness to practise was currently impaired. It went on to conclude that in all the circumstances of the case erasure was the only appropriate and proportionate outcome. Before us the appellant accepted that his conduct amounted to misconduct but asserted that the committee had erred in holding that his fitness to practise was impaired, and that, in any event, the decision to erase his name from the register was excessive and disproportionate to his culpability.

The statutory framework

[3] Section 27 of the 1984 Act, so far as material for present purposes, provides:

"(1) This section applies where an allegation is made to the Council against a registered dentist that his fitness to practise as a dentist is impaired.

(2) A person's fitness to practise as a dentist shall be regarded as 'impaired' for the purposes of this Act by reason only of -

(a) misconduct..."

Section 27A provides for the investigation of allegations by the Investigating Committee of the General Dental Council. If the Investigating Committee determines that the allegation ought to be considered by a Practice Committee, it may in certain circumstances refer the matter to the Professional Conduct Committee, which is one of the Practice Committees. Section 27B makes certain provisions in respect of the conduct of Practice Committees. So far as relevant for present purposes it provides:

"(1) Subject to subsection (4), a Practice Committee must investigate an allegation or allegations against a person referred to them by the Investigating Committee under section 27A and determine whether that person's fitness to practise as a dentist is impaired...

(6) If a Practice Committee determine that a person's fitness to practise as a dentist is impaired, they may, if they consider it appropriate, direct -

(a)  (subject to subsection (7)) that the person's name shall be erased from the register;

(b)  that his registration in the register shall be suspended during such period not exceeding 12 months as may be specified in the directions;

(c)  that his registration in the register shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such conditions specified in the direction as the Practice Committee think fit to impose for the protection of the public or in his interests;

or

(d)  that he shall be reprimanded in connection with any conduct or action of his which was the subject of the allegation."

The professional history of the appellant

[4] The appellant's professional history was set out before the committee by his counsel. After graduating in 1969 and working in dental practices in Scotland he moved to the United States of America for a number of years. He returned to work as a researcher at the University of Glasgow and in 1979 he opened a private practice in Glasgow in which he continued to practise until 2012. In the early years he held indemnity insurance cover through the Medical and Dental Defence Union of Scotland (MDDUS). In 1982, when his request for a no claims bonus was refused, he did not renew his insurance. Around 2006, apparently in response to the revised guidance issued by the respondents in 2005, to which we shall return, the appellant applied to the MDDUS for indemnity insurance. His application was refused. Despite this, he continued to practise without indemnity insurance cover until January 2012. The absence of indemnity insurance cover came to light in the course of an investigation in October 2011 by the respondents into a complaint made by a patient of the appellant. As it happens, the complaint itself was dismissed. The Interim Orders Committee of the respondents imposed a condition that the appellant should not practise unless and until he got insurance cover that was acceptable to the respondents. As a result the appellant obtained insurance cover in January 2012. In addition to providing future cover that policy would cover claims made in respect of treatment prior to the starting date of the policy. In the light of the history of the absence of indemnity insurance cover the Interim Orders Committee referred the matter to the committee.

[5] In the absence of indemnity insurance cover the appellant had put certain arrangements into place. He maintained a fund, which in 2011 stood at £20,000, to cover claims. In addition, he had readily realisable assets which in 2011 were valued in the region of £150,000. Before the committee it was submitted on the appellant's behalf that because of the nature of the work carried out by the appellant, namely, fixed and removable prosthodontics, the risk of an insurance claim or action for personal injury was remote and the value of any claim would be relatively modest.

The findings of the committee
[6] After reviewing the guidance for dentists issued during the periods referred to in the charge, the committee concluded:

"The committee is in no doubt that the GDC has been clear in its guidance since November 1997 that membership of a defence organisation or indemnity insurance is obligatory. The committee is satisfied that it is a mandatory ethical requirement and that a majority of the profession would find such a lack of membership or indemnity insurance deplorable. The committee finds that you treated patients while disregarding the GDC standards on this point. The committee finds that your actions amounted to misconduct."

[7] The committee was highly critical of the financial arrangements which the appellant had put in place and of his contention that because of the nature of his practice any claim would be of limited value:

"... any treatment carried out by you could have had an unpredictable outcome. The submissions put forward on your behalf that your work covers a narrow area of practice with limited risk is not only rejected by the committee, but is also taken as an indication of your lack of insight. Unexpected and severe complications can arise during the most basic of treatments which could have a great impact and involve unpredictable consequences. You are no different from any other general dental practitioner in terms of that risk and it is of great concern to this committee that you did not recognise this."

The committee went on to conclude:

"Your ongoing lack of appreciation of the risks you ran to the possible detriment of your patients, for a period of either nineteen or fifteen years, has led the committee to conclude that your fitness to practise is currently impaired."

Thereafter, the committee examined each of the sanctions set out in section 27B of the 1984 Act and concluded that in all the circumstances erasure was the only appropriate and proportionate outcome.

Grounds of appeal

[8] The grounds of appeal may be summarised as follows.

1. The first ground was that the practice committee had failed to give sufficient weight to the current suitability to practise of the appellant at the time of the decision of the committee. By that stage the appellant had an indemnity policy in place.

2. The second ground of appeal was that there was a lack of evidence to allow the committee to reach the factual conclusion that the appellant had an ongoing lack of appreciation of the risks he ran to the possible detriment of his patients. The committee erred in law by reaching a factual conclusion in the absence of evidence to support that conclusion.

3. The third ground of appeal was that in reaching its determination the committee erred in the proper application of the guidance by the General Dental Council for the professional conduct committee at paragraph 42.i. It failed to attach sufficient weight to the proposition contained in that paragraph that careful consideration not to erase the name of a dentist from the register requires careful justification where "such behaviour could leave patients seriously disadvantaged". There was no evidence before the committee to suggest that any of the appellant's patients had been or would be so disadvantaged. Past potential claims would be met by the policy of insurance which the appellant had obtained prior to the hearing.

4. The fourth ground of appeal was that by imposing a sanction of erasure the committee imposed a sanction that was excessive and disproportionate to the culpability of the appellant. The committee failed to give sufficient weight to the evidence that the appellant had caused no actual harm to any patient; that he had remedied his past culpability; and that he posed no threat to past, present or future patients.

5. The fifth ground of appeal was that the committee had failed to give adequate reasons for imposing the sanction of erasure. No positive reasons were given in support of erasure.

Submissions

Appellant

[9] Mr Cheyne, who appeared on behalf of the appellant, submitted that it was appropriate for the court in assessing the decision of a professional practice tribunal such as the committee to take a different approach where the misconduct under scrutiny was non‑clinical as opposed to misconduct in the course of clinical practice. While the court would be reluctant to interfere where the misconduct was of a clinical nature, it would be less inhibited in a case of non‑clinical misconduct (Sheldon v the Nursing and Midwifery Council 2010 SLT 1195; Mallon v General Medical Council 2007 SC 426). He submitted that in the appellant's case the misconduct did not involve a question of clinical judgement. The requirement for professional indemnity insurance was not a clinical issue. Accordingly, the court should not feel inhibited in interfering with the decision of the committee.

[10] In support of the first ground of appeal Mr Cheyne submitted that the committee had failed to give sufficient weight to the current suitability to practise of the appellant at the time of its decision. Impairment required to be tested at the point of adjudication. While past conduct could be taken into account, the determination as to whether current impairment existed required to be made having regard to the circumstances at the time of the hearing. By the time of the hearing the appellant's misconduct had been remedied by the taking out of a policy of indemnity insurance and, as a result, patients, both past and future, were protected. There was no prospect of the misconduct being repeated. In these circumstances the committee was not entitled to find that the current fitness to practise of the appellant was impaired.

[11] While recognising that the committee had followed the approach recommended by Dame Janet Smith in her Fifth Report in the Shipman Inquiry (Cm 6394-1) at para 25.67, Mr Cheyne submitted that the test recommended by Dame Janet was designed to link past conduct with the likelihood of future occurrence. It was necessary that a balance be achieved between the seriousness of the misconduct and the likelihood of recurrence. Only if the balance indicated that there was likelihood of recurrence would it be appropriate to erase the practitioner's name from the register. Mr Cheyne submitted that while there may be some cases of misconduct that are so egregious that it could readily be said that only a severe penalty would be appropriate, the appellant's misconduct, although serious, did not fall into that category. The nature of the conduct was different and there was no actual repercussion for any of his patients. The court should take into account the balancing act which the fitness to practise test implies. Insight into past conduct was an element in that exercise.

[12] In support of the second ground of appeal Mr Cheyne submitted that it was clear from the determination of the committee that its conclusion as to the insight of the appellant formed a significant part in determining the question of impairment. There was a lack of evidence to allow the committee to reach the factual conclusion that the appellant had an ongoing lack of appreciation of the risks he ran to the possible detriment of his patients. The committee erred in law by reaching a factual conclusion in the absence of evidence to support that conclusion. The submissions of counsel on his behalf before the committee were designed to explain the background as to how the situation had come about. The committee had used that explanation for justification of its view of the present state of mind of the appellant. In this respect it had erred.

[13] The third ground of appeal was that in reaching its determination the committee erred in the proper application of paragraph 42.i. of the published Guidance issued by the General Dental Council for the Professional Conduct Committee. Mr Cheyne submitted that the committee had failed to attach sufficient weight to the proposition contained in that paragraph that a decision not to erase the name of a dentist from the register requires careful justification where "such behaviour could leave patients seriously disadvantaged". There was no evidence before the committee to suggest that any of the appellant's patients had been or would be so disadvantaged. By failing to distinguish between a case in which a harmful effect had been caused on the one hand, and a case, such as the appellant's, in which no harm had in fact been caused, on the other, the committee had erred. In the latter case a sanction of lesser severity would be appropriate.

[14] In relation to the fourth ground of appeal Mr Cheyne submitted that by imposing the sanction of erasure the committee imposed a sanction that was excessive and disproportionate to the culpability of the appellant. The committee failed to give sufficient weight to the evidence that the appellant had caused no actual harm to any patient; that he had remedied his past culpability; and that he posed no threat to past, present or future patients.

[15] Finally, in support of the fifth ground of appeal, Mr Cheyne submitted that the committee had failed to give adequate reasons for imposing the sanction of erasure from the register. No positive reasons had been given to justify the imposition of the most severe sanction available.

Respondents

[16] Mr Dunlop QC, who appeared on behalf of the respondents, submitted that the committee had made no error in coming to its finding that the appellant's fitness to practise was impaired. The appellant had practised for many years without indemnity insurance cover. After having twice unsuccessfully attempted to get cover he had deliberately chosen to continue practising without cover. Against the history of deliberate flouting for years of what was clearly an important requirement for practice, the fact that the appellant had, when the breach was discovered, remedied the situation carried very little weight. The need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession was of much greater significance in a case of this kind (Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council, Paula Grant [2011] EWHC 927 (Admin); Yeong v General Medical Council [2010] 1 WLR 548; Kumar v General Medical Council [2012] EWHC 2688 (Admin)). In this context it was very important to recognise the specialist nature of the committee.

[17] When tested by the approach recommended by Dame Janet Smith in her Fifth Report in the Shipman Inquiry at para 25.67 the fitness to practise of the appellant was clearly impaired. The committee had followed this approach. It was wrong to claim that the misconduct of the appellant was not egregious. The fact that there had been no claim against the appellant did not detract from the seriousness of the misconduct.

[18] On the information before the committee it was entitled to draw the inference which it did as to the lack of insight by the appellant. The lack of insight was patent from the submissions made on his behalf before the committee. He was uninsured until prompted by the respondents to obtain cover.

[19] The appellant's case plainly fell within paragraph 42.i of the Guidance issued by the General Dental Council for the Professional Conduct Committee. It was the potential for the misconduct to cause harm that was important in the context of maintaining the reputation of the profession.

[20] The appellant could have been in no real or substantial doubt as to the reasons why the committee arrived at the decision that the only appropriate sanction was to erase his name from the register.

Discussion

[21] The approach of the court in considering an appeal from a professional conduct tribunal such as the committee was set out in McMahon v Council of the Law Society of Scotland 2002 SC 475 following the decision of the Privy Council in Ghosh v General Medical Council [2001] 1WLR 1915. In McMahon, giving the opinion of the court, Lord Justice Clerk (Gill) said at para [14]:

"We must now apply a less rigorous test. We should simply look at the tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the tribunal and giving to their decision such weight as we should think appropriate."

Having said that, he went on in para [16] to add:

"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind."

While it is correct to note that the court may be less inhibited in interfering in a case involving conduct which is entirely non-clinical (Mallon (supra), per Lord Justice Clerk (Gill) at [20]), we reject Mr Cheyne's contention that the issue raised in the appellant's case did not involve any clinical judgement. In our opinion, in assessing whether (a) the conduct of the appellant in practising as he did for years without indemnity insurance cover amounted to misconduct; (b) his contention that the nature of his practice was such that his own arrangements were adequate was well founded; and (c) his conduct was such as to damage the reputation of the profession and public confidence in it, the specialist knowledge of the committee was engaged. As was pointed out in Dad v General Dental Council [2010] CSIH 75, the court should be slow to interfere with a decision of a professional conduct tribunal as to what is necessary for the protection of the reputation of the profession.

[22] Although the appellant was uninsured from 1982 onwards, the libel in the charge against him began in 1993, because from that date onwards it became increasingly clear that insurance cover was a requirement for practice. The document "Professional Conduct and Fitness to Practise", published by the General Dental Council in 1993, contains guidance on specific aspects of professional conduct and ethical practice. Paragraph 8 stipulates:

"The Council attaches great importance to dentists involved in the treatment of patients being adequately insured or indemnified, both in the interests of patients, for whom compensation may be provided in appropriate circumstances and in the interests of dentists who then have access to assistance and representation in connection with professional, legal and disciplinary matters."

In 1997 the General Dental Council issued guidance entitled "Maintaining Standards". Paragraph 1.2 is in the following terms:

"A dentist involved in advising or treating patients must either hold appropriate membership of a defence organisation or otherwise be indemnified against claims for professional negligence. This is in the interest both of patients, who may have a right to compensation and of dentists, who may require professional and legal advice. A lack of appropriate defence organisation membership or adequate indemnity cover which includes professional and legal advice, would almost certainly lead to a charge of serious professional misconduct."

At the time of the hearing before the committee the current guidance from the General Dental Council was a document entitled "Standards for Dental Professionals", published in 2005. This document sets out a number of principles of practice in dentistry. The document makes it clear that it is the responsibility of the dentist to apply these principles to his daily work, using his judgement in the light of the principles. The first principle is entitled 'Putting patients' interests first and acting to protect them '. Paragraph 1.6 stipulates:

"Make sure your patients are able to claim any compensation they may be entitled to by making sure you are protected against claims at all times, including past periods of practice."

[23] The 1984 Act was amended in certain respects by the Dentists Act 1984 (Amendment) Order 2005/2011. These amendments included a new section 26A, which introduces a statutory requirement for insurance cover. It provides that a registered dentist must be covered by adequate and appropriate insurance throughout the period during which he is registered in the register. Adequate and appropriate insurance is defined as meaning insurance of a type and amount which rules to be made under this section specify as adequate and appropriate. Failure to comply with these requirements may lead to the name of the dentist being erased from the register. We were advised that agreement as to the terms of the rules to be made under this section had not yet been reached and, accordingly, the section has not yet been brought into force. Nonetheless, the fact that Parliament has considered it appropriate to introduce legislation making the requirement for insurance a statutory requirement is indicative of how seriously the matter is taken.

[24] It seems clear to us that, at the latest by 1997, it was plain that the requirement for insurance cover was mandatory. In our opinion, the committee was entitled to conclude that the General Dental Council had been clear in its guidance since November 1997 that membership of a defence organisation or indemnity insurance was obligatory. Having regard to the specialist nature of the committee we are unable to criticise its conclusion that the requirement was a mandatory ethical requirement and that a majority of the profession would find such a lack of membership or indemnity insurance deplorable. The committee was entitled to conclude that as the appellant had treated patients while disregarding the respondents' standards on this point his actions amounted to misconduct. Before us that was accepted on behalf of the appellant.

[25] In relation to the first two grounds of appeal, we reject the submission made by Mr Cheyne that because the misconduct had been remedied by the taking out of a policy of indemnity insurance and that, as a result, patients, both past and future, were now protected, and because there was no prospect of the misconduct being repeated, the committee was not entitled to find that the current fitness to practise of the appellant was impaired. It was necessary for the committee in deciding whether the fitness to practise was impaired to have regard to wider considerations than the consideration that the misconduct had been remedied and there was little likelihood of repetition. The committee required to have regard to the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. We agree with the analysis of these issues by Cox J in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council, Paula Grant (supra). After quoting from Silber J in Cohen v General Medical Council [2008] EWHC 581 (Admin), Cox J continued:

"70 An assessment of current fitness to practise will nevertheless involve consideration of past misconduct and of any steps taken subsequently by the practitioner to remedy it. Silber J recognised this when referring, at paragraph 65, to the necessity to determine whether the misconduct is easily remediable, whether it has in fact been remedied and whether it is highly unlikely to be repeated.

71 However it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of his judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.

72 This need to have regard to the wider public interest in determining questions of impairment of fitness to practise was also referred to by Goldring J in R (on the Application of Harry) v. General Medical Council [2006] EWHC 3050 (Admin) and by Mitting J in Nicholas-Pillai, where he held that the Panel were entitled to take into account the fact that the practitioner had contested critical allegations of dishonest note-keeping, observing that:

'[19] In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him."

73 Sales J also referred to the importance of the wider public interest in assessing fitness to practise in Yeong v. GMC [2009] EWHC 1923 (Admin) , a case involving a doctor's sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:

'... Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.'

74 I agree with that analysis and would add this. In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances."

The protection of the public and the upholding of proper standards so as to maintain public confidence in the profession were clearly considerations at the forefront of the mind of the committee. It had regard to the history of the conduct of the appellant. The committee expressly followed the approach recommended by Dame Janet Smith in her Fifth Report and considered the following questions:

"Do our findings of fact in respect of the doctor's misconduct show that his fitness to practise is impaired in the sense that he:

(a)  has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

(b)  has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

(c)  has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession..."

The committee was entitled to consider all the information which had been placed before it on behalf both of the appellant and the respondents. The appellant had made a deliberate decision not to renew his insurance after he had been refused a no claims bonus in 1982. As a result, he practised for many years without professional indemnity insurance. That was done in the face of increasingly clear guidance from the respondents as to the requirement for insurance cover. On any view, he must have been aware of the clear terms of the document, "Standards for Dental Professionals", issued by the respondents in 2005, for, in response to its publication he attempted to obtain indemnity insurance cover. Despite the failure of that attempt, he continued to practise. The appellant put into place an alternative scheme which was severely criticised by the committee and which even his own counsel before us described as "ludicrous". We note that the absence of insurance cover emerged as a side‑wind from an unrelated complaint. It is clear that but for that discovery, the appellant would never have taken out professional indemnity insurance. He did so only because he had been found out. In these circumstances it seems to us that the fact that the absence of insurance cover had been remedied by the time of the hearing before the committee was of little significance.

[26] The committee properly directed itself to have regard to the attitude of the appellant. They did so under reference to the observations of Mitting J in Nicholas‑Pillai v General Medical Council [2009] EWHC 1048 (Admin). The committee inferred that the appellant had an ongoing lack of appreciation of the risks he ran to the possible detriment of his patients for a period of many years. The committee was entitled to have regard to history of the conduct of the appellant, the nature of the alternative arrangement put in place by him, his denial that his conduct amounted to misconduct, and the seriousness of the misconduct and to draw from that history the inference that the appellant had shown and continued to show a lack of insight and appreciation of the risks to the possible detriment of his patients which he ran for many years.

[27] In our opinion the committee was entitled on the basis of the information before it to come to the view that the appellant's fitness to practise was impaired. We consider that there is no merit in either of the first two grounds of appeal.

[28] In considering the third ground of appeal it is important to look at paragraph 42 of the Guidance for the Professional Conduct Committee in context. The paragraph appears in a section of the guidance dealing with erasure. Failure to have proper insurance cover is identified as one of a number of forms of behaviour which are so damaging to a registrant's fitness to practise and to public confidence in the dental profession that erasure should be considered to be the appropriate outcome:

"Erasure

40. The ability to erase exists because certain behaviours are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that removal of their professional status is the appropriate outcome. Erasure is imposed in order to protect the public and maintain its confidence in the profession as a whole. In this respect erasure is not principally a punitive measure, although it may have the secondary effect of being so. Prior to erasure being considered, all other available sanctions should be discussed to ensure that the case is being considered bearing in mind the principles of proportionality.

41. No Practice Committee may erase if the finding is one of impairment solely on health grounds.

42. In the circumstances outlined in the guidance given below, a decision not to erase would require careful justification. That said, the commentary under each heading cannot cover every situation and each case must be considered on its own merits. The following guidance highlights behaviours which are so damaging to a registrant's fitness to practise and to public confidence in dental professionals that erasure should be considered to be the appropriate outcome:

...i. Failure to maintain appropriate indemnity or otherwise ensure adequate protection for patients: Registrants should not practise without making sure that they are covered by adequate indemnity in the event of patients making claims against them. Such behaviour could leave patients seriously disadvantaged..."

The committee correctly noted that paragraph 42.i. identified a failure to maintain appropriate indemnity insurance or otherwise ensure adequate protection for patients as a circumstance in which a decision not to erase would require careful justification as such behaviour could leave patients seriously disadvantaged. The committee concluded that, in all the circumstances of the case, erasure was the only appropriate and proportionate outcome. We are unable to accept the submission by Mr Cheyne that the committee erred by failing to distinguish between a case where there was in fact a harmful outcome and a case, such as that of the appellant, in which no patient had been disadvantaged. He submitted that while in the former circumstances erasure might be justified, in the latter another penalty might be imposed. It was not mandatory to resort to erasure where there was no insurance cover. In our opinion the committee was correct in its interpretation of paragraph 42.i. and was entitled to come to the conclusion that there was nothing in the circumstances of the appellant's case to justify a decision not to erase. In the context of considering the need to protect the public and uphold proper standards of behaviour so as to maintain public confidence in the profession the potential for patients to be disadvantaged was an important consideration.

[29] It is convenient to deal with the fourth and fifth grounds of appeal together. The fourth ground of appeal raises the question as to whether erasure was a sanction which was excessive and disproportionate to the culpability of the appellant (Ghosh v General Medical Council (supra) at para [34]). The fifth ground relates to the adequacy of the reasons given by the committee for its decision. Having found, as it was entitled to do, that the appellant's fitness to practise was impaired, it was then necessary for the committee to decide what sanction to impose. In its determination the committee first considered whether it required to take any action at all. Having rejected the option of taking no action as wholly inappropriate, the committee then examined each of the possible sanctions provided in section 27B of the 1984 Act, starting with the least serious sanction and working through each available option. The committee carefully examined each of the possible outcomes and gave valid reasons for rejecting each of them. Having rejected each of the other possible sanctions, erasure was the only remaining option. As we have already noted the committee had regard to the terms of paragraph 42.i. of the Guidance. The committee, applying its specialist knowledge, had taken a very serious view of the admitted behaviour of the appellant over many years. It did not find any basis for justifying not erasing the appellant's name from the register.

[30] It is important in this context to bear in mind that the principal purposes of the disposal of a case before a professional conduct committee are concerned with the protection of the public and the protection of the reputation of the profession. The question of punishment of the individual practitioner is comparatively of lesser importance. In Gupta v General Medical Council [2002] 1 WLR 1691 Lord Rodger of Earlsferry at para 21 noted that it had frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. He quoted from Sir Thomas Bingham, as he then was, in Bolton v Law Society [1994] 1 WLR 512 at page 519:

"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

(See also Graham v Nursing and Midwifery Council 2008 SC 659 per Lord Wheatley at para [13]).

[31] In the whole circumstances it cannot be said that the decision to erase was excessive or disproportionate to the culpability of the appellant.

[32] Having regard to the careful analysis of each of the available sanctions carried out by the committee, we are satisfied that when the decision of the committee is read as a whole the informed reader, such as the appellant, would be in no real or substantial doubt as to the reasons on which the committee arrived at its decision (South Bucks District Council v Porter [2004] 1 WLR 1953; Uprichard v Scottish Ministers [2011] CSIH 59 per Lord Justice Clerk (Gill) at para [26]; Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President (Emslie) at p 348).

Decision

[33] The questions of law for the opinion of the court set out in the appeal are as follows:

1.    Did the committee err in concluding that the appellant's current and future fitness to practise was impaired as a result of misconduct?

2.    Was the sanction imposed by the committee excessive and disproportionate to the culpability of the appellant's conduct?

3.    Did the committee fail to give adequate reasons for the sanction it imposed, and in the event that it did so fail, does that failure vitiate its decision?

For the reasons set out above we answer all three questions of law in the negative and refuse the appeal. We shall reserve meantime any question of expenses.