DFL v General Dental Council

Mr Justice Kimblin : Introduction

1. On 18 th February 2024 the Professional Conduct Committee (‘the PCC’) of the General Dental Council (‘the Council’) erased the Appellant’s name from the register of dental care professionals by reason of her misconduct. The Appellant was a dental nurse. The Council is the regulator for the dental profession in the UK and exercises its statutory duties under the Dentist Act 1984 (‘ the 1984 Act ’) via its Practice Committees.

2. The Appellant appeals against the PCC’s decisions pursuant to section 36 S(1)(b), (3) and (5)(c) of the 1984 Act . By CPR Part 52.21(3) the Court will allow an appeal where the decision was wrong or unjust because of a serious procedural or other irregularity in the proceedings.

3. Chamberlain J gave permission to the Appellant to issue the claim by his order dated 28 th March 2024, noting the absence of a response from the Council which evidently affected the range of responses open to him. That was in the context of there having been a General Civil Restraint Order in place until 14.3.24. The claim was issued as a claim for judicial review rather than as a statutory appeal. The procedural position was resolved after a hearing on 4 th March 2025 and a reserved judgment of Fordham J: [2025] EWHC 643 (Admin) . The outcomes of that hearing were: (1) the Respondent’s application to set-aside was dismissed; (2) The Respondent’s application to strike-out was dismissed; (3) the case was to proceed as a statutory appeal. Fordham J gave directions for the preparation of the case which were substantially complied with.

4. The matters which the PCC adjudicated upon were concerned with abusive and inappropriate conduct, language and behaviour by the Appellant. The hearing before the PCC was evidently fractious at times, as this judgment shows. In contrast to that background, the Appellant’s presentation of her case before me was focussed, well organised, respectful and measured. I am grateful to both the Appellant and to Mr Bradly KC, who appeared for the Respondent, for their assistance. I am particularly grateful to the Court staff who enabled me to sit late to complete the hearing in one day.

5. I now set out the background. Background

6. The Committee comprised a Chair (a lay member), two Committee Members, a legal advisor (Mr Barrie Searle), a Committee Secretary and a Hearing Support Officer. The Committee sat on twelve days, starting on 30 th October 2023 until 8 th November 2023 and then on 8-11 January and 16 th and 18 th January 2024. All hearings were remote hearings on Microsoft Teams.

7. The Council was represented by Mr Collis of Counsel, who was employed by Capsticks LLP.

8. The Committee heard the Appellant’s application for the hearing to be heard in private. Mr Collis resisted that application. The Committee decided to conduct the hearing wholly in private.

9. There were ten charges before the Committee. The Committee found each of those charges to be proved, save for charge 8b, 9d and 10. The conduct which was found to be proved was conduct which was malicious, intended to harass, misleading, dishonest, derogatory, abusive and discriminatory. Further, during the Council’s investigation, the Appellant was found to have failed to cooperate, communicate appropriately, and to have conducted herself inappropriately at an interim order review hearing by screaming and exposing herself on camera.

10. The Committee’s determination is marked ‘private’. It extends to forty pages in 310 paragraphs. It is unnecessary to relate its contents in order to decide the issues in this case. The transcripts of the proceedings extend to 781 pages. It is necessary to consider the transcripts in some, but not excessive, detail. I consider that material by reference to each issue, below.

11. At the start of the hearing I raised the questions of privacy and anonymity. The parties agreed that it was unnecessary for either the hearing or the judgment to be private, but that anonymity should be ordered. I made an anonymity order on 20 th November, the date of the hearing. Issues and Law

12. The Appellant’s case is in apparent bias. She advances discrete grounds, each of which, and cumulatively, she submits would cause a fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the Committee was biased.

13. The law is well-known and established at the highest level: Porter v Magill [2002] 2 AC 357 . It is the fair-minded and informed observer who is the fictional person who is called upon to decide whether there has been apparent bias. That observer has attributes which many of us might struggle to attain, as Lord Hope of Craighead explained in Helow v Home Secretary (HL) [2008] 1 WLR 2416 at [1] to [3]. He or she always reserves judgment on every point until both sides of the argument are fully understood and is not unduly sensitive or suspicious. The fair-minded observer does not adopt the complainant’s assumptions unless they are objectively justified, but is not complacent either and so will not shrink from a conclusion that things said and done may make it difficult for a person to judge things impartially. In reaching a conclusion either way, the informed observer will take the trouble to read the totality of the material, in its overall context, which will be an important part of that material.

14. Factors which may or may not give rise to a real possibility of bias depend on the nature of the issue to be decided: Locabail (UK) v Bayfield Properties Ltd [2000] QB 451 per Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C at [25]. There may be a real possibility of bias if there were a personal friendship or animosity between the judge or decision-maker and a person involved in the case, or if there were real grounds for doubting the ability of the decision-maker to ignore extraneous considerations, prejudices and predilections and bring objective judgment to bear. In most cases, the answer, one way or the other, will be obvious.

15. With those principles in mind, the Court is asked to consider these parts features of the hearing before the Committee: (1) the involvement of Senior Hearings Case Management Officer Michael Perks in relation to the legal adviser , in particular (i) in the selection of the particular legal adviser who in the event assisted the PCC for the hearing, barrister Barrie Searle, including as a replacement for the legal adviser whose name had originally been advertised for the hearing (Valerie Patterson); (ii) given Mr Perks’ role, as a witness at the hearing in support of the Defendant’s case, when Mr Perks’ role as the selector of the legal adviser was such that he could influence the outcome of the hearing; and (iii) Mr Perks is part of a the team of employees of the Defendant members of which have been found by the Employment Tribunal to have used offensive terms in respect of a registrant; (2) the appearance of Hearings Co-Ordinator Shane McAuliffe as a witness at the hearing in support of the Defendant’s case , when (i) Mr McAuliffe’s role was such that he could influence the outcome of the hearing; (ii) that in the event there was an attempt to obscure that role by the removal of Mr McAuliffe’s name from an email sent to the Appellant after the conclusion of the hearing; and (iii) Mr McAuliffe is part of a the team of 3 employees of the Defendant members of which have been found by the Employment Tribunal to have used offensive terms in respect of a registrant; (3) the Appellant’s witness Mr Shefket was denied remote access to the hearing to give evidence , and that on contacting the hearings team Mr Shefket was informed that the Chairman of the Council of the Defendant, Lord Harris, and Counsel representing the Defendant at the hearing, Michael Collis, did not want him to join the hearing; (4) the Chairman of Council, Lord Harris (i) was involved in the case, as Lord Harris sent an email to another of the Appellant’s witnesses , Fuat Gulmez, discussing the case and accusing Mr Gulmez of impersonating the Appellant and did not want Mr Shefket to give evidence at the hearing; (ii) has been found to have obstructed justice by failing to report his drug dealing son’s criminal activities to the Police until contacted by The Guardian; and (iii) is a friend of the panel member who chaired the PCC for the hearing, Adrian Smith as the two worked closely at the Police Conduct Commission when Lord Harris was the Chair of Police Standards, facts never disclosed to the Appellant, and Mr Smith was purposely selected to chair this hearing, to the disadvantage of the Appellant; (5) the SRA point: during the hearing the Defendant called evidence obtained from the Solicitors Regulation Authority, when the case presenter, Michael Collis of Counsel, is employed by Capsticks solicitors and Capsticks are the sole solicitor to the Solicitors Regulation Authority, the two working hand in hand so that the evidence is unreliable and potentially fabricated; 6) the three members of the PCC and the legal adviser are paid for their services by the Respondent (the legal adviser stating on several occasions that he speaks to the hearings teams about his salary and payments into his bank account).

16. These six issues formed the structure of the well-organised hearing before me, and consequently they form the structure of this judgment.

17. As I am required to do, I have taken account of the totality of the picture which the transcripts, the allegations and the decision present. I have considered each of the Appellant’s focussed points and concerns on its own merits and also in combination, as a cumulative case which, it is said, gives rise to an appearance of bias.

18. There are very many instances and examples of issues which arose during the course of the twelve day hearing which inform my view of the situation which all of the parties and participants were seeking to deal with. I have limited my illustration of those issues to the minimum necessary to support my conclusions because I have formed the strong view that the hearing before the Committee extended well beyond the bounds of what was necessary or helpful in order to determine the issues in the case and I shall not compound that by a detailed rehearsal of the events as they unfolded. I return to this topic in my conclusions. [1] The involvement of Senior Hearings Case Management Officer in relation to the legal adviser

19. The Appellant’s case on the first issue is that on the day before the hearing commenced, the Appellant was told that the Legal Advisor was to be Barrie Searle. This was a change. The change was notified to the Appellant by a person who was to be a witness for the Council. The changing or selection of a legal advisor should have been free from influence by GDC witnesses or other parties with a vested interest in the hearing's outcome to preserve the integrity of the judicial process. This apparent bias undermines the credibility of the proceedings and casts doubt on the equitable treatment of the involved parties. The Appellant developed this point in terms of the necessary independence of the legal advisor, which was not maintained. The way in which he was appointed affected the appearance of neutrality.

20. Moreover, the actions of the Legal Advisor appeared biased in that he sought to shut down the Appellant, whereas he did not do so with the Council’s advocate, Mr Collis. The examples which were highlighted were from: Day 2 and 3 when the Appellant was referred to disparagingly; Day 5 when the Appellant was ‘shut down, and; Day 12 when the Legal Advisor failed to prevent Mr Collis from making personal attacks.

21. I turn to the transcripts. I have considered them carefully, and in their totality. The following are striking features of the materials.

22. First, the Legal Advisor was independent of the Committee and there is no evidence to the contrary. The hearing commenced with introductions. The Committee was a panel of three ‘ equal decision-makers and are independent of the GDC. The Committee is supported throughout the hearing by a Legal Advisor, …’.

23. The Legal Advisor introduced himself as a barrister and part-time judge: “Good afternoon. My name is Barrie Searle. I am the Legal Adviser and, as I have already explained to [the Appellant], my role is to ensure there is a fair hearing in this case. As the Chair has just said, I take no part in decision-making process. I think it is right to say, Chair, that in a moment I would like to have the opportunity just to summarise the conversations I have been having with [the Appellant] in the presence of Mr Collis, Counsel for the GDC. I would be very anxious to put those on the record and I have explained that position to [the Appellant].” … “I think it is important to summarise what I said to [the Appellant] about my position. I made it quite clear that I am an independent Barrister. I also sit as a part-time Judge in the family and criminal court and my job is to ensure that there is a fair hearing and a just hearing throughout. I made it quite clear that I can advise her on procedure but I was not in a position, as she is not represented, to represent her… “

24. Secondly, it is evident that the Committee and the Legal Advisor took care to declare any potential interests. This was clear in respect of Mr Perks who was called to give evidence on Day 4: THE CHAIR: Thank you. I just wanted to mention, for the sake of total transparency, that I personally have knowledge of you, Mr Perks, and that is through emails that we have corresponded on in the past in relation to other cases. I believe I have seen you presenting, as well, at a training event for GDC panellists. So, I just thought I would confirm that. …. THE LEGAL ADVISER: Thank you very much, Chair. It is right to say that I was approached by Mr Perks about two weeks ago to see whether I would be available professionally to sit as da Legal Adviser for this case. So, that is the first contact I had with Mr Perks. The substance of the case was not discussed. I made it clear to [the Appellant] that I did have a conversation with Mr Perks on Friday afternoon of last week, because I wanted to know what had happened as far as the preliminary hearing is concerned. I have not read the papers in my usual – without sounding pompous – conscientious way. I did not appreciate that Mr Perks was a witness at the time. We got into the conversation for about 90 seconds and Mr Perks said, “Of course, I am a witness”. As soon as that came to my knowledge, I made it clear that the conversation would have to end and there it did. So, that is the extent of my involvement with this case and Mr Perks. It goes without saying that Mr Perks and I know each other professionally in that, on numerous occasions, he has talked to me about other cases. So, that is the position. As far as I am concerned, as an independent barrister, there is no conflict between me and him. I hope that is clear, particularly to [the Appellant].

25. This is a transparent and open way of addressing the extent of interaction with Mr Perks. During her submissions, the Appellant did not address me on this part of the transcript, nor indeed did she take me to any specific part of it, including during her reply to Mr Bradly’s submissions.

26. Thirdly, Mr Searle guided the Appellant fairly, and consistently with her position as a registrant who was representing herself. For example, on Day 4, this interaction took place: “THE LEGAL ADVISER: There is no need to get excited. Just keep calm, please, for everybody’s sake. THE REGISTRANT: I totally adore your help and I can’t put it in a name, the way you try to be helpful on both sides. But the same thing again; I am just a human and sometimes I want to lose it. But I will follow you as much as I can, which I’ve been doing it so far from the first day.

27. Mr Searle was evidently assisting in the calm conduct of the hearing. The Appellant regarded it as fair to both sides, and said so. Mr Searle could see when the Appellant was making progress, and said so.

28. Thirdly, the Appellant’s contention on this issue, namely that Mr Searle’s appointment as Legal Advisor was suspect and irregular is a point which arose at the hearing, on Day 5: “ (The Committee adjourned for a short time) THE CHAIR: So, obviously, Ms Meikle is not here at the moment because we just need to deal with the administrative matters. So there was a meeting just now between Mr Collis and Mr Searle and [the Appellant]. Mr Searle, do you want to update us on that? THE LEGAL ADVISER: Yes, I do. The meeting dealt with a number of matters but I am going to summarise them in this way. [the Appellant] takes the view that she wishes to make an application to remove me from this hearing on the basis that I was brought in the day before and that there was a sinister reason for that. THE REGISTRANT: I didn’t want to make an application. THE LEGAL ADVISER: You don’t? Right. I tried to allay her fears about any conspiracy theory, that I am an independent barrister, and that I am here to ensure that there is fairness and justice, and she made some other points about some of the interruptions that I had made in the case. I don’t need to go into those details.”

29. Therefore, the Appellant decided not to take the point about Mr Searle’s appointment before the Committee. She did not ask for Mr Searle to be removed from the hearing, though Mr Searle expressly brought that point to the Committee’s attention on the Appellant’s behalf. He was demonstrably fair.

30. Fourthly, the transcripts reveal frequent highly charged interactions between the Appellant the Council’s witnesses and advocate. Mr Searle’s interventions and actions to maintain the order of the hearing would be seen by a reasonable observer as necessary, proportionate and remarkably patient.

31. Lastly, the overall trajectory of the hearing was downhill. Frustrations mounted. By Day 8, the Appellant was referring to the Council’s advocate in this way: “Stop lying, Collis”. She refused to listen to him and put her phone on silent. She had other work to do. That situation was not assisted by the fact of a virtual hearing with attendant connection problems. However, the Committee, Legal Advisor and the Council’s advocate were civil, very patient and calm.

32. By Day 11 (10 th January), the Appellant addressed the Chair as a soldier of Toby Harris, the Chair of the Council. She did so when joining the hearing from an airport lounge. The Appellant stated that she would bring the case to the High Court, as she has.

33. The transcript then records, recalling that the Appellant is in an airport lounge: “MR COLLIS: I am not going to repeat the comments I made at the desire for the GDC to bring this case formally to a resolution. I am sure you will recall the points. What I would say is it is a surprising turn of events that the Registrant is now claiming that she has to take a flight today when, of course, we were told back in November that the Registrant may only possibly be able to attend this --- THE REGISTRANT: Thank you very much, yes. Thank you. Can I have some Champagne ---"

34. When the Appellant took the opportunity to ask for a refill of her champagne, the Chair took the view that it was time to put the Appellant on mute.

35. In my judgment, the reasonable observer would not see Mr Searle’s appointment as anything other than essential and his conduct as professional, notwithstanding the extraordinary conduct during of parts of the proceedings on the part of the Appellant. [2] The appearance of the Hearings Co-Ordinator as a witness at the hearing in support of the Defendant’s case

36. As a Hearings Co-Ordinator, Shane McAuliffe is responsible for pre- and post-hearing administrative tasks, such as sending the Outcome Letter and the written Determination to registrants. In the course of his employment, he took a telephone call from the Appellant during the Interim Order Review hearing on 28 th July 2022. The Appellant’s conduct during the call became the subject of Allegation 9(a) to (c). Mr McAuliffe therefore attended the hearing as a witness to produce the telephone attendance note he made of the calls and to give the Appellant the opportunity to challenge his evidence.

37. The case put by the Appellant is that Mr McAuliffe was the hearing co-ordinator, but that the Appellant did not know this. It was obscured.

38. There is no evidence to support the Appellant’s case. It was obvious, in the absence of agreed facts, that Mr McAuliffe had to give evidence in order to establish the Council’s case about what the Appellant had said to him, and how it has been said. There is no evidence that Mr McAuliffe had any control or influence over those who conducted the hearing or enabled it to take place. To the contrary, the transcripts show that the hearing was administered with conspicuous efforts to accommodate the Appellant’s substantial demands.

39. The origin of the allegation that Mr MAuliffe’s role was hidden lies in an email which he sent to the Appellant, containing the Committee’s decision. He sent a subsequent email which did not include his name. I accept Mr Bradly’s explanation that it is the policy and practice of the Council to use anonymous email addresses to send documents to registrants.

40. This point would add nothing adverse to the view which a reasonable observer would have of the proceedings and their administration. [3] The Appellant’s witness was denied remote access to the hearing to give evidence

41. The Appellant is concerned that her witness was unable to join the remote hearing, and was prevented from doing so.

42. It is evident from the transcripts that witnesses were called into the hearing with agreement of the Chair. This was consistent with the fact that the Committee had acceded to the Appellant’s request to hold the hearing in private.

43. On Day 9, the Appellant informed the Committee that she would be calling three witnesses, one on each of the Tuesday, Wednesday and Thursday: Mr Shefket would be attending on Wednesday 10 th January 2024. The Council arranged for the attendance of a Turkish interpreter to assist all of these witnesses, at the request of the Appellant.

44. The Respondent provided a reply to the Appellant’s case in this regard. The Appellant did not engage with the content of the detailed reply during her oral submissions, but she did provide a very detailed written response.

45. The Appellant gave her evidence in chief on Monday 8 th January 2024. At the outset of the hearing on Tuesday 9 th January 2024 the Appellant informed the Committee that two of her witnesses were not able to attend until 18 th or 19 th January 2024. The Appellant was cross-examined. Shortly before 1100 hours the Appellant stated that she was sick of the questions, had an important meeting and had to leave. Having made an application for the hearing to be adjourned to 18 th January 2024 (stating that she didn’t really care about the outcome) and asking to be informed on Wednesday 10 th January 2024 when it was time for her to return to make her own submissions, the Appellant left the hearing at approximately 1130 hours.

46. The Appellant’s response is to point to the changes in witness programming which occurred on the Council’s side. They produced inconvenience and frustration for the Appellant. It was unequal and unfair for the Council to be able to change the order or timings of its witnesses but for the Appellant to be afforded lesser consideration.

47. Though the point was attractively put in her oral submissions, the Appellant’s position is wholly untenable, and demonstrably so on the basis of the transcript. The Committee went to considerable lengths to provide opportunities for the witnesses to attend. If a criticism could be levelled at the Committee, it would be that it was overly accommodating and insufficiently robust in addressing the Appellant’s conduct. Given the nature of the allegations and the sensitive features of the case, I do however see why the Committee took the course which it did. [4] The Chairman of Council was involved in the case

48. The Appellant presented this aspect of her case as an irregular and surprising interference in the disciplinary proceedings by the Chairman of the Council. It was put as an inappropriate contact with the Appellant’s witness and an unexplained request for the witness to provide some form of identification.

49. This is a particularly bad point.

50. First, the Chairman was writing in response to serious allegations made against the Council in Employment Appeal Tribunal proceedings brought by the Appellant. The email was not sent in the context of the proceedings before the Committee.

51. Second, the Chairman was raising a reasonable concern that the email did not originate from a real person at all. He raised the concern that the author of the email and the ‘person’ behind the email address was in fact the Appellant. That is why he raised the identification question.

52. Thirdly, far from seeking contact with the Appellant’s witness, the Chairman’s email does the opposite, and invokes the Council’s Unreasonably Persistent Contact and Unacceptable Behaviour Policy on the basis of which the Chairman terminated the exchange of emails.

53. Fourthly, this witness, if he existed, was never called. The reasonable observer would draw an adverse inference in support of the proposition that the witness did not exist.

54. The reasonable observer would, in my judgment, find the Chairman’s email and the fact that the Appellant did not in fact call this person to give evidence to be amongst the more bizarre elements of the defence to the Council’s charges. It is evidence that the Appellant had no real defence, but the Committee nevertheless went to great lengths to provide all the opportunities which it could to accommodate the case which the Appellant wished to advance. [5] The SRA Point

55. As I have indicated, the Appellant gave her evidence on Monday 8 th January. After explaining just how much she appreciated the assistance of Mr Searle, the Legal Advisor, the Appellant attacked Mr Collis’s firm. The attack was sustained, strong and, I am bound to say, entirely irrelevant to any issue in the case.

56. The same point is now raised in this appeal: Mr Collis’ firm works for the Solicitor’s Regulatory Authority (‘SRA’), there was evidence in the proceedings before the Committee which came from the SRA and, the Appellant submits, there is an appearance of bias.

57. It is entirely normal for a firm of solicitors to have a range of clients and for an individual solicitor to represent and appear for more than one regulatory authority. If there is a conflict, then lawyers are obliged to address that. In this case, there is a mere assertion that Mr Collis’ work with both the Council and the SRA is problematic. It is not. [6] The PCC and legal advisor are funded by the Respondent

58. The Appellant argues that the fact that Committee members and their advisors are paid by the Council gives rise to a risk of bias. In her statement of grounds, the point is put like this: they cannot technically be impartial as long as their income and salary for this job come from the GDC.

59. I do not accept that argument. The Committee members and their advisor accept the role and undertake that role in the same way that all judicial and quasi-judicial office holders understand their duty and perform it. The source of their salary or other remuneration is not relevant to the performance of that role and their duties. The reasonable view is to ask whether there is a need for the Committee and its advisors to be paid, and if so who is going to pay them? The answers to those questions are obvious and no reasonable person would question the arrangements which are in place. Conclusions

60. I have concluded that the Appellant benefited from a fair, impartial and procedurally regular hearing before the Committee, directing myself in accordance with the principles in paragraphs 13 and 14 above. None of the individual points raised is supported by specific evidence of bias, conflict or antipathy towards the Appellant. Rather, the evidence goes strongly the other way. For the reasons which I have sought to illustrate, the participants in the hearing went out of their way to accommodate the Appellant’s needs and preferences. The adjustments which were made were very much to the credit of the Committee and its Legal Advisor. The Council’s advocate acted in accordance with his duties, and professionally. I do not consider that there was a real possibility of bias on any of the six issues which the Appellant has advanced, nor cumulatively.

61. The Appellant explained during her submissions that she has now taken up a new career which is successful and rewarding for her. She does not wish to be registered with the Council. She alluded to the same point before the Committee.

62. If there is to be some value to be gained from these proceedings and the resources which have been devoted to them, that would be achieved by some reflection on managing the true issues to be decided in a contested regulatory case of this kind, in particular: i) The decision on charges. If two or three charges were pursued rather than ten, each with multiple allegations within them, would the outcome have been different for the registrant? The balance between the public interest in bringing all of the matters to a hearing and the resultant effect on the length and complexity of the hearing is a matter for consideration. In this case, the Appellant was alone in a twelve day virtual hearing which resulted in severe challenges. It became more problematic with the passing of each day and could have been much shorter. ii) Identifying agreed facts. The factual basis of many of the allegations was not contested. For example, if the offensive words are agreed to have been used, then it is important to understand the nature of the registrant’s case. Does that case really go to sanction? More active management of the true issues is a further matter for consideration. iii) Mode of determination. For a registrant who appears and represents themselves in person, could an inquisitorial procedure or a written procedure be offered?

63. Whatever the merits of those points, which are incidental and to which there will be good counter-points, I have no doubt that the Committee reached the correct conclusions on the evidence. I have no doubt that the Appellant had a fair, impartial and conscientious tribunal to hear her case and there was no possibility of bias. I dismiss the appeal.