Margin of Judgement in Sanction Imposition: Akhtar v GDC


By McDowell Purcell \ In All Posts, Public & Regulatory

In the recent decision of Akhtar v GDC (QBD, Administrative Court) (unreported) (“Akhtar v GDC”), the Claimant was a dentist who appealed against a decision of the UK’s General Dental Council’s Professional Conduct Committee (“PCC”) to impose a six-month suspension for failing to have in place professional indemnity insurance over a period of four years.

The Claimant argued that the sanction was inconsistent and/or disproportionate when compared with an earlier decision of the PCC to impose a three-month suspension for a similar offence in respect of another registrant. The Claimant also argued that the six-month suspension was inappropriate in circumstances where he had already been subject to a six-month interim suspension during the disciplinary proceedings.

Facts:

Between February 2012 and March 2016, the Claimant practised as a dentist without professional indemnity insurance. The Claimant had been aware that he had not held such insurance since June 2012. The General Dental Council (“GDC”) initiated proceedings against the Claimant, alleging inter alia that that he had been dishonest and misleading in treating patients during a period when he knew that he did not hold professional indemnity insurance. During the proceedings, a six-month interim suspension was imposed on the Claimant.

Outcome:

The Claimant admitted to all of the allegations and the PCC decided to impose a six-month suspension on the basis that the sanction was necessary to maintain the public’s trust in the regulation of the profession.

The Claimant appealed the sanction on the basis that a three-month suspension had been previously been given for a similar offence, arguing that a six-month suspension was inconsistent and disproportionate. It was further argued that it was inappropriate to impose a six-month suspension in circumstances where he had already been subject to a six-month interim suspension.

In dismissing the Claimant’s appeal, the Court held that the previous PCC decision had not set any benchmark and that, in considering each case, the PCC had a margin for judgement. Applying Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin), the Court noted that the PCC had factored the interim suspension into its decision to impose a further six-month suspension.

The Court also distinguished the facts in Akhtar v GDC from the circumstances of the previous decision of the PCC upon which the Claimant had attempted to rely. The Court noted that in each case, the PCC had a margin of judgement, and did not have to be rigid in applying specific sanctions to specific allegations and was free to take into account the different factors in each case.

While the decision in Akhtar v GDC does not have a binding effect in Ireland, it may provide helpful insight and guidance in the context of imposition of sanctions by Councils and Boards.

Author: Lyn McCarthy and Honor Hargaden