Fajemisin v The General Dental Council

Factual and Procedural Background

This case concerns an appeal by the Appellant, a former dentist, against a decision of the Professional Conduct Committee ("the PCC") of the General Dental Council ("the GDC") that his fitness to practise was impaired due to misconduct, resulting in his name being removed from the dentists' register. The Appellant contended that the PCC lacked jurisdiction to make this direction because he had ceased to be a registered dentist months earlier following a separate decision to remove his name from the register for failure to comply with continuing professional development ("CPD") requirements.

The Appellant, originally registered as a dentist in 1980, faced disciplinary proceedings starting in 2009 related to allegations of fraudulent claims and concerns about clinical care. Despite attempts to voluntarily remove his name from the register, the GDC refused due to ongoing fitness to practise proceedings. The disciplinary hearing was adjourned multiple times due to the Appellant's ill health and rescheduled to late 2012.

Meanwhile, the Appellant failed to complete required CPD hours by the end of 2011, and after administrative errors and miscommunications within the GDC, a decision was made in April 2012 to remove his name from the register on 11 May 2012. However, this decision was not implemented after the GDC learned that fitness to practise proceedings were still ongoing. The Appellant was not informed of this for several months. The disciplinary hearing resumed in October 2012 without the Appellant's attendance, and the PCC found multiple charges proved, concluding his fitness to practise was impaired and ordering erasure from the register. The Appellant appealed the ruling that he was still registered and the decision to remove his name under the relevant statutory provisions.

Legal Issues Presented

1. Whether the PCC had jurisdiction to proceed with fitness to practise proceedings against the Appellant when he had allegedly ceased to be a registered dentist by virtue of a prior decision to remove his name from the register.
2. Whether the GDC had the power to revoke or revisit an administrative decision to remove a dentist's name from the register made in error or ignorance of material facts.
3. The legal effect and limits of the power of a regulatory body to reconsider or revoke its prior decisions, particularly distinguishing between administrative and judicial decisions.
4. The application and scope of the GDC's policy of retaining names on the register during fitness to practise proceedings, including exceptions to that policy.

Arguments of the Parties

Appellant's Arguments

• The PCC lacked jurisdiction to hear the fitness to practise allegations because the Appellant was no longer a registered dentist following the prior decision to remove his name from the register.
• The decision to remove his name from the register on 11 May 2012 was final and could not be revoked or revisited by the GDC.
• The decision to remove his name involved an exercise of judgment and was informed, thus not subject to correction as an administrative slip or error.
• Any reconsideration of the removal decision was unlawful and deprived the Appellant of his rights.

Respondent's (GDC's) Arguments

• The decision to remove the Appellant's name was administrative, not judicial, and thus capable of being lawfully revoked or revisited.
• The GDC has statutory powers under the Dentists Act 1984 to correct administrative decisions to facilitate proper discharge of its functions.
• The errors leading to the removal decision were fundamental mistakes of fact, justifying revocation of the decision under established legal principles.
• The public interest in investigating serious allegations of fraud and maintaining professional standards outweighed the Appellant's interests.
• The GDC's policy of retaining names on the register during fitness to practise proceedings is rational and admits of exceptions, supporting the decision not to remove the Appellant's name.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (on the application of Gibson) v General Medical Council [2004] EWHC 2781 (Admin)	Consideration of public interest in refusing removal from register during fitness to practise proceedings.	Supported the GDC's policy of retaining names on the register to uphold professional standards and public confidence.
Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295	Limits on a tribunal's power to revoke its own decisions; restricted to correcting accidental errors not substantially affecting parties' rights.	Confirmed that administrative errors causing fundamental mistakes are not generally rectifiable by tribunals except under narrow slip rules.
R (on the application of Jenkinson) v The Nursing and Midwifery Council [2009] EWHC 1111 (Admin)	Power to correct or revoke decisions when original decision resulted in miscarriage of justice due to mistake of fact.	Supported correction of decisions founded on fundamental factual mistakes, distinguishing from mere slips.
R (on the application of B) v The Nursing and Midwifery Council [2012] EWCA 1264 (Admin)	Clarification that tribunals' power to revisit decisions is limited to slips or accidental errors, not general errors of judgment.	Rejected broader powers of tribunals to revisit decisions beyond correction of accidental errors.
Porteous v West Dorset District Council [2004] HLR 30	A public body may revoke a decision made in ignorance of a fundamental mistake of fact.	Applied to hold that the GDC could lawfully revoke its administrative decision to remove the Appellant's name made in error.

Court's Reasoning and Analysis

The court analysed whether the PCC had jurisdiction to proceed given the Appellant's alleged removal from the register. It found that the disciplinary jurisdiction extends only to registered dentists, thus the status of registration was pivotal.

The court examined the nature of the registrar's decision to remove the Appellant's name, concluding it was administrative rather than judicial because it involved no fair procedure or consideration of competing arguments, but rather a series of administrative steps under CPD Rules.

It accepted that the GDC has statutory power to correct administrative decisions lawfully to facilitate its functions. The decision not to implement the removal was therefore a lawful revocation of the prior administrative decision.

The court distinguished the case from previous PCC decisions, notably Guevorkian, and rejected the Appellant's argument that the original decision involved an exercise of judgment. Instead, the decision was made in error due to ignorance of the true facts caused by internal miscommunication.

Considering authorities on public bodies' power to revisit decisions, the court acknowledged the restrictive approach in Akewushola and related cases, limiting revisiting decisions to slips or accidental errors. However, it identified an exception in Porteous, where a fundamental mistake of fact justifies revocation.

Applying this principle, the court held that the registrar's decision was made in ignorance of material facts and thus could be revisited. The public interest in continuing fitness to practise proceedings outweighed the Appellant’s interests, and no injustice arose from the revocation since the Appellant was aware proceedings were ongoing.

The court also clarified that the distinction between judicial and administrative decisions is less important than whether the decision involved an exercise of judgment. Here, the removal decision did not.

Finally, the court explained the significance of removal following fitness to practise proceedings compared to voluntary removal or removal for CPD non-compliance, noting the former carries longer and more restrictive consequences for restoration.

Holding and Implications

The court DISMISSED the Appellant's appeal.

The holding confirms that the GDC lawfully exercised its power to revoke an administrative decision made in error due to a fundamental mistake of fact, thereby retaining jurisdiction to proceed with fitness to practise proceedings. The decision underscores the limited circumstances under which regulatory bodies may revisit prior decisions, emphasizing the importance of public interest in maintaining professional standards and protecting patients.

No new precedent beyond the application of established principles was set. The direct effect is that the Appellant remains subject to the PCC’s disciplinary jurisdiction and the sanction of erasure from the register stands.