The GDC’s power to review warnings issued to registrants
DP v General Dental Council  EWHC 3181 (Admin)
The Dentists Act 1984 was amended on 13 April 2016, giving the General Dental Council (GDC) the power to conduct an internal review of decisions to issue a warning to registrants. The power permits a registrant who has received a warning to apply for a review within two years of the warning being issued.
The power of review was clearly available to individuals who received warnings after 13 April 2016. In this case the High Court was required to consider whether registrants who had received a warning before 13 April 2016 were entitled to the benefit of the review mechanism.
DP v GDC
DP had received an unpublished warning in April 2016, some two days before the statutory amendment came into force. The registrant had requested a review of their warning under the newly created powers. The GDC rejected that application, asserting that the power to review warnings was only available in relation to a warning which had been issued on or after 13 April 2016. That view had been reflected in the GDC’s guidance on the Investigating Committee’s (IC) power to review a warning which stated ‘as the amendments to the Act were not intended to have retrospective effect’ it was only available where an application ‘…related to a determination to issue a warning made by [the IC] on or after 13 April 2016.’
In light of the GDC’s refusal to undertake an internal review of the warning, the registrant entered into pre-action correspondence, challenging the decision to issue the warning and the Council’s subsequent refusal to undertake an internal review.
The GDC acknowledged that the IC had ‘failed to provide adequate reasons or explanation to support their decision’ and that ‘the rationale behind the decision of [the IC] defined that there was a real prospect of misconduct being established, and accordingly issue a warning, was not clearly articulated.’ The GDC maintained its position that an internal review was not available to a registrant whose warning was issued before 13 April 2016.
The registrant applied for judicial review and was granted anonymity in the proceedings as the warning which was being challenged, had been unpublished. As a result of the GDC’s earlier concession, the judicial review proceedings dealt only with the challenge to the GDC’s refusal to undertake an internal review in DP’s case and to the relevant provision of the guidance cited above, which DP contended was ‘an impermissible and erroneous limitation on the power of review enacted by S.27A(11)’.
The GDC contended that the limitation was appropriate. It argued that the decision to issue a warning was ‘a quasi judicial decision in respect of which the public generally were entitled to the certainty’ and that, in the absence of a successful challenge by judicial review, complainants and any employers who had acted in reliance on the warning had a reasonable expectation that the warning would be final.
They also argued that the limitation was required in order to prevent an undue administrative burden on the GDC from a flurry of applications for reviews in respect of warnings which had been issued in the two years prior to the amendment.
The court rejected those arguments. Relying on the earlier authority of the The Boucraa  1 AC 486, May J determined that the amendment was to be read ‘simply and straightforwardly as conferring a right upon registrants, from 13 April 2016, to seek review by the IC of an earlier decision to issue a warning, provided only that registrants apply within two years of the IC’s decision.’ She explained that:
‘following the reasoning of Lord Mustill in the Boucraa, there is no unfairness arising from such limited retroactivity, there being no persons with pre-existing rights which could be adversely impacted. Moreover, in circumstances where the purpose of the new provision was to remedy unfairness to registrants, the intended benefit to them so outweighs any slight unfairness which may be occasioned to complainants, that I can find no reason to suppose Parliament intended the amendment to operate other than in the way the wording of S.27A(11) plainly suggests.’
As noted in the judgment, the absence of a mechanism to review IC decisions to issue a warning other than judicial review, had been an established source of concern which the 2016 amendment sought to address.
This decision helpfully clarifies that the opportunity to seek an internal review of a warning extends to registrants whose warning was received prior to 13 April 2016 subject only to the obligation to seek the review within two years of the Investigating Committee’s determination.
The decision is of potential interest to any registrant who received a warning between December 2014 and 13 April 2016.
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