CASE NO. 10823
& 10918
IN THE FAMILY HEALTH SERVICES APPEAL AUTHORITY
Mr. D Pratt - Chair
Mrs. C.J. Greene
- Member
BETWEEN:
(GDC number 48634)
Appellant
-and-
TAMESIDE AND GLOSSOP PRIMARY CARE TRUST
Respondent
1. This is an appeal by a dentist, Mr Gerard Mahony (“Mr Mahony”), against the refusal of Tameside and Glossop Primary Care Trust (“the PCT”) to admit him to the Dental List under Regulation 5 of the National Health Service (General Dental Services) Regulations 1992 (“the Regulations”).
2. The decision of the Panel is that the appeal is dismissed.
3. In addition, there is before us an application by the PCT for National Disqualification of Mr Mahony under Section 49N(4) of the National Health Services Act 1977 (“the Act”), as amended, and Rule 16 of the Family Health Services Appeal Authority (Procedure) Rules 2001 (“the Rules”). We considered this application after reaching our decision in the substantive appeal.
4. The decision of the Panel is that Mr Mahony shall be disqualified from inclusion in any list of dental practitioners providing personal dental services as is described or referred to in Section 49N (1) of the Act, pursuant to our powers under Section 49N (4) of that Act. We further direct that a copy of our decision shall be sent to the several bodies listed in rule 47 (1) of the Rules.
5. Mr Mahony qualified as a dentist in February 1975. By a written application dated 29 May 2003 he applied for inclusion in the PCT’s Dental List. There followed some communications concerning the provision of further information, to which we shall return. On 2 September 2003 the PCT convened an Appointments Panel, on account of concerns which had arisen during the processing of the application, and Mr Mahony attended and was questioned. Its conclusion was that he should not be included in the List. By a letter of refusal sent to Mr Mahony on 3 September 2003, the PCT relied on each of the grounds within the Regulations set out in the following paragraph, and based its decision on:
a. Mr Mahony’s failure to declare previous dental posts involving a number of patient complaints giving cause for concern.
b. His failure to undertake Postgraduate dental studies as expected by the General Dental Council following his Admonishment in May 1998.
c. His unsuitability to be an associate, evidenced by his failure to provide adequate business administration of a dental practice.
d. The unsuitability of a reference from a Dr Shearer [an anaesthetist] as to his clinical skills – and his inability to offer an alternative referee.
e. He was not abreast of current practice and was unaware of the requirement for CPD training.
f. His failure to submit an application form/ documentary evidence in respect of an enhanced Criminal Records Bureau Check (mandatory PCT requirement for all contractors not on the list as at 1 June 2003).
6. The grounds on which the PCT may refuse to admit a dentist to the dental list are set out at Regulation 5ZA of the National Health Service (General Dental Services) Regulations 1992 (“the GDS Regulations”). They are [with emphasis added] :
“(a) that they have considered the declaration required by paragraph 5B of Schedule 2 and any other information in their possession in relation to his application and consider he is unsuitable to be included in the list;
(b) that having checked the information provided by the dentist under paragraph 5B of Schedule 2 they consider the dentist is unsuitable to be included in the list;
(c) that having contacted the referees nominated by the dentist in accordance with paragraph 11A of Schedule 2 they are not satisfied with the references given.
(d) …
(e) they consider that there are grounds to consider that admitting the dentist to the list would be prejudicial to the efficiency of the service which he would undertake.”
Regulation 5ZA(3) sets out particular considerations which should be taken into account in relation to these matters.
7. By Regulation 5 (1) a dentist applying for inclusion in the dental list must provide certain specified information described within Part 1 of Schedule 2 of the GDS Regulations, including:
a. By paragraph 5B, details of whether he is currently or has been where the outcome was adverse, subject to any investigation into his professional conduct by any licensing, regulatory or other body anywhere in the world, or in respect of any previous employment;
b. By paragraph 11, details of professional experience (including relevant dates and an explanation of any gaps);
c. By paragraph 11B the names and addresses of two referees who are willing to provide clinical references for the last two clinical posts where employment lasted at least 3 months, and where that is not possible, a full explanation and the names and addresses of alternative referees.
Background matters
8. Mr Mahony’s Notice of Appeal (with supporting “Points of Appeal”) is dated 23 September 2003, and we directed that it should be treated as a valid notice of appeal notwithstanding any non-compliance with the requirements of rule 6(2) of the Rules. We call that bundle “A1”.
9. By a Reply dated 17 October 2003 the PCT disputed the grounds, put forward material on which it suggested its decision should be upheld, and attached a bundle of documents which were available at the time of its decision. We call that bundle “R1”.
10. The PCT sought directions (among other things) about certain evidence it wished to admit, and for particulars of Mr Mahony’s points of appeal. Directions were issued by the Panel on 4 December 2003. Mr Mahony provided a response dated 6 December. We call that bundle “A2”. Following further applications by the parties a preliminary hearing was held on 19 December 2003, at which we ruled that evidence of previous complaints against Mr Mahony, which did not conclude with adverse findings against him, would not be admitted in evidence at the hearing of the appeal. Further directions were given, dealing with, among other matters, particulars of the grounds of Appeal, the reception and form of certain witness evidence, an application for a witness summons and a direction that Mr Mahony provide particulars of:
a. his postgraduate qualifications and training, and continuing professional development activity, including the dates, the place where they were undertaken, and the nature of the training or study, together with copies of all certificates obtained;
b. all findings of breach of his terms of service by him, giving (so far as he is able) the dates, the name of the authority making such a finding, and stating briefly the nature of the complaint giving rise to the finding.
11. By two documents headed “Response to request for further directions” and “Statement for grounds of appeal” dated 16 January 2004 Mr Mahony provided the further particulars of his training and experience, and of findings against him. He also attached a number of documents relevant to the requests at 3 (a) and (b) above. We call that bundle “A3”.
12. By an email sent on 29 January 2004 Mr Mahony requested an adjournment of the hearing fixed for 4 and 5 February, on the ground of high blood pressure revealed during a routine medical check up. We asked for, but did not receive, medical evidence supporting the basis for this application, and having been further informed by Mr Mahony that he felt much better and thought he would be able to present his case if required to do so, we refused the application for an adjournment on 1 February 2004.
13. The substantive hearing took place at the FHSAA, Harrogate, on 4 and 5 February 2004. Mr Mahony appeared in person, and told us he felt better, and fit to proceed with the hearing. We indicated that breaks would be taken in each morning or afternoon session and additionally at his request. The PCT was represented by Mr Nicholas Peacock, Counsel, instructed by Hempsons, solicitors.
14. On behalf of the PCT we heard oral evidence from:
Mrs Sue Sherlock, contractor administration manager of the PCT (witness statement dated 12 January 2004);
Mr Brian Durgan, General Dental Practice adviser to the PCT (witness statement dated 7 January 2004);
Dr Anne Rothery, Medical Director of the PCT (witness statement dated 12 January 2004).
Each of them adopted their respective witness statement as evidence in chief, supplemented by some further evidence in the case of Mr Durgan and Dr Rothery. In addition we had a witness statement dated 20 November 2003 from Mrs Glynis Walton with one exhibit, which was admitted as her evidence.
15. Mr. Mahony gave evidence on his own behalf. He called no further witnesses.
16. In addition to the documents referred to above, we received copies extracts from the General Dental Council publication “Maintaining Standards”, Chapter 1 “Before Beginning to Practise” dated November 1997, and a revised version dated November 2000. We call this bundle “R2”.
17. Re-ordering the points to correspond with the matters relied on in the letter of refusal, Mr Mahony’s Points of Appeal contended that:
a. He had not deliberately sought to conceal any previous posts, in that:
(1) he had informed the PCT that there were shortcomings in the information he could provide on his application form, for want of available records,
(2) he had provided details of the most relevant recent posts as the space on the form tended to invite,
(3) when asked by the Panel to complete the patent gaps he had done so with as much precision as he could muster, and
(4) all the information available to the Panel came from him.
b. It was wrong to conclude he had not undertaken Postgraduate dental studies, and he relied on an upper second class honours degree in anatomy. Moreover this was not made a condition of his continuing to practise or subject to any form of review by the GDC. [It was common ground that no such condition of practising was formally imposed by the GDC].
c. Business administration was not relevant, as the practice of an associate [which he proposed to be], rather than a principal, involved a minimal amount of business administration, and his previous failings which were associated with the collapse of his practice were due to ill health, so that due regard should be had to that history. It was wrong to attach any significant weight to this aspect.
d. It was wrong to treat Dr Shearer (a Consultant Anaesthetist) as an unsuitable referee; he had recent opportunity of observing Mr Mahony and comparing his clinical skills with other dentists, and should therefore be regarded as persuasive. It was contended he could have provided an alternative referee but saw no better way of persuading the Panel of his suitability than with the referees he had proffered.
e. It was wrong to conclude and take into account that he had was not complying with the CPD regulations as he was not subject to those regulations.
f. It was wrong to take account of a failure to submit documentary evidence for an enhanced Criminal Records Bureau check when it was in their possession prior to the hearing, save for a current utility bill, which was not a requirement of the CRB. The PCT should have been satisfied with alternative evidence which included his picture or his address. He was late submitting the form because he wrongly understood he could verify the accuracy of the CRB’s records before inspection. Mr Mahony also contended that the application of this requirement to him was discriminatory because it was not applied to all practitioners. However in the course of the hearing he accepted that as from 1 June 2003 (i.e. while his application was under consideration) it became a mandatory requirement to conduct such an enhanced check in respect of all those not already on the Dental List; in consequence he did not pursue that point.
18. In addition the Points of Appeal contended that the PCT was wrong to take into account patient complaints in general, as opposed to substantiated ones, without inquiry into their nature, and was also wrong to decline to discuss the nature and context of the substantiated complaints. Mr Mahony further complained that the decision, as reflected in the refusal letter, had failed to explain the weight given to each factor, the expertise acquired by Mr Mahony over about 25 years, including referral work, and failed to concentrate on his recent practice.
19. Pursuant to directions, Mr Mahony disclosed [A3: “statement of grounds of appeal”] details of a number of adverse findings by Service Committees. Five arose from a period when he had practised in the Grampian region of Scotland, and were heard in 1985, with a final appeal being dismissed in 1988: they arose from the performance of dental work. A sixth breach was proved in March 1994 when Mr Mahony was practising as an associate at the Bache Surgery in Chester, and made out a prescription to himself for drugs to supply to patients “out of hours”. A seventh breach (relating to the standard of treatment of a patient in 1994 at the same practice) was proved in January 1996 and upheld on appeal. Mr Mahony also disclosed that this was the case which gave rise to a finding of serious professional misconduct before the General Dental Council on 13 May 1998. An eighth breach was proved in May 1996 in respect of lateness for an appointment. Finally, a ninth breach (proved before a Services Committee in July 1997 and upheld on appeal) arose from events in December 1996- January 1997 when Mr Mahony had closed his own practice in Brook Street, Chester, without making appropriate administrative arrangements. In consequence he was obliged to repay Ł1,534 wrongly overpaid to him.
20. Notwithstanding our direction [paragraph 10 above], Mr Mahony also chose to disclose a large number of complaints which had not resulted in adverse findings, and referred to them during the hearing, for the purpose of advancing two arguments, which appeared to be:
a. that he had been the victim of an unfair conspiracy to discredit and harm him professionally as a result of a falling out with his former principal in Scotland, and
b. that the effect of the totality of these complaints was to harm his health and ability to perform his work properly, and the adverse findings should be viewed in this context.
21. Mr Mahony also provided [A3: “response to request for further directions”] particulars of the matters he relied on as postgraduate qualifications and training, and continuing professional development activity. These were:
a. A course in archaeology commenced at Liverpool University in 1997, which he converted to hominid evolution within the same department in 1998, and further converted to human anatomy and cell biology in 1999. He graduated in July 2000 and then did a year of post-graduate work in the “hominid evolution department” at the same university.
b. From September 2002 to March 2003 he did a PGCE course at Bristol University.
c. A correspondence course in applied medical sciences leading to an MSc at the Open University.
d. A course at Liverpool dental school on computer restorations using the CEREC method and a course on occlusion.
e. A course on dental implants at Macclesfield General Hospital.
f. A course in laser usage in dentistry conducted by a M. Patrick Bourgeois in France.
g. Reading the British Dental Journal, and articles in “Probe” and “Dental Practice”.
22. The PCT relied (both in opening and in closing submissions) on its Reply and Grounds for opposing the appeal. It continued to rely on the matters set out in the refusal letter of 3 September 2003. In addition it contended that Mr Mahony had made fundamental misdeclarations and that its decision was reasonable and proportionate to the concerns it had.
23. Again, re-ordering the points for consistency, the PCT responses to the Points of Appeal may be summarised as:
a. The undeclared previous dental posts had given rise to 6 breaches of terms of service. Unsubstantiated complaints were not given the same weight as substantiated complaints. It was disputed that all the information before the PCT had come from Mr Mahony. He had been given an opportunity to explain why they had not been declared, which had failed to satisfy the PCT.
b. It was denied that an anatomy degree constituted “postgraduate dental studies” and in any event since he had started it before the GDC hearing it cannot have been the studies referred to when he volunteered to undertake such studies.
c. As to the adequacy of his business administration, Mr Mahony had previously been declared bankrupt. Whatever his original plans, once in the Dental List would be entitled to move from practice to practice as a principal, and could not be prevented by the PCT. Conditional inclusion was not possible in respect of the post/practice in which he wished to work.
d. An anaesthetist could make informed comment on only a small part (if any) of Mr Mahony’s clinical practice. The duty of the PCT was to satisfy itself of his clinical competence. In addition, the second reference by a dentist was insufficiently detailed.
e. In relation to the PCT’s concern that he was not abreast with current practice, a dentist has a duty to continue professional education whilst continuing to practise [i.e. quite apart from formal requirements for CPD]: see General Dental Council: Maintaining Standards, paragraph 1.3.
f. The PCT did not understand why, alone of the contractors with whom it dealt, Mr Mahony had failed to produce the documents required, including two utility bills. Had he done so, the enhanced CRB check could have been performed.
24. As to the additional points made in the Points of Appeal, the PCT contended that Mr Mahony had conspicuously failed to demonstrate clinical “expertise” over a period of 25 years, having been found guilty by the GDC of serious professional misconduct in May 1998 and while it was unclear what steps he had taken to improve his clinical ability since then.
25. The appeal proceeded by way of redetermination, as required by Regulation 5ZC (2) of the 1992 Regulations. With Mr Mahony’s agreement we invited the PCT to put its case first.
26. Mrs Shorrock is an administrator who processed the application. She gave evidence of seeking further information from Mr Mahony following receipt of his application, as a result of which she contacted agencies such as other PCT’s and the GDC, for information about a Professional Conduct matter. She produced the documents which had been before the Appointments Panel [R1, pages 13 to 45] including the Application, the References, correspondence with Mr Mahony and a report from Glynis Walton, an officer of Cheshire West Health Agency. She produced a letter from the GDC dated 19 June 2003 setting out the results of a search as to disciplinary matters against Mr Mahony. That indicated that the Preliminary Purposes Committee had twice issued a warning letter to him, without referring him further, and in May 1998 the Professional Conduct Committee had administered an Admonishment. She also produced a transcript of the determination of the PCC on that occasion, in which the following appears [emphasis added]:
“The Committee is particularly concerned by the matters of which it has heard today and wishes you to be in no doubt that your conduct has fallen far short of the standard expected of a member of the dental profession.
… it remains your responsibility to ensure the accuracy of all documents, including those submitted to the Dental Practice Board. …
The Committee has taken account of the representations made on your behalf and is prepared too believe that your appearance here today will have had a salutary effect upon you and that you will learn from this experience.
The Committee has noted your intention to undertake postgraduate dental studies and expects you to carry this out.
The Committee has accordingly decided not to direct the Registrar to erase your name form the Dentists Register or to suspend your registration but has decided to conclude the case.”
27. It appeared in the course of cross-examination of Mrs Shorrock that Mr Mahony had not sent in the form for a CRB check until about 27 August (it should have been July), had never supplied a recent utility bill, and that whatever the CRB might have told Mr Mahony it would be satisfied with, the guidance she was obliged to follow specified a utility bill. She also drew attention to a number of respects in which the supplementary information supplied about previous posts and explaining gaps was itself incomplete, as she told us Mr Mahony had acknowledged, and did not enable her to locate the practices (for example because the addresses were incomplete).
28. Mr Durgan is a qualified dentist. He was a member of the Appointments Panel, as well as dental adviser to the PCT. He made it clear his main concern was the detrimental effect on the efficiency and quality of patient, should Mr Mahony be included in the List: he felt he had shown no concern to update his professional skills and knowledge and by his own admission had little enthusiasm for his profession. In addition he was seeking to join a practice where in Mr Durgan’s opinion sufficient monitoring, supervision and mentoring could not be provided, so making it impossible to consider a conditional inclusion.
29. Mr Durgan was asked to comment on suggestions which had been put forward by Mr Mahony [A3: Response to request for further directions] for conditions to be attached to his admission to the List, and on further or revised conditions which had been put forward by the PCT in response. He made it clear that the PCT’s primary case remained that Mr Mahony should not be admitted to the List at all, and that the conditions suggested by Mr Mahony (including undertaking a greater number of CPD hours, a satisfactory CRB report and reference from a referee nominated by the PCT) were really pre-conditions to being admitted at all. His comments were therefore on the basis of an alternative which the PCT did not favour. He considered that the first suggested condition (undertake a greater number of CPD hours) should be reviewed every 3 months. In addition he told us the PCT would wish him to join only a practice with Vocational Training status, or perhaps also BDA Good Practice status. Nor should Mr Mahony be allowed to have any equity share in a practice, because of the experience of what had happened in Chester [bankruptcy, repossession of premises and administrative failures in winding up the practice which resulted in overpayments]. The PCT was concerned that they could not limit his admission to the List to working as an associate.
30. Mr Durgan was aware that the compulsory regulatory requirements of undertaking Continuing Professional Development (referred to during cross-examination as “Lifelong Learning”) was not yet in force for Mr Mahony but the term had been used for some time before it was adopted for these regulatory requirements and he had in mind the GDC requirements contained in the document “Maintaining Standards”. He accepted that the PCT should have been clearer that it was CPD in this wider sense with which it was concerned. He said that an impression strengthened during the Appointments Panel hearing of a lack of updating of knowledge and skills, and he did not regard the pursuit of academic interests such as those pursued by Mr Mahony, or reading the British Dental Journal, as adequate relevant hands-on education and experience. He was clear that Mr Mahony had told them he had not been on any recent courses in clinical dentistry. For convenience we set out the relevant text from the November 2000 revision of the document originally published in 1997 [R2: page 3]:
“1.3. In the interests of patients, a dentist must continue professional education on a regular and frequent basis throughout professional life.
The recording of all continuing professional development (CPD) activity is the responsibility of the individual dentist. Records must be accurate and must be retained, together with the external verification where relevant. Records and verification must be produced when requested by the Council.
A dentist who fails to maintain and update professional knowledge and skills and who, as a result, provides treatment which falls short of the standards which the public and profession have a right to expect, may be liable to a charge of serious professional misconduct.”
31. Mr Durgan was questioned as to why he did not regard a degree in anatomy as sufficient compliance with post-graduate dental studies. He thought it was not relevant, or not very relevant, to the practice of dentistry. Post-graduate studies in dentistry were specific to developing skills in dentistry. An anatomy degree might be adequate for an academic career but not in respect of patient contact. He accepted that Dr Shearer was highly qualified in the medical profession but the problem was he was not a dentist. He could pass a judgement on anaesthesia but not dentistry. However he accepted the difficulty for dentists who were single-handed practices to produce dental referees who could comment on their clinical skills, and explained that if there had been one excellent reference from another dentist to which an anaesthetist’s reference was supplementary, that might be of less significance.
32. In re-examination Mr Durgan was taken through the courses which had been disclosed by Mr Mahony in particulars given pursuant to directions; in his opinion none were relevant to general dental practice within the NHS with the exception of the occlusion course, which, however, was not up-to-date, as were other courses such as the CEREC course. He attached importance to the fact that Mr Mahony had neither declared all the relevant previous posts, and adverse findings, despite having the opportunity to do so in writing and at the Appointments Panel hearing. He also considered the absence of appropriate postgraduate studies to be very important.
33. Dr Anne Rothery is the Medical Director of the PCT. Her evidence in her statement was similar to that of Mr Durgan but she added that her impression of Mr. Mahony was unfavourable because of his apparent disorganisation at the Appointments Panel. She believed that the primary reason for the Panel’s refusal related to probity matters and Mr Mahony’s failure to provide full information. In addition she told us they had concerns in relation to his previous inability to manage and administer a practice effectively and his apparent unawareness of the need for him to undertake continuing professional development. There was no evidence before that Panel that he had attempted to improve his clinical skills consequent on his appearance before the GDC and admonishment.
34. In cross-examination Dr Rothery denied any difference of emphasis between herself and Mr Durgan and said it was the totality of the aspects which influenced the PCT, in addition to which they could not undertake a CRB check without which he could not be admitted to the List (as from 1 June 1993). She could not see why Mr Mahony was not in a position to fill in his application form fully, so far as previous posts and adverse findings were concerned. Without full clinical references the PCT also had no idea what his current clinical competencies were.
35. In answer to questions from the Panel Dr Rothery thought undertakings by MR Mahony could be made enforceable but did not elaborate how. She further said the major problem was the number of breaches (she mentioned 7 although there appear to have been 9) and the PCT’s concern that the explanations were unsatisfactory.
36. Mr Mahony’s evidence was inclined to focus on minor inconsistencies, and did not always address the thrust of the criticisms. He contended that when he appeared before the GDC in May 1998 he had never intended to offer (through his Counsel) that he would brush up his clinical skills; rather that he intended to follow up an interest in dental archaeology. However he referred to one page of a transcript of that hearing [A2, attachment 3], in which his Counsel is recorded as saying [emphasis added]:
“…his future plans, if he is allowed to practise dentistry, are to build up to 20 hours a week in the existing practice as an assistant, and to make further contact with the local dental school, where initially he studied many years ago, with a view to brushing up on postgraduate matters, but also, with the archaeological forensic side in mind, he thinks there may be an opportunity there to develop that interest too.”
Mr Mahony contended, as is indeed the case, that the GDC was not imposing a condition on his continuing to practise. However he summed up his attitude to the expectation of the GDC quoted at paragraph 26 above in the following terms:
“At that point I was trying to break out of dentistry and do something different so advancing my dental skills seemed pointless, notwithstanding my interest in archaeology. There was no opportunity to expand my dental skills other than to take on an occasional job. Having started dentistry in 1970 I don’t think I had forgotten much that couldn’t be caught up with.”
37. He continued to contend that undue weight had been given to his failure to produce a utility bill to facilitate a CRB enhanced check. He said he had nothing to fear from a CRB check but did wish to make his own enquiries to ascertain that information held was accurate; however he found he could only do so by checking separately with every regional police authority.
38. As for the suitability of Dr Shearer as a referee, he told us he had known him professionally for 11-12 months in 2000-01 and then for another period of time after he finished in Bristol (therefore after March 2003). As a dental anaesthetist he was in a good position to observe and comment on his practice, indeed they “worked in each other’s pockets”. He said that 38% of dental practices were single-handed and therefore would have difficulty providing a dental referee. He could understand Mr Mizon (his other referee) being reluctant to commit himself in his written reference, “as he never saw me work”.
39. Mr Mahony did not think that his intended role as an associate required much in the way of business administration. In any event he had managed businesses elsewhere for considerable periods of time and they were successful, but unfortunately dentistry was sensitive to market forces and fluctuations could be drastic as costs stayed the same even when income did not.
40. In respect of the important issue of his failure to declare previous posts he had held, Mr Mahony told us:
“There is no denying I was reluctant to admit these events because of the nature of them, and in truth that is what is behind the main thrust of the argument against me. I did provide relevant recent posts as space offered [on the form] and when asked I provided more information to the best of my ability. One exception was a post in Kirby, Lancs with Richard Kinsane (?) … There was nothing untoward in that. I was unaware I had done it.”
41. Mr Mahony again raised the question of patient complaints in his evidence. He felt that the volume of complaints influenced the Appointments Panel, without looking at the nature or sequence of those complaints which arose in blocks at various stages of his career. All had been well until he moved to Banff. He said that the effect of responding to 21 enquiries about complaints in Grampian region was to damage his personal and professional life. His wife had left him in 1986 after which he had looked after their son. A similar litany of complaints occurred in Wirral after he tried to establish himself there, but only 4 out of 26 were proved. He also raised several matters which he contended could or should have provided him with defences in respect of charges which were found proved against him. Mr Mahony dealt in some detail with other groups of complaints (demonstrating that a small minority were found proved). Lastly he referred to the finding of breach disclosed in paragraph 17 of his Particulars [A3]. He asserted that the Head of Primary Care at the complainant authority had refused to name the patient in question at a hearing, that he believed no such patient existed and that the allegations were dishonest and fraudulent. Nevertheless, at a hearing on appeal there was what he described as a “Dutch auction” by which the complaints were whittled down to one, which he was advised by his representative to accept as the easiest option. He felt his “career had been blighted by sequences of complaints [he] felt to be unjustified except Mr. C”.
42. In relation to the evidence summarised in the previous paragraph we did not shut out Mr Mahony from referring to complaints by way of explanation of matters which called for some explanation, but made it clear we would not take into account against him any complaint which was not found to be proved. Equally, we made it clear that we could not re-open proved cases of breach, or other adverse findings, despite Mr Mahony’s view that some were matters to which he had a good defence, had he chosen to contest them fully.
43. In cross-examination he gave more detail of the dates, places and other details of the proved complaints. It was put to him that he had instructed his Counsel to tell the GDC that no complaints about the standard of his dentistry had arisen against him since the matter they were considering [A2, attachment 3] when that was not in fact true. He denied it was untrue, pointing out that the two subsequent proved complaints concerned administrative failures by him, not the standard of his dentistry. That approach clearly came very close to active misleading of the GDC, relying as it did on a distinction which may not have appeared obvious to the Committee of the GDC which was hearing a case against him which involved administrative failures.
44. Mr Mahony was asked if the 9 breaches of terms of service spanning the period mid- 1984 to January 1997 had caused him to learn anything or alter his practice in any respect. He thought he was the only common factor in a series of complaints which were otherwise very diverse. There was no consistency in the type of complaint against him. Asked if he accepted any of it was his fault, he told us that he did not accept that anything he did was intentional or malicious, and that the patient whom he had treated so as to give rise to the GDC findings in fact profited by his experience.
45. Looking at the application form he had completed (R1, tab1) he agreed that there was no mention of where he was during any of the 9 adverse findings we had heard about. His explanation was that that was because the question was asking about his experience. His attention was then drawn to the declaration on page 8 of the form, and he agreed that was an opportunity to declare the 9 breaches. He further explained his failure to reveal the information in the following terms:
“Yesterday I referred to some reluctance to declare information. It is not a particularly pleasant task to do so, particularly when I feel the way I do about the events that had happened to me.”
Questioned whether he had deliberately withheld information previously, he said he felt the information he provided [that he had appeared before the GDC in 1998] was the most significant one. He said that the question was a difficult one to answer because of the vast array of paper arising from these previous matters. However he agreed that it was the dentist’s responsibility to make the declaration, and asked how he defined “probity” he said it meant “uprightness”. He agreed that it was fair comment that the duty to make a full declaration was part of that uprightness.
46. Mr Mahony was asked about his failure to submit documentary evidence for a CRB check. He said there was no reason why he could not produce two utility bills and had put them aside to take to the Appointments Panel but forgot them. He thought that in hindsight it would have been better to let the check be done.
47. He was also asked about postgraduate studies and keeping up to date. He agreed that no part of his degree courses was spent on the dentition of living people, and he had spent no time on the practice of clinical dentistry apart from some overlap of time when he worked (as a locum). In conclusion he agreed that no time in the degree course was relevant to postgraduate dental studies. However he had contacted the GDC who had told him that whatever he had done would be enough and they had no power to enforce any studies. In relation to the points he had put to Mr Durgan he thought the use of the term “CPD” had caused some confusion at the Appointments Panel hearing and agreed that the term had been in use for at least 3 years, but he understood it to apply solely to the Lifelong Learning programme, which he had no obligation to undertake until January 2004. He was referred to paragraph 30 of the Terms of Service: “a dentist shall in the provision of dental services take reasonable steps to develop professional knowledge and skills through activities undertaken with a view to maintaining an up-to-date knowledge of dental science and practice”. He said he had never disputed he had a duty to develop his professional knowledge.
48. He was asked to confirm his training courses (set out at paragraph above) and that the most recent were in 1993. He said he also looked at a journal and looked at websites about archaeology. He disagreed that that was a poor return for continuing education.
49. He was asked about the failure of his business at Brook Street, Chester, and said he would agree not to take an equity share in a practice because he did not want it.
50. Concerning the reference from Dr Shearer he explained that he had known him in a professional capacity for 14-15 months, and worked on a sessional basis with him about one week in two or three. He agreed that Dr Shearer did not see the broad spread of his clinical dentistry work other than sedation. He also thought that his alternative referee (a Mr Slattery) was unlikely to be able to assist more than Dr Shearer.
51. As to the conditions for admission to the List canvassed by the PCT (see above) he thought the requirement to join a practice with Vocational Status or BDA approved practices would be unworkable, as nobody would take him on that basis.
52. In answer to questions from the Panel Mr Mahony said his recent dental work was after the conclusion of his Liverpool degree, when he did locum referral work for Mr Richard Mizon in Manchester, from September 2001 until he went to Bristol University in 2002. He then worked briefly when he finished in Bristol (March 2003), working a day a week for Mr P Marsden, which had given rise to this application. He had not practised as a dentist since September 2003.
53. He further told us that he last did any CPR training when he had a visit from a trainer in his Brook Street, Chester practice in 1995-6. His training in drugs used in a medical emergency was in the surgery; he had no specific training. Asked what he could tell us about current cross-contamination practice, he said he knew it had become a big issue in dentistry. He then gave a hesitant summary that it was acceptable to use gloves in handling anything contaminated by a patient, and surfaces were to be cleaned on a regular basis. Clinical surfaces were to be cleaned in rotation, The autoclave should be used for instruments, which should be stored in isolated bags. The disposal of waste such as contaminants and swabs was undertaken by companies who collected a yellow bag. Sharp things went into a designated container which was sealed.
54. Asked about recent training in radiography, he relied on the course he had embarked on at the Open University, and had embarked on one unit which was about imaging in medicine. He did not appear to be conscious of the training regimes introduced by regulation and described by two mnemonics, or to be aware that without having done one of those courses, he would be breaking the law by taking an x-ray.
55. Asked what he could say about Control of Substances Hazardous to Health (“COSH”) Mr Mahony told us you have to control and classify substances and keep them in a safe place, but did not seem able to say more about that.
56. In relation to modern restorative techniques he said he kept up to date by perusing the journals. Asked about periodontal examination techniques he told us that it was necessary to do pocket depth charting with a pocket depth probe, but as to what coding system might be used he was familiar with the phrase but could not offer a definition.
57. Mr Mahony told us that the steps necessary to protect staff against injury or hazard were to have an insurance policy in force but he also knew the dentist had an obligation to protect all employees. All staff involved in clinical work were as protected as he was, inasfar as the wearing of gloves and gowns. He personally wore a mask only occasionally as it was not something he felt comfortable with. He protected against blood-borne viruses by use of gloves and antibacterial agents.
58. The PCT submitted that the evidence heard by us had strengthened the objections originally relied upon. It placed in the forefront of its reasons Mr Mahony’s failure to keep abreast of current practice, or undertake adequate continuing education, and his failure to declare previous posts involving patient complaints. Mr Peacock made plain that although the PCT had responded to suggestions for placing conditions on any admission to the Dental List, that was not its primary position. Indeed two of the conditions suggested by Mr Mahony effectively entailed his making a new application, in his submission.
59. Mr Mahony submitted that certain subjective comments in the statements of Dr Rothery were not relevant. He suggested that Mr Durgan was wrong to suggest he had not referred to his practice in Banff. He submitted that Mrs Shorrock had initially denied receiving a CRB form from him even though her letter at tab 10 in R1 suggested otherwise. He argued that his application form disclosed only the adverse GDC finding as that was the most severe and the rest of the material he needed was not readily available to sift through and it was human nature which drove it from his mind. He suggested that his letter to the PCT of 19 July 2003 did give a list of his previous practices, which was all he was asked of him in the letter to which he was responding. Somewhat to our surprise he submitted, in reference to the alleged failure to undertake postgraduate dental studies, that it had not been his intention to do postgraduate dental studies but to undertake postgraduate matters he was interested in, to which dental studies would have been incidental. To that extent he argued that the GDC had misunderstood his Counsel’s words in May 1998. Moreover the GDC had not imposed a condition on his practising. He repeated the arguments he had advanced in evidence about his references and submitted that the failures of business administration by him hinged mainly on his insolvency in 1996 occasioned by a back problem which had impaired his ability to practise.
60. So far as keeping abreast of current practice was concerned, Mr Mahony submitted that GDC guidance allowed a dentist to exercise his own professional judgement as to what studies were relevant to him. That judgement could be exercised in a broad holistic way. Most scientific courses with a biological, mechanical and social and psychological element in them would be relevant. Pressed to say how the public purpose of paragraph 30 of the Terms of Service (to maintain up-to-date knowledge of dental science and practice) was satisfied, he submitted that that purpose would be served by doing a psychology or social studies degree, if the dentist so wished. He again pointed out he was not obliged to comply with the Lifelong Learning scheme until 2004.
61. Mr Mahony accepted that the documentation to enable a CRB check to be done could have been more easily dealt with. He contended that the first letter suggested the CRB would ask if it wanted more.
62. He finally submitted that he had been the subject of extreme scrutiny in his career, stemming from adverse dental officer reports in Scotland which were unreasonable and unfair. He had been subjected to double standards in assessing his work. In Cheshire there had been no complaints for several years but they started up in clusters and Mr Mahony suggested the health authorities were trying to encourage patient complaints. He pointed out that only a small minority had resulted in adverse findings. In relation to the one matter which had gone to both the Services Committee and the GDC, he submitted there was a difference between errors and poor dentistry. Errors arose because there was no other way to do it, and it was a difficult job in which he had done his best. The patient was very satisfied with the work. Complaints about probity and practice management would have been dealt with differently if he had not had 50-odd complaints to deal with. He referred again to the adverse finding arising from what he contended was a non-existent patient complaint. He submitted that the prosecuting authority had been aware of this.
63. Mr Mahony further submitted that we were required to be proportional
64. We find the following. In submitting his application to be admitted to the Dental List Mr Mahony failed to disclose previous posts which were highly relevant for the PCT to know about, since they had given rise to adverse findings in the performance of his dentistry. Moreover the declaration which he signed on that application was incomplete and therefore false. Although he ticked a box indicating he had been the subject of an adverse finding by a licensing, regulatory or other body into his professional conduct or performance, he disclosed only the GDC hearing on 13 May 1998 (which he did not identify was a finding of serious professional misconduct) but none of the 9 adverse findings involving breach of his terms of service between 1984 and 1997. Indeed he answered “no” to the question in that declaration as to whether he was the subject of an adverse finding by any current or former employer into his professional conduct or performance. He has a sense of grievance that these episodes arose from unfair and in some cases dishonest treatment at the hands of various health authorities, and this may have caused him to avoid the difficult and embarrassing exercise of seeking to explain and justify; nevertheless the omission was deliberate. The further information provided on 19 July 2003 at the request of the PCT did identify employments including in Grampian and Cheshire, but the details were sketchy and in some cases made it difficult to pursue inquiries as to specific practices. Moreover he still failed to reveal any of the further adverse findings, and his explanation that he was only asked at that stage to provide information about previous posts is not an answer to the obligation which lay on him throughout to disclose that material. Nor is it an excuse that the space on the form appeared to invite only limited information. It could have been added at the end or on a separate sheet. A PCT has difficult statutory duties to perform with limited investigative resources. It is entitled to expect, and a dentist is obliged by Regulation 5(1) of the 1992 GDS Regulations to provide, full and complete information on previous posts and adverse findings.
65. The misfortune of these adverse findings might have been used by Mr Mahony to learn and change, but we saw no evidence of that, or a willingness to do so. By way of example, his answers to the question whether he was at fault in any of the matters giving rise to adverse findings (see paragraph 44) simply avoided the point.
66. We find that the in May 1998 the Professional Conduct Committee of the General Dental Council found serious professional misconduct proved against Mr Mahony and in deciding to admonish rather than remove his name from the register, clearly took into account “your intention to undertake postgraduate dental studies and expects you to carry this out”. Mr Mahony’s Counsel is recorded as having told the GDC that Mr Mahony intended to attend Liverpool dental school with a view to brushing up on postgraduate matters. The only relevant sense is that postgraduate studies would relate to the clinical practice of dentistry. We find he did not do so, and his attempts to portray a part course in anatomy as satisfying this undertaking were specious and unconvincing. No doubt it is commendable to extend and develop interests outside clinical dentistry, but no reasonable person could believe that that was either doing what the GDC understood he was going to do, or keeping up-to-date with relevant clinical skills.
67. We find that Mr Mahony has undertaken inadequate continuing education and updating of clinical dentistry skills, and attended no formal courses since 1993, save for a practice visit by someone to his Brook Street practice in 1995-6. He has done very little dentistry since 2000, save some locum work. We find that he failed to comply with the requirements for keeping up-to-date (which applied to him) set out in the GDC publication “Maintaining Standards” [R2] and also with paragraph 30 of the Terms of Service. We do not consider that reading the British Dental Journal or other periodical from time to time, is sufficient on its own to keep dental skills and knowledge up to date. Nor do we regard Mr Mahony’s degree from Liverpool, as relevant to any meaningful extent. We find that Mr Mahony demonstrated profound lack of up-to-date skills, not only by reference to what steps he had taken, but also in his answers to us on basic current dentistry standards. By way of example he was totally unaware of recent regulatory changes relating to radiography, showed serious lack of knowledge about basic periodontal technique, and had a deficient perception of the problems of protecting himself and his staff against blood-borne viruses.
68. We further find that, unfortunately, Mr Mahony lacked any real insight into his lack of current dental clinical skills and knowledge of procedures, and was unable to show us any evidence of a commitment to remedy that deficiency. Even if it were appropriate to consider conditional admission to the Dental List (which, in light of the serious failings, it is not) this want of insight and commitment would make conditions unsuitable.
69. Mr Mahony’s attempts to justify his failures relied at times on drawing highly technical (but misplaced) distinctions which suggested a lack of candour in his dealings with what he appeared to regard as irksome authority. He is very ready to suspect unfair treatment or conspiracy, and it may be that that caused him to fail to co-operate, as we find he did, in providing the material which would enable the PCT to obtain an enhanced Criminal Record Bureau check. Indeed he has never produced the outstanding documents. The PCT was obliged to do this check on and after 1 June 2003. It is a necessary pre-condition of admission to a Dental List, and the lack of a check is entirely due to Mr Mahony’s failure.
70. We are sympathetic to Mr Mahony in his difficulties in putting forward a suitable referee. It is self-evident that a single-handed practitioner will have a very limited pool to draw upon. But in the context of the deficiencies already identified, it was of importance for the PCT to have a well-informed reference from someone who could comment on the full range of clinical skills to be expected of a dentist in general practice. We therefore find that Mr Mahony failed to provide suitable referees.
71. We find that Mr Mahony had previously demonstrated failings in administering his own practice which caused overpayments to be made to him and the repossession of his premises, and his own insolvency. There were especially difficult circumstances for Mr Mahony at that time, but he accepted that if admitted to a List today he should not take an equity share in a practice but limit himself to working as an associate. We are doubtful that such a condition could be made workable or enforced, and while we do not attach great weight to it, we do find that his administrative deficiencies (unless supervised or remedied) would be likely to be prejudicial to the efficiency of the service.
72. We conclude that these matters render Mr Mahony unsuitable to be admitted to the Dental List of this PCT and that his admission would be likely to be prejudicial to the efficiency of the service, within the meaning of Regulation 5ZA of the GDS Regulations 1992. We place in the forefront of our concerns his lack of up-to-date knowledge and skills, and his failure to provide the information required, in circumstances indicating lack of candour.
73. We therefore dismiss this appeal.
74. In arguing for National Disqualification Mr Peacock on behalf of the PCT relied mainly upon:
He expressly disclaimed reliance on an unsuitable referee.
Mr Mahony stressed the need for proportionality and the importance to him of preserving a means of earning money from dentistry to augment his ill-health pension.
75. We have given very careful consideration to the need to impose National Disqualification. We are conscious of the impact of this step and reminded ourselves of the potential effect on Mr Mahony, in pursuing within the NHS a profession which, if not presently his preferred profession, is one he is otherwise entitled to pursue. However, we concluded that the deficiencies we have identified in relation to his lack of up-to-date skills and knowledge, and his lack of candour in dealing with his application and previous adverse findings, are so serious as to require National Disqualification. We have taken into account our findings of lack of insight into his lack of necessary professional skills, and his lack of commitment to remedy his deficiencies. These matters are not peculiar to Tameside and Glossop, but would be relevant wherever Mr Mahony wished to practise within England and Wales. We conclude it is necessary for the protection of patients, and is proportionate in balancing that need and the proper interests of Mr Mahony.
76. We therefore direct that Mr Mahony shall be disqualified from inclusion in any list of dental practitioners providing personal dental services as is described or referred to in Section 49N (1) of the Act, pursuant to our powers under Section 49N (4) of that Act. We further direct that a copy of our decision shall be sent to the several bodies listed in rule 47 (1) of the Rules.
77. In accordance with Regulation 42 (5) of the Family Health Services Appeal Authority (Procedure) Rules 2001, we notify Mr Mahony that he may have rights relating to appeals under Section 11 of the Tribunals and Inquiries Act 1992
Dated this 24th day of February 2004
Chair of the Panel