Interim / Immediate Suspension Orders and Sanction post Aga and Adil: A Search for Ultimate Meaning

In The General Dental Council v  Manori Balachandra (2 May 2024), the first case before the Professional Conduct Committee (PCC) to consider the principles in Aga v GDC [2023] EWHC 3208 (Admin) and Adil v GMC [2023] EWCA Civ 1261 following remittance to the PCC for determination of sanction, the PCC held that an immediate suspension order and the length of that order are likely to be of much significance to the PCC when determining sanction.

The original PCC held that the only appropriate and proportionate sanction in the particular circumstances of the case is erasure from the register. In reaching its decision on whether to impose an immediate order of suspension under section 30 of the Dentists Act 1984 on Ms Balachandra’s registration to cover the appeal period, the PCC held:

“…it is necessary for the protection of the public, and is otherwise in the public interest, to impose an immediate order of suspension on Ms Balachandra’s registration. Whilst it noted the absence of any interim order in response to the then allegations, the matters in this case have now been determined. Serious findings have been made against Ms Balachandra and in its substantive determination, the Committee has identified a high risk to the public, given the limited evidence of insight and remediation. The Committee considered that, having identified this risk, it would be inappropriate and inconsistent to permit Ms Balachandra the opportunity to remain in unrestricted practise over the 28-day appeal period, or possibly longer, in the event of an appeal. An immediate order is therefore necessary for the protection of the public.

The Committee also considered that the imposition of an immediate order is in the wider public interest. It has found serious and persistent dishonesty in this case, and its conclusion is that Ms Balachandra’s behaviour, as has been highlighted, is fundamentally incompatible with continued GDC registration. The Committee considered that public confidence in the dental profession and this regulatory process would be undermined in the absence of an order suspending her registration immediately.

The effect of the foregoing substantive determination and this order is that Ms Balachandra’s registration will be suspended to cover the appeal period. Unless she exercises her right of appeal, the substantive direction for erasure will take effect 28 days from the date of deemed service.”

Ms Balachandra exercised her right of appeal. The appeal was allowed by Ritchie J (Manori Balachandra v The General Dental Council [2024] EWHC 18 (Admin)) and remitted to the PCC for determination of sanction.

Counsel for the GDC maintained that the only appropriate and proportionate sanction, bearing in mind the public interest in maintaining confidence in the profession, is erasure.

The PCC determined that Ms Balachandra’s registration should be suspended for a period of two months with a review.

The PCC adopted the following principles in reaching this decision:

1. It is a matter of common fairness that account should be taken of the punitive and deterrent effect of having already been deprived of the ability to practice for a period under temporary suspension orders, in accordance with Adil.

2. It would be appropriate to take into account periods of suspension insofar as the sanction is intended to mark the gravity of the offence so as to send a message to the profession and to the public.

3. The general principle in Aga was applicable and that it was only right and fair to take into account the time Ms Balachandra had already been suspended under the immediate suspension order.

The PCC held:

“Accordingly, the Committee concluded that the time already spent suspended from practice did have a bearing on the length of the suspension. The Committee considered that it was fair, appropriate and proportionate, in accordance with the principles derived from the cases of Aga and Adil, to take into account the time already served when deciding on the length of suspension now. Had you not already been suspended for 11 months and nine days, the Committee would have made the suspension one of 12 months.”

The PCC, in giving ultimate meaning to the principles in Aga and Adil, adopted the correct approach. It would be wrong to treat an immediate suspension order separately, as a consecutive order, at the conclusion of the appeal. An immediate suspension order and the length of that order are likely to be of much significance to the dental practitioner and the PCC. The PCC must take account of the punitive and deterrent effect of having already been deprived of the ability to practice for a period under temporary suspension orders.

It is hoped that the approach adopted by the PCC in this case is implemented by all independent Committees of the Dental Professionals Hearings Service. The current ‘Guidance for the Practice Committees including Indicative Sanctions Guidance’ dated 1 October 2016 needs to be updated to give effect to the PCC’s correct approach in this case.

Simon Butler was instructed by BSG Solicitors LLP (Paul Grant and Atanas Angelov) on behalf of Ms Balachandra.