The Aga and Danial Saga concludes: Immediate Suspension Orders do not amount to “time served”

In our previous blog post, we detailed the deeply unhelpful position the law had been left in in terms of suspension orders following a finding of impairment of fitness to practise. The Court of Appeal has now considered the case of General Dental Council v Aga [2025] EWCA Civ 68 and confirmed that the period of suspension under an immediate suspension order is not to be deducted from the period of a substantive suspension order, following previous caselaw, in particular, Professional Standards Authority for Health and Social Care v General Dental Council, Arthif Danial [2024] EWHC 2610 (Admin).

The General Dental Council’s submissions

The General Dental Council (“GDC”) appealed Mr Justice Ritchie’s judgment from the High Court. In doing so, it made the following points:

1. The Judge was wrong to treat a direction for substantive suspension and an immediate order of suspension as forming one continuous suspension. In law and in fact they are distinct:
   1. They are made under different sections of the Dentists Act 1984;
   2. One is a direction and the other is an order;
   3. They are made at different stages of the fitness to practise process;
   4. Each is made applying a different test albeit there is some overlap;
   5. They serve different purposes and are subject to different mechanisms of challenge.
2. The Dentists Act 1984 makes no provision for an immediate order to be “set off” against the substantive sanction, a view consistently adopted by previous cases.
3. An immediate order of suspension imposed following sanction differs from an interim order prior to the final hearing. This is because the Tribunal determining the fitness to practise case and any resulting sanction will know how long the registrant has served by way of interim suspension.
4. The anomalies created by the Judge’s decision:
   1. Even when a registrant does not appeal, where an immediate order has been made, 28 days should be deducted from a substantive sanction (taking into account the appeal period);
   2. If determination of the registrant’s appeal took longer than the time period imposed for the substantive suspension (and an immediate order was made), the substantive suspension would never take effect. This would mean that a review would not be able to take place before the registrant’s return to practice which would prevent the Professional Conduct Committee from assessing whether the registrant’s fitness to practise remained impaired. It could also prevent any review period being extended.
5. The Judge’s conclusions undermine one of the aims of professional disciplinary sanctions, to provide an opportunity for the registrant to remediate their failings. If the Judge was correct, there may not be time for the registrant to engage in any meaningful remediation during the remaining period of the substantive sanction once the appeal has been dismissed. This would effectively increase their sanction anyway, as it would likely be extended at a review hearing.

The Respondent’s submissions

Although not expressly arguing against the GDC, the Respondent made the following points:

1. The standard practice adopted by the GDC (to impose an immediate suspension order to cover the appeal period) can produce an unfair result in that the immediate consequence of an unsuccessful appeal can be that a registrant is given a period of suspension longer that that can be directed by the Professional Conduct Committee and longer than the statutory maximum of 12 months.
2. The tendency to discourage or caution a registrant to exercise a qualified right of appeal.
3. Even if a registrant does not exercise their right of appeal, the effect of the standard practice is to increase the total period of suspension by 28 days.
4. The Judge’s decision was a humane attempt to resolve the problems which have been identified.
5. The Judge’s approach does not frustrate the purpose of remediation. It will be for the registrant to assess the merits of any appeal and to decide whether to immediately engage in or delay undertaking any remediation. If the appeal is unsuccessful, the registrant who has delayed remediating and then finds there is insufficient time to do so will be unsurprised where his suspension is extended at a review hearing.

The judgment

Lady Justice Davies gave the lead judgment for the Court of Appeal. In essence, she stated that Mr Justice Ritchie had  misconstrued the relevant sections of the Dentists Act 1984 in treating a substantive period of suspension and the immediate period of suspension as if they were one continuous period of suspension.  In her judgment, a direction for substantive suspension and an order for immediate suspension are distinct. The direction and order are made at different stages of the fitness to practise process. Until a direction for substantive suspension or erasure is made, the Professional Conduct Committee have no power to make an order for immediate suspension.

She also said that there is no meaningful distinction between the words “take effect” and “start”.

In respect of an immediate suspension order, there is nothing in the legislation that identifies the time limit for its duration. The legislation sets out three situations when the order will end. The maximum period of 12 months’ suspension only applies to a substantive suspension direction.

The Dentists Act 1984 makes no provision for an immediate order of suspension to be “set off” against the substantive sanction of suspension. Some judicial concern has been expressed regarding this and the effect that the original suspension period may be prolonged but the courts have acknowledged that it is a matter for Parliament to remedy.

Lady Justice Davies concluded that Mr Justice Ritchie was wrong. Had he been correct in his interpretation of the legislation, it would undermine the overriding objective which underpins the provisions of fitness to practise proceedings. It has the potential to undermine the ability of a registrant to remediate their failings, which is one of the purposes of a review hearing. It could also negate the purpose of a review hearing, as it could result in a review hearing not taking place, which could result in a dentist returning to practice without satisfying a Tribunal that their fitness to practise was no longer impaired. “This would ride roughshod over the carefully drafted provisions of the 1984 Act which at their core reflect the need to protect the public.”

Lord Justice Stuart-Smith agreed, adding that although such an interpretation may extend the period during which the dentist’s registration is suspended, that does not appear to be unfair or contrary to public interest. The dentist is free to request a review of his case prior to the conclusion of the suspension period, or the GDC can initiate an early review. “As always, the touchstone will be the protection of the public.”

Comment

The Court of Appeal was therefore clear that the decision by the High Court was wrong and a period of immediate suspension can not be “set off” from a substantive suspension order. Although this may seem harsh, the law is clear that these are distinct.

Section 30 of the Dentists Act 1984 is clear in that an immediate suspension order is imposed if it is necessary for the protection of the public or otherwise in the public interest. The GDC Sanctions Guidance states that sanctions are imposed to protect the public interest and maintain public confidence in the profession, which can include a punitive element. Therefore it is clear that the purpose of immediate suspension orders is different (albeit slightly) to substantive suspension orders; immediate suspension  orders are more about the risk a registrant may pose to the public and protecting the public against that risk. Although a substantive suspension order also does that, there is also an element of maintaining public confidence in the profession. Further, as Mr Justice Morris said in Danial, a substantive suspension order is intended to give the registrant the opportunity to remediate his conduct and re-establish fitness to practise; an immediate suspension order is a measure for the protection of the public pending appeal.

The Dentists Act 1984 is also clear in that it is only a substantive suspension that is subject to a 12 month time limit. An immediate suspension is not subject to any time limits, but ends upon the satisfaction of certain conditions. The reality with appeals is that they will often take longer than the period of substantive suspension imposed, so if it were the case that time started to run from the day of the fitness to practise hearing, in many cases the suspension would have ended by the time of the appeal hearing. As the Court of Appeal pointed out, that would then run the risk of a registrant’s suspension simply ending before the issue can be determined. Suspensions are usually subject to a review before they are revoked, to ensure that the registrant is fit to practise again. Given that the overall function of fitness to practise proceedings is protection of the public, it must be right that all registrants who have been suspended need to be reviewed before they can be permitted to resume practising again.

As is plain from the issues Mr Justice Ritchie caused in his judgment, this issue cannot be rectified by the Courts. It is for Parliament to remedy any unfairness or injustice caused by the current regime. Until then, there is no doubt that the substantive period of suspension will only start upon the determination of any appeal (or the lapse of the appeal period if there is to be no appeal).

If you are a healthcare professional facing a fitness to practice investigation or disciplinary proceedings, click here to see how Brett Wilson LLP can assist you or call us on 020 7183 8950.