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16.12.24

The Aga and Danial Saga: should Immediate Suspension Orders be deducted from the Substantive Suspension Order as “Time Served”?

Following a finding of impairment of fitness to practise, one of the possible sanctions open to Panels is suspension. However, in respect of most (if not all) healthcare regulators, that suspension does not take effect immediately, to allow the registrant time to appeal the decision should they wish to. In order to combat that lacuna if public protection demands immediate suspension, Panels have the power to impose immediate suspension orders to cover the appeal period. Until recently, the law was clear that immediate suspension orders do not count towards the period of the substantive suspension order, with the full length of the suspension order falling to be served at the end of the appeal period. This has however been subject to much judicial criticism, albeit with judges commenting that it is for Parliament and not them to change the law in this regard.

The recent case of Aga v General Dental Council [2023] EWHC 3208 (Admin) however appeared to change the law and ruled that time spent on immediate suspension orders should count towards the time to be served on the substantive suspension order. This was quickly criticised in Professional Standards Authority for Health and Social Care v General Dental Council, Arthif Danial [2024] EWHC 2610 (Admin), which held that time spent on immediate suspension orders should not count towards the time to be served on the substantive suspension order.

This blog considers the split authority and where we go from here. Although reference is primarily made to the Dentists Act 1984 (as both these cases concerned dentists), similar legislative provisions apply to other healthcare regulators, for example:

The Law

The Legislation

Section 27B(6)(b) of the Dentists Act 1984 provides that where a Practice Committee determines that a person’s fitness to practise as a dentist is impaired, they may, if they consider it appropriate, direct that that person’s registration as a dentist be suspended for up to 12 months.

Section 29(1)(b) of the Dentists Act 1984 creates a statutory right of appeal against a decision to suspend a dentist. The time limit for such appeal is 28 days from the date on which notification of the decision under appeal was served.

Section 29A(2) of the Dentists Act 1984 sets out that suspension issued in accordance with section 27B(6)(b) only takes effect:

  1. Where no appeal is brought against the decision: on the expiry of that period (ie once the 28 days has expired);
  2. Where such an appeal is brought but is withdrawn or struck out: on the withdrawal or striking out of the appeal; or
  3. Where such an appeal is brought: on the dismissal of the appeal.

Section 30 of the Dentists Act 1984 sets out that where a direction is made for suspension (or erasure) from the register, the Practice Committee can order that the dentist’s registration be suspended forthwith (i.e. immediately) if it is satisfied that it is necessary for the protection of the public or otherwise in the public interest. Such immediate suspension will be in place until:

  1. The substantive suspension takes effect in accordance with section 29A;
  2. An appeal against the decision is determined; or
  3. Following a decision on appeal to remit the case back to a Practice Committee, the Practice Committee disposes of the case.

The GDC Sanctions Guidance sets it out simply:

“6.27 A Suspension Order takes effect 28 days from the date the notification of the decision is served on the registrant (there is a statutory appeal period of 28 days). The PCC should therefore consider whether it is necessary, in order to protect patients and members of the public, to impose an immediate suspension in addition to the substantive order (see paragraphs 6.35-6.38)

6.37 When the PCC imposes suspension or erasure, it may also impose immediate suspension. This means that the registrant is suspended straightaway. The registrant is subject to the immediate suspension until either the appeal period expires or until any appeal is disposed of. If the sanction is not changed on appeal, the substantive suspension or erasure then comes into effect.”

In the criminal law, section 29 Criminal Appeal Act 1968 provides that time spent in custody pending determination of an appeal does count towards the existing sentence. The Court of Appeal does however retain a power to direct that time spent in custody does not count towards the sentence in the case of frivolous appeals (although such direction is rarely made).

Previous Cases

Until recently, previous caselaw made it clear that however undesirable the law is that any time spent on suspension up to the point the substantive suspension order comes into effect does not count towards the ultimate time spent on suspension, it is not for the Courts to change the law in such a way. Examples of such comments are detailed below.

As Bean J (as he then was) commented in R (on the application of Ghosh) v General Medical Council [2006] EWHC 2743 (Admin):

“I was dismayed to learn…that the period of suspension so far…does not count towards the 12 months’ suspension ordered by the Fitness to Practise Panel. This is in contrast to, for example, appeals by convicted Prisoners to the Court of Appeal (Criminal Division) where time spent in custody pending appeal normally counts, though the court has a discretion (rather rarely exercised) to disallow it. If it is indeed the case that where a doctor, whose immediate suspension…has been ordered and who appeals to the High Court against the order for suspension imposed by the Fitness to Practise Panel, may be adding several months (or in this case, because of the unfortunate length of time it has taken to list the case, a year) to the period of suspension ordered by the Panel, this ought to be made widely known. Those responsible for keeping the provisions of the Medical Act under review ought perhaps to consider whether it should be made a matter of discretion either in the Fitness to Practise Panel or in this court, or both, as to whether the period of suspension…should count towards the substantive period of suspension ordered by the Panel. Unfortunately I do not have any power to do anything about it in this case.”

Kerr J commented in Hill v General Medical Council [2018] EWHC 1660 (Admin) that: “The rules also have the unfortunate consequence that time on suspension between the determination of sanction and the outcome of any appeal does not count towards the overall period of suspension. This means that the maximum of 12 months is often little more than fiction.”

In Burton v The Nursing and Midwifery Council [2018] CSIH 773, the Scottish Inner House of the Court of Session commented:

“If a nurse wishes to appeal against a decision of the Nursing and Midwifery Council, an interim period of suspension is imposed, ending upon the resolution of the appeal or a period of 18 months, whichever is earlier. If the appeal is unsuccessful, the interim suspension is followed by the original sanction, which might be 12 months suspension (as in the present case).

While accepting that the rationale underlying such an approach includes the need to protect the public, we consider that there may be an appearance of unfairness, for two reasons. First, time spent on interim suspension does not count towards the period of suspension ultimately imposed as a sanction; and secondly, a nurse with a valid appeal point may be discouraged from making an appeal on the view that doing so would simply prolong the unwanted absence from work. We note that in other areas of the law, where an interim sanction is imposed pending the completion of procedural steps, it is usual to have the interim period count towards the period of the final sanction, provided first, that the two are similar in nature and secondly, that the interim period is not taken into account when the final sanction is imposed. The underlying principle is that reasonable procedural steps taken by a party, such as a right of appeal, should not have an effect on the total sanction that is imposed.

Consideration might also be given to the question whether time spent on interim suspension should count towards any period of suspension imposed as a sanction."

The Court of Appeal made the following comments in Adil v GMC [2023] EWCA Civ 1261 (although relating to interim suspension orders prior to the Final Hearing, the argument applies equally to immediate suspension orders): “what matters is that the interim suspension has already occurred, with the effect that the practitioner has been excluded from the ability to practise for its duration…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.”

 Aga v General Dental Council: all change?

Aga concerned an appeal to the High Court against a ruling of the Professional Conduct Committee (“PCC”). The Appellant dentist was found to have (1) stalked and harassed a woman whom he wanted to have a sexual and marital relationship with and (2) to have failed to report his arrest and charge by the police. The Appellant accepted the factual findings and the rulings that his fitness to practise was impaired and accepted that suspension from registration was an appropriate sanction. His appeal related to the length of the suspension, which was set at nine months and sought termination of the immediate suspension order. Of relevance here, the Appellant appealed the GDC’s interpretation and practice relating to the effect of the interaction between the immediate suspension order and the direction for suspension on the total duration of his suspension.

Mr Justice Ritchie took a strict approach to immediate suspension orders and their meaning in the legislation. As is clear from section 27B(b)(b) Dentists Act 1984, suspension can be for up to 12 months. The legislation does not provide for suspension to be longer than that period. Mr Justice Ritchie determined that if, as the GDC contended, a substantive suspension order does not take effect until after the conclusion of the appeal, should the appeal be dismissed, it breached the statutory ban on any suspension being over 12 months “and is in effect a punishment for appealing which is contrary to established principle.” As he pointed out in that case, the Appellant was given a nine-month suspension; he had already served four and a half months’ suspension by the time of the appeal hearing on the immediate suspension order. If the substantive suspension order did not start until the time the appeal was dismissed, that would have totalled 13.5 months’ suspension. As he went on, “Parliament fixed the maximum duration in s27B(6)(b) of 12 months and did not legislate for that to be ignored or breached…I consider that the GDC’s interpretation of the sections drives a coach and horses through the statutory 12 month maximum on the PCC’s power to impose suspensions which cannot have been the intention of Parliament."

He considered the GDC’s approach unfair to the Appellant and that it effectively increased the PCC’s “carefully measured and titrated sanction just because he has appealed. I do not consider that professional conduct and standards are maintained by such an approach, which results in registrants considering that they are being treated unfairly in relation to appeals because their sanction is increased by the very act of appealing.” He concluded that such an interpretation is contrary to one of the main objectives of the Act and contrary to natural justice to penalise someone just for appealing, when the right to appeal is written in statute.

In feeling able to come to such a conclusion, Ritchie J determined that there is a difference between the words “takes effect” and “start”. Section 29A Dentists Act 1984 specifically uses “takes effect” in respect of a substantive suspension order as opposed to “start”. As he said, this “distinguish[es] between the ending of the effect of the immediate order for suspension and the commencement of the effect of the direction for suspension. However, there was only one suspension and it only started once...In my judgment, after a final hearing, when a direction for suspension is made and an immediate order for suspension is made, there is only one suspension made under the Act. The Sections do not expressly state that a suspension starts only when the direction for suspension “takes effect”…the Appellant’s suspension started when the immediate suspension order took effect.”

Professional Standards Authority for Health and Social Care v General Dental Council, Arthif Danial: back to the status quo?

Shortly after the decision in Aga came the decision of the High Court in Arthif Danial. In this case, the PCC of the General Dental Council found that Arthif Danial (the Registrant) had committed inappropriate and sexually-motivated misconduct towards two dental nurses and one receptionist on four separate occasions. As a result, the PCC determined that the Registrant’s fitness to practise was impaired and imposed a five-month suspension order with review and proceeded to impose an order for immediate suspension. There were multiple points of appeals relating to this decision, but the relevant appeal here was by the Registrant, who contended that when imposing the five-month suspension order together with an immediate order for suspension, the PCC ought to have directed that his overall suspension be for a total of five months and the immediate order for suspension should be terminated (following the ruling in Aga).

Mr Justice Morris firstly provided an analysis of the wording of the legislation, as follows:

  1. The Dentists Act 1984 describes a substantive suspension as “a direction” and an immediate suspension as “an order”. There is an important distinction between the two;
  2. As a matter of language, “take effect” means “begin”, “commence” or “start”;
  3. Section 30(3) Dentists Act 1984 identifies two “times” – the time when the immediate suspension is made and a later time when the substantive suspension takes effect. In his view, these words make it clear that the immediate suspension order and the substantive suspension direction run consecutively. If you take the approach in Aga that they run concurrently, the wording of section 30(3) does not make sense;
  4. Leaving aside the decision in Aga, the caselaw provides strong support for this conclusion, even attracting such comment from the Supreme Court;
  5. There is no reason in principle why an immediate suspension order cannot be for a longer duration than an underlying substantive suspension direction. He gives the example of Article 31(2) of the Nursing and Midwifery Order which expressly allows for an immediate suspension order (18 months) to be longer than the maximum period of a substantive suspension direction (12 months). Parliament has chosen not to impose a cap for other professions, including dentists;
  6. In other situations, the Dentists Act 1984 does make express provision to set off a period of temporary suspension against the term of a substantive suspension direction. This applies to a substantive suspension that is extended following a review. There is no similar set off provision in respect of a first suspension direction;
  7. The effect of a case where the period of immediate suspension exceeds the period of a suspension direction (with a review direction) is that the registrant in question would be able to immediately return to work without going through the process of a review hearing if the decision in Aga were correct. That would frustrate the risk assessment undertaken by the PCC that the registrant should not return to work without satisfactory evidence of remediation (ie demonstrating that they are now fit to practise at a review hearing).

As a result of that analysis, Mr Justice Morris concluded that an immediate suspension order does not fall to be deducted from the substantive suspension direction.

He then went on to conclude why the decision in Aga was wrong:

  1. The issue of the relationship between a substantive suspension direction and an immediate suspension order is a question of statutory interpretation. It is not a question of judgment or discretion for the Court, nor a matter of the current practice of a regulator;
  2. It was wrong to conclude that there is a difference between the words “take effect” and “start” and that there is only ever one suspension. Here, “take effect” means “start” or “commence”. Had they been intended to mean something else, Parliament could have used words such as “have effect” or “are effective” or “are in force or in operation”. Moreover, “start” does not appear in the statutory provisions;
  3. Aga does not make reference to erasure and the fact that immediate suspension orders apply equally to erasure. In Aga it is accepted that the registrant is not struck off until the end of, and following on after, the immediate suspension order has ended. Conversely, it states that a substantive suspension direction effectively commences from the date of the immediate suspension orders. These are contradictory;
  4. The judgment in Aga does not address the distinction between “order” and “direction” used in the Dentists Act 1984. The distinct terminology used in the statute means that it is not the case that there is only ever one suspension;
  5. Aga does not consider the different purposes of a substantive suspension direction and an immediate suspension order. A substantive suspension direction is intended to give the registrant the opportunity to remediate his conduct and re-establish fitness to practise; an immediate suspension order is intended to protect the public pending any appeal;
  6. The previous caselaw all suggest that the solution to the problem lies with Parliament to legislate;
  7. On Aga’s reasoning, whenever there is an immediate suspension order, every substantive suspension direction is in practice for a period less than the amount specified in substantive suspension direction itself.

On the above basis, Morris J concluded that the period of suspension under an immediate suspension order does not fall to be deducted from the period of a substantive suspension direction.

Comment

This is clearly a highly contentious area, with much judicial comment lamenting about the unfairness of the current legislation. It cannot be fair that a registrant is penalised for simply appealing a decision they do not agree with, particularly if they have been given advice that they have ground(s) to appeal. It is a basic right inherent in the legislation that a party can appeal a decision, as well as being a core tenet of natural justice. As was made clear in Adil, the effect on the registrant is that they have been prevented from practising, regardless of the type of order or direction. This effect is something that must be taken into account. Further, it is inconsistent that those convicted of criminal offences are entitled to have time spent in custody count towards their sentence yet registrants who have not necessarily acted in a criminal matter are not entitled to have any period of suspension count towards their ultimate suspension served. This unfairness is emphasised even further, when one considers that the main purpose of criminal sentencing is punishment and deterrence whereas the main purpose of fitness to practise proceedings is public protection. It is also unclear why Parliament created a statutory limit on substantive suspension of 12 months, if it was considered this could be bypassed through the use of immediate suspension orders.

However, as can be seen from Mr Justice Morris’s criticism of Aga, there are inherent difficulties in the Courts trying to correct this unfairness. It does not seem that this is something that can be remedied by the Courts alone and this is an issue that Parliament needs to legislate on in order to correct.

At present, we are however left in the deeply unhelpful position of having two conflicting High Court decisions, although caselaw dictates that the second/later decision should be followed in the absence of cogent reasons to the contrary (Minister of Pensions v Higham [1948] 2 KC 153 and Willers v Joyce (No.2) [2016] UKSC 44). Therefore until this issue is resolved, fitness to practise panels should follow the decision in Danial, that the period of suspension under an immediate suspension order is not to be deducted from the period of a substantive suspension order. Aga is however due to be considered once again in the Court of Appeal in early 2025, so it remains to be seen as to what the next stage in this saga will look like.

 

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.


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Articles are intended as an introduction to the topic and do not constitute legal advice.