Dental Council v A Dentist

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice David Barniville
• Judgment Date: 01 November 2024
• Neutral Citation: [2024] IEHC 731
• Docket Number: [2024 No. 510 MCA]

In the Matter of Section 44 of the Dentists Act 1985

And in the Matter of a Registered Dentist

And on Application of the Dental Council

Between

Dental Council

Applicant

and

A Dentist

Respondent

[2024 IEHC 731]

[2024 No. 510 MCA]

THE HIGH COURT

Interim suspension – Registration – Dental Council Act 1985 s. 44 – Applicant seeking orders by way of interim suspension pursuant to s. 44 of the Dental Council Act 1985 – Whether a strong case against the respondent had been disclosed

Facts: The applicant, the Dental Council (the Council), applied to the High Court for various orders by way of interim suspension pursuant to s. 44 of the Dental Council Act 1985. They included orders suspending the registration of the respondent’s name in the Register of Dentists and prohibiting the respondent from engaging in the practice of dentistry. The Council requested that those orders continue until the conclusion of the complaint and inquiry process and related steps under Part V of the 1985 Act, or for such period as the court may specify. Ancillary orders were sought including orders permitting the Council to communicate the terms of the order to the dental practitioners and staff at the respondent’s dental practice; to any person or body contacting the Council regarding the respondent and to the General Dental Council (the competent authority for dentists in the UK). An order was sought requiring the respondent to offer to refer all patients undergoing treatment by him to a suitably competent dental healthcare professional and to provide patients with a copy of their records if the respondent is given clear written instructions from the patient to do so. The Council sought liberty to reflect any suspension of the respondent on its website. The Council submitted that this was a very serious case which merited the making of the interim suspension orders sought; a strong case against the respondent had been disclosed and the three elements of the test identified by the Supreme Court in O’Ceallaigh v An Bord Altranais [2000] 4 IR 54 had been satisfied.

Held by Barniville P that the Council was entitled to the orders sought against the respondent under s. 44 of the 1985 Act in order to protect the public. In reaching that conclusion, Barniville P had applied the legal principles on which both parties agreed and had conducted the required balancing exercise dictated by the case law that deals with the legal principles relevant to the application. Barniville P considered whether the undertakings offered by the respondent, or any undertakings short of an undertaking not to engage in the practice of dentistry, would adequately address the real and substantial immediate risk to the public disclosed in the case. Barniville P was satisfied that they would not. Barniville P was completely satisfied that each element of the O’Ceallaigh test was met: (a) it was not in dispute that the conduct alleged was very serious, involving the alleged unlawful and inappropriate supply of medicinal products to a person who was not a patient of the respondent and who it was alleged informed the respondent that the product was required for onward supply; (b) the case against the respondent appeared to be a strong one and the alleged conduct directly related to the respondent’s practice as a dentist; and (c) if the allegations against the respondent proceeded to a Fitness to Practise inquiry, and if they were ultimately upheld, the respondent would receive a very serious sanction, probably amounting to a cancellation or suspension of his registration.

Barniville P made the orders sought by the Council.

Application granted.

[APPROVED]

[REDACTED]

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 1 ^st November, 2024

Index

1. Introduction	2
2. Overview of Decision on the Application	3
3. Factual Background and History	3
4. The Council Meeting of 4th October 2024	7
5. Evidence relied on by the Respondent	9
6. Section 44 of 1985 Act: Summary of Applicable Legal Principles	12
7. Brief Summary of Parties' Submissions
(1) The Council	14
(2) The Respondent	16
8. Decision on Application
(1) Preliminary	18
(2) Immediate Risk to the Public	20
(3) The O' Ceallaigh Test	21
(4) The Balancing Exercise	22
(5) Undertakings	26
(6) Future Steps	27
9. Summary of Conclusions	27

1. Introduction

1 . This is my judgment on an application brought by the Dental Council (the “Council”) for various orders by way of interim suspension pursuant to s. 44 of the Dental Council Act 1985 (the “1985 Act”). The orders are sought by the Council in relation to the respondent who is a registered dentist. They include orders suspending the registration of the respondent's name in the Register of Dentists and prohibiting the respondent from engaging in the practice of dentistry. The Council requests that those orders continue until the conclusion of the complaint and inquiry process and related steps under Part V of the 1985 Act, or for such period as the court may specify. Other ancillary orders are sought including orders permitting the Council to communicate the terms of the order to the dental practitioners and staff at the respondent's dental practice; to any person or body contacting the Council regarding the respondent and to the General Dental Council (being the competent authority for dentists in the United Kingdom). In addition, an order is sought requiring the respondent to offer to refer all patients undergoing treatment by him to a suitably competent dental healthcare professional and to provide patients with a copy of their records if the respondent is given clear written instructions from the patient to do so. Finally, the Council seeks liberty to reflect any suspension of the respondent on its website.

2 . The Council's application was made following a meeting of the Council on 4 ^th October 2024, in which the Council decided to make the application to the court. The Council's application first came before the court on 16 ^th October 2024. An application was made on that date on behalf of the respondent for an adjournment to allow him to put in a replying affidavit. In circumstances where the Council maintained that the matter was urgent and that issues of public protection were involved, I granted the adjournment but listed the matter for hearing the following week, on 22 ^nd October 2024, with a direction that the respondent file any replying affidavit by 18 ^th October 2024. The respondent filed his replying affidavit within the time directed and the application was heard by me on 22 ^nd October 2024. I indicated at the conclusion of the hearing that day that I would give my judgment on 30 ^th October 2024.

3 . On 24 ^th October 2024, the registrar received a communication from the respondent's solicitors that he wished to put in a supplemental affidavit exhibiting testimonials, a number of letters of reference and further evidence of the impact of any suspension order made in relation to the respondent. The Council did not oppose that course of action but requested a short hearing in order to make some submissions in relation to the new material. I facilitated the parties with a further short hearing on the afternoon of 25 ^th October 2024. Having heard further submissions from the parties that afternoon, I indicated that I would now give my judgment on 1 ^st November 2024.

2. Overview of Decision on the Application

4 . I have carefully considered all of the evidence and the helpful submissions made on behalf of the Council and on behalf of the respondent and have concluded, on balance, that in the exercise of the discretion which I have under s. 44 of the 1985 Act, I should grant the orders sought by Council and should decline to accept the undertakings offered by the respondent.

5 . For reasons which I will set out in greater detail below, I am satisfied that applying the applicable legal principles (which are not in dispute between the parties) and without making definitive findings of fact in relation to the substance of the allegations against the respondent, the public interest does require that I make the orders sought. I am, however, conscious of the fact that no decision has yet been taken by the relevant statutory authority as to whether to initiate a criminal prosecution against the respondent in respect of the matters which have given rise to the allegations before the Council. If a prosecution is brought against the respondent, it may take some time for that prosecution to be determined and, in the meantime, it may not be possible to complete any Fitness to Practise process under the 1985 Act. I intend, therefore, to review the position in February 2025. The orders I make will last until further order of the Court. At this point in time, however, I am completely satisfied that significant issues of public safety and patient safety arise and that it is necessary and appropriate that I make the orders sought by the Council.

3. Factual Background and History

6 . The background to the Council's application is set out in the affidavit sworn by Dr. Paul Leavy, a member of the Council, on 10 ^th October 2024.

7 . The Council is a statutory body which was established under the 1985 Act. The Council established and maintains a register of dentists (“the Register”). The respondent's name has been listed on the Register since ███████ 2020. While the address for the respondent listed in the Register is an address in the ████████, the respondent has stated on affidavit that he has, in fact, been residing in Ireland since 2011 and has been practising dentistry in the ██████ area since December 2021.

8 . The Council's concerns in relation to the respondent, so far as this application is concerned, date back...