Consultation again – this time for dentists
19 December 2014
British Dental Association v. General Dental Council  UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED
Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.
The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.
Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.
As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.
In February 2013 a consultation process started about annual fees, with a formal round of consultation in April to June 2014. The consultation paper sought views on the proposed approach to setting the annual retention fee. It noted that in 2013 the GDC raised £31 million through the fee, but spent £33.9 million. The vast majority of the £33.9million expenditure – £26.6million – was spent on fulfilling its fitness to practise function. Since 2010, there had been a 110% increase in the number of complaints made to the GDC.
On 18 June 2014 the GDC issued its 2014 Policy in the light of the consultation responses. But many consultees had wanted more financial information than had been provided, particularly on the costs of fitness to practise cases.
In response, the Policy said that the GDC needed to review its transparency in providing financial information. An accompanying statement promised that in the forthcoming consultation document on 2015 fees the GDC would provide more detail on the Fitness to Practise process, and would build this into its public reporting on expenditure.
The 2015 fee consultation followed swiftly, on 30 June 2014 and ended on 4 September 2014. The accompanying paper provided some details of the predictions which lay behind the costs increases. But, in response to a table in the paper, the BDA pointed out that it could not understand how a 17% increase in complaints predicted for 2014 would lead to a 85% increase in Fitness to Practice (FTP) hearings.
On 30 October 2014 the GDC decided that the retention fee for dentists for 2015 should be £890.
A duty to consult?
The BDA’s failure to consult argument had two limbs, the first that there was a general common law duty to consult, and the second that the GDC should be bound to its commitment to be transparent about its consultation process.
The judge rejected the first limb. The impact of this decision on dentists was not such that the common law duty of fairness would impose a duty to consult. It does not bear comparison with cases such as ex parte Baker  1 All ER 73, (closure of residential home where B lived), or R (London Criminal Solicitors Association et al) v Lord Chancellor  EWHC 3020, where the decision was likely to have the effect that solicitors firms would have to close, individual solicitors would lose their jobs, and access to justice in the criminal field would be imperilled. The present case was more analogous to the situation in R (o.t.a British Medical Association) v General Medical Council  EWHC 2602 (Admin), where the General Medical Council was held not to have acted unfairly in abolishing, without consulting those affected, a concession to doctors over 65 that they not pay any fee to remain on the medical register.
As for the second limb, the judge attached importance to the statements by the GDC in its policy about transparency.
To my mind specific public announcements such as this gave rise to a legitimate expectation among registrants that a transparent consultation would be conducted.
And that required consultees being put in a position to test the validity of the assumptions underlying the suggested fee increase, and to understand why alternatives had been rejected. This would enable them to make an informed and intelligent response and to propose alternatives.
As per Eisai v NICE  EWCA Civ 438, there was a need if the consultation was to be fair to provide enough information to the consultees to enable them to test the robustness or reliability of the model behind what was being presented.
He accepted that what needs to be consulted about should very much a matter for the judgment of the body carrying it out, the courts will accord it a very broad discretion: Devon County Council v Secretary of State for Communities and Local Government  EWHC 1456 (Admin).
In my judgment, however, there was a gaping hole in the GDC annual retention fee consultation. That was the lack of any explanation as to the assumption that an increase in complaints would translate into such a substantially increased number of fitness to practise hearings requiring an extra £18million funding.
He therefore accepted the BDA’s submission that it was difficult to see how consultees could express an intelligent view on the proposed increases in the annual retention fee unless they had some idea of the information underpinning the very substantial projected increase in fitness to hearings. None of the key information as regards closure rates and fitness to practise trend information was disclosed as part of the consultation.
Whilst it was not for the court to pore over consultation documents and find unfairness because of occasional or less important gaps in information,
In this case, however, the gap was fundamental to the whole edifice.
So the consultation was not transparent and was thus unlawful. It did not explain the position in clear and accessible terms, enabling consultees to provide intelligent and informed responses.
The BDA sought to persuade the GDC to re-consult given the greater information it provided during September 2014 on continuing complaint levels, and the commissioning by the GDC of a KPMG report. THe GDC refused, and the BDA claimed unfairness in this regard as well.
The judge rejected this claim.
He identified the test for re-consultation by reference to R (o.t.a Elphinstone) v Westminster City Council  EWHC 1287 (Admin), where a later change in the proposal had to be “fundamental”, and if so .the consultation was flawed. Kenneth Parker J said this:
“ Given the context, and the underlying principle of fairness that governs the caselaw on consultation, it seems to me that a fundamental change is a change of such a kind that it would be conspicuously unfair for the decision-maker to proceed without having given consultees a further opportunity to make representations about the proposal as so changed.”
On the facts, there was not a fundamental change, which meant it was conspicuously unfair not to re-consult. The change lessened the increase (from the originally proposed £945 to £890), to the dentists’ benefit. It was not unfair to proceed without re-consulting on the lower levels of increase put before the Council of the GDC for decision on that date. The KPMG report did not reflect any fundamental change.
The judge concluded that the annual retention fee consultation was unlawful. He invited submission on whether further relief was required, though in the event no further relief was in fact granted. In an extempore ruling (so no transcript yet), the judge applied R. (on the application of Edwards) v Environment Agency (No.2). Even though the claimant had won on a failure to consult, it would not follow that there should be a quashing order. This was not just a pyrrhic victory for the association, as they had won conclusively, but the council acted in the public interest and it had to be able to do its job. Hence he ruled that the consultation and Regulations about fees would not be quashed, even though dentists would have to pay the new fees.
A helpful indication of how a successful consultation argument can be run. Note the wariness of the judge to find a general common law duty to consult, in the light of his concurrent finding of a specific promise of transparency in future dealings which was not then fulfilled. But also note the refusal to give effective relief.
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