April to May 2010


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April to May 2010

  1. 1. GENERAL DENTAL COUNCIL PROFESSIONAL CONDUCT COMMITTEE April to May 2010 Johnstone, Stuart Elliott Registration No: 48357On 7 May 2010 the Chairman announced the determination as follows: “Mr Johnstone, In 2007, at the request of the Solihull NHS Care Trust (the CT), an examination was undertaken by Dental Reference Officers (the DROs) into your patients’ clinical records and radiographs. Following that examination serious concerns were expressed by the DROs about your treatment of children by providing them with veneers when it was inappropriate to do so. In addition, concerns were expressed about the poor quality of your records, your failure to take necessary radiographs, and your lack of proper diagnosis and treatment planning. They also expressed concerns about the poor quality of many of the porcelain veneers you provided and the frequency of failure of them. In July 2007 the CT suspended you from its Performers List following which, in April 2008, the CT removed your name from the Performers List. Your appeal against that decision was allowed on 30th January 2009 by the Family Health Service Appeals Authority (the FHSAA) on terms that you would be removed contingently, subject to conditions which were agreed between the parties. The Committee has been provided with a copy of the determination of the FHSAA and notes that it was agreed that at the date of your suspension from the Performers List there were serious deficiencies in your clinical practice. In these proceedings the General Dental Council (the GDC) has submitted that your fitness to practice is impaired by your misconduct and by your deficient professional performance. In the course of final submissions at the impairment stage you accepted, by Counsel, that your actions amounted to misconduct and that your professional performance had been deficient. You went on to accept that your fitness to practice is impaired. Notwithstanding that frank acceptance by you, it is the responsibility of the Committee to assess whether your fitness to practice is indeed impaired. At this hearing the Committee heard evidence from seven of your patients and five parents. All but one of these patients were children at the time you treated them. The Committee was also provided with witness statements from two patients and one other parent who could not attend the hearing and the witness statements of three Dental Reference Officers. It was provided with a bundle of patient records and received expert evidence from Mr Turner and Dr Harley on behalf of the Council and from Dr Harrison and Dr Kramer on your behalf. You made many admissions into the allegations about your clinical treatment of patients. You also admitted that you had failed to obtain informed consent for your treatment of patients in that you provided them with inadequate information about treatment options. The Committee went further and also found that your discussions with patients or their parents had been
  2. 2. brief, lacking in detail and insufficient to enable a parent, or a child old enough to consent,with enough information to assess the suitability of treatment with veneers.At the fact finding stage of this hearing this Committee made extensive and detailed findingsabout your treatment of patients. It does not propose to repeat those findings in thisdetermination. The following cases are merely examples of your clinical treatment.The evidence showed that in children under 16 years old, porcelain veneers should notnormally be provided unless specialist advice has recommended that treatment. However, inthe case of patient EC you provided veneers to a 7 year old child and you knew that she wasat risk of caries. Subsequently, you failed to respond to repeated requests of EC and hermother for the removal of the veneers.In the case of patient JW, a child of 12, you prescribed porcelain veneers whilst ignoring, andconsequently not providing, suitable treatment for her pressing oral health needs. You didnot treat extensive caries (in 17 teeth at the time of her subsequent examination by the DRO)nor the repeated infections and reports of pain. The evidence revealed a very poor level oftreatment of this patient amounting to neglect of her dental health.Your failings in respect of patient NS, an adult, were so serious that your failure to identifyand treat the patient’s infection placed her life at risk and resulted in her being admitted tohospital for emergency treatment under general anaesthetic.In the case of CR you provided a porcelain veneer while ignoring the orthodontic needs of ateenager with hypodontia.On other occasions the Committee has noted that you provided children with porcelainveneers and neglected to treat serious caries and other urgent dental problems.The Committee found that in eleven of the cases before it, your primary motivation for theprovision of porcelain veneers was financial gain and that you were dishonest.In considering the issue of impairment the Committee must consider your past conduct andprofessional performance and must also look forward.The Committee has considered the evidence it has read and heard. It has concluded thatyour frequent provision of veneers, knowing this to be an inappropriate form of treatment forchildren, and your dishonesty, provide ample evidence of misconduct. It has also concludedthat your failures to prioritise urgent and necessary treatment in preference for short termtreatment of an aesthetic or cosmetic nature, to take necessary radiographs, to dealappropriately with consent and to make a clear record of your treatment and of treatmentplans demonstrates that your professional performance was deficient. The Committee hasalso taken into account the evidence of Professor Dunne that you are still in need ofsupervision in your work. He also said that you would be safe to practise as long as you didnot get yourself into pressurised situations at work.The Committee finds that it is especially troubling that you appear to lack insight into yourpast dishonest conduct.Taking all these factors into account the Committee finds that your fitness to practice isimpaired both by your misconduct and by your deficient performance.
  3. 3. SanctionThe Committee went on to consider what sanction, if any, should be placed on yourregistration.Mr Stern, on behalf of the GDC, submitted that your actions were so serious that no sanctionother than erasure would be appropriate.Mr Horne, on your behalf, submitted that having regard to the very considerable evidence ofyour retraining since 2007 and the good reports made about you by those who haveprovided you with clinical attachments and who have assessed your progress, it would beproportionate and appropriate to place conditions on your registration.The Committee has heard that you commenced a period of your retraining in November2007. In October 2007 you contacted the Dr Davies-Slowik in the West Midlands Deanery,and with her help a series of clinical attachments were arranged at Birmingham DentalHospital and at Charing Cross Hospital in London. With her assistance you also prepared aPersonal Development Plan.In December 2008 a clinical assessment was carried out by Dr Caddick (the AssociatePostgraduate Dean of the West Midlands Deanery and Dr Corke (the Postgraduate Tutor atBirmingham Dental Hospital). This assessment was designed to address the concernsexpressed by the Dental Reference Officers.That assessment found significant improvements in some areas but that shortcomings inother areas of your clinical knowledge remained.The Committee heard evidence from:Dr Davies-SlowikProfessor Stephen Dunne, the Professor of Primary Dental Care at Kings College LondonDental Institute.Dr Kevin Fairbrother, the Clinical Lead for Restorative Dentistry at Birmingham DentalHospital.Dr Tony Davies, a General Dental PractitionerThe Committee was also referred to the reports of those who have been involved in yourassessment and retraining since 2007 and an additional bundle of documents comprisingpractice documentation.The Committee has noted their evidence and finds that during your period of retraining andclinical attachments your clinical skills in a range of areas have improved considerably.The Committee has taken into account that until these proceedings you were a man of goodcharacter against whom no adverse findings had been made by this Council.It has also read and taken into account the bundle of testimonials provided by you and theevidence of the character witnesses who appeared on your behalf.
  4. 4. In considering the issue of sanction the Committee has, at all times, considered the publicinterest which involves the protection of patients, the maintenance of standards and theupholding of public trust and confidence in the profession.It has taken into account the principle of proportionality and has balanced your interests withthe public interest.The Committee has been referred to the pre 2005 editions of Maintaining Standards and toits successor Standards for Dental Professionals.The Committee has had regard to the following paragraphs in Maintaining Standards:2.1 Personal behaviour and what the public expects3.1 Acting in the best interests of patients3.2 Providing a high standard of care3.3 Making a referral3.7 Consent4.3 Contemporaneous records4.6 Misleading claims4.8 Duty and expectations regarding pain and anxiety controlThe Committee has also had regard to Standards for Dental Professionals, specificallyprinciples:1 Putting patients interests first and acting to protect them,2 Respecting patients dignity and choices5 Maintaining your professional knowledge and competence, and6 Being trustworthy.The Committee also had regard to the following paragraphs:1.1 Putting patients interests before your own1.3 Working within your knowledge and competence1.4 Making and keeping accurate records1.10 Not making claims that could mislead patients2.4 Listening to patients and giving them the information they need5.2 Reviewing your knowledge and skills5.3 Finding out about best practice6.1 Justifying the trust that the public, patients and colleagues have in youIn the judgment of the Committee, your dishonesty in this case was extremely serious. TheCommittee has found that between 2002 and 2007 you subjected patients, most of whomwere children, to treatment knowing it to have been inappropriate, with the primary motivationof your own financial gain. You thereby neglected the dental interests of these patients andfailed to provide them with the treatment they needed. You did so in order to obtain feesleading to a greater profit from the NHS than the fees you would have received forappropriate treatment. You were in a position of trust towards your patients and the public.You abused that trust. For all these reasons the Committee places this case high in the scaleof dishonesty.
  5. 5. The Committee has considered the question of sanction in ascending order sequentially.Thus it started by considering whether to conclude this case by taking no action. It found thatit would be entirely inappropriate to do so having regard to the serious nature of the findingsit has made.It went on to consider whether any conditions could be framed which would allow you toresume clinical practice. It has noted the submissions made on your behalf by Mr Horne thatconditions could be imposed on your registration. The Committee accepts that were it not forthe issues of dishonesty, conditions could be devised. However, there are no conditionswhich could be formulated which would adequately address the issues of dishonesty in thiscase.The Committee went on to consider whether to suspend your registration.The Committee has taken into account the mitigation in this case namely:- your previous good character- the efforts made by you to retrain, which appear to have been largely successful- the evidence of Professor Dunne and Mr Fairbrother that, notwithstanding the findings of fact, it would be possible for you to continue your career as a dentist and practice safely under appropriate safeguardsMr Horne submitted that a suspension of your registration would effectively bring to an endyour career as a dentist. The Committee does not accept that that submission is necessarilycorrect. You would be able to continue your training and there would be some prospect ofyour being able to resume your professional career.However, the Committee considers that an order for suspension of your registration wouldnot reflect the gravity of the findings it has made about your misconduct and, in particular,about your dishonesty. It considers that a clear message needs to be made that seriousdishonesty involving claims for inappropriate treatment cannot be dealt with by an order forsuspension save in very exceptional circumstances.The Committee has had regard to the Guidance to the Professional Conduct Committee. Itaccepts that there is no presumption in favour of erasure in a case of dishonesty and thatthis is guidance only. The following parts of the guidance are of particular relevance to yourcase:- A serious abuse of a clinical relationship- A serious abuse of a privileged position- Causing serious avoidable harm to patients- Dishonesty- Failing to maintain professional knowledge in areas relevant to your practiceHaving found that all other sanctions would be inappropriate in this case, the Committee wasleft with no alternative but to order that your name be erased from the Dentists Register.The Interim order currently in place is hereby revoked. Pursuant to Section **27B(10) of theDentists Act 1984 the revocation will take effect when the sanction takes effect, or when anyappeal is determined.”
  6. 6. **Please note that this reference to the legislation was corrected post hearing (having previouslyincorrectly said to be 27(9)).