If a dentist is suspended after a full hearing, the order takes effect after 28 days. The theory is that this gives the dentist time to sort out cover for their patients. But the GDC can also apply for immediate suspension, pending the start of the substantive order. If that happens, should that count as part of the total period of suspension? And what if the registrant appeals, so that the substantive order only takes effect many months later?

In December 2023 decision was handed down in Aga v General Dental Council [2023] EWHC 3208 (Admin). This was a sea-change to the law on whether a period a registrant spends on immediate suspension should be taken into account for the period of the substantive order. Mr Justice Ritchie decided that it should.

Aga proceeds to the Court of Appeal in January 2025 and those working in professional discipline have been eagerly awaiting the appeal court’s judgment. However, the saga has taken another twist following another High Court decision issued on 16 October 2024 in PSA v GDC and Danial [2024] EWHC 2610 (Admin). Mr Justice Morris disagreed with the approach in Aga and decided the period of immediate suspension should not be taken into account. 

The principal focus in Danial was the PSA’s challenge to the Committee’s sanction of suspension (for five months) following a finding of sexually motivated misconduct. Mr Danial also appealed the findings on misconduct and sanction. That decision was found to be “not wrong nor unjust” and the five-month suspension stood.

The more interesting aspect of the case was an appeal by Mr Danial that, when imposing the five-month suspension order together with an immediate order for suspension, the Committee ought to have directed that his overall suspension be for a total of five months. This linked to the decision in Aga and was subject to detailed submissions. 

Mr Justice Morris concluded that Aga had been wrongly decided. It falls on a matter of statutory interpretation of sections 29A and 30 of the Dentists Act 1984. Mr Justice Morris disagreed with the decision in Aga that a distinction can be drawn between the date the suspension starts and the date it takes effect. The period Mr Danial spent on suspension under the immediate suspension order did not fall to be deducted from the period of the substantive suspension direction.

The GDC took the somewhat surprising approach after Aga to issue a statement saying that:

“The [Aga] ruling departed from the longstanding existing interpretation of the legislation. We need clarity on this point so that the regulatory framework, guidance and practice are unequivocally clear. 

"The only way to achieve clarification is through the Courts and this is what we are planning to do.”

One might suggest that the GDC had such clarification in from the court’s decision in Aga. That clarity has perhaps dissipated following the contradictory opinion in Danial. The current position when advising on this issue must be, unsatisfactorily, ‘we do not know’.

We now have two conflicting opinions from the High Court. No doubt the GDC will place great store on the latter. Matters are now less clear than they were, and it will fall to the Court of Appeal to decide. In the meantime, as a matter of fairness, one would think Aga is right. It may be that as a matter of statutory interpretation the Court of Appeal determines Danial is correct. If so, it would require Parliament to intervene to correct the injustice arising. That really would continue the Aga saga.