Court of Appeal in GDC v Nabeel Aga clears up confusion over Immediate Suspension Orders in professional disciplinary cases

The Court of Appeal has finally clarified the confusion caused by the High Court on 13th December 2023 in Nabeel Aga v General Dental Council [2023] EWHC 3208 (Admin).The Court had held the General Dental Council’s (GDC) interpretation of Sections 27B, 29A and 30 of the Dentists Act 1984 (the Act) was wrong, stating that where the Professional Conduct Committee (PCC) makes a direction for a suspension order pursuant to S.27B of the Act, and an immediate order under S.30, this did not create two separate, consecutive orders and therefore time spent under the immediate order must be set off from the time spent under the substantive order. The rationale being the order should not extend the period of suspension beyond the imposed sanction by the PCC.

The High Court’s decision created a great deal of uncertainty and controversy as it departed from a line of earlier High Court authorities, where it had been held that the statutory provisions do not permit the regulatory tribunal to take account of a period of immediate suspension served prior to determination of a registrant’s High Court appeal[1].

Further confusion was added 10 months later. On 16th October 2024, judgment was handed down by a differently constituted High Court bench in Professional Standards Authority v (1) General Dental Council and (2) Danial [2024] EWHC 2610 (Admin). This time, in analysing the earlier Aga judgment and preceding authorities, the court concluded that the decision in Aga was wrong, and that, “as a matter of statutory construction and in light of the previous case law…the period of suspension under an immediate suspension order does not fall to be deducted from the period of a suspension direction”[2].

Finally, there is clarity. On 4th February 2025, the Court of Appeal handed down its judgement in GDC v Nabeel Aga [2025] EWCA Civ 68. It ruled the High Court decision in 2023 was wrong. Nicola Davies LJ stated the following by way of clarification:

“In my judgment the correct interpretation of the language of sections 27B, 29A and 30 of the 1984 Act is inconsistent with the reasoning of the judge and his conclusion that only one period of suspension is imposed. If the judge was correct in his interpretation of the sections, it would undermine the overriding objective which underpins the provisions governing PCC hearings. It has the potential to undermine the ability of a registrant to remediate the failings which led to the finding of misconduct, one purpose of a review hearing. It could also negate the purpose of a review directed under section 27B(6)(b) as such a review may not occur if the combined period of a directed and ordered suspension exceeded 12 months. Thus, a dentist subject to a review, could return to practice without satisfying a PCC that their fitness to practise was no longer impaired. This would ride roughshod over the carefully drafted provisions of the 1984 Act which at their core reflect the need to protect the public. Put shortly, the judge’s interpretation of these provisions of the 1984 Act was wrong. It follows that Morris J was correct in his interpretation of these sections.”[3]

Ashraf Khan

[1] See Mr Justice Bean in R v (Ghosh) v General Medical Council [2006] EWHC 2743 (Admin) at [27], and most recently, the Scottish High Court in W v Health and Care Professions Tribunal [2022] CSIH 47 at [37]-[38].

[2] See paragraph 261, reasoning at 253 – 271.

[3] Paragraph 51.