Expert Evidence in Regulatory Proceedings: The Importance of Due Diligence

Expert evidence is a key component of many regulatory investigations. It helps regulators to decide whether a matter should be investigated and, more often than not, frames the allegations put to registrants at substantive hearings. It is therefore fundamentally important that the expert instructed is suitably qualified to provide a valid opinion on the case. The following case study serves to highlight what can go wrong where that is not done.

Stephen Hooper and Beth Philp, who instructed Christopher Geering of 2 Hare Court, have successfully defended an Oral and Maxillofacial Surgeon, who faced multiple allegations of misconduct by the General Dental Council. The case was concluded at a hearing before a Professional Conduct Committee (PCC), who accepted our submission that there was no case to answer in respect of all of the contested allegations. That outcome was almost entirely due to the GDC’s expert being found to be inadequately qualified to offer an opinion on the case. His advice, and therefore the foundation of the GDC’s case against our client, were fatally undermined and the GDC ultimately had to concede defeat. 

Our client is an Oral and Maxillofacial surgeon, dually qualified and therefore registered with both the GDC and General Medical Council (GMC). In late 2020, he was referred to both regulators by his former employers, who raised wide-ranging concerns about his practice, highlighting fifteen patients in respect of whom it was felt he had provided a poor standard of care, predominantly in the provision of dental implants. In addition, our client faced an allegation of failing to comply with his duty of candour, after a patient suggested that he did not make him aware that an adjacent tooth had been injured during the course of treatment, until several months after the event. That allegation was pursued even though there was evidence within the patient records that our client had discussed the injury with the patient as soon as it was discovered, and that he had then written to the patient’s dentist to inform him of what had happened. 

As is often the case, the initial investigations by the GDC progressed slowly. Although the case was referred to them in late 2020, it was not until February 2023 that the GDC referred the case for consideration by their Case Examiners. We submitted a response to the Case Examiners, inviting them to close the investigation at that stage, primarily on the basis that the allegations, though large in number, were insufficiently serious to amount to misconduct. The client had gone to considerable lengths to remediate his practice and it was submitted that even if the allegations were capable of proof, it would not be possible to find that his fitness to practise was impaired. It took a year for the Case Examiners to consider the matter. Despite accepting that all of the areas of concern had been remediated, they determined that case should be referred for a PCC hearing in the public interest. That decision was said to be largely down to the duty of candour allegation – notwithstanding the evidence in the records that the duty of candour had in fact been complied with. The PCC hearing was duly listed to commence on 13 January 2025, with a time estimate of three weeks.

The GDC instructed lawyers, who in turn sought and obtained evidence from an expert in restorative dentistry. The expert report raised a number of criticisms, and in several respects opined that the standard of care provided by our client was seriously below that expected (that generally being the basis upon which a finding of misconduct is established). We in turn obtained evidence from an expert in Oral and Maxillofacial Surgery, with extensive experience in the provision of implants. Our expert was broadly supportive of our client, and when he came to meet with the GDC’s expert to produce a joint report setting out those issues which remained in dispute, the GDC’s expert conceded significant ground. A large number of allegations were therefore withdrawn by the GDC prior to the start of the hearing, with the number of patients under consideration reduced from fifteen to seven. 

When the GDC’s expert came to give evidence at the PCC hearing, Mr Geering questioned him about his experience in implants and sinus lifts (the two most significant areas of criticism). The expert accepted, under oath, that he had not in fact placed any implants for at least 20 years, and that he had never performed a sinus lift in his 45-year career as a dentist. No explanation was provided, as to why he had not advised the GDC of his lack of experience when he was first instructed. On that basis, we made an application to the PCC that none of the disputed allegations were capable of proof, and that they should be dismissed. That included the duty of candour allegation, which was based on the flawed opinion of the GDC expert, that even though the clinical records indicated that our client had discussed the intraoperative injury to the adjacent tooth, he had not adequately explained the extent of the injury. On the basis that their expert advice had been wholly discredited, the GDC did not oppose our application, and the PCC duly acceded to it. Although a small number of allegations had been admitted by our client at the start of the hearing, the PCC confirmed that they were insufficiently serious to amount to misconduct, and the case was then closed with no further action. 

Quite remarkably, the GMC’s earlier investigation into our client was also closed with no further action on a similar basis. The GMC had instructed an expert who provided three reports which raised a number of serious criticisms, only to reveal in his fourth report that he in fact had very little recent experience of implants, and that he was therefore not a suitable expert for the case. It was on that basis we secured a High Court Order refusing the GMC permission to extend an interim Order restricting our client’s practice, and soon thereafter the GMC confirmed that its investigation would be closed with no further action.  

This case highlights the importance of instructing the right expert. Furthermore, do not assume, just because your opponent serves expert evidence, that that expert has the requisite knowledge base to opine on the case – scrutinise their background, as it might prove to be a fruitful line of cross-examination. As a result of the GDC having instructed someone who was inadequately qualified, a series of ultimately baseless allegations were pursued, our client had to endure the stress of appearing at a public hearing before his national regulator, and significant costs were incurred by both the GDC and defence. Many registrants do not have the benefit of legal support, let alone independent expert advice. Had that been the case with our client, the PCC may well have made findings against him, and taken action against his registration, on an entirely flawed and ultimately unfair basis. Thankfully, our client had the benefit of a highly-experienced expert in the right field, and an skillful barrister who was able to deconstruct the GDC’s case in order to achieve the right result.  

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private sectors as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals / life sciences. Should we be able to assist you, please do contact one of our experts.