Final-year dental student whose studies were terminated for repeated absence loses petition against decision

About this case:

• Citation:
  [2023] CSOH 52
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner SM sought reduction of the decision of the university’s appeal Committee to uphold a panel’s determination that his studies at the university should be terminated. He criticised the fitness to practice procedures adopted by the respondent and argued that the decision by which his studies came to be terminated was so fundamentally unfair that it should be reduced.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Reid, advocate, appeared for the petitioner and Welsh, advocate, for the respondent.

Greater sanction

In November 2019, while first attempting his fifth year of study on the respondent’s Bachelor of Dental Surgery course, the petitioner was subject to informal fitness to practise proceedings by the respondent university. In the respondent’s view, these proceedings were principally designed to address high recorded levels of current and historic absences by the petitioner from his course.

As a result of those proceedings the petitioner repeated his fifth year in the 2019-20 academic year, however the advent of the Covid-19 pandemic required all dental students to repeat the year of study they were in when teaching was suspended. When in-person classes returned in March 2021, the petitioner was advised by the respondent that he was being referred for formal fitness to practise proceedings for failing to satisfy attendance conditions that the respondent maintained he agreed to when he agreed to repeat his final year.

The panel concluded that the petitioner had demonstrated a limited grasp of the impact his failure to attend had on patients and colleagues and was not making the progress that had been hoped for. Given his ongoing behaviour, it was difficult to see how a continuation of study would be beneficial. On appeal, the Committee concluded that the panel’s decision was not manifestly unreasonable and refused the appeal.

On behalf of the petitioner, it was submitted that student fitness to practice proceedings, although not court proceedings, were legal proceedings that required to be conducted in accordance with the normal principles of natural justice, adding that the General Dental Council expected such proceedings to be in line with those for practising dentists. The effective permanent denial of entry to the dental profession was a greater sanction than the GDC could impose and the process by which this happened was not conspicuously fair.

Far from irrational

In his decision, Lord Sandison said of the fitness to practice proceedings: “The question of what proper procedures in the context of student fitness to practise proceedings may be cannot, in any event, simply be surrendered to the views of the GDC or the education provider, but is a matter over which the court must, if asked to do so, exercise its own supervision. In that context, one requires to consider whether there is any reason why the law ought to require student fitness to practise proceedings to conform or at least approximate to such proceedings in the context of registered members of a profession which the student aspires to enter.”

He continued: “Criticisms made of the respondent’s fitness to practise procedures or their outcomes which are based simply on their claimed deviation from what would have been the GDC’s procedures or outcomes in the case of fitness to practise proceedings against registered dentists cannot be sustained. That the respondent did not see its own procedures as being essentially disciplinary in nature is, likewise, not a valid ground of complaint.”

Addressing whether the procedure was fair, Lord Sandison said: “The petitioner was given a real and effective opportunity to take part in and influence the outcome of the fitness to practise proceedings, and took that opportunity. His lack of success in persuading the Panel of the merits of his case was due to the substance of that case, not any procedural failing in the way he was permitted to present it.”

He went on to say: “The essentially undisputed factual background disclosed behaviours and attitudes on the part of the petitioner which, to say the least, seriously called into question his suitability to continue on his course. Most if not all of the ways available to divert him from the path he was treading had already been tried, and had failed. The Panel decided that his exclusion from his course was the appropriate way to deal with the situation which thus presented itself. That was a matter for it to decide in the first instance, and for the Appeal Committee to approve or reject on review.”

Lord Sandison concluded: “Given the lengthy history of the petitioner’s unsuccessful attempts to make satisfactory progress on the final year of his course, despite opportunities and assistance being afforded to him, the decision that was made, far from being at the irrational or unreasonable end of the spectrum, appears when matters are viewed objectively to have been very much an option available to the Panel to choose and for the Committee to endorse.”

The prayer of the petition was therefore refused.