HEARING HEARD IN PUBLIC

Transcription

1 HEARING HEARD IN PUBLIC BARRETO RUBIO, Juan Carlos Registration No: PROFESSIONAL CONDUCT COMMITTEE MARCH JUNE 2018 Outcome: Erased with Immediate Suspension Juan Carlos BARETTO RUBIO, a dentist, Tandläkare Karolinska 1991, was summoned to appear before the Professional Conduct Committee on 12 March 2018 for an inquiry into the following charge: Charge (as amended on 13 March 2018) That, being registered as a dentist: 1. Between 30 August 2016 and 5 September 2016, you were made subject to a creditor bankruptcy petition. 2. Between 3 November 2016 and 15 December 2016, you received payment from Patient A, amounting to , for the provision of dental implant treatment. 3. Between 15 December 2016 and 20 January 2017, you failed to provide and/or complete the dental implant treatment for Patient A. 4. On 20 January 2017, you were made subject to a bankruptcy order. 5. Your conduct in relation to paragraph 2 and/or 3 above was: a. misleading; b. dishonest, in that you; i. received payment for treatment from Patient A, knowing that a bankruptcy petition had been filed against you and that you would not be able to provide and/or complete the treatment. ii. withdrawn by the GDC. 6. From 3 March 2017 to 11 May 2017, you failed to co-operate with an investigation conducted by the GDC, in that you did not provide the GDC with dental records for Patient A. 7. You failed to adequately respond to Patient A s complaint of 31 January 2017 about their dental treatment. 8. You failed to keep patients information secure at all times, including in relation to patient records at Beach Road Dental Care. AND that by reason of the facts alleged, your fitness to practise is impaired by reason of misconduct. BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -1/16-

2 As Mr Barreto Rubio did not attend and was not represented at the hearing, the Chairman made the following statement regarding proof of service. He addressed this to the Counsel for the GDC. Mr Barreto Rubio is not present or represented at this Professional Conduct Committee (PCC) hearing of his case. In his absence, the Committee first considered whether the General Dental Council (GDC) had complied with serving the Notice of Hearing on Mr Barreto Rubio in accordance with Rules 13 and 65 of the GDC (Fitness to Practise) Rules Order of Council 2006 (the Rules). In so doing, the Committee has had regard to the submissions made by Mr Ahmed, Case Presenter, on behalf of the GDC. The Committee has seen a copy of the Notice of Hearing letter dated 5 February 2018, addressed to Mr Barreto Rubio s registered address and sent by special delivery. The letter sets out the date, time and location of today s hearing, as well as the particularised facts of the charge and is in compliance with Rule 13. The Royal Mail receipt confirms that it attempted to deliver the item to Mr Barreto Rubio s registered address on 6 February 2018 and left a while you were out card. Mr Ahmed advised the Committee that he had checked the Royal Mail track and trace information, which confirmed that the document had been returned to sender. The Committee s attention was drawn to a copy of an dated 5 February 2018 from the GDC s Secure File Server to Mr Barreto Rubio s address, which includes a copy of the Notice of Hearing. The Committee notes that this address is the same one used by Mr Barreto Rubio elsewhere in correspondence contained in the bundle. The Committee is aware that for the purposes of demonstrating service in compliance with the Rules, the GDC must show that the Notice of Hearing has been sent to the Registrant rather than that the Notice of Hearing has been received by Mr Barreto Rubio. Having regard to all of the documents before it, the Committee is satisfied that all reasonable efforts have been made by the GDC to serve the Notice of Hearing on Mr Barreto Rubio at his registered address within 28 days before the hearing is due to start and that the GDC has complied with the requirements of service in accordance with Rules 13 and 65. Proceeding in absence The Committee then went on to consider whether to hear this case in the absence of Mr Barreto Rubio in accordance with Rule 54. Mr Ahmed invited the Committee to do so on the basis that the Notice of Hearing has been served on Mr Barreto Rubio in accordance with the Rules and that Mr Barreto Rubio, in the knowledge that the GDC is investigating matters against him, and has latterly failed to engage with the GDC, save for his enquiry about voluntary removal from the register in March In short, Mr Ahmed said that Mr Barreto Rubio has not sought an adjournment of this hearing and there is no good reason why the Committee should not proceed. The Committee has considered Mr Ahmed s submissions. It has accepted the advice of the Legal Adviser. It has borne in mind that the discretion to proceed in the absence of the respondent must be exercised with the utmost care and caution and that it must have in mind the need for fairness to Mr Barreto Rubio as well as to the GDC in the prosecution of its case. The Committee notes that the Notice of Hearing letter to Mr Barreto Rubio asks him to confirm with the GDC by 19 February 2018 whether or not he will be attending today s hearing. The letter also advises him that if he is unable to attend the hearing in person, the GDC can make arrangements for him to attend the hearing by alternative means, to enable him to engage with the hearing. In addition, the letter warns Mr Barreto Rubio that his nonattendance at the hearing may be severely prejudicial to him. Mr Barreto Rubio has not responded to that letter and his engagement with the GDC in relation to these proceedings has been limited. The telephone note dated 3 April 2017 between the GDC Case Worker BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -2/16-

3 and Mr Barreto Rubio indicates that he is seeking voluntary removal from the Register. There is nothing before the Committee to suggest that Mr Barreto Rubio would attend on a future occasion, were it to adjourn this hearing and there is some indication that he is no longer in the United Kingdom. The Committee has reached the conclusion that Mr Barreto Rubio has voluntarily absented himself from attending the hearing. The Committee has also had regard to the serious nature of the allegations against Mr Barreto Rubio and the public interest in the expeditious disposal of the case. Accordingly, the Committee has decided that it is fair and appropriate to proceed in the absence of Mr Barreto Rubio in accordance with Rule 54. On 14 March 2018 the Chairman announced the findings of fact to the Counsel for the GDC: Mr Barreto Rubio is not present or represented at this Professional Conduct Committee (PCC) hearing of his case. Mr Ahmed, Case Presenter, appears on behalf of the General Dental Council (GDC). The Committee has already announced its decision that the GDC has complied with the requirements of Rules 13, 54 and 65 of the GDC (Fitness to Practise) Rules Order of Council 2006 (the Rules). It also concluded that Mr Barreto Rubio had voluntarily absented himself from attending the hearing and it was appropriate to proceed in his absence. The GDC s case against Mr Barreto Rubio (the Registrant) The GDC s case relates to a complaint made by Patient A to the GDC in February 2017 regarding 2628 he paid to Beach Road Dental Care (the Practice) on 3 November 2016 and 14 December 2016 for the provision of dental implant treatment which he never received. Mr Barreto Rubio was the co-owner of the Practice at the time those payments were made. Patient A was told that the treatment was to be carried out privately by Mr B (another dentist who carried out private treatment at the Practice once a week), and that Mr Barreto Rubio would assist with the treatment. The GDC contends that following payment Patient A tried several times to see if definite dates had been organised for the implant treatment and that he was told by the Registrant and his receptionist on several occasions that they were having trouble contacting Mr B who was in Turkey. On 30 and 31 January 2017 Patient A went to the Practice and found it was closed. In due course Patient A discovered that Mr Barreto Rubio had been made subject to a Bankruptcy Order. Patient A complained that Mr Barreto Rubio received payment for the proposed dental treatment in the knowledge that a petition for bankruptcy had been filed and that he then failed to provide this treatment. It is further alleged that Mr Barreto Rubio failed to respond adequately to Patient A s complaint of 31 January 2017 about his dental treatment. The GDC also alleges that Mr Barreto Rubio failed to co-operate with its investigation into this matter, and that he failed to keep patients records secure. On 21 March 2017, upon being notified of the complaint, Mr Barreto Rubio ed the GDC, requesting that he be removed from the Register. The GDC provided him with a Voluntary Removal Statutory Declaration. On 3 April 2017 the GDC s Caseworker telephoned Mr Barreto Rubio, to follow up his request regarding Voluntary Removal. Mr Barreto Rubio confirmed he had been declared bankrupt and that he considered himself to be retired. On 5 April 2017 Mr Barreto Rubio wrote to the GDC and confirmed that he wished to be removed from the GDC s Register. During the course of that telephone conversation he confirmed that his bankruptcy took effect on 20 January 2017, and that this was triggered by a clawback from the NHS. BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -3/16-

4 Further applications made by the GDC During the course of Mr Ahmed s closing submissions on the facts, the Committee sought clarification as to whether the consequences of a bankruptcy order would have been to prevent the Registrant from continuing to work and complete the treatment (as alleged in 5(b)). Mr Ahmed sought an adjournment for the remainder of the day in order to seek further instructions on this matter. Following the adjournment, Mr Ahmed indicated that he wished to make two separate applications. The first application, made under Rule 57(1), was to adduce further documentary evidence in support of the GDC s case. The documents were as follows: Relevant parts of the Insolvency Act 1986; Guidance to Bankruptcy (updated 21 April 2017), as contained on Gov.UK website; Chapter 45, part 11 of Insolvencydirect.bis.gov.uk a technical manual. Mr Ahmed submitted that these three documents were relevant to the matters under consideration in that they provided useful background information to the law of insolvency. He therefore submitted that it was fair to admit these documents in accordance with Rule 57(1). Mr Ahmed s second application was to amend the charge set out in the Notice of Hearing, under Rule 18(1). The proposed amendments were as follows: 5(b)(i) delete the words should you be made subject to a bankruptcy order so that the charge now reads: dishonest, in that you: received payment for treatment from Patient A, knowing that a bankruptcy petition had been filed against you and that you would not be able to provide and/or complete the treatment. 5(b)(ii) delete this part of this charge in its entirety Under the stem of 5, include another allegation after 5(a) and before 5(b) to read: lacking in integrity. Mr Ahmed accepted that neither the general law nor the regulatory provisions prevented a dentist from continuing to practise or trade after the making of a bankruptcy order. In respect of 5(b)(i), Mr Ahmed said that this allegation goes to Mr Barreto Rubio s state of mind at the time, taking into account all the relevant facts, when he received payment for treatment from Patient A for the provision of dental implant treatment. He submitted that the proposed amendment simplifies the charge as currently drafted. In respect of 5(b)(ii), Mr Ahmed conceded that Mr Barreto Rubio was under no obligation in law to disclose to Patient A that a creditor s petition had been filed against him and there was no prohibition placed on him from trading by virtue of having been served with a creditor s petition. He also conceded that there was no regulatory rule of the dental profession to that effect. Concerning the proposed additional allegation regarding a lack of integrity, Mr Ahmed sought to rely on a recent ruling, Wingate and Anor v The Solicitors Regulatory Authority; The Solicitors Regulatory Authority v Malins [2018] EWCA Civ 366 which drew the distinction BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -4/16-

5 between lack of integrity and dishonesty. He made the point that the proposed additional charge does not change the nature of the conduct alleged. The Committee has considered the submissions made. It has accepted the advice of the Legal Adviser, save in respect of the last part of the application to amend, relating to the lack of integrity. In respect of the first application, the Committee was satisfied that the documents the GDC sought to rely on were relevant to the matters under consideration, concluding that the Insolvency Act could be admitted without regard to Rule 57. It decided that the other documents would be helpful to the Committee and accordingly allowed Mr Ahmed s application under Rule 57. Turning to the second application, the Committee decided that the amendment to 5(b)(i) by the deletion of the words proposed as well as the withdrawal of 5(b)(ii) could be made without any injustice. However, it decided that the inclusion of another allegation of conduct lacking in integrity, at this late stage without any sufficient reason for the late amendment and without any notice to the Registrant could not be carried out without injustice. Taking all these factors into account, the Committee decided that it would not be in the interests of justice to allow the inclusion of another allegation of conduct lacking in integrity. It therefore refused Mr Ahmed s application on this matter. Mr Ahmed then proceeded to complete his closing submissions on the facts. At the close of his submissions, the Legal Adviser sought further clarification from Mr Ahmed as to the basis upon which the GDC was putting its case on dishonesty at 5(b). Following a short adjournment, Mr Ahmed made a further application under Rule 18(1) to amend 3 by redrafting as: In relation to paragraph 2 above, you failed to provide and/or complete the dental implant treatment for Patient A. Mr Ahmed submitted that this proposed amendment could be made without any injustice since it did not change the nature of the case against Mr Barreto Rubio. The Committee considered the submissions made by the GDC and accepted the advice of the Legal Adviser. It has borne in mind that this application has been made at a late stage of the proceedings and that the proposed case in relation to charge 3 is put on a different basis to the case advanced by the GDC which was that he could not work beyond the date of the bankruptcy order. The amendment sought to enlarge the time over which failure is alleged. Further, the Committee did not have an opportunity to put questions to Patient A on the proposed change to allegation 3. Taking all these factors into account, the Committee decided that it would not be in the interests of justice to allow the proposed amendment, particularly in circumstances where the Registrant is not present or represented. It therefore refused Mr Ahmed s application to amend allegation 3. The evidence In considering the allegations against Mr Barreto Rubio, the Committee had regard to all the relevant evidence before it, both documentary and oral. The documentary evidence included a copy of Patient A s signed witness statement dated 17 August 2017; a copy of the GDC s Caseworker s signed witness statement dated 31 August 2017; a copy of the NHS England s Dental Case Manager s signed witness statement dated 9 October 2017 and a copy of the NHS England s Contract Officer s signed witness statement dated 22 December The Committee also had regard to the accompanying exhibits referred to by the witnesses in their statements. BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -5/16-

6 The Committee also received oral evidence by telephone from Patient A. It has borne in mind that his evidence has not been tested by way of cross-examination. Nevertheless, it found Patient A to be a credible witness, who was able to clarify matters put to him by the Committee and Mr Ahmed and whose oral evidence was consistent with his witness statement. The Committee notes that some of Patient A s evidence concerned matters of hearsay, relating to the whereabouts of Mr B, and gave less weight to that aspect of his evidence. In respect of the other three witnesses relied on by the GDC, the Committee has borne in mind that their accounts have not been tested by way of cross-examination or indeed by Committee questions. However, the Committee concluded that it was appropriate to give weight to their evidence as it was supported by contemporaneous documents. The Committee has borne in mind that it has received no defence case from Mr Barreto Rubio and that the only correspondence from him was dated 21 March 2017 and 5 April 2017 in respect of his request to be removed from the GDC register. In his letter dated 5 April 2017 Mr Barreto Rubio advises that he was declared bankrupt on 20 January 2017 and that on 23 January 2017 he was ordered to cease trading. Mr Barreto Rubio states that Patient A has spoken with the Official Receiver and the Trustees and that it was not Dr Barreto s decision to stop trading. He further stated that the patient was on the list of creditors and would be dealt with along with the other creditors. The Committee has borne in mind that the burden of proof is on the GDC and that it must decide the facts according to the civil standard of proof, namely on the balance of probabilities. Mr Barreto Rubio need not prove anything. The Committee has drawn no adverse inference from Mr Barreto Rubio s non-attendance at this hearing. In respect of allegation 5(b), that Mr Barreto Rubio s conduct was dishonest, the Committee received advice from the Legal Adviser as to the relevant facts and circumstances in this case and the proper approach it must apply in respect of dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. This was as follows: "... When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence going to whether he genuinely held the belief, but it is not a requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established by the fact-finder the tribunal must then consider whether that conduct was dishonest by the standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest." The Legal Adviser also advised the Committee of the cases of In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and In Re B [2008] UKHL 35. The Committee was also advised of the approach it should adopt in considering the allegation that Mr Barreto Rubio engaged in conduct that was misleading. It has accepted the advice of the Legal Adviser. I will now announce the Committee s findings as follows: 1. Found proved In reaching its decision, the Committee has had regard to the notice contained in The Gazette, publication date 30 January 2017, of a Bankruptcy Order in the BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -6/16-

7 name of Mr Barreto Rubio. The notice states Mr Barreto Rubio s name, address and profession as well as the following: Date of Filing Petition: 5 September 2016 Bankruptcy order date: 20 January 2017 Whether Debtor s or Creditor s Petition Creditor s 2. Found proved Patient A s evidence was that he was provided with a treatment plan, stating that the work to be carried out for the implant was NHS and part private treatment. Patient A paid 130 after an appointment with Mr B on 3 November Patient A attended an appointment at the Practice on 14 December 2016 to see Mr B. He recollected Mr B taking impressions and measurements. He explained that Mr B told him that he would have to pay the remaining balance for the implant treatment, which was Patient A s evidence was that he paid 2498 using his HSBC debit card. The Committee has seen copies of the receipts for 130 (dated 3 November 2016) and 2498 (dated 15 December 2016) which confirm that payment was made to the Practice. Patient A confirmed in his oral evidence that although the receipt showed payment for 2498 was received on 15 December 2016, he had checked and the payment had been made on the previous day. The Committee has accepted Patient A s evidence on this matter. It is clear from Patient A s account that Mr B was to provide the dental implant treatment, Mr Barreto Rubio was to be involved in this process and as Mr Barreto Rubio told Patient A on 14 December 2016 payment for the treatment was to be made to his Practice. It therefore finds this allegation proved. 3. Found proved insofar as it relates to a failure to provide the dental implant treatment. Found not proved insofar as it relates to a failure to complete the dental implant treatment. Patient A s recollection was that he was told that the treatment would take three months, starting from December 2016 and completing in March On 14 December 2016 Mr B advised Patient A that the treatment would start after Christmas or in the first week of January Patient A gave evidence of the subsequent enquiries of dates for the implant treatment. He explained that he was told by Mr Barreto Rubio and his receptionist that they were having trouble contacting Mr B who was in Turkey. By 20 January 2017 no further treatment had been provided. The Committee has accepted Patient A s evidence on this matter. It concluded that there could be no failure to complete the dental implant treatment where the allegation was limited to 20 January Found proved 5.(a) This is for the same reasons as set out in 1 above. The Committee notes that the bankruptcy order was made on 20 January Found not proved In considering whether Mr Barreto Rubio s conduct in receiving payment for the provision of dental implant treatment from Patient A between 3 November 2016 BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -7/16-

8 5.(b)(i) and 15 December 2016, and failing to provide that treatment between 15 December 2016 and 20 January 2017, was misleading, the Committee has taken into account the relevant facts and circumstances. This includes the fact that there is no prohibition placed on a trader, served with a creditor s bankruptcy petition, which forbids or restricts him from charging or receiving payment in advance for services to be rendered. Nor is there any regulatory rule of the dental profession to that effect. Secondly, a person who is made bankrupt may continue to trade after his bankruptcy. Thirdly, there is no general obligation in law placed on a person on whom a creditor s bankruptcy petition has been served to disclose that fact. Fourthly, there is no regulatory restriction placed on a dentist to that effect, and no regulatory restriction that prohibits or restricts their ability to practise as a dentist or to trade in the practice of dentistry once a bankruptcy order has been made. Patient A s evidence was that in September 2016 Mr Barreto Rubio had suggested to him that an implant could replace the tooth that had been extracted in August 2016 and that this work would be carried out by a private dentist who attended the practice once a week. Thereafter, a series of appointments took place between Patient A and Mr B in respect of the proposed treatment, including, on 3 November 2016, the taking of payment ( 130) and the taking of impressions and measurements on 14 December When he made payment for the treatment on 14 December 2016 (the date of his last appointment with Mr B), Patient A was aware that there would be a number of appointments with Mr B for the implant treatment. He also understood that the treatment would start after Christmas or the first week of January Patient A was told by Mr Barreto Rubio that Mr B was in Turkey which delayed the start of the treatment. In these circumstances, the Committee concluded that there was nothing prohibiting or restricting Mr Barreto Rubio from charging or receiving payment from Patient A in advance for the provision of dental implant treatment, at a time when, as the Committee inferred, the bankruptcy petition had been served on him. The Committee is satisfied that Mr Barreto Rubio did not mislead Patient A by receiving payment for dental implant treatment either on 3 November 2016 or on 15 December 2016, which he would be unable to provide in the event of a bankruptcy order. A bankruptcy order, if made, would not have prevented Mr Barreto Rubio from providing services. Further, the Committee concluded that Mr Barreto Rubio did not mislead the Patient A by failing to provide the dental implant treatment between 15 December 2016 and 20 January 2017 as to the treatment was due to be provided over a much longer timescale. Found not proved In considering whether Mr Barreto Rubio s conduct in receiving payment for the provision of dental implant treatment from Patient A between 3 November 2016 and 15 December 2016, was dishonest, it has had regard to the approach set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The Committee first considered Mr Barreto Rubio s state of knowledge or belief as to the facts. The Committee has taken into account the relevant facts and circumstances, as set out in its reasons at 5(a) above. The Committee has borne in mind that at the time when Mr Barreto Rubio received payment from Patient A BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -8/16-

9 for the provision of dental implant treatment to be carried out at a later date, he did so on the basis that Patient A was an NHS patient of the practice who agreed that Mr B would undertake the dental implant treatment privately. Patient A was given a treatment plan and it was agreed that the work would begin in late December 2016 or early January The Committee was not satisfied that Mr Barreto Rubio had any knowledge that either the bankruptcy petition or an order, if made, would render him unable to provide the treatment, particularly as neither was true. The Committee was satisfied that Mr Barreto Rubio was settled in his intention to complete the work. The Committee went on to consider whether his actions, in taking payment, would be considered to be dishonest by the standards of ordinary decent people. The provision of services and the taking of payment were neither prohibited nor restricted for a dentist in the position of Mr Barreto Rubio and neither a bankruptcy petition nor an order would prevent him from carrying out the work. In those circumstances, ordinary decent people would not consider his actions dishonest. In considering whether Mr Barreto Rubio s conduct in failing to provide the dental implant treatment between 15 December 2016 and 20 January 2017 was dishonest the Committee had regard to the facts and circumstances above and the approach set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The Committee accepted that this was a course of treatment to take place between December 2016 and March In those circumstances, the Committee concluded that although Mr Barreto Rubio failed to provide dental implant treatment by 20 January 2017 he had a settled intention to carry out the work, as it has already found. The Committee concluded that ordinary decent people would not consider a failure to provide the treatment by 20 January 2017 to be dishonest in the circumstances which have been found. 5.(b)(ii) Withdrawn by the GDC 6. Found proved In reaching its decision, the Committee has had regard to the GDC s Caseworker s witness statement in which he set out the chronology of events regarding the documents sent to and received by Mr Barreto Rubio in connection with its investigation. On 6 March 2017 the Caseworker wrote to Mr Barreto Rubio, notifying him of the information received by the GDC from Patient A and explaining that the GDC would be investigating this matter. The letter asked Mr Barreto Rubio to provide details of his employers, NHS contracts and indemnity insurance as well as a full copy of the records for Patient A by 20 March On 21 March 2017 the GDC received an from Mr Barreto Rubio, comprising one line in which he notified the GDC of his retirement and asked to be voluntarily removed from the GDC register. By letter dated 27 March 2017 the GDC informed Mr Barreto Rubio of the steps he needed to take about making an application to the GDC for his name to be removed from the Register. On 3 April 2017 the Caseworker telephoned Mr Barreto Rubio and referred to the letter dated 6 March He said that the GDC had received no response, other than the dated 21 March The telephone attendance note recorded that Mr Barreto Rubio set out the position regarding his bankruptcy and stated BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -9/16-

10 that he considered himself to be retired. It also recorded that Mr Barreto Rubio confirmed that he would respond in writing. The Caseworker wrote to Mr Barreto Rubio on 3 April 2017 when he reminded him that the GDC had not received the information and documents required in the letter dated 3 March 2017 and requested that the information be provided by no later than 10 April On 11 April 2017 the GDC received a letter dated 5 April 2017 from Mr Barreto Rubio which confirmed that he wished to be removed from the Register. The letter also set out the position regarding his bankruptcy. However, none of the information and documentation requested by the GDC was provided. On 11 April 2017 the Caseworker advised Mr Barreto Rubio that the GDC would be considering his failure to provide the requested information in due course. By letter dated 15 May 2017 the Caseworker advised Mr Barreto Rubio that the GDC had decided to refer the information received from Patient A to the Case Examiners. In view of these findings the Committee finds this allegation proved. 7. Found proved The Committee has seen a copy of Patient A s complaint contained in an dated 31 January 2017 which he sent to the Practice. The Committee notes from the evidence before it that the Practice appeared to have closed a few days after the bankruptcy order was made on 20 January 2017 and asked itself whether or not Mr Barreto Rubio received that . In so doing, it has had regard to Patient A s evidence that around 15 or 22 February 2017 he received a telephone call from Mr Barreto Rubio, who had advised Patient A that he would still try to complete the implant treatment using a different dental practice. The Committee has concluded, on the balance of probabilities, that Mr Barreto Rubio received the dated 31 January 2017, given that the address was a valid address for the Practice and he subsequently contacted Patient A and discussed matters raised within that . However, the Committee concluded that Mr Barreto Rubio s response to Patient A s complaint was inadequate. He provided no suitable avenues of resolution, no proposed follow-up action to be taken nor any contact information to assist in the resolution of Patient A s outstanding complaint. Taking all these factors into account, the Committee has found proved that Mr Barreto Rubio failed to provide an adequate response to Patient A s complaint. 8. Found proved The Committee has accepted the evidence of the Dental Case Manager. She stated that in the process of closing the Practice, the contracting team required information about what was happening to the patient records and that it was the responsibility of the contract holder, in this case, Mr Barreto Rubio, to ensure that the patient records were stored securely under information governance guidelines. In addition, the Committee has accepted the evidence of the Contract Officer. She stated that she had written to Mr Barreto Rubio on 21 April 2017 advising him that NHS England South (South East) had been contacted by the GDC in connection with their investigation into a complaint. The letter further stated that the GDC considered that it would be helpful to have access to the dental records for the patient in question. The Contract Officer asked Mr Barreto Rubio where his patient records were stored and the process and the feasibility for accessing them. No response was forthcoming. She sent an dated 10 BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -10/16-

11 May 2017 to Mr Barreto Rubio, asking him to contact her regarding the matter. No response was received. The Committee was not satisfied that Mr Barreto Rubio had dealt with the question of the security of patient records at the time of and after the bankruptcy order. It bore in mind that his business premises was closed, that a trustee in bankruptcy had been appointed and would have access to his business assets, that he left the country and that no explanation has been provided to either the NHS or the GDC. We move to Stage Two. On 15 March 2018 the hearing adjourned. On 28 June 2018 the hearing resumed. The Chairman announced the determination as follows: This is the resumed hearing of Mr Barreto Rubio s case which was adjourned on 15 March Mr Barreto Rubio was not present or legally represented at the hearing in March 2018 and the Committee decided to proceed in his absence for the reasons set out in its determination dated 14 March Mr Ahmed appeared on behalf of the General Dental Council (GDC) at the hearing. Mr Barreto Rubio is not present or legally represented at today s resumed hearing. Mr Middleton appears on behalf of the GDC. He informed the Committee that following the adjournment of the hearing, the GDC sent a letter to Mr Barreto Rubio dated 23 March 2018, giving him notification of the adjourned hearing and inviting him to make any submissions to the Committee for stage 2 of the proceedings. Mr Middleton advised that to date, no response had been received from Mr Barreto Rubio. The Committee has considered the submissions made by Mr Ahmed under Rule 20 (1)(a) of the General Dental Council (GDC) (Fitness to Practise) Rules 2006 (the Rules), which were made prior to the hearing adjourning. Mr Ahmed advised the Committee that in May 2013 the GDC issued Mr Barreto Rubio with a letter of advice in relation to a single patient complaint. Mr Ahmed submitted that the findings against Mr Barreto Rubio amount to misconduct and that his fitness to practise is impaired. He invited the Committee to consider making a direction that Mr Barreto Rubio s registration be suspended. The Committee has also had regard to two legal judgements which have come to the Committee s attention during the period of the adjournment and which are relevant in its considerations at stage 2. These were Clarke v General Optical Council [2018] EWCA Civ 1463, which dealt with the proper approach to impaired fitness to practise in respect of a retiring practitioner and Arunachalam v GMC [2018] EWHC 758 which addressed with the proper approach to reasoning in decisions on sanctions. The Legal Adviser advised the Committee that it was appropriate for this Committee to follow the approaches set out in those judgments and Mr Middleton concurred with that advice, adding further observations on impairment. He also stated that he had not been instructed to adduce any further evidence on behalf of the GDC at this stage of proceedings and that the Committee had before it all the relevant material. The Committee has accepted the advice of the Legal Adviser as to the two-step process it must adopt in considering whether Mr Barreto Rubio s fitness to practise is currently impaired and if so, what factors it must take into account on its decision on sanction. BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -11/16-

12 Decision on misconduct The Committee first considered whether the facts found proved amount to misconduct. It has reminded itself of its findings of fact against Mr Barreto Rubio. These were as follows: Between 30 August 2016 and 5 September 2016, he was made subject to a bankruptcy petition. Between 3 November 2016 and 15 December 2016, he received payment from Patient A, amounting to , for the provision of dental implant treatment. Between 15 December 2016 and 20 January 2017 he failed to provide the dental implant treatment to Patient A. On 20 January 2017 he was made subject to a bankruptcy order. He failed to adequately respond to Patient A s complaint of 31 January 2017 about his dental treatment. From 3 March 2017 to 11 May 2017 he failed to co-operate with an investigation conducted by the GDC, in that he did not provide the GDC with dental records for Patient A. He failed to keep patients information secure at all times, including in relation to patient records at Beach Road Dental Care. The Committee has concluded that the facts set out in the first four bullet points above do not amount to misconduct. The Committee takes a serious view of Mr Barreto Rubio s failure to provide an adequate response to Patient A s complaint of 31 January He did not engage fully with Patient A s concerns and he provided no suitable avenues of resolution, no proposed follow-up action to be taken nor any contact information to assist in the resolution of Patient A s outstanding complaint. Turning to other matters, Mr Barreto Rubio had a duty to ensure that he kept patient records secure at all times. He failed to deal with the security of patient records after the bankruptcy order in January Mr Barreto Rubio failed to respond to requests by NHS England South (South East) in April and May 2017 and by the GDC. The Committee takes a serious view of Mr Barreto Rubio s failure in this regard, which was in breach of information governance guidelines and a failure to comply with the GDC s Standards, detailed below. Even now, as of June 2018, there is no evidence that Mr Barreto Rubio has in fact ensured the security of the patients records. Finally, the Committee has had regard to Mr Barreto Rubio s failure to co-operate with the GDC s investigation between March and May 2017 in that he did not provide the dental records of Patient A. During that time the GDC sent Mr Barreto Rubio a number of requests for information relating to its investigation regarding Patient A, but he chose not to respond to those requests. His engagement with the GDC has been limited to a telephone call on 3 April 2017, an dated 21 March 2017 and a letter dated 5 April 2017 in which he stated that he wished to be removed from the Dentists Register. In the Committee s view, Mr Barreto Rubio demonstrated a flagrant disregard of the GDC and frustrated its investigation into Patient A s complaint by failing to provide it with Patient A s dental records. In view of these matters, the Committee has concluded that Mr Barreto Rubio has breached the following standards from Standards for the Dental Team (September 2013): BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -12/16-

13 You must 4.5: Keep patients information secure at all times, whether your records are held on paper or electronically. 5.1 Give patients who complain a prompt and constructive response. 9.4: Co-operate with any relevant formal or informal inquiry and give full and truthful information. Mr Barreto Rubio s failure to adequately respond to Patient A s complaint, to co-operate with the GDC s investigation and to keep patients information secure at all times amount to a woeful disregard of his professional duties and cross the threshold of seriousness required for a finding of misconduct. It is therefore satisfied that the facts found proved amount to misconduct in relation to paragraphs 6, 7 and 8 of the amended charge. Decision on current impairment The Committee next considered whether Mr Barreto Rubio s fitness to practise is currently impaired by reason of that misconduct. In so doing, it exercised its own independent judgement and has borne in mind that its duty is to consider the public interest, which includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Committee has received no submissions or evidence from Mr Barreto Rubio, even though he was offered the opportunity to do so on several occasions, most recently following the adjournment in March He has chosen not to engage in these proceedings. The Committee notes Mr Barreto Rubio s indication that he wished to be removed from the Register. That indication was initially made soon after he was notified by the GDC of Patient A s complaint. To date, the GDC has received no further information from him that his intention to retire is a settled plan which has been acted upon. The Committee concluded that it could not give any significant weight to his desire to complete voluntary removal when considering whether or not his fitness to practise is currently impaired. In respect of the patients records, the Committee is aware from the documentation before it that the Practice premises closed shortly after the bankruptcy order and that Mr Barreto Rubio left the country. There is no evidence that Mr Barreto Rubio dealt appropriately with the security of patients records at any time after the making of the bankruptcy order or that he understood or accepted his responsibility in keeping those records secure. Mr Barreto Rubio has no insight into his misconduct. There is no information before it that he has taken any corrective steps to address these matters. Indeed, there is reference in the file note of a telephone call dated 25 August 2017 between a member of staff at NHS England and Mr Barreto Rubio that he finds it difficult to follow the different regulations and procedures in respect of the GDC and the NHS and that he thinks the whole process is unfair. In these circumstances, the Committee has concluded that there is a risk of him repeating his misconduct and that he is liable in the future to put patients at unwarranted risk of harm. Accordingly, a finding of current impairment is necessary for the protection of patients. The Committee has borne in mind the wider public interest, including the need to declare and uphold proper standards of conduct and behaviour, in order to maintain public confidence in the profession. The findings in this case are serious. Mr Barreto Rubio failed to engage with his regulator in its enquiries in relation to Patient A s records and he also BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -13/16-

14 demonstrated a flagrant disregard for the safety and security of patients information. Patients are entitled to expect that their dentist will ensure that their records are kept securely at all times. Mr Barreto Rubio did not do so and indeed failed to respond to enquiries by the NHS as to their whereabouts. In these circumstances, the Committee considers that public confidence in the profession would be undermined if a finding of impairment were not made, especially where evidence of remediation is non-existent. Having regard to all of these matters, the Committee has determined that Mr Barreto Rubio s fitness to practise is currently impaired by reason of his misconduct. Decision on sanction The Committee then went on to consider what sanction, if any, to impose on Mr Barreto Rubio s registration. It reminded itself that the purpose of a sanction is not to be punitive, although it recognises that it may have that effect, but to protect patients and the wider public interest. The Committee has taken into account the GDC s Guidance for Practice Committees including Indicative Sanctions Guidance, October 2016, (the Guidance). It has considered the range of sanctions available to it, starting with the least serious. The Committee has applied the principle of proportionality, balancing the public interest with Mr Barreto Rubio s own interests. The mitigating features of this case included the following: The circumstances leading up the bankruptcy of Mr Barreto Rubio s dental practice were stressful. There is no significant fitness to practise history. The aggravating features of this case included the following: Mr Barreto Rubio s failure to keep patients information secure at all times amounts to a breach of patient trust and had the potential to cause harm to patients. The failure to keep the records secure was not a one-off event but was sustained over a period of time and continues to date. His lack of insight into the seriousness of the matters in this case. The Committee has concluded that given the serious departures from the standards expected of a registered dentist, the lack of insight and remediation, some form of restriction on Mr Barreto Rubio s practice is necessary for the protection of the public and the wider public interest. It has therefore determined that it would be inappropriate to conclude this case by taking no action in respect of Mr Barreto Rubio s registration or by issuing a reprimand. The Committee next considered the imposition of conditions on Mr Barreto Rubio s registration, bearing in mind that any conditions must be proportionate, measurable and workable. The Committee has borne in mind the absence of any evidence of corrective steps taken by Mr Barreto Rubio as well as his persistent lack of engagement with the GDC in these proceedings. The Committee has concerns about Mr Barreto Rubio s insight and whether he would respond positively to conditional registration, which are essential for conditions to be effective. In all the circumstances, the Committee is not satisfied that conditions will adequately protect the public and the public interest. BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -14/16-

15 The Committee has considered the sanction of suspension, noting that the GDC s position is that such a direction would be sufficient. It has considered carefully the mitigating and aggravating features in this case. The Committee has also had regard to the considerations relating to the sanction of suspension, as set out in the Guidance. The Committee considers that the findings against Mr Barreto Rubio amount to serious departures from the relevant professional standards. This included his failure over a sustained period of time to cooperate with his regulatory body. Mr Barreto Rubio s failure to keep patients information secure is particularly serious and troublesome given the inherent risks that run with this failure. Notwithstanding the circumstances surrounding the bankruptcy, the Committee is of the view that Mr Barreto Rubio still had an obligation to keep patients information secure and co-operate with his regulator. Mr Barreto Rubio s lack of responses to enquiries as to the whereabouts and security of his patients records and failure to provide Patient A s records to the GDC demonstrates a serious departure from professional standards. The Committee is concerned that Mr Barreto Rubio s wholesale failure to keep patient information secure raises significant attitudinal problems and was an issue on which it concluded that public confidence would be insufficiently protected by suspension. He has shown a persistent lack of insight or acknowledgement of the seriousness of the misconduct concerned, which the Committee considered indicates that his failings may not be remediable. The Committee considers that Mr Barreto Rubio represents a continuing risk of harm. Taking all these factors into account, the Committee is not satisfied that the sanction of suspension would be sufficient for the protection of the public or in the public interest. The Committee has taken into account the adverse impact of the more serious sanction of erasure on Mr Barreto Rubio. However, in the light of the serious nature of the findings against Mr Barreto Rubio, the Committee considers that the need to protect patients and the public interest outweighs his own interests in this matter. The Committee has concluded that Mr Barreto Rubio s misconduct is so serious that it is fundamentally incompatible with his remaining on the Dentists Register. Accordingly, the Committee has determined that the appropriate and proportionate sanction in this case is that of erasure. The Committee will now invite submissions on an immediate order of suspension. Decision on immediate order In accordance with Rule 21(3) of the General Dental Council (GDC) (Fitness to Practise) Rules Order 2006 (the Rules) the interim order of suspension on Mr Barreto Rubio s registration is revoked. Having directed that Mr Barreto Rubio s name be erased from the Dentists Register, the Committee has considered whether to make an order for immediate suspension of Mr Barreto Rubio s registration in accordance with Section 30(1) of the Dentists Act 1984 (as amended) (the Act). Mr Middleton, on behalf of the GDC, submitted that such an order is necessary for the protection of the public and is otherwise in the public interest, given the gravity of the Committee s findings. Having regard to the risks to patients identified in its decision to make a direction of erasure, the Committee is satisfied that it would be inconsistent to allow Mr Barreto Rubio the BARRETO RUBIO, J C Professional Conduct Committee March-June 2018 Page -15/16-