The High Court has confirmed that the GDC's new power under s.27A(11) of the Dentists Act 1984, which came into force on 13 April 2016, can apply retrospectively. Consequently, registrants will now be able to seek a review of any warning issued within the last two years.
In DP v GDC  EWHC 3181 (Admin) the registrant was issued with an unpublished warning by a determination of the Investigating Committee ("IC") on 11 April 2016, which was notified to the registrant by letter dated 15 April 2016.
Unhappy with the outcome, DP's solicitors set out grounds of challenge and invited the GDC to refer the case back to the IC for review. The GDC declined to do so, on the basis that the decision pre-dated the introduction of the new power, which they said only related to warnings issued on or after 13 April 2016.
DP issued judicial review proceedings challenging the GDC's interpretation of the s.27A(11) power. The court held that the purpose of the new provision was to remedy unfairness to registrants. In the absence of any specific wording limiting the power of review to determinations made after 13 April 2016, there would be no unfairness in the provision being given limited retrospective application when no one's rights would be adversely impacted. Consequently, s.27A(11) applies to any warnings issued within the preceding two years.
The GDC indicated that 403 warnings were issued in the two years prior to 13 April 2016 and raised concerns about the administrative burden of the power being given retroactive application.
Those registrants who were unhappy with being issued with a warning, but who decided that they did not want to incur the stress or expense of commencing judicial review proceedings, particularly given its limitations, may find that they have been given a second bite at the cherry and have another opportunity to challenge the outcome, up to 21 months after they had resigned themselves to the decision being final. How many will follow DP's lead and take advantage of this welcome decision remains to be seen.