Lydia Barnfather acted for the GDC ensuring the dismissal of an appeal against findings of fact, impairment and erasure brought by the Appellant, an Orthodontist and creator of the ‘Mewing’ trend.
Lydia prosecuted this highly complex case focussed on a non-evidenced based treatment provided by the Appellant to young children termed ‘Orthotropics’, the central premise of which is that environmental factors are the predominant cause of malocclusions which in turn are the result of what he sees as the environmentally caused lengthening of modern faces. This elongating he termed “Craniofacial Dystrophy” and claimed his treatment could “correct” the growth of a child’s craniofacial complex and bring about permanent changes in structure and form resulting in the self-alignment of teeth, the widening of faces to become more aesthetically pleasing, the amelioration of sleep and breathing disorders and an improvement in intelligence.
The charges focused on the treatment of, and claims made, in respect of two young patients who had normal occlusions and normal craniofacial growth and who underwent arduous and complex treatment over many years suffering harm in the process. The Appellant contested all the charges and sought to argue that there was adequate evidence in support of his treatment philosophy and that his treatment and claims were accepted by a responsible body of opinion.
The Tribunal found that the treatment provided was not clinically indicated, was not in the patients’ best interests, was liable to cause harm, and that the Appellant’s claims about treatment benefits were inappropriate and misleading as they were made without adequate objective evidence.
Multiple matters were raised on Appeal, none of which succeeded. The main complaint was of bias against the GDC experts. The Court ultimately held that the Tribunal was entitled to prefer the evidence of the GDC’s experts over the Appellant’s experts where they disagreed, finding, amongst other things, that the GDC’s experts were more appropriately qualified, more familiar with UK professional standards and expert duties and more independent. The Court also refused the Appellant’s application to adduce fresh evidence on appeal and found that erasure was the only appropriate and proportionate outcome.
The Court also commented that the Appellant had wrongly viewed the proceedings below “as an opportunity to have a public debate about and seek vindication for Orthotropics” when that was not the remit of the Tribunal [17]. The Court was consequently critical of the length of the underlying hearing. The charges, themselves “were entirely properly focussed on the Appellant’s own conduct, what he purported to identify as the indications for treatment in Patient A and Patient B, as well as the specific claims he personally made with regards to the aims and benefits of the treatment he proposed and carried into effect for them” [21]. The Court said that with hindsight the Tribunal should have had greater confidence to exercise firmer case management and timetabling rigour to retain a proper focus on the charges, but ultimately commended the focus of the Tribunal and its final determination which it held to be “a comprehensive and considered document, reflecting the duration of and detailed evidence heard” [25].
Main take-away points:
- The case was complex and lengthy but it was necessary for the GDC to bring it. It is to be hoped that public safety and confidence in the dental profession are promoted by the regulator having taken this action;
- The Court made some observations about the length of the hearing and said that whilst the Tribunal managed the mammoth task of distilling the volume of evidence and submissions resulting in an admirably well-structured and coherent written determination, in hindsight, it would have been wise to exert considerably more active case management, evidential control, and trial timetabling [155]. Whilst proactive case management is always to be welcomed, where an Appellant has deep pockets and raises multiple and repeated issues, effective case management and timeous resolution of matters is hard to achieve. Where the regulator seeks to narrow the key issues and focus the attention of the Tribunal on the right areas, those subject to regulatory proceedings must also share that commitment for it to be effective;
- Lastly, in cases of such clinical complexity the calibre, independence and experience of experts remain paramount. The GDC experts faced exceptionally extensive and hostile cross-examination and withstood unfounded allegations of bias with admirable professionalism.
Lydia was instructed by James Penry-Davey, Adelita Thursby-Pelham and Natalie Ayling of Capsticks who acted on behalf of the GDC as one of their external panel firms.
Lydia Barnfather