The GDPUK.com Blog

All that's new in the world of dentistry

  • Home
    Home This is where you can find all the blog posts throughout the site.
  • Categories
    Categories Displays a list of categories from this blog.
  • Tags
    Tags Displays a list of tags that have been used in the blog.
  • Bloggers
    Bloggers Search for your favorite blogger from this site.
15
Jan
1
Posted by on in GDC Watch

Recently, I have been mulling over issues of personal conduct.  This has led me to the specific topic of this blog which is sexual misconduct or otherwise inappropriate sexual behaviour. It looks at historic and current cases and I hope is just as interesting and thought-provoking for you readers.  Before anyone accuses me of misandry, I will state that I did not come across any examples of ‘females behaving badly’.

From discussions with colleagues and on other platforms it appears that the reason why the GDC have a mandate over personal conduct is not well understood.  The Standards relevant to personal conduct and behaviour are:


Principle One

  • 1.3.1  You must justify the trust that patients, the public and your colleagues place in you by always acting honestly and fairly in your dealings with them. This applies to any business or education activities in which you are involved as well as to your professional dealings.
  • 1.3.2  You must make sure you do not bring the profession into disrepute.

Principle Nine

  • 9.1  Ensure that your conduct, both at work and in your personal life, justifies patients’ trust in you and the public’s trust in the dental profession.

 

There are some difficulties here that need consideration:

  1. Whether the relevant standard is breached is ultimately partly dependent on the personal and moral views of the GDC employees and committees as the case progresses;
  2. Where can the line be drawn on what is an acceptable personal behaviour or boundary to maintain? Do we even know? Or is it rightly kept vague to move with our ever-changing world?

From a legal point of view case law dictates that surgeons, dentists, journalists, headmasters and even professional footballers are role models whereby ‘higher standards of conduct can rightly be expected by the public’.   This statement came about as a result of an unfaithful footballer involved in a threesome wanting to keep it out of the media believe it or not.  I’m not sure that Lord Woolf, when he made his judgement anticipated that today’s role models would also include reality TV stars who happily have sex on live TV but there we go.

The Indicative Outcomes Guidance (IOG) is always worth a read to understand how sanctions are arrived at and the reasoning behind it.  The purpose of a sanction is to both protect the public and the wider public interest.  What may on the face of it seem draconian and intrusive to a registrant’s right to a private life actually stems from GDC working extremely hard to maintain the reputation of and public confidence in the profession and they actually deserve credit for this.  Poor behaviour, even if it does not involve any patients has the potential to seriously undermine public confidence in the profession and bring the profession into disrepute.  With regard to sexual misconduct the IOG says:

 

So essentially, sexual misconduct allegations are likely to progress to a full hearing.

Sexual misconduct is essentially an abuse of power:



With all that in mind, here are some relevant case examples:

Dr AB kissed a dental nurse on the back of the neck without consent, and this was determined to be sexually motivated.  Dr AB denied the charges, gave inconsistent evidence, maintained that his actions had simply been misunderstood, accused the nurse of being racist and of wanting money from him as well as thinking he would just turn up and have his side of the story accepted as the truth.  This didn’t impress the panel and he was suspended with immediate effect for 12 months to hopefully give him enough time to have a really good think about all of this.  The Committee felt that the registrant lacked any insight, and pretty much knocked out all the defence submissions.  A couple of interesting lines from the determination are:
 

“The Committee was also aware that you are older than Dental Nurse A and in a position of professional power over her………

It [the committee] considered that dental nurses and colleagues do form part of the public and are included in the considerations of protecting the public.”

Therefore, professional boundaries do not just apply to Principals and patients.  Associates must also maintain professional boundaries with their supporting colleagues.

Mr CD was sentenced to three years imprisonment for sexual assault on a female; a conviction that was upheld on appeal.  The events surrounding the assault were the heads of charge and the FtP hearing considered both this misconduct and subsequent criminal conviction.   Misconduct was easily established, and the committee rejected the sanction of a suspension on the basis of no apology or demonstrable remorse from Mr CD and he was erased.  Placing your penis toward a patient’s mouth without their consent is possibly the most serious breach of professional boundaries, however it is interesting in this case that the sanction of erasure is automatically 5 years, which obviously exceeds the duration of his criminal sentence. Whether he ought to be allowed the chance to even reapply to the register is debatable.

Dr EF accepted a caution for kerb crawling but failed to report this to the GDC.  The panel disregarded the difficult personal circumstances reportedly faced by this registrant at the time of the incident as they did not mitigate against the seriousness of the conduct.  They also said:


“The Committee noted that the matters before it were not clinical in nature. It noted that there had been no harm to patients. However, it bore in mind that its primary function is not only to protect patients but also to take account of the wider public interest, which includes maintaining confidence in the dental profession and the GDC as a regulator, and upholding proper standards of behaviour.”

Dr EF was given a reprimand which will be on the public register for 12 months and as it will form part of the fitness to practise history it will be always be disclosable to any future employer and authorities in other jurisdictions.

A consensual sexual relationship with a patient can cost you a 3-month suspension as Dr GH found out not to mention on-going negative PR with the story still being available on Google many years later.  Dr IJ also knows only too well the damage that can be done after being reported to the GDC by a disgruntled ex-husband of a patient who lied in his witness statement about having seen ‘explicit’ text messages such that the case progressed to a full hearing before it was concluded with no case to answer. Press stories with a ‘guilty as charged’ tone to them relating to his case pre-hearing are also still available online. 

Are we beginning to see the problem with reputational damage to the profession yet?  The press can quite easily defame registrants with their reporting of potentially salacious cases before and during a hearing, and those pages will remain online even when a registrant is vindicated.  For this reason, relationships with patients are just somewhere no dental professional should ever go, aside from the fact that it is seen as being totally unprofessional and a serious abuse of position.  If you find you are heading down the route of a genuine relationship with a patient for goodness sake find them another dentist PDQ.

Moving on from relationships with patients, another potential danger zone is with employees and students.  When they rely on you to pay their wages or pass their finals there is a clear imbalance of power. If you have a fling with an employee be prepared for the risk of sexual harassment claims and grievances forever more. University lecturers may be accused of offering grades for sexual favours or bias (either positive or negative).  Having a relationship with a student is often considered a gross misconduct offence these days.   If you are a partner and you start fooling round with the staff on the quiet prepare for a total breakdown in trust.  It is just best not to go there and if you don’t believe me or feel I am being overly alarmist, ask any employment lawyer about historic compensations awards for harassment claims spanning back over years and years and partnership disputes.

At the time of writing a university lecturer is awaiting a hearing facing allegations of engaging in sexual activity in his office, and then being dishonest about it during the University investigation. We will have to wait to see if this would have made it to the GDC save for the dishonesty aspect.

For those who think that a fumble on the dental chair with one of the nurses is acceptable I am sorry to disappoint you but it is not, and it never was.

In the Mr EF case part of the charges included:


7. Whilst working with Miss LM, you had a consensual sexual relationship during the course of which on one or more occasions on Practice premises during surgery hours or shortly thereafter you:

(a)  exposed yourself wearing a thong;Admitted and proved
(b)  exposed your genitals;Admitted and proved
(c)  engaged in oral sex;Admitted and proved
d)  had sexual intercourse.Admitted and proved

8. Your conduct as above at 7 was:

(a)  unprofessional; Admitted and proved
(b)  inappropriate;Admitted and proved
(c)  indecent.Proved


The Committee found Head 8(c) proved because, by your admissions, other people were present in the practice and therefore you put yourself at risk of being discovered."

The determination also says:

The Committee has found that you behaved inappropriately and unprofessionally towards four dental nurses who worked with you, and that your behaviour towards three of them was indecent. As a partner in the practice, working directly with these dental nurses, you were in a position of authority over them – which you abused.  Furthermore you conducted sexual relations with Miss B in the practice, at times when you could have been discovered.

Mr EF was erased for this and whole host of other sexual misconduct misdemeanours including touching and making inappropriate comments to other nurses.

So even though many feel that consenting adults are entitled to some degree of privacy, the simple fact that they might be discovered in the act by a member of the public is enough to take things to the level of indecency.  Oh dear. This also makes it clear that consent has absolutely no relevance in excusing occurrences of sexual misconduct or otherwise inappropriate sexual behaviour.

Wherever there is a hierarchical relationship or an imbalance of power there is potential for actual abuse or allegation of abuse of power.  An allegation is all it takes, and I know of 2 instances where registrants have faced criminal charges based on false allegations.

Personal conduct involving sexual behaviour has an astonishing potential to bring out the widest range of opinion on what is acceptable or not if the recent debates on Facebook are anything to go by!   I am sure we all know of successful relationships between dentists and employees, lecturers and students, even dentists and former patients.  But this is really an area in which to tread extremely carefully as if you get it wrong the consequences are huge.

©Victoria Holden, GDPUK Limited, 2017
Hits: 6769
15
Sep
0
Posted by on in GDC Watch

Having been somewhat distracted by the school holidays, my latest blog considers some of the cases that managed to pique my interest, and gathers my collective thoughts during the months of both July and August. So that you are looking through the same lens, I’ll start off with the ‘legal definitions’ of misconduct:

Lord Clyde described misconduct in Roylance v the GMC (2002):

‘misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances’.

This definition was expanded in Nandi v GMC (2004), in that misconduct means a serious departure from the acceptable standard that is not just below the acceptable standard but:
 

‘conduct which would be regarded as deplorable by fellow practitioners.’


It has been further clarified in Meadow v GMC (2006) that misconduct sits at the same threshold for disciplinary intervention as the historic phrase ‘serious professional misconduct’:
 

‘As to what constitutes "serious professional misconduct…..it is inconceivable
that "misconduct" – now one of the categories of impairment of fitness to practise…..
should signify a lower threshold for disciplinary intervention’


On reading some of the recent charge sheets it appears that we have perhaps lost sight of misconduct, and moved on from the days where urinating in the spittoon, assaulting nurses or openly breaking wind in front of staff in the surgery sat at the threshold of deplorable conduct. If you have ever accidentally squirted water from the 3 in 1 towards a patient, you ought to be extremely concerned. We now have examples of unprofessional behaviour individually and collectively leading to a charge of misconduct such as:

  • on occasion spraying water on the patient’s bib;
  • throwing gloves at a patient;
  • drinking out of a glass left in the surgery.

And let’s not forget the beauty from a couple of months ago about bouncing balls of impression material down a corridor. How the panels keep a straight face through these types of charge is beyond me, but well done to them. Truthfully, I feel it is a bit embarrassing for the GDC to have it in the public domain. I may be wrong, but I believe that the barristers instructed by the GDC are involved in setting the final charges. With that thought in mind, I took a look at the Bar Standards Association and barristers’ fitness to practice hearings to see what allegations of professional misconduct are levied against them. Here is an example of a concluded Bar fitness to practice tribunal:
http://www.tbtas.org.uk/wp-content/uploads/hearings/3390/Outcome-Posting-Behanzin1.pdf

Observe how it is kept to one side of A4, extremely succinct, and there is nothing in it that may give any third party reading it anything to chuckle about? I also noted the lack of any published charges before the hearing for the sum total of 3 barristers presently listed as awaiting a hearing. This, along with the MPTS hearings begs the question of why does our regulator operate on a different set of rules that on the face of it appear more punitive to their registrants than those applied to equivalent professionals? Although it may give me nothing to write about, I would really urge the GDC to look at paring down their charge sheets and not making them public until after the facts have been determined in both their interests and those of the registrants facing a hearing.
One hearing saw a registrant face a charge of failing to:

adequately treat an on-going adverse oral hygiene condition.

It may just be me, but I can’t work out what this charge is supposed to mean and there is no explanation in the determination. In 17 years of practise I have not been aware I was obliged to ‘treat’ an adverse oral hygiene condition; I was taught that my duty was to offer appropriate preventative advice and oral hygiene instruction. It is, I believe, the patient’s duty to ‘treat their oral hygiene condition’ and I can think of at least one periodontist who would take issue with this allegation. I am not sure how anyone can ‘treat an adverse oral hygiene condition’ save for pitching up at the patients house a couple of times a day and doing the cleaning for them, or bringing them to the surgery daily to see the hygienist. Nevertheless, as is often the case with these hearings, we are made to feel that we have been doing it wrong all along, and nobody bothered to tell us until a hearing.
On that note, charges relating to alleged radiographic record-keeping failings have also been appearing more and more of late including not adequately or properly recording in the clinical record:
 

  • the justification for taking a radiograph;
  • the grading of the quality of a radiograph;
  • and even: the justification for not taking radiographs.

I looked at IRMER(2000), and the NRPB Guidelines which are the legally authoritative documents on radiation last month having been asked to consider the validity of this type of charge. In my opinion, the charges indicate a misunderstanding of what justification is; because it is not the same as the clinical indication for taking a radiograph. In the words of an RPA (with a PhD in clinical physics) I consulted over the matter of justification:

‘ "Justification" as required by IRMER is the process of weighing the probable benefit of a radiation exposure against the probable detriment. It is quite separate from "indication" - the clinical history, provisional diagnosis and intended treatment - and "authorisation" - the decision by the Practitioner that the proposed exposure is of sufficient merit. Both indication and authorisation must be recorded, because these are data, but not justification, which is an intellectual process.’


And his reply with regard to the question of where does IRMER(2000) state that we have to record QA score in the clinical record?:

'Nowhere. However Clinical Audit 8. The employer’s procedures shall include provision for the carrying out of clinical audit as appropriate. and The written procedures for medical exposures shall include— (e)procedures to ensure that quality assurance programmes are followed; Thus it is incumbent to occasionally review image quality, patient dose and clinical relevance, and since there is no other means of assuring the quality of the next image, it is important to check the quality of each image and resolve any anomalies before taking the next one. It can be argued that in order for audit to be properly objective, there should be no contemporaneous written assessment of quality: you audit by picking past images at random and assessing them "cold"'.

You should therefore record any faults or failures that demand corrective action, to provide an audit trail for that action, but images deemed acceptable should be filed without comment in order not to prejudice the audit.

Interesting stuff. I am baffled as to why anyone should be criticised for not recording an intellectual process. It is also clear that we do not have to record a grade in the clinical record, in fact we do not even have to grade every radiograph it seems, just check that the quality is acceptable in preparation for the next exposure and do an audit from time to time. So not only do we face issues with the bar of misconduct being stealthily raised, we are now also being tried and tested on doing things that are not actually required of us. This is why every registrant should be represented at a hearing in my opinion, and should only agree to charges that are indefensible. To admit to a frivolous or spurious charge purely to be seen to be ‘showing insight’ is not a position registrant should ever be put in, but I sadly suspect that is where we presently are.

There was, however, some positive evidence of a panel flagging up a GDC-appointed expert using non-mandatory guidelines as non-negotiable standards:

‘The Committee considered that Ms K’s approach was, at times, rather academically orientated and inflexible. In particular, she relied on a number of guidance sources, including the Faculty of General Dental Practice (FGDP) 2006 guidelines and the British Society of Periodontology guidelines relating to Basic Periodontal Examination (BPE), which, the Committee noted, are not mandatory. Furthermore, when alternative approaches regarding clinical matters were put to Ms K, she did not seem to acknowledge that it might be acceptable to deviate from these guidelines.’

It was last October I recall that the issue of guidelines and misappropriate use was raised by Dental Protection. This, along with the ‘gold standard bar’ really means that too many registrants are having their careers put on the line when there is a lack of clarity over where the threshold for misconduct really sits, and no universally agreed clinical guidelines. I remain in hope that the GDC FtP department is looking at this closely in the pursuit of proportionate regulation.

Moving on to some other cases, in the High Court, a registrant erased earlier in the year was successful in having his case remitted back to the PCC for reconsideration of an erasure. The registrant had got himself in to bother that might have been avoided by having to reapply to the register after his direct debit had failed, and was found to have been dishonest by fudging responses over two convictions for driving whilst under the influence of alcohol. It was held that the PCC had failed to consider relevant mitigating circumstances, namely that the employer had been informed of the convictions but the appeal failed on the challenge of the findings of dishonesty. You can find the judgement here.


Another noteworthy case involved a newly qualified dentist who wound up at an FtP hearing based on performance issues that arose within months of qualification. The question that I am sure on everyone’s minds is ‘how could this happen when the GDC-accredited dental school have allowed him to pass finals?’. Nevertheless, it is nice to see that whilst the GDC-instructed barrister recommended he should be given a reprimand for being let out of dental school too early, there was good evidence of remediation so no current impairment was found. The chap has now completed his VT year and is understandably ‘elated’.

The final case I am going to look at involved another registrant who was erased. This was the second GDC hearing Mr Idris has faced in his career. Having been told by his indemnifiers team during the first hearing that he was facing erasure and this having come rather as a shock they parted company. He instructed his own legal team and the case concluded with conditions. However, self-funding representation for the next hearing was not viable so after several years of reported wrangling with the GDC Mr Idris declined to attend this particular hearing, advising the GDC by email that he would be cleaning up his dogs’ mess instead. As a dog owner I can empathise with this and agree it is a taxing and time consuming task. Mr Idris’s absence was very diplomatically written up into the determination, but should anyone would like to read the unedited version of the email, it can be found here:

http://drtariqidris.co.uk

I’ll leave it here for now. My dog is barking to go out. Duty calls….

©Victoria Holden, GDPUK Ltd 2016.
Hits: 6197
04
Aug
0
Posted by on in GDC Watch

My understanding is that the GDC do not agree with the criticism that too high a standard is being applied in FtP hearings. As it happens, last month I was asked by a colleague for some concrete examples of use of the ‘gold standard’ by expert witnesses, so I went specifically looking for it in my review of June’s FtP hearings.

June kicked off with a performance review hearing of a plethora of clinical issues involving a non-engaging registrant who had neither attended nor provided any representation at either hearing, which is always a bad move in my opinion. The case was initially heard in May 2015. Professor Morganstein was instructed by the GDC in this case, and is still according to Google the Dean of Dentistry of the University of Buckingham Dental School that I’m not sure has any dental students. There was a fair amount of criticism in the charges levied at instances of alleged failed treatment and inadequate discussions which the panel did not find proved, and when an allegation that the registrant had provided inadequate care by not giving a patient with an orthodontic retainer specific advice on using a fluoride mouthwash, tooth brushing and reducing sugar consumption the determination states that the Committee considered the expert had applied the gold standard rather than that of the reasonable dentist.  This registrant was initially suspended for 12 months and then a further 12 months at the review hearing. The panel had no other choice due to the lack of engagement and attendance in the process and had there been any evidence of insight and remediation the registrant may well have been able to continue practising under conditions. It has been demonstrated in a paper written by Professor Kevin Dalton that registrants who do not attend their hearing and are unrepresented face a significantly higher risk of a high sanction being imposed than those who attend or are represented.

In another review case heard this month the GDC-appointed expert was found by the Committee to appear to be ‘applying a ‘gold standard’ with respect to the diagnostic quality of the radiographs’ at the initial hearing in January 2015. The lesson here is that coned off radiographs are not necessarily poorly-positioned if it is possible to get adequate diagnostic information from them. There is also reference to not recording LA batch numbers and expiry dates in this case which another ‘gold standard’ recording is keeping requirement at best.
Next up a Committee was of the opinion that: ‘in some cases, Mr Expert was advocating a ‘gold standard’.

Some examples of the not proved allegations in this case that probably fit into the ‘gold standard’ bracket included:

  • Not recording the clinical process involved to extract a tooth;
  • Not taking radiographs that the Committee considered were not actually clinically necessary
  • Not providing preventative advice (except that smoking advice was given);
  • Not adequately assessing levels of plaque and calculus (recording it is present was alleged to be not enough);
  • Not recording appropriate detail as to why crowns required re-cementing (the committee considered this to be self-evident);
  • Not recording dietary advice provided (the patient was caries-free).

So there are three cases here providing some evidence that the gold standard is/was being used (and being identified by Committees) in a sample of new and review hearings held only during June 2016. 

The statistics for June were:
Interim Orders held 20 new hearings and 13 review hearings resulting in:

  • 7 suspensions or suspension extensions;
  • 20 conditions orders or conditions orders extensions;
  • 5 no orders;
  • 1 conditions order revoked.

Practice committees held 29 new hearings and 4 review hearings resulting in:

  • 5 erasures;
  • 8 new suspensions, 1 suspension extensions and 1 suspension revoked;
  • 1 new condition orders, 1 extension of conditions orders and 1 conditions order raised to a suspension;
  • 4 reprimands;
  • 4 adjournments;
  • 1 not impaired;
  • 2 registration appeals (1 dismissed, 1 decision substituted);
  • 1 restoration hearing (refused);
  • 2 health related hearings with one suspension and 1 set of conditions replaced with a suspension;
  • 3 cases of no misconduct/facts found proved do not amount to misconduct.

Per registrant type there were 46 dentists, 7 dental nurses, 11 technicians and 2 clinical dental technicians involved in hearings this month.
June was a bit bare on any interesting charges such as bouncing balls of impression material in corridors, bringing children to work or having untidy hair. However there were a high number of erasures that month, and dental technicians brought in front of a PC or IOC for acting out of scope in June also featured quite heavily.
Briefly, the main reasons for erasure were:

  • Not having indemnity over an extended period and forging an indemnity certificate;
  • A conviction for fraud and false accounting;
  • Having a sexual relationship with a patient, providing free treatment in return for physical contact and dishonestly claiming to be a specialist whilst not on a specialist register;
  • Making decisions about treatment plans without informed consent, plus failing to engage (note that the registrant was not present and not represented);
  • Working as a hygienist when registered as a dental nurse, plus dishonest behaviour relating to a lack of indemnity and misleading behaviour relating to website material.

With regard to the technicians, pretty much all of these cases related to acting beyond scope; taking impressions when not trained to do so and working without a prescription. This is clearly an area that the GDC are tackling very proactively.
One no misconduct case was particularly interesting in terms of how it ever managed to get so far. It involved a registrant who had sent a letter to some patients of the practice asking for their consent to release their records to the GDC who were investigating a previous partner of the practice over financial irregularities on the basis of concern being reported by the registrant. The letter must have raised a few eyebrows as the GDC alleged that it was:
 

  • Designed to convey the impression that the correspondence was sent with the knowledge and consent of the GDC when this was not the case;
  • Designed to convey the impression that the correspondence was sent on behalf of the GDC when this was not the case;
  • that this was misleading and dishonest;
  • By stating in the letter that the colleague was currently the subject of an investigation by the GDC this was failing to treat the colleague fairly and with dignity;
  • By failing to inform the staff at the practice about the letter, the team members were not treated fairly and with dignity.

It is worth noting that Dental Protection had provided guidance and advice on this letter before it was sent, and the registrant had not discussed it with the staff in order to protect the integrity of the investigation, yet the case still progressed. The patients ought to have been told why their consent was being sought to hand over copies of their records in my view. So all in all, it appears to me that someone who fulfilled their professional duty to raise a concern and assist in an investigation found themselves on the wrong end of the FtP process by way of thanks. It is not clear to me what the GDC hoped to achieve by bringing this case, and how this will encourage or protect those who may need to raise concerns in the future.

Hits: 3472
23
Jun
0
Posted by on in GDC Watch

During May I spent some time reading the Medical Practitioners Tribunal Service hearings list.  MPTS deliberated issues including inappropriate relationships with patients, physical altercations with patient family members and performing inappropriate intimate examinations of patients without chaperones.  Comparably, the FtP panels of the GDC were reconvened to consider the issues that NHS England probably ought to be dealing with.  Charge sheets were littered with allegation minutiae of the usual failures in record-keeping, and whether bouncing balls made of impression material in corridors might contribute to a finding of misconduct.  It’s not specified if the balls were alginate, addition or condensation-cured silicone, or Impregum, and they may or may not have been bounced in front of colleagues or patients and the date of the alleged bouncing was unknown. But those facts aside, I am sure it was fairly clear-cut!

If anyone is interested like I am in comparing the differences between the MPTS and GDC FtP charge sheets to see how MPTS put theirs into the public domain, let me give you an example:

 

MPTS announcement:
‘The tribunal will inquire (note the inquisitory tone) into the allegation that in April 2014, whilst working as a Specialty Trainee in Obstetrics and Gynaecology, Dr X’s actions towards a patient were not clinically indicated and were sexually motivated’ (and then some further housekeeping information and notes for interested journalists).

 

GDC announcement:
‘Charge (note the accusatory tone) that……..(insert pages and pages of specific individual allegations painting a poor picture of the registrants practice and behaviour)......
And that, in relation to the facts alleged, your fitness to practise as a dentist IS IMPAIRED (note the suggestion that the outcome is already proven) by reason of your misconduct +/- deficient clinical performance’ (and if only deficient clinical performance then perhaps add some dishonesty for good measure).

I know which presentation of the forthcoming hearing sits better with Article 11 (presumption of innocence).   Furthermore, if the charges are not meant to be taken literally (as I am advised they should not be without knowing the relevant context of the case), then it begs the question whether they ought to be made public?   Dishonesty I will touch on later but I feel the GDC ought to be looking at how they present their charges of these public hearings and I believe that a new approach to how the charge is put into the public domain is needed.

But back to last month’s cases of interest of which there were a few:

Interim Orders acted extremely swiftly to curtail two attention-grabbing business ideas with potential to breach GDC standards, or encourage UK registrants to. One related to provision of orthodontic aligners direct to the public without a prior examination and the other was referral incentives for implant treatments referred to a clinic abroad.  Both registrants had conditions imposed clipping their entrepreneurial wings.  I later received an email from another company looking to ‘partner-up’ and offering me payment for helping with certain aspects of their ‘ortho-direct-to-patient’ business.  Possibly the best of both ‘GDC standard-breaching’ worlds in that email, but seemingly no UK-registrant behind it to take through an FtP.

The PSA failed in their appeal of a health-related case.  The PSA alleged that the case was under-prosecuted by the GDC, and that an unduly lenient sanction was given with insufficient reasons.  The registrant, who was placed on conditions by the Health Committee for what appears on reading the determination to be extremely cogent and reasonable reasons, had complied with all the conditions and made huge efforts at remediation.  He was extremely anxious about the prospect of the matter being remitted back for reconsideration and is obviously now very relieved.  He told me that the GDC have been a life-saver to him, and that his case shows how some good can come out of FtP procedures, although the time left in limbo has been tortuous.  Additionally, it is worth giving credit to the GDC for their handling of the appeal, as they described the conduct in broad terms and kept the health condition out of the public view.  The PSA did not however, and some very private material relating to this registrant has now been read out publically in court, which was awfully nice of them.

In the conduct arena, Mr Radeke ‘won’ an appeal in March 2015 against an incorrect PCC decision to erase him over dishonesty and the case was remitted for a new PCC to reconsider the appropriate sanction.  He remained suspended only until the end of May 2016 when the case was finally reheard.  When I say ‘won’ an appeal, this is really in a loose sense of the word.  The wins on appeal are often pyrrhic victories.  Registrants who have gone through FtP and appeals suffer enormously through stress, anguish, accusations (perhaps false), public humiliation, financial turmoil and can still find themselves unemployable after a ‘victory’ not to mention their families breaking down or having to go bankrupt in the meantime.  I do not wish for second that anyone who reads my blog on FtP thinks that any sarcasm or satire is an attempt to trivialise something that I take tremendously seriously and have had, at times, invading my own sleep.  Nonetheless, Mr Radeke’s case involves an unarguably disastrous patient death following treatment, but the original panel had attached incorrect significance to the ASA of the patient prior to treatment and ostensibly decided that the registrant had committed perjury to the coroner; which is a criminal offence.   This case, along with the Kirschner case, suggests to me that dishonesty is something that we need absolute confirmation from the GDC that their selected panel members are capable of handling appropriately, given that the GDC like to levy it at registrants at such a high rate (45% of conduct cases include a dishonesty charge if my memory serves me correctly on that FOI data).  If you are going to accuse, and then find someone guilty of dishonesty, you had better be sure you are getting it right, and that you properly understand the legal test.  Panel member names are redacted from final determinations, but in the interests of transparency ought not those who are the judge have their names kept in the public domain?  We do not see judiciary member names redacted in their judgments.  Perhaps someone in the know can comment on why this is the case?  For those interested in the Radeke appeal judgment to see what the problem was in the PCC decision-making, and it is worth reading just to compare the tone,  it can be found here:

In the ‘no misconduct’ case a registrant was reported to the GDC by the ‘GoodThinkingSociety’ (who profess to ‘encourage curious minds and promote rational enquiry’) for allegedly promoting the dangers of amalgam, misleading patients over the benefits of homeopathy and serving alcohol in the practice, and they are unrepentant about the outcome from the emails I have exchanged with them.  Why this case warranted a full hearing when we have false advertising attracting an unpublished warning in others is not obvious to me.  However, for reasons that evade us registrants who politely entertain patients with ‘alternative’ beliefs, a full hearing was considered justified.  The GDC scored the own goal this month by their appointed expert being shown evidence that changed his opinion at the last minute, and presenting a witness who maybe did not realise they were being engaged as a prosecution witness and seemingly blew the GDC case apart by being extremely supportive of the dentist at the centre of the hearing.  Aside from his obvious incredulity of being called as a witness (I think he may have written to the GDC to complain about the withdrawal of the 15cc of champagne on offer before an examination and then ended up being called) he told the panel that he could make his own mind up on what was good for him…….and if that was a small bottle of champagne before a check up, who are the GDC to say differently?  I am glad to hear that the residual champagne has now been consumed.  Cheers!

Finally, the statistics for May are:

Interim Orders held 17 new hearings and 8 review hearings resulting in:

  • 6 suspensions or suspension extensions;
  • 11 conditions orders or conditions orders extensions;
  • 5 no orders;
  • 2 adjournments/postponements (1 hearing was postponed due to the registrant having toothache);

1 outcome TBC at the time of publication.

Practice committees held 28 new hearings and 6 review hearings resulting in:

  • 1 erasure;
  • 5 new suspensions and 2 suspension extensions;
  • 3 new condition orders, 1 extension of conditions orders and 3 conditions orders being revoked;
  • 3 reprimands;
  • 2 postponements and 6 adjournments;
  • 3 no impairments;
  • 1 registration appeal (granted);
  • 1 restoration hearing (granted);
  • 2 health related hearings with one suspension and 1 set of conditions replaced with a suspension;
  • 1 case of no misconduct.

By registrant type, there were 46 dentists, 11 dental nurses and 2 dental technicians involved in hearings this month.  As far as I could see, only 5 registrants were not present and not represented this month.

©Victoria Holden, GDPUK Ltd 2016.
Hits: 6481
0
12
May
4
Posted by on in GDC Watch

April was a busy month in Fitness to Practise.  Unlike March where there was something for everyone, April saw mainly dentists and dental nurses on the proverbial naughty step.  Of these 21 had their favourite things taken away from them, 29 were put into time out, and 2 were sent to their rooms indefinitely.  Drilling down into the outcomes further, the final statistics for April were as follows:

Interim Orders held 20 new hearings and 15 review hearings resulting in:

  • 18 suspensions or suspension extensions;
  • 12 conditions orders or conditions orders extensions;
  • 4 no orders and;
  • 1 adjournment.

14 registrants were not present +/- not represented at their IOC hearing, and were mostly suspended with a couple kept on conditions.


Practice committees held 29 new hearings and 9 review hearings resulting in:

  • 2 erasures;
  • 6 new suspensions, 1 suspension extension and 1 suspension being revoked;
  • 8 new condition orders, 1 extension of conditions orders and 3 conditions orders being revoked;
  • 1 reprimand;
  • 3 postponements and 2 adjournments;
  • 1 case concluded (the incident was historic and there was no current impairment);
  • 1 no impairment;
  • 2 registration appeals (1 granted, 1 refused);
  • 1 restoration hearing (refused);
  • 4 health related hearings with all registrants kept on suspensions and;
  • 1 no case to answer

By registrant type, dentists were the clear sinners with 57, followed by 15 dental nurses and a single dental technician.

Cases of interest in April

The restoration hearing heard in April was refused for the second time due to a lack of insight by the registrant into why note tampering is serious misconduct rather than a silly mistake.  The GDC request to indefinitely suspend any further applications due to the costs involved, was not upheld by the panel who, like a Buddhist monk in meditation, felt that insight might be obtained at some point, and directed the erased registrant towards obtaining representation and taking relevant courses into ethics and personal responsibility before making any future applications.  Said registrant will no doubt benefit from such wisdom and gain mindfulness as a result of the teaching!

Not long after, a dental nurse who was not engaging in her on-going hearing relating to failures in decontamination procedures, was kept on suspension by the panel.   She had not turned up again; perhaps having realised that she could earn as much if not more as a domestic cleaner given the average wage of a dental nurse, with the added bonus of not having to be answerable to a regulator.  I need to do some further reading into whether the Fitness to Practise Rules have any mechanism to bring an on-going cycle of hearings for the above scenario to an end.  Let us not forget there is no statutory limit to the amount of money that can be collected from registrants to be spent on Fitness to Practise hearings.

Interim Orders met to discuss keeping a registrant who was in prison for fraud and false accounting on a suspension.  If this is not a waste of everyone’s time and money I am not sure what is, unless there is scope for him to be employed as a prison dentist without an interim sanction.

My other conundrum this month with Interim Orders is in their role of risk assessment and the concept of innocent until proven guilty.  By putting the allegations against a dental nurse as a statement of fact (‘misappropriation of funds’ into a personal account including the practice name, the exact amount of money and number of patients involved) into the public domain is she going to be able to have a fair hearing?  It rather reads like the IOC have accepted her guilt, yet there is no mention of any admission or criminal conviction for this alleged theft in the public determination.

Experts were on good form throughout April.  When we thought we’d seen the last of them after Dental Protection’s reassurance that there is no legal or regulatory requirement for it, the dreaded failure to record LA batch numbers were back, making it into a charge sheet via GDC expert witness Conor Mulcahy.  Perhaps someone can point him in the direction of this useful position statement for any future cases:  http://www.dentalprotection.org/uk/publications-resources/updates/briefing-documents/2015/11/09/local-anaesthetic-batch-numbers

Aside from the batch numbers of local anaesthetics, sadly there were no other particularly curious or intriguing charges put forward this month.  There were however, some thought-provoking conditions in one case which restricted the registrant from sending abusive or offensive communications.   One of the erased registrants was in jail having been convicted of fraud and deception, and the other was voluntarily not present but faced a raft of serious clinical deficiencies which were found proved, including using a block of bone that had dropped on the floor on a patient.

In the ‘No case to answer’ case, expert witness Robert Bland scored an own goal and had his evidence set aside by providing superficial evidence, changing his mind at a late stage on fundamental matters relating to the case, and most importantly exhibiting a ‘lack of impartiality’ by failing to include ‘evidence that was potentially exculpatory’ to the registrant.  This registrant and his wife are seriously considering leaving the profession despite the no case to answer verdict; this is exactly why the GDC must be taken to task for the style and method of its prosecution of cases over many years, and for the failings in its expert witnesses.  I’d also like to make the point here that pathologist Alan Williams who failed to disclose potentially exculpatory evidence in the Sally Clarke cot deaths case, was later found guilty of serious professional misconduct and banned from court work for 3 years.  The past 12 months have now seen 3 cases slung out because the experts appointed by the GDC have shown a lack of impartiality.  Experts also need to remember they are not immune from a civil lawsuit, and frankly it is probably only a matter of time until one is sued, or sanctioned.

Whilst I am on the subject of bias, it also isn’t appropriate for experts to advertise themselves in a manner that suggests they are employed by, or otherwise working as an expert witness purely on behalf of the GDC.  You cannot be impartial if you only do work for one side and I am amazed that this has not yet been picked up on and challenged by any registrants’ legal teams.

©Victoria Holden, GDPUK Ltd, 2016
Hits: 7140

Please do not re-register if you have forgotten your details,
follow the links above to recover your password &/or username.
If you cannot access your email account, please contact us.