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JUN
23
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GDC Watch May 2016

GDC Watch May 2016

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.

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APR
20
5

GDC Watch March 2016

GDC Watch March 2016

 

I have been keeping an eye on the cases emerging from the Fitness to Practice and other committees of the General Dental Council [GDC] for some time, I am sure other GDPUK readers will be interested to know what goes on each month. So, the aim will be to write summary monthly, in what we hope is a short lived blog.

Monthly breakdown of case types and outcomes

The month of March saw 59 hearings scheduled after one was moved back to start in April.  There was 1 registration appeal which was granted.  Of the remaining cases, 18 were new Practice Committee hearings, 6 were Practice Committee review hearings and 2 were health cases.  Interim Orders held 14 new hearings and 18 review hearings.  Broken down by registrant type, there were 48 dentists, 4 dental nurses, 4 dental technicians, 2 hygienists and 1 clinical dental technician involved in hearings.

Interim Orders handed out 8 new suspensions and 8 continuation of suspensions, placed 1 registrant on conditions and kept 7 on conditions.  One suspension was revoked, 1 suspension was downgraded to conditions and 5 cases had no order.  Of the new suspensions 6 of the 8 registrants were not represented and not present.

The Health Committee suspended 1 registrant and placed another on conditions. The Practice Committee erased 1 registrant, issued 2 suspensions, 2 extensions of suspension, and placed 2 registrants on conditions whilst 2 had their conditions extended.  Four suspension orders were revoked, 3 reprimands were given, 3 cases were adjourned, 3 registrants were found not impaired, 1 case was referred back to the Investigating Committee, and in 1 case no misconduct was found. 

March’s cases of interest

The erased registrant was neither present nor represented, but the case mainly related to failing to take appropriate radiographs, failures in treatment planning and record-keeping, lacking indemnity cover whilst treating patients on 4 days, and a failure to cooperate with the GDC.

In the ‘No Misconduct’ case the registrant essentially faced charges which related to not providing an estimate of costs for root canal treatment (although he did not actually invoice the patient for any of the treatment provided), not informing the patient of the risks of the proposed treatment and therefore failing to obtain informed consent. In fact, the registrant had only provided emergency treatment to try to relieve pain and infection.  This was ultimately not successful and the tooth was removed by another dentist. The patient/witness actually complained to the GDC about something else, but this was not worthy of any charges so how this case actually came about is not clear from the determination.  Despite having a confused recollection at times, the patient was still described to be a credible witness. Another matter which is not clear in the determination is why there were 3 experts involved - 1 for each party and a joint expert statement.   The registrant admitted all the charges, but the panel found some aspects not proved and despite both the GDC and defence counsel accepting misconduct and impairment, the panel found neither on the basis that the treatment was emergency in nature rather than a definitive RCT procedure, and the failings not so serious as to be considered deplorable.  A happy outcome here with the lesson of not assuming that because you have not charged a patient they won’t complain about you.   

The case referred back to the Investigating Committee involved fissure sealants on a single patient, which the GDC-appointed expert Professor Deery (who is a paediatric dentistry consultant and Dean of Sheffield School of Clinical Dentistry) had concluded were appropriate after he had examined the patient, and that wear on the patient’s teeth was due to erosion rather than damage caused by the registrant.  It was submitted that this evidence would change the view of the IC and that no realistic prospect of a finding of misconduct existed, begging the question did one exist in the first place?  How the case came about, and on what the basis of the patient complained is not explicit in the determination but it is implied that the registrant may have perhaps been accused of creating damage in which to place fissure sealants or otherwise creating unneeded work for themselves.  This case highlights the inherent issues with the lack of a clinical examination until a late stage, (if at all) in the FtP process and how assessors and experts creating charges purely on clinical records is a flawed concept.  This case will have involved a significant waste of registrants’ money in reaching a Practice Committee that could have perhaps have been avoided with an earlier examination of the patient. Hopefully with the recruitment of dentally-qualified caseworkers cases like this can be avoided in future.

Mr N, who was neither present nor represented, was suspended following his hearing which included 73 individual heads of charge, many of which had several sub-headings.  The GDC-instructed barrister may have missed Jonathan Green’s presentation at the Dental Protection Study Day last October where he stated that no over-drafting of allegations would take place following the embarrassment of the Kirschner case.  In the determination the GDC-appointed expert, Professor Morganstein seems to advise that linings ought to be placed under amalgam restorations.  With no representation there is no means of contesting such a view even though many GDPs would now not line amalgams, nor is there any conclusive evidence that they need to be.  Professor Morganstein is apparently the Dean of the dental school at the University of Buckingham (I know what you are thinking…. and I’ve not heard of it either).  I feel this case nicely highlights the problem with the GDC using experts who are focused on academia or in specialist practice opining on GDPs, and is directly contributing to the stealthy moving of standards in an upwards direction.

 

Finally, the long-running Carew case which I have been watching with interest due to the charge of:

·         you failed to adequately record the clinical reason why a try-in was required……

has left me somewhat disappointed as this charge was withdrawn on day 1 of the hearing. It looks like we will never get to find out why this element of record-keeping was considered to have been essential.  

 

 

 

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Recent Comments
Anthony Kilcoyne

GDC cases monthly comment & an...

This is a great initiative Vicky and actually, in the public interest, I believe the GDC should welcome it too, if it's serious ab... Read More
Wednesday, 20 April 2016 09:41
Victoria Holden

Thank you

Thank you for the positive feedback Tony. I hope the blog is well-received by all parties as I believe there is a lot we can all ... Read More
Wednesday, 20 April 2016 10:47
Ruth Dening

GDC watch blog

Thank you for this, you must have spent a lot of time on it. It is really interesting to see what's happening.
Wednesday, 20 April 2016 17:37
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JUN
24
0

GDC: Hired Gun with a Smoking Gun

GDC: Hired Gun with a Smoking Gun

The Hired Gun with a smoking gun….

We all know the GDC has spent the last few years on its own little self-righteous planet, and even given its recent pitiful showing in front of the Health Select Committee there appears to be no sign they are planning to return to normality in the near future.

Indeed, this week, what can only really be described as damning evidence of the GDC’s utter and complete contempt for the process of Justice in its most fundamental form has been revealed.

A case in front of the Professional Conduct Committee this week has revealed that it is not only the initial stages of the disciplinary process that are woefully inadequate which resulted in their huge backlog of cases; but that the basic legal requirement of full disclosure of the case against a registrant may be riddled with horrific inefficiency and contempt for the fundamental tenets of justice. Not only that, the GDC is not following the rules set out for its registrants and flagrantly flouting them in order to pursue its own agenda of what now appears to be a persecution of the profession via its individual registrants. The PCC themselves described it as an ‘Offence to Justice’.

In this particular case, amongst other things, the GDC had 9 different versions of its expert witness report, and failed to submit many of them in a timely manner for the defence case to be prepared. It was still submitting them to the defence on the day of the scheduled hearing. Not only that, but it would appear that evidence the GDC held was not submitted to the defence at all, which may have helped the defence case. Thankfully the outcome has been for justice and propriety to be upheld by the members of the PCC. (who have for some reason remained anonymous)

With the facts that have come out about the way this case has been handled, the GDC has now plumbed new depths it seems. I didn’t think we could be treated with any more contempt that we already were; but this is jaw-droppingly bad. By what definition do the GDC expect us to have fair trial if they don’t submit the evidence as per the rules? They fail by their own standards throughout this case. Where is their duty of candour? Where is their transparency in their dealings with the registrant?  Have they actually read the Human Rights act? I refer them particularly to Article 6, the right to a fair hearing, which quite obviously would not have occurred in this case had it not been for the integrity and the strength of the members of the PCC.

For the PCC to accuse the GDC of being egregious (or outstandingly bad) is an extremely strong and unusual stance for them to take. Whilst this occasionally happens in the criminal and civil courts when a judge or jury might take exception to the conduct of one of the sides, for a committee funded by one of the sides to effectively take a swipe at its paymaster is highly unusual. I know the PCC is made up of independent members, but don’t forget, despite this independence, they are funded by the prosecuting side, the GDC. I am not for one minute casting any doubt on the integrity of any of the members of these panels, and in this particular case nothing could be further from the truth. But one has to wonder how much of a culture of fear is being instilled that pervades throughout any process the GDC is remotely associated with including these committees. How many other cases have been similarly dealt with by the GDC and the PCC not spoken up in the same way? We know now that this is an organization that doesn’t seem to apply the rules of law and justice properly to those it pursues, and even think these rules don’t apply to itself, and then show no insight whatsoever into its failings. Even the GDC solicitor involved in the case appeared to have had an inappropriate contact (not contemporaneously noted incidentally!) with the patient witness in order to ask leading questions and to coach them which also a big no-no.

Just as strident but more worryingly to my eye is the criticism the GDC’s expert witness comes in for at the hands of the committee. I have not seen this amount of criticism of the expert in any case before. It almost seems like he has gone out of his way to act as some sort of private investigator in order to help the GDC secure its desired conviction. There have been a couple of cases recently where the GDC’s expert witness has come in for criticism, but not to this degree.

Expert Witnesses are required to be independent and objective. It is an enormously privileged position to be in as they alone are allowed to give opinion-based evidence to a court and not just statements of fact. They are not and should never be seen as a Hired Gun to destroy the defendant. For whatever reason it would appear that in this case the expert has gone beyond his remit in such a way that one could seriously question that if this were a civil or criminal case whether serious charges against him would be the result of such a deviation from the accepted role. All the expert witness training I’ve done (and I’ve done a lot) has stressed the importance of never being a Hired Gun. I’ve had solicitors request I change parts of my reports to better serve their cases; and the answer has always been an immediate refusal. An expert witness has a duty to the court and to no-one else. We are not Magnum PI no matter how much we might want to be.

But by acting as a hired gun, this expert has now turned this case into a smoking gun.

Experts are no longer immune from prosecution, and given the evidence in this case, one has to wonder if the abuse of process by the GDC and its expert means that this should now be taken further by the defence team in order to recoup their costs. Ironically, the expert could well be professionally covered by the same indemnifier involved in the defence, but then I’d have thought that might be an appropriate time for any discretionary support for the expert to be withdrawn since it appears he acted in such an unusual manner. Its also rather hypocritical of an expert who appears to be acting far outside his remit to feel he can stand in judgment of a practitioner who may or may not be acting outside his sphere of expertise. Unfortunately Expert Witnesses are not regulated in any way other than by their profession; but this behavior has to be close to bringing the ‘profession’ of expert witnesses into disrepute. I know a good many experts who are aghast at the revelations in this case.

I’m sure the acquitted practitioner will probably now want the whole thing to go away, but I really hope that he doesn’t take this lying down; the GDC should be massively on the back foot with this revelation, and the profession’s moral (and legal) advantage should be well and truly rammed home now.

The BDA should also now get very vocally involved again, and if they don’t they are going to miss a huge opportunity. If they approach it through lobbying MP’s they should broadcast this loudly to the profession so we can hear their voice.  Some have said they should call for a complete halt to the GDC investigating process; but this would leave the public open to the risk of any truly dangerous individual being left free to practice. However, in my opinion they should press for every case both this expert and this particular GDC team been involved in to now be independently reopened, re-examined and all at the cost of the GDC. The costs of this should then be made exceptional from the annual GDC budget so they cannot then charge the profession for this. I’m sure they’ve got some indemnity insurance kicking around somewhere they can use. In addition, every pending case that involves just a single patient complaint should be now be suspended until a full independent inquiry (and I don’t mean by some equally flawed organisation like KPMG) into the above cases has been completed. There should be full and complete disclosure, and compensation paid to any registrants if the GDC are found to be in the wrong. Any employees of the GDC found to be in breach should feel the full weight of any legal process, and not be allowed to hide behind the corporate protection of Wimpole Street.

The GDC are quite obviously in breach of the Human Rights Act. There was no way this registrant was going to get a fair trial, and the GDC were quite obviously unconcerned by that. How many times they have done this before now needs to be made public. If we persistently did the same to our patients we would lose our careers, our livelihood, and our professional integrity. They should pay the same price and their executive should now be held vicariously liable if the law has been found to be broken (again…)

Resignations of individuals at the GDC are no longer enough for confidence to be restored in our regulator. The profession should demand the highest powers possible now decide their fate. Whether this should be up to individuals crowd sourcing an opinion from a barrister as to whether the GDC are breaching our human rights; or our indemnifiers taking their own legal action to seek redress for the expenses incurred in cases like the above;  and whether the Health Select Committee recall the GDC Executive to be given the coup de grace; or the BDA continue their lobbying of MPs whilst we keep filling those same MP’s mail sacks with letters. It needs to be all of the above and simultaneously. We need to unleash a veritable storm that cannot be ignored.

Enough is enough. We need to keep taking firm action.  Is the entire profession listening? It’s time to hit back again.

 

 

 

 

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