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Working Inside The Fitness To Practice Panel

medieval_street Medieval

Working Inside The Fitness To Practice Panel

(An Interview With A Former Member)

By

Paul Felton

The General Dental Council’s work in disciplinary matters is sometimes not fully understood by dental practitioners. The revelations over the past few weeks that the GDC is registering overseas dentists as dental therapists without a thorough check of their practical abilities, that they withheld evidence which resulted in a fraudulent dentist being restored to the dental register, and that they have used private detectives to entrap registrants, has opened the GDC’s registration and disciplinary processes to close scrutiny. These recent stories on the GDC suggest those disciplinary processes to be more mysterious than ever.

GDPUK has been fortunate in being given the opportunity to speak frankly with a recent ex-member of the GDC’s Fitness To Practice panel, which helps determine the professional fate of over 112,000 registrants.

Peter is a clinician with over 28 years of experience in dentistry. He is currently working full-time in private and NHS practice. We have been asked not to reveal his identity.

 

It sounds like a lot of hard work. What made you want to serve with the GDC?

Serve? An interesting terminology there. The GDC has the statutory function of regulating the profession and whilst to many it seems odd, I wanted to be a part of this. Someone has to do it. I thought it might as well be me. You can stand on the outside and criticise, or you can be on the inside and see how the machine really works

 

Briefly, what were your duties on the committee on which you served? What is the makeup of the committee on which you served?

I sat on the Fitness To Practise panel and as a consequence, you sat on all the statutory committees. They are independent of the GDC – which is a challenging concept, given the GDC writes the committee guidance. On the FTP panel, you read, listen to and evaluate evidence presented. The civil legal standard is used so you find evidence on ‘the balance of probability.’ I personally believe it should revert back to the criminal standard. Beyond reasonable doubt stops charismatic barristers winning you over.

 

What training do committee members get?

It really isn't as intense as it should be. There is far too much concentration on ‘soft skills,’ such as communication and people skills, rather than legal understanding. I often felt it lacked any real depth. That said, the whole selection process is (allegedly) designed to select individuals that are able to carry out the workload. I personally doubt that, and feel the recruitment process is biased since the GDC seeks to ensure diversity. That aim is incredibly important since the profession is diverse, yet there is a part of me that is convinced that the recruitment process is flawed for this very reason

 

What sort of cases did you hear?

I heard cases involving all classes of registrant. They were, in broad terms, clinical or criminal. In addition to this there are health cases. Some were easy, some were extremely challenging due to the nature of the allegations.

 

Did you feel the cases brought before you were justified?

Ah, well, that’s a very difficult question to answer. In some cases yes, in others, no. When a dental professional is convicted of paedophilia then there's no discussion, but when a registrant is in front of a committee with a huge list of allegations that were clearly gained after the original index complaint, then it becomes difficult to clear the mind. The committee can only hear the evidence presented to it (alongside the allegations) yet I personally struggled with the concept. Indeed, in some cases (more than ever should have been) the original index complaint never even made it into the hearing. This conflicts with my personal sense of justice. The GDC managing to amass a long list of allegations based on its investigation was, and remains, of concern to me.

 

There are some criticisms that caseworkers can be over zealous when preparing ‘charges’ against registrants. Are these justified?

My personal issue with the caseworkers is that they lack any real knowledge of the profession. It can be reasonably argued that they don't need it to just list allegations, but this argument is fundamentally flawed as their inability to understand what is important and relevant is only dictated by guidelines they work to. The system is evolving with dental professionals now involved, but it is currently still lacking serious input

 

Do you think the makeup of committee’s is balanced and makes for a ‘just’ system?

Committees have to contain various elements in order to make them work. Prior to 2003 the ‘old school tie network’ led to many cases that were serious, failing the patients. There was a time when committees sat with five members. Nowadays, because of cost-cutting, it is invariably three. (The cost per day, per person plus expenses, is considerable). A three-person committee is unbalanced. It comprises one Lay, one dentist and one Dental Care Professional (DCP). One strong individual can influence the other two in my personal experience and a dominant influence means the case will fall their way. It's inadvertent "bullying" and this is why there is a focus on soft skills in the training process. Reverting to the criminal standard would eliminate this bias and mean that an individual’s influence would be more difficult to exert. It's either that or revert to ensuring committees sit with five members. One strong personality has to try much harder to convince four other members of his view.

 

Do you feel that decision making is hampered by Lay people?

No. The Lay perspective is very important BUT this must be balanced. I have already suggested that a strong personality can influence a committee. The Lay person is potentially the most at risk yet, again, a five-person committee would reduce this bias.

 

Quite often, registrants complain that they can also face ‘dishonesty’ charges in addition to the main charge – why are these added?

The dishonesty allegation actually tends to be a "collection" of allegations. It seems to arise from (again) expert evidence where the report writer may suggest that a "thing" couldn't have happened. It tends to be termed ‘inappropriate,’ ‘misleading’ or ‘dishonest.’

This to me seems to be a ‘get you one way or another’ allegation. They are usually listed as individual allegations that seem almost a snare. The GDC has to work to the remit the Professional Standards Authority decides and that overarching organisation seems to take great store in allegations that demonstrate dishonesty. Apparently, it is extremely difficult to remediate someone one who is dishonest. I'll let people make their own minds up on that aspect, but will say, to err is human.

 

Do you feel registrants are treated fairly in the FTP process?

Yes. Whilst to many from the outside it seems a draconian process, as a tribunal it has to follow English law. It is a quasi-judicial committee and it relies on expert input. As a committee member, you are not party to the build-up of a case but as a process, it is probably far too protracted for the comfort of a registrant.

 

Is it justified or necessary to go outside the index complaint and delve into all aspects of a dentist’s practice?

In my opinion, no. Now, if there was a very obvious risk to patients then certainly. But one complaint of a seemingly simple problem seems to lead to an escalation of the issues by ‘investigating’ the individual. I personally believe that if the index complaint falls away then the investigation should be stopped. This is not a criminal court. It has no powers other than to stop someone practising dentistry. But, and this is where I struggle, many employers may ask if you have ever been subject to an investigation. It won't appear on any criminal record but you would have to declare it - potentially ruining someone's future prospects because they failed to record someone's smoking habits.

Do you feel lay members fully understand the seriousness of their decisions on the registrant?

That's extremely difficult to answer. I have worked with some outstanding people and a few challenging individuals. One thing they have to learn is that, the consequence of a previous decision needs to be put aside by committee members. You can't let previous decisions regarding a registrant influence your decision. An example would be a registrant convicted of fraud in criminal court, but you are not convinced they were as guilty as the court found them. You must take it at face value. As a committee member you can't hide behind a previous verdict and you can only base decisions on the facts presented.

I think it is important to remember that some Lay members are, in essence, professional committee members and may sit on several tribunals and be extremely competent in what they do. That has a flip side, because a ‘professional’ Lay person then ceases to be truly ‘Lay.’

 

Did you ever feel that you your views were disregarded or overruled by the GDC or other members of the committee?

Yes. But that isn't always a negative. The whole point of having a minimum of three people sitting is so that a majority decision can be made. Your opinion will be heard but not necessarily agreed on. The GDC never influenced my decisions other than the published guidance (which is a separate question).

 

Do you think the GDC is currently fit for purpose with regard to disciplinary matters?

It is very easy to be critical and I think we are no different to our nursing/medical colleagues regarding professional regulation. By that I mean as long as there is a process whereby a professional’s conduct is questioned then no one will be happy. I have already raised some points regarding this. I do find it very bizarre that committees sit and hear evidence even though a registrant has said they are not going to attend/engage and indeed, are no longer working within dentistry. I once asked the GDC about the costs of a case, in 2009. A three-day hearing for a dental nurse who was never going to attend (she had actually written in saying they could ‘stick’ dental nursing), yet the committee sat and suspended her for 9 months. It cost in excess of £50k to hear this. I never followed up the individual after the period of suspension ended. When this happens (another area that is far too common) then no, it isn't fit for purpose. That was (at the time) the equivalent of the ARF of 50 dentists.

There is another area that makes me question the ability of the GDC to consider itself fit for purpose. This relates to the whole world of eggshells that is inclusivity and diversity.

The drive for diversity and inclusion is extremely noble and proper but shouldn't be a reason to put people in to the role that are essentially carried by more illuminated individuals on panels. The drive to hit inclusivity targets has skewed recruitment into the role rather than ensuring individuals have the ability and capacity to deal with the huge amount of information they are fed"

 

Do you think the source of complaints has changed over the years? Are there more fellow registrants reporting on their colleagues as ‘whistleblowers?’ If so, what do you feel their motivations are. Could you estimate the proportion of patient-generated complaints vs dental professional-generated complaints vs those brought by health authorities?

I despise the term "whistleblower" but I do genuinely think that motives vary. They go from genuine concerns, to vexatious ex-employees, to other motivations. There was a time when it wasn't the done thing to criticise another individual’s work. I don't necessarily think this is right but I do think there seems to have been a drop in professional discretion. Simply criticising some previous work for personal gain is shocking.

A committee isn't there to judge whether a complaint is based on that, but you get some that come through and you know that the motivation was all wrong. Vexatious ex-employees should be simply filtered out. Part of the problem is that if someone decides to raise concerns then invariably mud is slung from one side to the other. This leads to bizarre accusations that damage everyone involved.

I think genuine concerns regarding safety of patients is important but those involved in the very early stages of a complaint should be more robust in filtering. When a legal firm is the initiator of a complaint then surely alarm bells relating to a litigation process should be sounding in the GDC s ears.

 

Do you believe that radical changes are necessary in the GDC? If so, what?

I'm not sure there is a need for radical change. Perhaps what is really needed is consistency. If you look at the turnover of staff at all levels then you realise there is a distinct lack of consistency in the executive function of the regulator. That can only lead to confusion over time.

It's a bit like Chinese whispers I guess. Over time, interpretation of the way things SHOULD be done, is diluted. That said, I am still puzzled why any dental professional would contact the GDC for advice on any matter other than their ARF. The shake-up maybe needs the GDC to again tell dental professionals they do not give advice. Go on, give them a call and ask for advice on something and they give it... especially interpretation of guidance. The only folk you should contact are your indemnity company

 

Despite the GDC’s stated intentions to reform their disciplinary processes, do you feel they will effect change?

I think change will be forced upon them. I think this is a little similar to something I've already said, without consistency then change will just be a hand grenade that will just cause mayhem. It also depends on what reforms they actually can make. What us registrants want would be very different to what they are allowed to do. The Professional Standards Authority is not blameless in all this. They (the PSA) have instilled a sense of fear in the executive function of the GDC by essentially threatening judicial reviews when it disagrees with a committee’s decision. They are the watchmen watching the watchmen. If they don't like something then they choose to challenge it. Change must happen top down, not bottom up

 

The GDC has recently been criticised for:

 

  1. Registering overseas dentists as dental therapists without examining their practice skills
  2. Withholding evidence from a PCC which resulted in a dentist wrongly being allowed back onto the register
  3. Using private investigators to entrap registrants into acting outside their scope

 

What are your views on these recent controversies, if any?

The GDC should really hang its head in shame over certain aspects of these three areas.

I have read online discussions regarding all of these and have (unsurprisingly) formed an opinion on all three.

With regard to the registration story I read, it suggested that the GDC see no risk from registering overseas trained dentists as dentists despite the fact they may have failed aspects of the normal route of entry on to the register as a dentist. ‘Shocking’ is my only response. How long will it be before such an individual is in front of a committee? Will the committee have the kahunas to criticise the GDC for this? (Committees can criticise the GDC, I once sat on a case where we did and, as was stated in the determination, we would have awarded costs against the GDC if we had the power).

I sat on several cases where private investigators were used. I was always extremely uncomfortable with this process but was assured it was perfectly legitimate to attempt to get a professional to offer something they're not allowed to do. It feels wrong...very wrong and should be stopped and indeed, in cases where this evidence was used, I feel the cases should be re-sat without this evidence.

I'm no lawyer but withholding evidence is surely a miscarriage of justice? Remember it works both ways. In the case that has been highlighted, it has been demonstrated that all is not well at the GDC. Withholding evidence to prevent a hold (adjournment or postponement) is damaging to all parties involved. It's interesting how the GDC has been extremely quiet in not responding to enquiries in this and other areas. That is worrying because stonewalling only increases suspicion.

 

Do you believe the GDC uses the ARF money effectively?

I have never analysed the GDC accounts although there are many that do. I   think there may have been some mismanagement many years ago which left the GDC in a predicament. That aside, the ARF is, for all registrants, far too high. A dental nurse whose skill set is not comparable to that of a general nurse, pays far more yet is probably paid less - shocking and the hike up for dentists was shocking. The GDC is not ostentatious (any more) when providing lunch or accommodation so those outside the organisation that criticise this should be careful. The attempt to reduce costs is noble, but perhaps not severe enough.

 

Do you believe that it is difficult for individuals to effect change from within? Does the government need to take a role in regulation?

The GDC is attempting to reform but as an outsider it is easy to criticise. That aside, they really only have themselves to blame given that they choose not to answer enquiries and using underhand methods to gather evidence instils no confidence. They perhaps need to be open about their dealings with ministers and health ministry officials and about how they have to engage in order to ensure that the guidance they give reflects the changing nature of dentistry.

Endless consultations seem to only attract a certain type of individual to respond and they will never get a balanced response because that nineteen year-old dental nurse who works from 8 to 8 for £9 per hour just couldn't give a toss. And when she is called in front of a regulator that she isn't aware of other than they want money off her annually, she will just go and do something else if called before a committee. Who wants that stress when you feel like you're the bottom of the pile and getting paid peanuts? You are understandably not going to care. That is possibly where the GDC could easily reform. Look at how it manages dental nurses and dental technicians.

 

Employees and ex-employees often describe the atmosphere within the GDC as ‘toxic.’ What is your view?

I wasn't an employee. No FTP member is, so my fleeting visits to the various GDC locations would not give me an opportunity to assess the working environment adequately. But I do take websites that people post these comments on, with a pinch of salt. A vexatious ex-employee may put toxic postings on just to be mischievous or air a grudge.

 

Why did you give up your role with the GDC?

I realised that I had "done my bit" it is very easy to stagnate in the role. I think I intimated earlier, that there are essentially professional committee members. They're not all Lay. Whilst it is important to have a broad church on committees it is somewhat bizarre that academics and non-clinical registrants are making decisions about care standards in an aggressive UDA system or on private practitioners just trying to earn a living.

 

Now you are no longer involved with the GDC, do you have any views on the current state of regulation and the ‘fear’ that is said to be gripping the UK’s dental professionals?

Neglect, fraud and certain things need addressing for sure but sanctioning an individual for a speeding offence really pushes the remit. The GDC says these committees as not punishing individuals but I beg to differ. Suspend an individual for a year and you have denied them their income. These sanctions are punitive in even the simplest form. It was becoming, and continues to be, farcical – leading to protracted hearings for trivial matters that should be dealt with locally.

Back to the subject of reform, the GDC perhaps should engage an ombudsman in more cases to decide what the complainant REALLY wants. If it is retribution or just a matter of "where there's blame there’s a claim" then that doesn't protect the public. Look at the length of determinations for even trivial matters, amazing. The Professional Standards Authority forced that. No, I don't want to be a part of that anymore.

With regard to the culture of fear that has developed in dentistry over recent years - the professional indemnity companies are not playing ball either. Their fees are extortionate yet they have the audacity to criticise the GDC. In 28 years, I have had to contact my indemnification company just once. I wasn't impressed.

I actually believe the indemnity companies are mostly to blame for the culture of fear. Their courses are toxic and full of fear. “If you don't do X or Y then the GDC will have a case.” Having watched many, many cases I can hand on heart say, I often shook my head at the really useless arguments they would instruct the barristers to present. They use ‘expert’ evidence to counter GDC evidence rather than peer to peer evidence. The experts are invariably academics or specialists that are way out of touch with the pressures of general dental practice. There is a massive disparity there.

Finally, I would sometimes find the hypocrisy at the GDC amazing. The biggest example that STILL irks me to this day is in the Maintaining Standards document pre-2006. It clearly stated that “a dentist must not work to a target driven standard.”

Because of the new UDA-based contract, the GDC had to make sure that particular passage wasn’t included in the guidance following the introduction of the new contract.

And the GDC is independent of Government interference you say?

Image credit - Stefan Jurca under CC licence - not modified.

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Recent Comments
Stephen Henderson

Disappointing

I am disappointed with this article. “Peter” has been allowed to make a series of sweeping statements that require further investi... Read More
Sunday, 17 November 2019 10:26
Paul Felton

Reply to Stephen Henderson

I was a little unsure which 'sweeping statements' you felt needed further investigation. Having dealt directly with the GDC in re... Read More
Sunday, 17 November 2019 17:57
Stephen Henderson

Follow up

Dear Paul, There are many examples in the article but here are a few. This sort of stuff needs to be backed up by evidence. I am a... Read More
Sunday, 17 November 2019 20:09
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GDC Watch Summer 2016

GDC Watch Summer 2016

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….

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GDC Watch June 2016 - The Gold Standard Issue

GDC Watch June 2016 - The Gold Standard Issue

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.

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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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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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