Cost Of Under-Guise Investigations By The GDC – ICO Decides In Favour Of The Regulator
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- Published: Wednesday, 15 December 2021 06:55
- Written by Chris Tapper
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The Information Commissioner’s Office has decided in the General Dental Council’s favour following a complaint from a dentist about the way his Freedom of Information request had been handled.
Leeds-based GDP Dr Dominic O’Hooley originally submitted an FOI request to the GDC in April 2021, asking for the costs the GDC incurred from under-guise as a result of investigations/operations instigated by the regulator.
Dr O’Hooley wrote to the GDC asking "1 - By year, from and including the date of sanction of under-guise investigations/operations by the GDC. Please give the financial cost incurred directly from under-guise investigations/operations instigated by the GDC, or on its behalf.”
The dentist asked “2 - By year, as above, please give the indirect costs incurred by the GDC, to include, costs of compensation payments to registered dental professionals, legal costs and all other costs, as a result of the use of under-guise investigations/operations.”
Dr O’Hooley’s final request was “Please tell me whether monies from the ARFs paid to the GDC by registered dental professionals, or registered bodies, were used for any of the direct/indirect costs mentioned in questions 1 and 2, above.:
“If so, please divulge the percentage of the totally incurred costs used from this source, and any minutes regarding GDC senior team discussions regarding the use of AF monies for these purposes.”
On May 7th 2021, the GDC responded to the first part of Dr O’Hooley’s request, releasing the costs to the GDC of under-guise operations, for the years 2013-2019.
As revealed by GDPUK earlier this year, the GDC spent a total of £59,258.85 between 2013 and 2019 on such investigations.
In April 2021the General Dental Council admitted to Dental Protection that it acted ‘unlawfully in undertaking an under-guise operation without reasonable justification.’
As a result of Dental Protection’s successful defence of their member, the GDC had to pay (at that time) undisclosed damages to a clinical dental technician. Later in the month, a reporter for GDPUK was told by the GDC, that it had agreed to pay compensation to the registrant as well as covering his legal costs.
The figure given to GDPUK by the GDC, was about £38,000.
Dental Protection said the member had been the subject of an anonymous complaint to the GDC that he may be working without registration, and that his laboratory was in a bespoke setting in his home.
The GDC instructed an under-guise operation creating a fictitious scenario with two private investigators posing as relatives of “Evelyn”, an elderly relative who needed dentures but was too ill to attend in person.
The story hit the headlines in 2019 when Daily Telegraph reporters found that the GDC has spent thousands of pounds on hiring private investigators to pose as patient’s families during investigations into complaints against registrants, in what the British Dental Association’s then-Chair Dr Mick Armstrong described as ‘entrapment.’
The Telegraph said: “In one instance in 2016, two private investigators paid for by the GDC attended an appointment of a dentist (sic) posing as relatives of an elderly lady called ‘Evelyn’. The investigation against the dentist (sic) in question was subsequently thrown out, with the GDC having to pay legal costs of those involved.”
The ICO’s decision notice referred to the case of the clinical dental technician.
The notice said “The GDC says that the complainant (Dr O’Hooley) submitted three separate requests on 8 April 2021 and that the requests followed the publication of various published articles at that point in 2021 relating to the outcome of a particular under-guise investigation.”
“This had been determined by a Practice Committee not to be proportionate or justified in the circumstances. The Committee considered that if it had been properly considered, the visit would not have taken place.”
“In consequence of that, the GDC compensated the registrant and met their legal costs.”
While the GDC did disclose the costs incurred between
2013-2019, the regulator said that it does not record the hourly rate and other staff costs “In a way that they can be reported from the system, and that it does not record time spent on activities.”
“The ICO’s decision notice said “The GDC said that, as such, the requested information is not held. The GDC did note, however, that in relation to a fitness to practise investigation in which an undercover visit took place (referred to ’above),
it recognised that an error was made.”
“In consequence of that, it had recently reached a settlement with the registrant concerned. The settlement included compensation and covered their legal costs; a figure the GDC disclosed to the complainant.”
“The GDC confirmed this is the only instance where a payment of that nature had been made.”
The ICO’s notice went on to say that the GDC doesn’t hold information on whether ARF money was used to cover the costs of such investigations, because the information is “Not held because the GDC does not ringfence or apportion income by expenditure activity type.”
In his complaint to the Commissioner, the Dr O’Hooley said that he was dissatisfied that the GDC had suggested that information on the financial costs of under-guise investigations that it approved prior to 2013 could not be found, as it has securely destroyed those records.
The ICO’s notice read “He said he did not accept that a decision of such importance, with associated discussion and approval required at the highest level, would not have a data trail which could result in him being provided with more information.”
“In its submission to the Commissioner the GDC has described the searches it undertook for any relevant information.”
“It says it had received requests previously about the use of under-guise investigations and had already undertaken extensive work to identify which cases involved this process from 2013 when the current customer relationship management system was introduced.”
“Information from these searches were used to answer the first part of the complainant’s request – the direct costs from 2013 to 2019.”
The ICO said “The GDC confirmed that it does not hold financial information for the period before 2013; its retention period for that type of material is six years.”
“Neither would the GDC have boxed any such material and put it into storage as it has no business reason to do this.”
The notice concluded “The Commissioner has considered the complainant’s argument and the GDC’s submission.”
“The Commissioner is persuaded by the submission and the GDC’s reasoning and considers that the searches it undertook were adequate.”
“He has therefore decided that, on the balance of probabilities, the GDC holds no further information within scope of part 1 of the complainant’s request and has complied with section 1(1) of the FOIA.”
The ICO’s decision drew criticism from practitioners on social media.
Some pointed out that although the GDC expects a high standard of record-keeping from registrants, its own record-keeping was ‘deplorable.’
In a blog written by Stefan Czerniawski in 2019, the GDC’s Executive Director, Strategy wrote on the regulator’s website “We do use undercover investigators. In fitness to practise we do so extremely rarely – and even more rarely now than even a couple of years ago.”
“We do so only when there is a potential risk to patients and only when there is no other way of investigating a specific allegation.”
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