GDC Clarifies Its Own Post About Clarity
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- Published: Monday, 22 January 2024 10:28
- Written by Peter Ingle
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In what would make a plotline in “The thick of it” the UK’s dental regulator has had to clarify one of its own news stories - about clarity. This has occurred within days of the GDC publishing: ‘Seeking clarity on the interpretation of when immediate and substantive suspension orders commence and expire.’
Previously reported by GDPUK here, the GDC’s original document can no longer be seen as they have simply deleted it, replacing it with what they describe as an updated version.
This follows doubts cast repeatedly in the High Court by Judge Anrdew Ritchie, this time taking issue with the Council’s approach to calculating the duration of suspensions. Up until now those with the temerity to appeal a GDC suspension could expect the time waiting for the appeal to be added to any final Fitness to Practice (FTP) ‘sentence.’ This as the Judge pointed out is not how the criminal justice system works. Despite this legal judgement against them, the GDC decided to try and double down.
Without the original to compare with, as a result of the GDC’s sleight of hand, it is difficult at first to see what has changed. However the following line has now vanished: “We have advised panels that they should continue to follow current guidance until the appeal is heard, because we are of the view that the interpretation of the statutory regime in the Aga v GDC judgment is incorrect.”
Amongst those incensed by the GDC position was the Medical and Defence Union of Scotland (MDDUS) who wrote to the GDC soon after the original announcement.
Bearing in mind that the defence organisations have to maintain a relationship with the GDC, their letter was remarkably direct. Even the title of the webpage containing their letter pulls no punches. MDDUS writes to GDC urging reconsideration of unlawful guidance following high court ruling | MDDUS
The MDDUS refer to the GDC’s “attempt to sideline a High Court ruling.” They note that the GDC’s approach was considered by the Judge to be a punishment for appealing. MDDUS chief executive Chris Kenny continued ““It is not open to the GDC to choose to set that judgement aside, unless and until the Appeal Court determines that a mistake in law has been made. Until then, panels must be bound by the current judgement.”
Chris Kenny’s letter to Gurvinder Soomal, Interim Chief Executive, General Dental Council, began:
“I am writing to express our very strong concerns about the press release issued on 3 January headed "Seeking clarity on the interpretation of when immediate and substantive suspension orders commence and expire" and to seek the immediate withdrawal of your proposed related guidance. MDDUS represented the registrant in the case which the GDC has chosen to take to appeal.”
Referring to the double jeopardy aspect it continued: “This does not pass any plausible test of fairness or natural justice. Far from being a generally accepted “longstanding interpretation,” it is clear that the GDC position has always been open to challenge and the Court has now found it to be mistaken.
Of even greater concern, however, is the fact that you have advised panels to continue to follow current guidance until the appeal is heard. The law is now quite clear. It has been adjudged by the High Court. It is not open to the GDC to choose to set that judgement aside, unless and until the Appeal Court determines that a mistake in law has been made. Until then, panels must be bound by the current judgement.
For the avoidance of doubt therefore, our submissions in all similar cases will make clear that we consider your proposed guidance to be unlawful and hence that any panel that chose to follow it would both be failing in its own duties and undermining its independent status.”
The letter concluded with a coded warning to the GDC: “Even more importantly, we urge you without delay to withdraw the guidance to panels, both to avoid creating potential chaos and uncertainty should, as we hope, Mr Justice Ritchie’s interpretation be maintained and, above all, to ensure that penalties remain proportionate and lawful.
Given the importance of this issue, we are releasing this letter to the press and bringing our concerns to the attention of the PSA.”
Rachael Bell, interim head of dental at MDDUS, said: “The GDC has effectively said its panels should operate like it’s business as usual. That shows a shocking and unusual lack of respect for a High Court judgement.
In our view, until its appeal is heard, the GDC must comply with the standards they set their own registrants and respect the rule of law as it currently stands.
Whilst we fully appreciate the need to protect the public, regulation must reflect the current state of the law, and no regulator is above that fundamental tenet.”
This is how the GDC introduced their updated “clarification” story: “As a result of welcome challenge and feedback from a range of stakeholders, we identified that the information circulated to independent Committees in the Dental Professionals Hearings Service should incorporate the wider legal consideration around this issue. We have amended the information to include this, and to express more clearly the decision-making role of Committees. The statement below reflects this.”
Looking at ‘what they said’ against ‘what they meant’ it is possible to decode this introduction which illustrates the GDC’s default bunker mentality .
What they said: As a result of welcome challenge and feedback from a range of stakeholders.
What they meant: About as welcome a typhoid. And the only feedback that counts was from the Defence Organisations smelling blood, and even our own legal advisers telling us we had gone too far this time
What they said: We identified that the information circulated to independent Committees in the Dental Professionals Hearings Service should incorporate the wider legal consideration around this issue.
What they meant: Someone tapped us on the shoulder and reminded us that advising our fitness to practice panels to ignore High Court Judgements, especially ones that we do not like, is inadvisable.
What they said: We have amended the information to include this, and to express more clearly the decision-making role of Committees. The statement below reflects this.
What they meant: We have done the bare minimum to get us off the hook. Fingers crossed the panels will still double up suspensions, we might get away with it, and besides, now if it all goes wrong we can blame them.
Once again the GDC are left looking like a regulatory version of the Paula Vennells era Post Office.
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