What regulators regard as dishonest – more than you would think!

Of the ten dental professionals removed from the General Dental Council’s register in the first two months of this year, half were investigated over allegations of dishonesty and found to have behaved dishonestly in certain respects.

Such allegations are increasingly common across all sectors of regulated healthcare and can have career-limiting consequences if proved.  A dental practitioner, dentist or nurse, found to be dishonest by the General Dental Council (GDC) may lose their registration temporarily or perhaps even permanently. Recent cases have involved a failure to disclose a drink driving conviction, dishonest comments and false invoices. We look at some of the other less obvious reasons that professionals may be found to be dishonest.

How seriously is dishonesty taken by the GDC?

The short answer is ‘very’. Honesty and integrity are considered by regulators (and the public) as being central tenets of any profession. In the guidance provided to the Professional Conduct Committee (PCC) of the General Dental Council (GDC) (the body which determines issues of a dental practitioner’s fitness to practice), erasure from the register is recommended as an appropriate sanction if allegations involve “serious dishonesty, particularly where persistent or covered up”.  The guidance goes on to say that “Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession”.

The scope of dishonest conduct

Dishonest conduct is conduct that is dishonest by the standards of what most people would regard as being dishonest, and at the same time, the perpetrator must know that it was dishonest by those standards.

The GDC’s Sanctions Guidance provides a number of examples of conduct occurring in professional practice that may be regarded as dishonest, including:

• Defrauding an employer or contracting body;
• Falsifying and/or improperly amending patient records;
• Issuing practice policies which unduly influence patients to receive expensive or unnecessary treatment;
• Misrepresenting the NHS position;
• Submitting or providing false references;
• Providing misleading information on a CV;
• Failing to take reasonable steps to ensure that statements made in formal documents are accurate; and
• Misconduct in relation to research, for example presenting misleading information in publications or dishonesty in relation to clinical trials.

Below we look at some cases that have reached the courts, highlighting some of the less obvious conduct that has been classified as dishonest.

CVs and applications

Professionals need to be particularly vigilant about the accuracy of information they include in applications and in their CVs.  Professionals with criminal records, even for minor historical matters, often struggle to fill in application forms, not knowing what needs to be declared and what does not. A doctor who failed to declare an old shoplifting conviction and then evaded the Trust’s requests for a Criminal Record Bureau check (now Disclosure and Barring Service) for example was found to be dishonest and removed from the register.

In another case also concerning a doctor, the court declared that in cases where a professional was aware that their CV contained false information and that it would be relied upon (here, by a prospective employer), this could qualify as dishonest. The doctor in this case had misstated areas of undergraduate and post-graduate study on his CV.

Advertising

Inaccurate advertising can lead to a finding of dishonesty. Practitioners need to be careful not to mislead patients and in particular, that their skills and qualifications have been presented honestly. In one case, a dental nurse was removed from the register for advertising her services in laser teeth whitening as a registered dental nurse when providing tooth whitening was beyond her scope of practice as a dental nurse.

Covering up sub-standard treatment

The courts have made plain that attempts to disguise and explain away poor treatment, in order to avoid the consequences of a complaint, will almost inevitably lead to a finding of dishonesty. In one particular case, a dentist replaced a patient’s fillings over the course of three appointments.  Several months later, the patient attended another dental practice for emergency treatment.  The new dentist raised concerns about the patient’s previous treatment which led to a letter of complaint being sent to the first dentist from the patient.  The allegations of dishonesty arose from the dentist’s response to that letter of complaint.  Instead of acknowledging the sub-standard quality of the work he had undertaken, he stated that he had not in fact finished the treatment, and that the composite fillings he had provided were “provisional”. With the obvious intention of making good his failings, he invited the patient to come back so that he could ‘complete’ the treatment.   The records contradicted his assertion – they were clear that he had regarded the treatment as complete. 

Inaccurate Units of Dental Activity (UDA) claims

The PCC regularly makes findings of dishonesty in relation to the way in which practitioners have submitted their claims for payment from the NHS based upon the units of dental activity (UDAs) carried out:

• One dentist was found to have been dishonest for claiming for treatments in a higher band than was justified and for splitting a course of treatment into two separate claims which properly should have been covered by one claim.  The same dentist was found to have deliberately held back PDS1 forms (declaring the fees paid by patients directly) in order to ensure that no deductions were made to the payments he received from the NHS: this was also found to be dishonest conduct.
• Another dentist, who had failed to meet his UDA contractual targets, and clearly wanted to avoid having to refund payments already made to him by the NHS, submitted claims for UDAs which included Band 1 UDAs for posting information leaflets and prescriptions, despite the fact that there had been no clinical contact.  Even though the sum of money involved was relatively small, the PCC found that he must have known that sending out documents was not a ‘course of treatment’ as defined in his NHS contract, and that the claims were motivated by dishonesty.

Lessons learned...

The dishonesty net is cast far wider than practitioners might appreciate and can lead to severe consequences if the regulator finds that the practitioner knew what they were doing is wrong and went on to do it anyway.  In the current climate of regulatory vigilance, empowered patients and employee whistleblowing, it is most unwise to think that you “will get away with it” or that you will only get a slap on the wrist if found out. Prevention is always better than cure.

This article was written by our regulatory partner, Julie Norris and Jane Oldfield, barrister at Red Lion Chambers.  The article first appeared in The Probe’s August 2016 issue