Acting to stop harm: the FCA and Appointed Representatives
Most dentists’ experience of the General Dental Council (GDC) is limited to obtaining and maintaining their professional registration. But for around 400 dentists per year, the experience is a more serious, potentially career threatening, one. This is because they have been subject to a complaint and find themselves involved in a GDC fitness to practice investigation. Going through such an investigation can be a distressing and lonely experience. Here we attempt to de-shroud some of the mystery behind what happens when the GDC receives a complaint about a dentist’s fitness to practice and what the process actually entails.
It starts with a complaint...
Anyone can complain to the GDC about a registered dental practitioner. In practice however, most complaints are made by patients, their families or employers.
Complaints usually fall into two broad types: deficient professional performance (not being competent to do your job) and misconduct. Misconduct may be directly related to patient care or, more often, based on behaviour outside of clinical practice, such as not maintaining appropriate boundaries with patient, or following a conviction in a criminal court for an offence such as driving with excess alcohol.
Not every complaint is taken forward. In 2014, the GDC received just over 3000 complaints; just 13% of those resulted in a disciplinary hearing, the rest were closed at an earlier ‘triage’ stage. In serious cases, the GDC will gather evidence to support its case, from witnesses and from the dental practitioner concerned. This may take several months and the GDC has wide reaching powers to force persons who hold relevant information to provide it for use at their hearings, and will often ask the practitioner to provide radiographs, patient records or study models
The practitioner under investigation may want to take legal advice at this stage. There is no requirement to instruct a lawyer but how dentists respond during evidence gathering and subsequently during the hearing can have a bearing on the outcome of a FTP investigation. Honest cooperation for example is advisable and proper advice from a lawyer or member of their Defence Union on how to phrase witness statements or present their case can often be invaluable.
The Hearing of the Allegation
The ultimate purpose of a GDC hearing is to examine the fitness to practise of the dental care professional in question and, if necessary to impose a sanction to protect the public. All of the decision-making at a GDC hearing is performed by an independent three-person committee, comprising at least one lay chairperson and one registered dental professional. The committee has a lawyer on hand to advise them on law and procedure. For the dental practitioner, the aspect of the hearing that is often the most troubling is that it is held in public and will have been advertised on the website beforehand. In practice, however, most cases attract little, if any, public attention.
A hearing is in two stages. The first part is an enquiry into the facts alleged. If the practitioner has admitted the facts in advance of a hearing, this will mean that the GDC will not call any witnesses and the hearing will go straight to stage two. More usually, the GDC calls witnesses to speak in support of the allegations. These witnesses might be patients, colleagues or expert witnesses instructed to provide an opinion – particularly in performance cases. Witnesses will be questioned by the lawyers for the GDC and the professional as well as the committee. This part of the case may last from a few hours to a few days, depending on how many witnesses there are. A note is taken of the evidence so that it can be referred to later. Although the proceedings are quite formal and first names for example are avoided, no one stands up to give their evidence or when they speak.
During the second stage of the hearing, which follows immediately on from the above, the committee starts by looking to see whether the facts found amount to conduct that the regulator should be concerned with. Not every instance of deficient performance or misconduct meets the test actually; deficient performance must fall far below the expected standard of a competent practitioner and misconduct must be serious.
A decision must then be made by the committee about whether the practitioners’ fitness to practice is currently impaired: even lawyers struggle to explain what this means! Roughly speaking, because it is not the function of the GDC to punish practitioners (not like a criminal court), the committee needs to decide if, based on the facts proved, there is any future risk of harm to the public if the practitioner is permitted to continue to practice, with or without restriction.
In considering impairment, a panel often takes into account the insight shown by the practitioner into their past behaviour. If they continue to deny the allegation, or they are unable or unwilling to explain how the events occurred and what they have learned or would do differently in the future, it is likely that a panel would conclude that there is limited insight and from this a finding of impairment of fitness to practise is almost inevitable. This is also the point at which events subsequent to the date of the allegations is highly relevant. For example, in a deficient performance case, if a dentist has been working consistently since the allegation and has performed the same procedure many times to a satisfactory standard (provided this is evidenced through training records, testimonials etc.) it will be very difficult for a panel to find that there is a risk of repetition.
Risk of harm to the public is not the only basis upon which a finding of impairment can be made. Regulators have a duty to declare and uphold proper standards in the profession and must usually make a finding of impairment in serious cases where members of the public would expect a marker to be put down about the registrant’s conduct. Obvious examples include where dishonesty is alleged (all regulators take dishonesty very seriously), where there has been an inappropriate relationship with a patient, or where considerable harm was caused to a patient amounting to gross negligence. In these cases, the fact that it won’t happen again is irrelevant; as far as the GDC is concerned, it should not have happened in the first place.
Sometimes cases are closed if the facts are not proved, the misconduct or deficient professional performance test is not met or if there is considered to be no impairment. This happens in roughly 10% of cases.
However if the committee has found against the practitioner, they must decide what sanction is appropriate. Sanctions are not intended to be punitive (although they will often be felt punitively by a professional); they are imposed to protect the public and, where necessary, declare and uphold proper professional standards. The committee has four possible sanctions at its disposal. They may issue a reprimand, which does not limit the scope of practise but does have a reputational impact. They may impose a conditional practice order – i.e. a restriction on the activities that may be undertaken in the course of practicing. They may suspend registration or lastly order erasure from the register. Erasure is relatively rare and reserved for the most serious cases, for example, dishonesty, sexual wrong-doing or repeated deficient performance coupled with an apparent inability to improve.
Of the 200 or so hearings in 2014, 14 dental professionals were issued with a reprimand, 45 had their registration suspended and 34 were erased. This is likely to be a growing trend for practitioners as the number of Fitness to Practice investigations the GDC conducts increases in this age of empowered patients and whistleblowing. Fitness to practice investigations typically take 12 months from notification of a complaint to committee decision. They can be very nerve wracking and although it is possible to navigate the process without legal representation, this is often inadvisable. Securing the most favourable outcome is increased substantially by engaging appropriate representation at the outset.
The authors are Julie Norris, regulatory partner at Kingsley Napley LLP and David Claxton, barrister, Red Lion Chambers
This article first appeared in the May issue of The Dentist
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