Is the GDC supertanker turning? by Keith Hayes

Last Monday 14th August 2017, I had another meeting with Jonathan Green (Head of FtP) and Matthew Hill (Head of GDC Strategy). 
It was a no holds barred meeting and I was free to ask any questions. I wasn't locked in dungeons under 37 Wimpole Street at any point! 
Here is the agenda of the 90-minute meeting, along with the GDC answers in blue. 

It raises some important considerations about what we need to do as a Profession. I think we need to think about the answers and discuss a strategy for the Profession. 

Recent survey on GDPUK (July) Estimate 250 respondents representing 40% participation rate.
Results:
• 7% feel the GDC are protecting patients, which is their stated primary objective.
• 0% i.e. Nobody is confident about representing themselves at an IOC.
• 2/3rds not even confident you can afford indemnity premiums.

• 98% feel threatened by ‘no win, no fee’. 
• 98% felt that DLP and such, actually lower standards.
• 85% added that they don’t feel confident to offer ‘best’ treatment options sometimes in case it’s not 100% successful.

So, Shifting the balance, but lot of heavy lifting still to do from my survey. 

 

“Interesting to see this Poll and Stephen Hudson's survey and DPL's recent findings and of course the BDA's survey concerns about these ACUTE aspects for our Profession too. This is clearly getting worse for all in England and the wider UK too.

Q1 Case Examiners. What’s latest?

Case Examiners have been very successful. The Case Examiner team is made up of eight part-time dental professionals, including dentists and DCPs, and five full-time lay members. The Case Examiners work in pairs to carefully consider cases where a registrant’s fitness to practise needs to be investigated and aim to make a decision within seven days of the case being passed to them by the GDC’s casework investigators, to ensure that appropriate action is taken as quickly and efficiently as possible.
After the first six months, the Case Examiners have:
• Considered 356 cases;
• Of these, 28% of cases have been referred to a full hearing. In the twelve months prior to November 2016, the Investigating Committee referred 45% of the cases it considered to a hearing;
• Closed 52% of cases they considered by either giving a warning or advice to the registrant, or by taking no further action. 
• Invited 40 Registrants to comply with a set of undertakings (or conditions of practise issued earlier in an FtP investigation) as an alternative to the matter proceeding to a hearing. The power for Case Examiners to offer undertakings was also introduced as part of the GDC’s reform programme in November 2016.
The GDC considers that Case Examiners have shown a strong commitment to be pragmatic and use the wide set of disposal options available to them in their role as decision makers and this has resulted in less cases being referred to a Practice Committee. 

The GDC is conscious of the PSA having some concerns about this process because Cases that are resolved by a warning given or Undertakings accepted will not usually progress to PCC or FtP and are therefore not subject to Section 29 scrutiny by PSA. This means that the PSA does not have the opportunity to request that Cases are revisited if they feel sanctions were too lenient. I wonder if the PSA has ever requested re-evaluation if they consider sanctions might have been too harsh, but I didn’t ask that question? 

Matthew Hill (GDC Head of Strategy) told me that the PSA is nervous about all the Regulators making such changes and not just the GDC. The GDC is keen to show it is delivering on its promise of ‘Shifting the Balance’ and lighter touch regulation. 

The GDC is keen to ensure that they have performed a quality assessment of this new process and carried out both internal and external assessments and found that the CE judgements were given a ‘green light’ indicating they were ‘spot on’ in 92%+ cases aka ‘within the reasonable range’. 

Q2 What happened to ‘That wretched document?’ Stephen Henderson.

JG told me that the ‘wretched document’ has been withdrawn. 
We discussed whether it could have been modified or improved to allow dentists to show they had insight and that they ‘could have done things better’ without signing the heavy-handed bottom line admitting they were guilty of misconduct? Both JG and MH considered that the best way forward would be to introduce a lighter touch document which might be more acceptable and allow more dentists to potentially be offered Undertakings without risking losing their indemnity provider support. 
We agreed that improvement is a journey which we are all on making things more intuitive and lighter touch would help commence the journey. To date there have been just 40 dentists offered Undertakings. 
I feel that the numbers should be higher and I wonder if colleagues feel sometimes caught between a rock and a hard place in deciding whether to accept these undertakings and risk losing indemnity support? 
JG added that ‘Case Examiners can also only offer Undertakings where a Registrant has shown insight, remorse or remediation – if no response is received, it can be difficult for Case Examiners to extend the offer’. 
 

Q3 Clinical Reviewers Role?
 

The next major development will be in-house clinical reviewers. If they are wise and proportionate and properly understand what misconduct looks like, fewer cases will go to Case Examiners. Stephen Henderson.

What sort of experience will they have?
They will be ‘ordinary’ GDPs (not specialist) dentists who are in practice 2 or 3 days a week and working with GDC for 2 or 3 days a week also. 
There will be 5 in all and one will be mostly at the triage end. They will be free to ‘roam’ and to be actively looking at all stages of the process of investigation and progress to the later stages of PCC and FtP. 
How will they be calibrated?
They will work in parallel with the NCAS service to ensure that there is a common approach. Some Cases may be worked in tandem. This will only happen during the induction/training stage leading upto mid-October launch, ‘I don’t want folks concerned that they will get two reports on each case’. 
The training of Clinical Reviewers will start this September. 
REMEMBER, misconduct is not "mere negligence" it is a very serious departure from ordinary standards. 
I said that I feel the GDC need to have a better idea about ‘seriousness’.
JG explained that they ‘keep in mind what concerns the Profession and need to ‘keep in step with society expectations. We are looking at this as part of a work stream within Shifting the Balance. In addition, revising the Triage test in 2015, introducing a dedicated triage team (empowered to use new tools like cease and desist letters) and the introduction of in-house Clinical Advisers. 

How will they review decisions and with what ability to revise them? 
Clinical Advisers will replace NCAS Reviewers from October 2017. As with all experts in GDC (and any other medico-legal cases) they will be required to keep their conclusions under review throughout a case to review new evidence or circumstances in the case. 

Q4 What is the PLAN to stop unrepresented IOC hearings? 

0% i.e. Nobody is confident about representing themselves at an IOC.

What are you going to do to sort this out?
15% unrepresented is outrageous. 
JG confirmed the figures that Tony Kilcoyne gave us, 14 attended unrepresented of the 80 initial IOC hearings listed in 2017
That’s almost 20%! So, it’s worse than I suspected. 
JG explained that some of these cases relate to non-dental matters such as criminal investigation. 
I pointed out that if it’s criminal investigation, the Police Investigate or Arrest. JG made the point that ‘they (the Police) can’t suspend or attach conditions of practice?’
JG pointed out that the GDC have a mandate to protect the Public and these criminal cases can take a long time. The GDC would be criticised for not acting more quickly in cases where the public are at risk. 

I agree, but I have to also point out that this is a very rare occurrence and having 22-23% dentists suspended does not reflect this rarity. There must be a better solution and I suggest that the GDC should consider making greater use of supervisory powers over suspension. Unfortunately there are not so many colleagues willing to perform this role and I think the GDC could help by explaining what is involved and encourage a few more of us to lend a hand. 
JG explained, ‘I think its important to add that the point I made at the meeting that the bar for IOCs is set high by the law and our guidance – it must be necessary to make the order to protect the public, the registrant or the public interest. The panels must look at necessity first and even if they decide they must take action, they don’t jump to suspension. They must look at making no order or issuing conditions and explain why those steps are not appropriate. So the bottom line is the 20% suspension rate covers those cases where panels are utterly satisfied that there sufficient risk exists, which cannot be remedied or mitigated by conditions (including supervision)’.
Nevertheless, I feel that a 20% suspension rate is massively more than I would expect and I still feel we must press the GDC to reconsider what is meant by ‘Protection of the Public?’
My further suggestion was to either tell everyone they should consider having a non-discretionary policy (maybe in addition or instead of) or spend some of your £12 million surplus. I am adamant that this MUST be sorted. 

JG responded:
Absolutely not our role, blurs the boundaries between investigator / adjudicator and those regulated. Plus very costly. 
We didn’t discuss any £12 million. 
JG categorically ruled out steering registrants to ‘duty solicitors’. It seemed clear to me that they felt that if they embark upon this path it is a slippery slope and although they didn’t say as much, I am wondering if they felt that indemnity providers might see this as a golden opportunity to stop providing this ‘discretionary’ support. ‘But we are looking at agreeing a referral arrangement with the Bar Pro Bono Support Unit that provides free representation in qualifying cases, but where requests must come from a “preferred supplier “effectively. We hope these arrangements can be in place in the next two months.’

Meanwhile the GDC are keen to progress more formal plans with many dental bodies but that will they acknowledge, take much longer to achieve. Tony Kilcoyne.

I pointed out that you don’t have that much time.
MH agreed that although the GDC had published recently some details about requirements of indemnity provision and reading the ‘small print’, I asked if they could be much more specific about the differences in discretionary and non-discretionary insurance style cover? MH said that the GDC will do this. We also explored whether the GDC could talk to a wider range of providers in future, I think they will. 

Q5 Why do you suspend so many dentists, surely few dentists are a danger and those that are should be prosecuted by the Police? 

The courts have ruled (Sheikh v General Dental Council) that even where there is a criminal conviction for fraud, suspension to protect the reputation of the profession or maintain public confidence is wrong and suspension for these reasons should be reserved for the PCC to decide after the facts are proved. Laurie Jacobs

The GDC urgently need to rethink this. What’s the plan here?

When will we take responsibility, will the GDC be a leader of a follower? 
Stephen Henderson has already told me that I should stick to fighting battles that it is possible to win. I’m sure he’s right, but I am stubborn. 
The GDC confirmed that the trend is definitely in one direction and that is towards the Civil Standard adding, ‘ Following Shipman, Mid-Staffs and various Law Commission consultations.’ 
 

Just remind me, Shipman was not a dentist?

However, I do believe we don’t need to behave like a pendulum and we should strike a balance. 

I definitely got the impression that JG understands this and his track record as a solicitor in this field indicates he is willing to be fair and proportionate. 
I couldn’t have been having these conversations in the past and I feel there is a much better level of understanding now with the Profession. 
JG explained that when the Law is changed (from criminal to civil standard for example) there is a ‘time taken for the impact to be fully embedded.’ 
There is a ‘catching up’ process and the GDC is heading for ‘lighter touch’ regulation. 
JG suggested ‘That the civil standard often works on a sliding scale basis – in the more serious cases, the standard of proof required is at the upper end of ‘more likely than not’. 
I would have liked that to mean that the GDC expect Panels to ‘err on the beyond reasonable doubt’ side of the pendulum when it comes to issuing sanctions such as suspension and erasure. I’m not sure how this is monitored or whether there could be any evidence of this suggestion. JG has promised to send me examples of published suspension and erasure cases.
I asked whether the GDC has any intention of looking at the understanding of Public Protection?
I was told NO. 
‘In our view the test is working reasonably well’.
I don’t understand why so many more dentists being suspended compared with doctors for example. JG has questioned my interpretation of this anomaly adding, I don’t think this statistic is correct Keith – please see GMC last annual report - http://www.gmc-uk.org/Annual_Report_201 ... 296034.pdf - their IOC panels suspend 18% of Registrants and 40% are suspended at final hearing.
MH told me that there are around three times as many complaints levied per dental registrant than per doctor and If you take out DCPs the ratio is higher
Ouch, that’s a really serious problem. 
The GDC thinks this may be because many doctors work within secondary care and are subject to greater standards of clinical governance. Certainly the CQC are insistant that all dental practices operate a system of GOVERNANCE. JG specifically emphasised this point again to me by saying: 
The missing point here is that the same level of clinical governance isn’t present in dentistry and so historically, the GDC has tended to try to fill the vacuum. 

The GDC is looking for the Profession to step up to this plate now and have the evidence that we are using a system of governance. They want to have confidence, like the CQC, that we are doing this. 

Q6 Clarifying acceptable clinical standards, who is going to do it?

The drive all round the world (bar Malaysia, Singapore and Hong Kong at present) is to move to the civil standard of proof for determining the facts in the case. So on the balance of probability did this happen, or did that happen rather than beyond reasonable doubt. So this is, right now a battle we cannot win. It will involve a change in the Act

The way it was explained to me ( I remember clearly as I raised it as a concern, see past minutes etc.) was that the more SERIOUS the accusation/sanction considered, the more that scale of burden would move towards the criminal 'beyond reasonable doubt' requirement upon the GDC for matters that considered suspension or erasure, for example. Tony Kilcoyne.

We need to have reasonable standards and not umpteen ‘Expert’ opinions. 
The GDC should not be permitted to ‘shop’ for expert witnesses and delay Hearings.
I didn’t get a reply to this statement

Two ideas I put forward:

1. A Panel must have ‘beyond reasonable doubt’ level of evidence before it can erase or suspend. It can apply Conditions or reprimand at Civil Standard.
OK, so we have already discussed much of this. 
In summary, Matthew Hill said: I think I said that I would question whether it would be in the best interests of the profession to return to a criminal standard. When implemented effectively, a civil standard ought to offer opportunities for greater proportionality and flexibility (and in fact ought to be much more cost effective). I said that the way we regulate still hadn’t, in my view, caught up sufficiently with the change from criminal to civil that had allowed those opportunities to be exploited, but that we were working hard to change that

So, Matthew Hill questions whether it would be in the best interests of the profession to return to a criminal standard? 

He further added that the way we regulate still hadn’t, in his view, caught up sufficiently with the change from criminal to civil that had allowed those opportunities to be exploited, but that we were working hard to change that.

Personally, I hope that the GDC can demonstrate the truth of this quickly because we currently have a healthcare litigation problem which is way out of balance and we can’t afford, something is going to give. 
Which is more important: some health care with responsibility and limited compensation or none? 
We are going to see some sweeping changes in the Laws in next 2 years and there will be some opportunity for change I suspect. 

2. Expert witnesses must also currently serve as a Clinical Supervisor or GDC Reporter role 
JG couldn’t see this working ‘primarily because one of the delays in FtP cases is the delay in securing expert evidence due to the small pool of dental experts. To require the experts to meet these criteria, would reduce the pool further initially and this would have a detrimental effect on the timeliness of cases, which in turn will add stress to Registrants. We do require our experts to meet key minimum standards to become experts on the GDC panel and to complete the annual training we provide.’ 

Personally I think it’s an opportunity to ensure we have ‘Experts’ who are on the ground and current with their expectations on standards. 
The final message from JG and MH is that they want to help the Profession create the space for it to step into to create its own agreed standards and the GDC will support this process. 

JG discussed whether the GDC ‘s experts are applying the correct standards and was clear that experts do not apply Faculty Standards or Bolam negligence standards but must indicate a falling far short of the GDC’s standards for misconduct to be found. 

However, the issue of what good looks like in terms of Standards is one which the profession needs to discuss. Hence….. what MH also emphasised again: 

I see the role of the regulator was to set the framework of outcomes that the standards should achieve, and to create more space for the profession to work out the detail of how those outcomes should be delivered.

I think the GDC see that urgent change is required and want the Profession to take back the initiative and show the way ahead.