Working Inside The Fitness To Practice Panel

Medieval

The General Dental Council’s work in disciplinary matters is sometimes not fully understood by dental practitioners. The revelations over the past few weeks that the GDC is registering overseas dentists as dental therapists without a thorough check of their practical abilities, that they withheld evidence which resulted in a fraudulent dentist being restored to the dental register, and that they have used private detectives to entrap registrants, has opened the GDC’s registration and disciplinary processes to close scrutiny. These recent stories on the GDC suggest those disciplinary processes to be more mysterious than ever.

GDPUK has been fortunate in being given the opportunity to speak frankly with a recent ex-member of the GDC’s Fitness To Practice panel, which helps determine the professional fate of over 112,000 registrants.

Peter is a clinician with over 28 years of experience in dentistry. He is currently working full-time in private and NHS practice. We have been asked not to reveal his identity.

It sounds like a lot of hard work. What made you want to serve with the GDC?

Serve? An interesting terminology there. The GDC has the statutory function of regulating the profession and whilst to many it seems odd, I wanted to be a part of this. Someone has to do it. I thought it might as well be me. You can stand on the outside and criticise, or you can be on the inside and see how the machine really works

Briefly, what were your duties on the committee on which you served? What is the makeup of the committee on which you served?

I sat on the Fitness To Practise panel and as a consequence, you sat on all the statutory committees. They are independent of the GDC – which is a challenging concept, given the GDC writes the committee guidance. On the FTP panel, you read, listen to and evaluate evidence presented. The civil legal standard is used so you find evidence on ‘the balance of probability.’ I personally believe it should revert back to the criminal standard. Beyond reasonable doubt stops charismatic barristers winning you over.

What training do committee members get?

It really isn't as intense as it should be. There is far too much concentration on ‘soft skills,’ such as communication and people skills, rather than legal understanding. I often felt it lacked any real depth. That said, the whole selection process is (allegedly) designed to select individuals that are able to carry out the workload. I personally doubt that, and feel the recruitment process is biased since the GDC seeks to ensure diversity. That aim is incredibly important since the profession is diverse, yet there is a part of me that is convinced that the recruitment process is flawed for this very reason

What sort of cases did you hear?

I heard cases involving all classes of registrant. They were, in broad terms, clinical or criminal. In addition to this there are health cases. Some were easy, some were extremely challenging due to the nature of the allegations.

Did you feel the cases brought before you were justified?

Ah, well, that’s a very difficult question to answer. In some cases yes, in others, no. When a dental professional is convicted of paedophilia then there's no discussion, but when a registrant is in front of a committee with a huge list of allegations that were clearly gained after the original index complaint, then it becomes difficult to clear the mind. The committee can only hear the evidence presented to it (alongside the allegations) yet I personally struggled with the concept. Indeed, in some cases (more than ever should have been) the original index complaint never even made it into the hearing. This conflicts with my personal sense of justice. The GDC managing to amass a long list of allegations based on its investigation was, and remains, of concern to me.

There are some criticisms that caseworkers can be over zealous when preparing ‘charges’ against registrants. Are these justified?

My personal issue with the caseworkers is that they lack any real knowledge of the profession. It can be reasonably argued that they don't need it to just list allegations, but this argument is fundamentally flawed as their inability to understand what is important and relevant is only dictated by guidelines they work to. The system is evolving with dental professionals now involved, but it is currently still lacking serious input

Do you think the makeup of committee’s is balanced and makes for a ‘just’ system?

Committees have to contain various elements in order to make them work. Prior to 2003 the ‘old school tie network’ led to many cases that were serious, failing the patients. There was a time when committees sat with five members. Nowadays, because of cost-cutting, it is invariably three. (The cost per day, per person plus expenses, is considerable). A three-person committee is unbalanced. It comprises one Lay, one dentist and one Dental Care Professional (DCP). One strong individual can influence the other two in my personal experience and a dominant influence means the case will fall their way. It's inadvertent "bullying" and this is why there is a focus on soft skills in the training process. Reverting to the criminal standard would eliminate this bias and mean that an individual’s influence would be more difficult to exert. It's either that or revert to ensuring committees sit with five members. One strong personality has to try much harder to convince four other members of his view.

Do you feel that decision making is hampered by Lay people?

No. The Lay perspective is very important BUT this must be balanced. I have already suggested that a strong personality can influence a committee. The Lay person is potentially the most at risk yet, again, a five-person committee would reduce this bias.

Quite often, registrants complain that they can also face ‘dishonesty’ charges in addition to the main charge – why are these added?

The dishonesty allegation actually tends to be a "collection" of allegations. It seems to arise from (again) expert evidence where the report writer may suggest that a "thing" couldn't have happened. It tends to be termed ‘inappropriate,’ ‘misleading’ or ‘dishonest.’

This to me seems to be a ‘get you one way or another’ allegation. They are usually listed as individual allegations that seem almost a snare. The GDC has to work to the remit the Professional Standards Authority decides and that overarching organisation seems to take great store in allegations that demonstrate dishonesty. Apparently, it is extremely difficult to remediate someone one who is dishonest. I'll let people make their own minds up on that aspect, but will say, to err is human.

Do you feel registrants are treated fairly in the FTP process?

Yes. Whilst to many from the outside it seems a draconian process, as a tribunal it has to follow English law. It is a quasi-judicial committee and it relies on expert input. As a committee member, you are not party to the build-up of a case but as a process, it is probably far too protracted for the comfort of a registrant.

Is it justified or necessary to go outside the index complaint and delve into all aspects of a dentist’s practice?

In my opinion, no. Now, if there was a very obvious risk to patients then certainly. But one complaint of a seemingly simple problem seems to lead to an escalation of the issues by ‘investigating’ the individual. I personally believe that if the index complaint falls away then the investigation should be stopped. This is not a criminal court. It has no powers other than to stop someone practising dentistry. But, and this is where I struggle, many employers may ask if you have ever been subject to an investigation. It won't appear on any criminal record but you would have to declare it - potentially ruining someone's future prospects because they failed to record someone's smoking habits.

Do you feel lay members fully understand the seriousness of their decisions on the registrant?

That's extremely difficult to answer. I have worked with some outstanding people and a few challenging individuals. One thing they have to learn is that, the consequence of a previous decision needs to be put aside by committee members. You can't let previous decisions regarding a registrant influence your decision. An example would be a registrant convicted of fraud in criminal court, but you are not convinced they were as guilty as the court found them. You must take it at face value. As a committee member you can't hide behind a previous verdict and you can only base decisions on the facts presented.

I think it is important to remember that some Lay members are, in essence, professional committee members and may sit on several tribunals and be extremely competent in what they do. That has a flip side, because a ‘professional’ Lay person then ceases to be truly ‘Lay.’

Did you ever feel that you your views were disregarded or overruled by the GDC or other members of the committee?

Yes. But that isn't always a negative. The whole point of having a minimum of three people sitting is so that a majority decision can be made. Your opinion will be heard but not necessarily agreed on. The GDC never influenced my decisions other than the published guidance (which is a separate question).

Do you think the GDC is currently fit for purpose with regard to disciplinary matters?

It is very easy to be critical and I think we are no different to our nursing/medical colleagues regarding professional regulation. By that I mean as long as there is a process whereby a professional’s conduct is questioned then no one will be happy. I have already raised some points regarding this. I do find it very bizarre that committees sit and hear evidence even though a registrant has said they are not going to attend/engage and indeed, are no longer working within dentistry. I once asked the GDC about the costs of a case, in 2009. A three-day hearing for a dental nurse who was never going to attend (she had actually written in saying they could ‘stick’ dental nursing), yet the committee sat and suspended her for 9 months. It cost in excess of £50k to hear this. I never followed up the individual after the period of suspension ended. When this happens (another area that is far too common) then no, it isn't fit for purpose. That was (at the time) the equivalent of the ARF of 50 dentists.

There is another area that makes me question the ability of the GDC to consider itself fit for purpose. This relates to the whole world of eggshells that is inclusivity and diversity.

The drive for diversity and inclusion is extremely noble and proper but shouldn't be a reason to put people in to the role that are essentially carried by more illuminated individuals on panels. The drive to hit inclusivity targets has skewed recruitment into the role rather than ensuring individuals have the ability and capacity to deal with the huge amount of information they are fed"

Do you think the source of complaints has changed over the years? Are there more fellow registrants reporting on their colleagues as ‘whistleblowers?’ If so, what do you feel their motivations are. Could you estimate the proportion of patient-generated complaints vs dental professional-generated complaints vs those brought by health authorities?

I despise the term "whistleblower" but I do genuinely think that motives vary. They go from genuine concerns, to vexatious ex-employees, to other motivations. There was a time when it wasn't the done thing to criticise another individual’s work. I don't necessarily think this is right but I do think there seems to have been a drop in professional discretion. Simply criticising some previous work for personal gain is shocking.

A committee isn't there to judge whether a complaint is based on that, but you get some that come through and you know that the motivation was all wrong. Vexatious ex-employees should be simply filtered out. Part of the problem is that if someone decides to raise concerns then invariably mud is slung from one side to the other. This leads to bizarre accusations that damage everyone involved.

I think genuine concerns regarding safety of patients is important but those involved in the very early stages of a complaint should be more robust in filtering. When a legal firm is the initiator of a complaint then surely alarm bells relating to a litigation process should be sounding in the GDC s ears.

Do you believe that radical changes are necessary in the GDC? If so, what?

I'm not sure there is a need for radical change. Perhaps what is really needed is consistency. If you look at the turnover of staff at all levels then you realise there is a distinct lack of consistency in the executive function of the regulator. That can only lead to confusion over time.

It's a bit like Chinese whispers I guess. Over time, interpretation of the way things SHOULD be done, is diluted. That said, I am still puzzled why any dental professional would contact the GDC for advice on any matter other than their ARF. The shake-up maybe needs the GDC to again tell dental professionals they do not give advice. Go on, give them a call and ask for advice on something and they give it... especially interpretation of guidance. The only folk you should contact are your indemnity company

Despite the GDC’s stated intentions to reform their disciplinary processes, do you feel they will effect change?

I think change will be forced upon them. I think this is a little similar to something I've already said, without consistency then change will just be a hand grenade that will just cause mayhem. It also depends on what reforms they actually can make. What us registrants want would be very different to what they are allowed to do. The Professional Standards Authority is not blameless in all this. They (the PSA) have instilled a sense of fear in the executive function of the GDC by essentially threatening judicial reviews when it disagrees with a committee’s decision. They are the watchmen watching the watchmen. If they don't like something then they choose to challenge it. Change must happen top down, not bottom up

The GDC has recently been criticised for:

1. Registering overseas dentists as dental therapists without examining their practice skills
2. Withholding evidence from a PCC which resulted in a dentist wrongly being allowed back onto the register
3. Using private investigators to entrap registrants into acting outside their scope

What are your views on these recent controversies, if any?

The GDC should really hang its head in shame over certain aspects of these three areas.

I have read online discussions regarding all of these and have (unsurprisingly) formed an opinion on all three.

With regard to the registration story I read, it suggested that the GDC see no risk from registering overseas trained dentists as dentists despite the fact they may have failed aspects of the normal route of entry on to the register as a dentist. ‘Shocking’ is my only response. How long will it be before such an individual is in front of a committee? Will the committee have the kahunas to criticise the GDC for this? (Committees can criticise the GDC, I once sat on a case where we did and, as was stated in the determination, we would have awarded costs against the GDC if we had the power).

I sat on several cases where private investigators were used. I was always extremely uncomfortable with this process but was assured it was perfectly legitimate to attempt to get a professional to offer something they're not allowed to do. It feels wrong...very wrong and should be stopped and indeed, in cases where this evidence was used, I feel the cases should be re-sat without this evidence.

I'm no lawyer but withholding evidence is surely a miscarriage of justice? Remember it works both ways. In the case that has been highlighted, it has been demonstrated that all is not well at the GDC. Withholding evidence to prevent a hold (adjournment or postponement) is damaging to all parties involved. It's interesting how the GDC has been extremely quiet in not responding to enquiries in this and other areas. That is worrying because stonewalling only increases suspicion.

Do you believe the GDC uses the ARF money effectively?

I have never analysed the GDC accounts although there are many that do. I   think there may have been some mismanagement many years ago which left the GDC in a predicament. That aside, the ARF is, for all registrants, far too high. A dental nurse whose skill set is not comparable to that of a general nurse, pays far more yet is probably paid less - shocking and the hike up for dentists was shocking. The GDC is not ostentatious (any more) when providing lunch or accommodation so those outside the organisation that criticise this should be careful. The attempt to reduce costs is noble, but perhaps not severe enough.

Do you believe that it is difficult for individuals to effect change from within? Does the government need to take a role in regulation?

The GDC is attempting to reform but as an outsider it is easy to criticise. That aside, they really only have themselves to blame given that they choose not to answer enquiries and using underhand methods to gather evidence instils no confidence. They perhaps need to be open about their dealings with ministers and health ministry officials and about how they have to engage in order to ensure that the guidance they give reflects the changing nature of dentistry.

Endless consultations seem to only attract a certain type of individual to respond and they will never get a balanced response because that nineteen year-old dental nurse who works from 8 to 8 for £9 per hour just couldn't give a toss. And when she is called in front of a regulator that she isn't aware of other than they want money off her annually, she will just go and do something else if called before a committee. Who wants that stress when you feel like you're the bottom of the pile and getting paid peanuts? You are understandably not going to care. That is possibly where the GDC could easily reform. Look at how it manages dental nurses and dental technicians.

Employees and ex-employees often describe the atmosphere within the GDC as ‘toxic.’ What is your view?

I wasn't an employee. No FTP member is, so my fleeting visits to the various GDC locations would not give me an opportunity to assess the working environment adequately. But I do take websites that people post these comments on, with a pinch of salt. A vexatious ex-employee may put toxic postings on just to be mischievous or air a grudge.

Why did you give up your role with the GDC?

I realised that I had "done my bit" it is very easy to stagnate in the role. I think I intimated earlier, that there are essentially professional committee members. They're not all Lay. Whilst it is important to have a broad church on committees it is somewhat bizarre that academics and non-clinical registrants are making decisions about care standards in an aggressive UDA system or on private practitioners just trying to earn a living.

Now you are no longer involved with the GDC, do you have any views on the current state of regulation and the ‘fear’ that is said to be gripping the UK’s dental professionals?

Neglect, fraud and certain things need addressing for sure but sanctioning an individual for a speeding offence really pushes the remit. The GDC says these committees as not punishing individuals but I beg to differ. Suspend an individual for a year and you have denied them their income. These sanctions are punitive in even the simplest form. It was becoming, and continues to be, farcical – leading to protracted hearings for trivial matters that should be dealt with locally.

Back to the subject of reform, the GDC perhaps should engage an ombudsman in more cases to decide what the complainant REALLY wants. If it is retribution or just a matter of "where there's blame there’s a claim" then that doesn't protect the public. Look at the length of determinations for even trivial matters, amazing. The Professional Standards Authority forced that. No, I don't want to be a part of that anymore.

With regard to the culture of fear that has developed in dentistry over recent years - the professional indemnity companies are not playing ball either. Their fees are extortionate yet they have the audacity to criticise the GDC. In 28 years, I have had to contact my indemnification company just once. I wasn't impressed.

I actually believe the indemnity companies are mostly to blame for the culture of fear. Their courses are toxic and full of fear. “If you don't do X or Y then the GDC will have a case.” Having watched many, many cases I can hand on heart say, I often shook my head at the really useless arguments they would instruct the barristers to present. They use ‘expert’ evidence to counter GDC evidence rather than peer to peer evidence. The experts are invariably academics or specialists that are way out of touch with the pressures of general dental practice. There is a massive disparity there.

Finally, I would sometimes find the hypocrisy at the GDC amazing. The biggest example that STILL irks me to this day is in the Maintaining Standards document pre-2006. It clearly stated that “a dentist must not work to a target driven standard.”

Because of the new UDA-based contract, the GDC had to make sure that particular passage wasn’t included in the guidance following the introduction of the new contract.

And the GDC is independent of Government interference you say?

Image credit - Stefan Jurca under CC licence - not modified.