November, around Armistice Day is an appropriate time to remember those that have died, so it is timely that the GDC has finally produced its report into deaths that have occurred during fitness to practise investigations GDC publishes report on causes of death during fitness to practise investigations .
Dear Mr Whiting,
Welcome to the world of dental regulation.
An open letter to the new Chie...
I can only agree with Stephen
(An Interview With A Former Member)
By
Paul Felton
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:
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.
Disappointing
Reply to Stephen Henderson
Follow up
Life after GDC
There is a feeling amongst dentists on forums such as this that the GDC has become too heavy handed when dealing with alleged misconduct cases.
In March 2017 alone, of the 29 misconduct Fitness to Practice cases heard by the GDC, 9 dental professionals were suspended, 4 had conditions placed on them, 4 were erased and 2 were reprimanded. There were also 4 cases with the outcome still pending. That means of the 25 cases concluded 76% of dental professionals were found to have committed misconduct.
Compare this with the GMC figures for the same month, there were only 6 misconduct Fitness to Practice cases of which only 2 had findings of impairment made against the doctor. Considering there are more doctors than dental professionals registered to practice in the UK, the difference is significant.
In November 2016 the GDC introduced Case Examiners in an attempt to help streamline the Fitness to Practice process. Their role is to consider whether a referral should be made to the Practice Committee. Given this new stage is still in its infancy, we are yet to see what impact this will have on misconduct cases within the dental profession. However, it is hoped that as cases will be considered by a lay member and a dental professional, a more proactive approach will be taken at an early stage. This is the approach taken by the GMC and the low numbers of misconduct cases being referred for hearings could be a positive sign of things to come.
Unfortunately there are rarely any consequences for patients who make spurious complaints which are not upheld; however, the same cannot be said for the professional. The time, stress and expense of misconduct hearings can have a devastating effect. Many feel that their stress is exacerbated by an unsympathetic and heavy handed regulator.
If you are facing a misconduct investigation, it will no doubt be a worrying period for you. It is important to understand from the outset what legal test the GDC will be applying. This way you can properly prepare your defence and gather evidence from an early stage. Proper presentation at the start may well ensure that the Case Examiner determines that a case should be closed at an early stage. If the case should proceed to a hearing you will be armed with the necessary knowledge to put forward the best possible defence, which in turn could help with any later appeals to the High Court.
What test does the Professional Conduct Committee (PCC) apply when assessing Fitness to Practice?
The Test
The test the PCC applies is twofold;
1. Has misconduct taken place?
2. Is the dentist’s fitness to practice impaired?
Whether or not misconduct has occurred will depend on the allegations raised and the evidence produced and as such this element of the test will be fact sensitive. The PCC must decide whether ‘it is more likely than not’ that the allegations took place, which unfortunately is a relatively low threshold. However, even if any of the allegations are found to be proved, case law has established that the conduct must be ‘serious’ before moving to the next stage of the test.
Tip. Is this a potential area that can be challenged? Are you able to obtain evidence or refer to previous cases that show the misconduct is not serious and therefore no further action should be taken?
When considering if a dentist’s fitness to practice is impaired, the PCC should look at the dentist’s current fitness to practice? It will not be sufficient to show historic impairment, unless the misconduct is so grave as to warrant it.
It should be noted that impairment is not assessed against any established standards of proof; it is a matter of judgment for the PCC committee. However, a failure to comply with the fundamental standards laid out in the ‘Standards for Dental Professionals’ is likely to lead to a finding of impairment.
Tip. Even if you do not accept the allegations against you, you should consider what actions you can undertake to show your fitness to practice is not impaired. For example, attending training courses, amending your policies and procedures, or being mentored/shadowing another dental professional. This should not be seen as an admission of guilt but a recognition that professionals can always seek to improve.
The Sanctions
If impairment is found, the PCC will go on to decide which of the following sanctions to impose:
· Reprimand;
· Conditions;
· Suspension;
· Erasure.
In deciding what sanctions to impose, the PCC must apply the principle of proportionality by weighing the interests of the public against those of the dentist.
Tip. This is where you need to put forward your mitigating circumstances so as to reduce the sanction imposed. Also you are allowed to suggest out what sanctions should be imposed and if you are able to give the PCC well thought-out sanctions bearing in mind the allegations, this could prevent erasure or suspension.
Stage 1 – Case Assessment
When the GDC receives a complaint, it first considers if it is the correct body to deal with it. If so, it will obtain more information from the complainant to assess whether one of the ‘Standards for Dental Professionals’ may have been breached. It is important to note that the Case Assessors do not make any findings of fact.
You will be asked to provide:
1. Evidence of your indemnity insurance cover;
2. Details of your current employers/anyone you are contracted to provide services to;
3. If the complaint is about dental treatment, the patient’s medical records.
Tip. At this stage do not provide any further information than the above. Whilst it will be tempting to explain what has happened, at this stage the GDC has not set out what the allegations are against you, so you do not know what you are responding to. Any statement given could later be used against you.
Stage 2 – Case Examiner
If the Case Assessors consider a dentist’s fitness to practice may be impaired the case is referred to the Case Examiners; the case will be considered by one lay person and one professional. At this stage you will be sent details of the specific allegations against you and it is at this stage you will be asked to respond. The Case Examiners are not making findings of fact. Their role is to consider whether there is sufficient information to make a referral to the Practice Committee.
Tip 1. If the allegations are not clear, seek clarification. If evidence is referred to, ask for copies of that evidence.
Tip 2. Whilst the Case Examiners are not determining the case, if you can show there was no misconduct, we would recommend responding fully to the allegations and providing evidence to support your assertions. However, if you think there may be a case against you on the evidence received think very carefully before making any admissions at this early stage. It may well be worth seeing the extent of the case against you before admitting any wrong doing.
Stage 3 – Hearing
Should the case progress to a hearing then you will need to fully prepare for the same bearing in mind the test set out above. Consider:
· What evidence do you need to rebut the allegations?
· Are you able to show the misconduct is not serious?
· What have you done to show your fitness is not impaired?
· Will other dentists/patients provide statements as to your character?
· What mitigating circumstances are there?
· What sanctions should be imposed?
Tip. If you are not happy with the GDC’s decision you have the right to appeal to the High Court within 28 days. We set out the circumstances when you can appeal in Issue 2 of our dental bulletin.
If you need advice on a current Fitness to Practice investigation or appealing a decision of the GDC, please contact Laura Pearce on 0207 388 1658 or by email at lpearce@jfhlaw.This email address is being protected from spambots. You need JavaScript enabled to view it. for advice.
Having been somewhat distracted by the school holidays, my latest blog considers some of the cases that managed to pique my interest, and gathers my collective thoughts during the months of both July and August. So that you are looking through the same lens, I’ll start off with the ‘legal definitions’ of misconduct:
Lord Clyde described misconduct in Roylance v the GMC (2002):
‘misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances’.
This definition was expanded in Nandi v GMC (2004), in that misconduct means a serious departure from the acceptable standard that is not just below the acceptable standard but:
‘conduct which would be regarded as deplorable by fellow practitioners.’
It has been further clarified in Meadow v GMC (2006) that misconduct sits at the same threshold for disciplinary intervention as the historic phrase ‘serious professional misconduct’:
‘As to what constitutes "serious professional misconduct…..it is inconceivable
that "misconduct" – now one of the categories of impairment of fitness to practise…..
should signify a lower threshold for disciplinary intervention’
On reading some of the recent charge sheets it appears that we have perhaps lost sight of misconduct, and moved on from the days where urinating in the spittoon, assaulting nurses or openly breaking wind in front of staff in the surgery sat at the threshold of deplorable conduct. If you have ever accidentally squirted water from the 3 in 1 towards a patient, you ought to be extremely concerned. We now have examples of unprofessional behaviour individually and collectively leading to a charge of misconduct such as:
And let’s not forget the beauty from a couple of months ago about bouncing balls of impression material down a corridor. How the panels keep a straight face through these types of charge is beyond me, but well done to them. Truthfully, I feel it is a bit embarrassing for the GDC to have it in the public domain. I may be wrong, but I believe that the barristers instructed by the GDC are involved in setting the final charges. With that thought in mind, I took a look at the Bar Standards Association and barristers’ fitness to practice hearings to see what allegations of professional misconduct are levied against them. Here is an example of a concluded Bar fitness to practice tribunal:
http://www.tbtas.org.uk/wp-content/uploads/hearings/3390/Outcome-Posting-Behanzin1.pdf
Observe how it is kept to one side of A4, extremely succinct, and there is nothing in it that may give any third party reading it anything to chuckle about? I also noted the lack of any published charges before the hearing for the sum total of 3 barristers presently listed as awaiting a hearing. This, along with the MPTS hearings begs the question of why does our regulator operate on a different set of rules that on the face of it appear more punitive to their registrants than those applied to equivalent professionals? Although it may give me nothing to write about, I would really urge the GDC to look at paring down their charge sheets and not making them public until after the facts have been determined in both their interests and those of the registrants facing a hearing.
One hearing saw a registrant face a charge of failing to:
adequately treat an on-going adverse oral hygiene condition.
It may just be me, but I can’t work out what this charge is supposed to mean and there is no explanation in the determination. In 17 years of practise I have not been aware I was obliged to ‘treat’ an adverse oral hygiene condition; I was taught that my duty was to offer appropriate preventative advice and oral hygiene instruction. It is, I believe, the patient’s duty to ‘treat their oral hygiene condition’ and I can think of at least one periodontist who would take issue with this allegation. I am not sure how anyone can ‘treat an adverse oral hygiene condition’ save for pitching up at the patients house a couple of times a day and doing the cleaning for them, or bringing them to the surgery daily to see the hygienist. Nevertheless, as is often the case with these hearings, we are made to feel that we have been doing it wrong all along, and nobody bothered to tell us until a hearing.
On that note, charges relating to alleged radiographic record-keeping failings have also been appearing more and more of late including not adequately or properly recording in the clinical record:
I looked at IRMER(2000), and the NRPB Guidelines which are the legally authoritative documents on radiation last month having been asked to consider the validity of this type of charge. In my opinion, the charges indicate a misunderstanding of what justification is; because it is not the same as the clinical indication for taking a radiograph. In the words of an RPA (with a PhD in clinical physics) I consulted over the matter of justification:
‘ "Justification" as required by IRMER is the process of weighing the probable benefit of a radiation exposure against the probable detriment. It is quite separate from "indication" - the clinical history, provisional diagnosis and intended treatment - and "authorisation" - the decision by the Practitioner that the proposed exposure is of sufficient merit. Both indication and authorisation must be recorded, because these are data, but not justification, which is an intellectual process.’
And his reply with regard to the question of where does IRMER(2000) state that we have to record QA score in the clinical record?:
'Nowhere. However Clinical Audit 8. The employer’s procedures shall include provision for the carrying out of clinical audit as appropriate. and The written procedures for medical exposures shall include— (e)procedures to ensure that quality assurance programmes are followed; Thus it is incumbent to occasionally review image quality, patient dose and clinical relevance, and since there is no other means of assuring the quality of the next image, it is important to check the quality of each image and resolve any anomalies before taking the next one. It can be argued that in order for audit to be properly objective, there should be no contemporaneous written assessment of quality: you audit by picking past images at random and assessing them "cold"'.
You should therefore record any faults or failures that demand corrective action, to provide an audit trail for that action, but images deemed acceptable should be filed without comment in order not to prejudice the audit.
Interesting stuff. I am baffled as to why anyone should be criticised for not recording an intellectual process. It is also clear that we do not have to record a grade in the clinical record, in fact we do not even have to grade every radiograph it seems, just check that the quality is acceptable in preparation for the next exposure and do an audit from time to time. So not only do we face issues with the bar of misconduct being stealthily raised, we are now also being tried and tested on doing things that are not actually required of us. This is why every registrant should be represented at a hearing in my opinion, and should only agree to charges that are indefensible. To admit to a frivolous or spurious charge purely to be seen to be ‘showing insight’ is not a position registrant should ever be put in, but I sadly suspect that is where we presently are.
There was, however, some positive evidence of a panel flagging up a GDC-appointed expert using non-mandatory guidelines as non-negotiable standards:
‘The Committee considered that Ms K’s approach was, at times, rather academically orientated and inflexible. In particular, she relied on a number of guidance sources, including the Faculty of General Dental Practice (FGDP) 2006 guidelines and the British Society of Periodontology guidelines relating to Basic Periodontal Examination (BPE), which, the Committee noted, are not mandatory. Furthermore, when alternative approaches regarding clinical matters were put to Ms K, she did not seem to acknowledge that it might be acceptable to deviate from these guidelines.’
It was last October I recall that the issue of guidelines and misappropriate use was raised by Dental Protection. This, along with the ‘gold standard bar’ really means that too many registrants are having their careers put on the line when there is a lack of clarity over where the threshold for misconduct really sits, and no universally agreed clinical guidelines. I remain in hope that the GDC FtP department is looking at this closely in the pursuit of proportionate regulation.
Moving on to some other cases, in the High Court, a registrant erased earlier in the year was successful in having his case remitted back to the PCC for reconsideration of an erasure. The registrant had got himself in to bother that might have been avoided by having to reapply to the register after his direct debit had failed, and was found to have been dishonest by fudging responses over two convictions for driving whilst under the influence of alcohol. It was held that the PCC had failed to consider relevant mitigating circumstances, namely that the employer had been informed of the convictions but the appeal failed on the challenge of the findings of dishonesty. You can find the judgement here.
Another noteworthy case involved a newly qualified dentist who wound up at an FtP hearing based on performance issues that arose within months of qualification. The question that I am sure on everyone’s minds is ‘how could this happen when the GDC-accredited dental school have allowed him to pass finals?’. Nevertheless, it is nice to see that whilst the GDC-instructed barrister recommended he should be given a reprimand for being let out of dental school too early, there was good evidence of remediation so no current impairment was found. The chap has now completed his VT year and is understandably ‘elated’.
The final case I am going to look at involved another registrant who was erased. This was the second GDC hearing Mr Idris has faced in his career. Having been told by his indemnifiers team during the first hearing that he was facing erasure and this having come rather as a shock they parted company. He instructed his own legal team and the case concluded with conditions. However, self-funding representation for the next hearing was not viable so after several years of reported wrangling with the GDC Mr Idris declined to attend this particular hearing, advising the GDC by email that he would be cleaning up his dogs’ mess instead. As a dog owner I can empathise with this and agree it is a taxing and time consuming task. Mr Idris’s absence was very diplomatically written up into the determination, but should anyone would like to read the unedited version of the email, it can be found here:
I’ll leave it here for now. My dog is barking to go out. Duty calls….
My understanding is that the GDC do not agree with the criticism that too high a standard is being applied in FtP hearings. As it happens, last month I was asked by a colleague for some concrete examples of use of the ‘gold standard’ by expert witnesses, so I went specifically looking for it in my review of June’s FtP hearings.
June kicked off with a performance review hearing of a plethora of clinical issues involving a non-engaging registrant who had neither attended nor provided any representation at either hearing, which is always a bad move in my opinion. The case was initially heard in May 2015. Professor Morganstein was instructed by the GDC in this case, and is still according to Google the Dean of Dentistry of the University of Buckingham Dental School that I’m not sure has any dental students. There was a fair amount of criticism in the charges levied at instances of alleged failed treatment and inadequate discussions which the panel did not find proved, and when an allegation that the registrant had provided inadequate care by not giving a patient with an orthodontic retainer specific advice on using a fluoride mouthwash, tooth brushing and reducing sugar consumption the determination states that the Committee considered the expert had applied the gold standard rather than that of the reasonable dentist. This registrant was initially suspended for 12 months and then a further 12 months at the review hearing. The panel had no other choice due to the lack of engagement and attendance in the process and had there been any evidence of insight and remediation the registrant may well have been able to continue practising under conditions. It has been demonstrated in a paper written by Professor Kevin Dalton that registrants who do not attend their hearing and are unrepresented face a significantly higher risk of a high sanction being imposed than those who attend or are represented.
In another review case heard this month the GDC-appointed expert was found by the Committee to appear to be ‘applying a ‘gold standard’ with respect to the diagnostic quality of the radiographs’ at the initial hearing in January 2015. The lesson here is that coned off radiographs are not necessarily poorly-positioned if it is possible to get adequate diagnostic information from them. There is also reference to not recording LA batch numbers and expiry dates in this case which another ‘gold standard’ recording is keeping requirement at best.
Next up a Committee was of the opinion that: ‘in some cases, Mr Expert was advocating a ‘gold standard’.
Some examples of the not proved allegations in this case that probably fit into the ‘gold standard’ bracket included:
So there are three cases here providing some evidence that the gold standard is/was being used (and being identified by Committees) in a sample of new and review hearings held only during June 2016.
The statistics for June were:
Interim Orders held 20 new hearings and 13 review hearings resulting in:
Practice committees held 29 new hearings and 4 review hearings resulting in:
Per registrant type there were 46 dentists, 7 dental nurses, 11 technicians and 2 clinical dental technicians involved in hearings this month.
June was a bit bare on any interesting charges such as bouncing balls of impression material in corridors, bringing children to work or having untidy hair. However there were a high number of erasures that month, and dental technicians brought in front of a PC or IOC for acting out of scope in June also featured quite heavily.
Briefly, the main reasons for erasure were:
With regard to the technicians, pretty much all of these cases related to acting beyond scope; taking impressions when not trained to do so and working without a prescription. This is clearly an area that the GDC are tackling very proactively.
One no misconduct case was particularly interesting in terms of how it ever managed to get so far. It involved a registrant who had sent a letter to some patients of the practice asking for their consent to release their records to the GDC who were investigating a previous partner of the practice over financial irregularities on the basis of concern being reported by the registrant. The letter must have raised a few eyebrows as the GDC alleged that it was:
It is worth noting that Dental Protection had provided guidance and advice on this letter before it was sent, and the registrant had not discussed it with the staff in order to protect the integrity of the investigation, yet the case still progressed. The patients ought to have been told why their consent was being sought to hand over copies of their records in my view. So all in all, it appears to me that someone who fulfilled their professional duty to raise a concern and assist in an investigation found themselves on the wrong end of the FtP process by way of thanks. It is not clear to me what the GDC hoped to achieve by bringing this case, and how this will encourage or protect those who may need to raise concerns in the future.
Details of the forthcoming GDC hearing are available at:
Further details of the BDIA’s CSIDI activity can be found at:
http://www.bdia.org.uk/device-reporting.html
The British Dental Industry Association (BDIA) is a non-profit making organisation which means that any surplus funds generated from its activities are ploughed back into dentistry either directly or by supporting and working with other professional dental bodies.
For more information please contact Edmund Proffitt on 01494 781183 or email This email address is being protected from spambots. You need JavaScript enabled to view it.
Can we make the Regulators serve the Public and the Profession in foro conscientiae (the court of the conscience), rather than just a notion of what the regulations might say?
I have attended and been asked to make some input into a variety of cases recently involving several different Regulators.
It has become clear that there is a real danger that rules and regulations which may have been drafted for the protection of the Public and the guidance of the Profession are sometimes widely misinterpreted at best and occasionally deliberately corrupted and applied at worst.
How does this occur?
Whilst it might be considered that most regulation has been drafted to improve standards and reduce the risk of poor practice continuing; it is quite obvious that it can be applied in a manner to exert control or ‘manage’ the Profession. Sometimes this may occur deliberately and because it broadly serves the purpose of a government administration, it is allowed to continue at least as long as it serves a purpose. Sometimes it occurs at a much lower level and whilst not serving any particular purpose, it is allowed to continue because there is nobody at that level who is prepared to question it.
I’ve got nothing against shop assistants, however I wouldn’t be wanting them to draft the GDC Charge Sheet which might end a Professional career. There is a high turnover of staff at the GDC which I suggest leads to a poor understanding and there appears to be a low level of dental knowledge.
One of the cases to which I refer involved a young colleague, and for whom funds were raised at very short notice thanks to the excellent GDPUK membership.
If you read the Charge Sheet, you would be forgiven in believing this dentist was a real danger to the Public. However I’m sure that you will all remember me reminding you to read between the lines whenever you are dealing with a Regulator. That is certainly necessary in this case.
(i) The use of a double cantilever (the bridge was fixed-fixed)
(ii) Not adequately assess that a RCT was required (the tooth was root treated and had been a symptom free bridge abutment for 20 years)
(iii) Fitted an inadequate post which was a) short of the apex, b) not extending to the apical third and c) was inadequate in width. (The post was temporary and deemed too wide).
If the Charge sheet is a nonsense, the solution is simple. The Panel changes it, strikes it out or substitutes different wording. In other words, it moves the goalposts. The Panel, which is independent by hearing both parties then asks its own questions of the witnesses. It is advised by experts and can choose which expert it ‘prefers’. The expert appearing on behalf of a registrant might then be warned by the Prosecution barrister that the GDC may take action against them. The prosecuting barrister is instructed by the GDC and regularly prompted by their expert witness.
In one of the cases to which I refer, four patient witnesses who had made a complaint were called. One of the witnesses was travelling to London and it was found that she intended to speak in favour of the Defendant and it was agreed therefore that this patient would not be heard.
The Panel seemed to have some ability to read between the lines, but in the end ‘prefers’ the testimony of two patients. One of these patients produces a hand annotated diary of the treatment dates containing some dates that the defendant was actually not in the practice (a screen shot of practice diary was produced as evidence). The patient was receiving treatment from more than one dentist at two different practices simultaneously, but on the ‘balance of probability’ is to be believed. This patient was heard to say that she was seeking ‘redress’ on at least four occasions.
Our young colleague describes how he always uses rubber dam for RCT and yet on his last day in the practice he finds there is no rubber dam available. He admits that on this single solitary occasion, rubber dam was not used. The patient has pleaded that a temporary post crown be placed (the same inadequate temporary post that was short of the apex) and he accedes to the request of RCT and temporary post, since the broken tooth was within the patients smile. He uses rotary RCT instrumentation, floss on hand instruments and high volume aspiration. The patient is the same one who was not given the opportunity to give further evidence in support or denial of the registrant. Our young colleague is guilty therefore of serious clinical failures and therefore misconduct.
Another patient gives evidence about never having received treatment he has paid for, but the Panel agrees that this evidence is just not credible, which it isn’t.
A fourth patient was having a long and complex treatment plan part of which had been incomplete and following a tooth fracture needed to be modified. The patient didn’t clearly understand the new treatment plan and for that our colleague was criticised.
It’s worth mentioning that there were NO PATIENT RECORDS available because there had been a burglary declared immediately following the practice change of ownership. This was highlighted to the Panel.
Communication was a big word in this Hearing. Other significant words are ‘insight’ and whether or not the Panel consider that this is ‘embedded’ sufficiently. Our young colleague was supported by Sir Peter Bottomley in person who made a statement and also by the testimonials of 47 patients.
The GDC however do not need to give weight to the above in making their determination, although I noted that the prosecution barrister frequently returned to the GDC to ask for further instructions. I think it worthy of note that the Panel describe our young colleague within the Determination as follows ‘It is clear from all of this evidence that you are viewed as a competent and caring dentist, who will go out of his way to assist his patients.’
Do the GDC therefore need to apply Conditions, because that’s what they did?
Please read the GDC Determination when it is published.
If you recognise any of the issues above, you are guilty of misconduct and your standards will be deemed serious failings. Approximately 1 in 7 dentists in the UK currently face some form of investigation which could result in imposition of sanctions either through the GDC, CQC or NHS and this number is growing constantly. This might mean that we have the worst performing Dental Profession in the World bar none or that we have the most disproportionate Regulators.
You may consider yourself lucky and are happy to cross the bridge with your indemnity organisation when your time comes; or you may be sufficiently confident to wade across the raging torrent alone when your indemnity organisation makes an unexpected discretionary decision against you.
What type of indemnity organisation are you currently paying for?
You are required to have professional indemnity and it is considered a serious failure if you have ANY gaps in your cover period. Indemnity providers however do not guarantee to provide legal representation to you and if they exercise their discretion in favour of their balance sheet (or dressed up as other members interests) you will find yourself alone or facing a huge legal bill.
A recent Hearing which I attended over 7 days starts at £32,000 and it’s uphill from there.
Does anything need to be done about this?
You read the PSA report published 21st Dec, I hope. https://www.professionalstandards.org.uk/docs/default-source/psa-library/investigation-report---general-dental-council.pdf?sfvrsn=6
What exactly have we learned about whistleblowing from the Sir Robert Francis Report (Mid Staffs)?
And you can see how the whistleblower was treated, you can see what the PSA thinks about it and you have seen how the GDC are going to be dealing with your ‘serious failings.’
You tell me, do you need to do something about this?
From a variety of recent cases we can conclude:
· The GDC consider failure to use a rubber dam in endodontics to fall seriously below the required standards and therefore to represent IMPAIRMENT and worthy of sanctions.
· In my view neither the CQC nor the GDC have a currently correct understanding of CONSENT which conforms with the recent Supreme Court judgement of Montgomery – v Lanarkshire Health Board. This needs to be challenged in the High Court.
· The GDC will always use the ‘balance of probability’ in forming an opinion on which evidence it prefers.
The Profession must for once in its life join together. The issues regarding Consent and use of rubber dam will need to be challenged and this requires more than a well-intentioned individual or some crowd funding. It requires a strongly actioned move being taken by the BDA and the indemnity providers.
Image credit -Michael Coghlan under CC licence - not modified.
Welcome back to the Indian Summer of tropical rain…
There was a time when those of use of a certain age [OK Old if you will, but take that tone out of your voice!] decided to pursue dentistry for many reasons one of which was the life time career of care which happened to be comfortably paid. Professional life was stable, practice management was an ongoing process. Interestingly by and large we saw all the patients who wanted to be seen and managed their dental needs without any political calls for damage limitation of a crisis of “Access”. Those of us so inclined went home for a celebratory glass of cheap Chateau Rinse de Bouche over an FP17. [For those of our younger colleagues unfamiliar with such things, these were the old claim forms that allowed a course of treatment to be ‘claimed’]
Complaints were rare. The GDC were a body to whom one looked up in awe and respect, and yet who played little part in day to day practice. Indemnity was low cost as was the ARF. At some point in one’s career one would make the decision to up the standards of ones work and seek to change the way one practiced. It was a cycle of professional life.
Meetings [long before CPD became a fashion statement] were a cacophony of chit chat about practice matters.
Morale I would be so bold as to say was always, broadly, high
So what on earth has happened? How do we find ourselves at the edge of a perfect storm of change for the worse?
The GDC are a runaway train of high cost complaints handling and we are all paying through the nose and other orifices too, I should think. The persistent arrogance and lack of accountability of the GDC and its leadership remain a real cause for concern. A worry in part because they affect us but we do seem to be able to affect them, nor can the PSA, it seems.
Just look at Indemnity as an example. On the one hand it is a significant chunk of income on an annual basis, now being compulsory [so the lawyers can REALLY get their teeth into you]. On the other hand, despite reassurances, there is a pervasive sensation that they will dig you out of a shallow pit of excrement, but if you are truly up to your neck they may simply leave you to flounder. A worry in part because they affect us but we cannot affect them.
Now we have news of the falling away of dentist incomes. In a separate and apposite piece of Government news, even that respected statistical body HSCIC, thinks morale is a worry amongst dentists. Now incomes falling is hardly news because most of us have noticed this in the last 5 years. How? Well, we run these efficient Micro-Businesses, Minister and produce the annual accounts.
Practice Plan’s latest Confidence Monitor is hardly an advert for happy campers under the Governments clinical cosh that is the UDA. The vast majority of the NHS dependent sector must be feeling very uneasy.
What has caused this change of circumstance? Why are all the pointers suddenly running the wrong way? If morale is a precarious state of mind, all this news must surely cause the spiral of decline to turn more quickly unless something is done?
Can morale fall, like the rain, in stair-rods?
Now hold on Dr Prism … Dentists are a resilient bunch – we get by, we generally don’t moan, and we take the rough with the smooth because, let’s face it, there are many worse off than us and despite what the Daily Fail et al may say, we do have a social conscience.
In our day to day work, we [you me and all the other GDPs] take personal responsibility for our situation. It is up to us to be happy … or not as the case may be. It is up to us to run our businesses. All good so far.
But for the bigger external problems we rely upon an external body to do our work for us. We reply upon our Academic colleagues to lay out the ground for evidence based clinical practice. Not some random bunch of Red Braces in Wimpole Street who would not know a dental practice if it hit them on the head! We rely upon a representative body to keep the bad news at bay – to fight off the bad guys as it were.
Where are the BDA as our ‘Union’?
Perhaps they themselves experiencing a decline in morale as time and again they fail to make an impact against the onslaught of Government regulation and initiative? Not so long ago there was the change of subscription system and I seem to recall there was a ‘bit of a fuss’. Even on a professional matter such as obesity and the sugar debate, it was the medical fraternity that snatched the victory, and the BDA were left to issue a “told you so” PR statement which barely caused a public ripple.
Perhaps the lesson of influence here was that we need strategic alliances to amplify our voice and our influence.
Why is the BDA so effective on so many levels of “back office” matters and yet on the “Front Line” of headline influence and involvement, it is abjectly falling short. Why is it that as a body of 20000 dentists, they are neither first to be thought of in the media domain nor are they regarded with respect by our political masters?
Incomes … the UDA system … the Prototypes … the CQC … the GDC and its quisling Dental members … the GDC and it expansionist ambitions … FtP … more FtP … Professional Morale … a vision for UK dental care … Children’s Dental Health … Young dentists and early training... Planning for Tiers ... the list goes on where as members [and non-members] we cry out for some serious bloody Bolshiness – and time and again we feel they fall short. Too busy having ‘polite meetings’? You might say that, but I could not possibly comment.
By and large of course those who are in private practice are able to manage their lives and rise above the challenges of NHS practice. This indeed is reflected in the consistent theme of the HSCIC, Practice Plan and others: their findings relate to NHS practice
So if the NHS GDP is the poor bloody infantry, who are their Generals?
Well certainly not the new CDO, ironically Colonel [Retired], who is happy to discuss the present and future problems on the same stage as the very man who was their architect, now relishing his role as a non–exec director for a leading Corporate.
The sign of poor morale in an organisation can be its collective ineffectiveness of leadership.
Perhaps the problem of spiralling morale in GDPs is in part due to a perception of low morale at the BDA?
For sure as profession we need a dose of Feelgood Salts and a good kick where it hurts.
The season is underway.
The BDA need to start scoring some goals.
It’s not like the ball is not in the open, and for sure the net is wide open. The NHS GDP needs its leaders, its “Generals”, to start doing more than limply waving a PR flag. I suspect members would prefer one action over the hundred words of a glossy Press Release.
Can it really be a year since we and the BDA all went up in arms over the ARF change? A fine campaign of action but has 2015 seen it followed through?… It’s a sad reflection that, as no doubt predicted by Madame Gilvarry and Dr Moyes, the ARF is now seen as small beer – have you looked at your Indemnity bill?
Get a grip BDA.
Start earning your members fees. Before a large part of the profession withers under your watchful gaze.
The signs are out there. How many more hints do you need?
Weblinks:
New report looks at motivation and morale of primary care dentists http://www.hscic.gov.uk/article/6675/New-report-looks-at-motivation-and-morale-of-primary-care-dentists
The first NHS Confidence Monitor https://www.practiceplan.co.uk/dental-plans/the-nhs-confidence-monitor
BDA Current Press Releases https://www.bda.org/news-centre/press-releases
New CDO to speak at therapists conference https://www.gdpuk.com/news/latest-news/2004-new-cdo-to-speak-at-therapists-conference
Paragraph 6
You join your ship with lots of other passengers and set sail. What is vitally important though is that you’ve been told before you sail you have to provide your own lifejacket. You notice that there are quite a few different sorts and colours. Some are ones that only inflate whilst you have them with you, and some are inflated all the time, even when you get off the ship at the end of your journey. Some passengers even have special coloured expensive ones that some of the lifejacket manufacturers don’t even supply. We’ll come back to those later. The industry is getting bigger and bigger, so more and more life belts have to be made for all those going cruising.
Initially it’s all really nice, the food’s ok, and the accommodation is too. However, there’s something not quite right. The crew seem to be openly hostile to you, and the officers never seem to speak. The captain of the ship and the 1st officer never come down to speak to the passengers. You’re actually suspicious that the direction the ship is headed isn’t the one you signed up for. Not all the islands you visit are as welcoming as others. After a couple of ports you also start to see the numbers of passengers dwindling a bit and you hear a lot of splashes at night.
You do a little research and you find out that the crew is in better quarters than you are, and your money has gone to pay for that. You have to tip the crew more and more even though the service is rubbish, and then you find out the way they worked out the tips was illegal. More worryingly you hear that the captain orders the crew to round up passengers who might be a danger to those who live on the islands the ship has visited or might visit yet. The captain orders the islanders to report anything they don’t like about the passengers to the bridge. The captain also allows spies to be put ashore to trap some passengers if the locals themselves don’t report the things that are done ashore. Passengers who have committed some sort of infraction are invited to visit the Bridge for a tour. Its not an option. You hear rumours that some of the officers don’t speak as the 1st officer has ordered their tongues cut out, possibly to prevent mutiny. You laugh at this, but you start to get a bit worried. You realize the crew doesn’t trust the passengers at all. Some of the passengers even report other passengers, or get the islanders to report them, or even join the crew.
Then you see why the passenger numbers are dwindling. Every night, the crew makes those passengers who’ve had the bridge visit walk the plank. They are allowed to take their lifejackets though. Sometimes the crew let the passengers off before they get to the plank, although there isn’t always consistency as to who will be let off or not. Some even get halfway down the plank before they are allowed to come back. Usually that’s because the lifejacket manufacturers send their best machinists and repairers to make sure of the buoyancy of the jacket whilst its owner is on the plank. This costs the manufacturers lots of money, so it’s better if the lifebelts never get used in the first place. But you’ve already paid for the service when you bought the lifejacket.
Most of those that do fall off the plank therefore obviously have their lifejackets to help them. These keep them afloat until the rescue boat picks them up and puts them back on the ship. Sometimes some are thrown overboard before the captain has heard the case and they might be allowed back on board, or they might be put ashore until the case has been heard, then they get to walk the plank all over again.
However, there’s a problem with some of the lifejackets. Not all of them are going to work. Most do, but not all. Any you might be wearing one that isn’t going to work when you need it.
Now some of this is because the passenger has done something so bad that Mercenaries employed by the crew are allowed to puncture the lifebelt. Some of these passengers drown or swim to shore, but either way they never get back on board. Occasionally the crew or even a mercenary punctures a lifebelt through their own incompetence and hope they don’t get found out. The lifejacket repairers sometimes throw a spare lifejacket to them. But sometimes the sharks get them first.
But sometimes its because the maker of the lifebelt has decided not to put the flotation device in a lifebelt because of something you’ve told them or you’ve walked the plank before. It looks the same, and you certainly paid the same for it, but its only when you try to use it that you realize its not working. Remember those with the special coloured expensive lifebelts? They’re really expensive because the normal lifejacket makers wont supply normal ones to these passengers because they keep being made to walk the plank, or just keep jumping overboard because they do stupid things and don’t seem to learn from it. In fact, some of the lifejacket makers wont supply them at all but don’t always say why. Strangely, some of these passengers seem to arrive at the ship in fast cars and occupy the biggest and best passenger suites.
Occasionally there are times when a passenger is walking the plank and the manufacturer of the lifebelt actually takes it off them, either just before they walk, when they’re in the water, or when they get back on board having survived the ordeal. The rules say passengers can’t stay on the ship without a lifejacket, but they now can’t get one to fit, the manufacturer wont sell them another, or they don’t have enough holiday cash left to buy another one. They either have to stowaway for which the penalty is immediate plank walking, or they have to get off at the next port.
The captain no longer answers to the ships owners, but they don’t seem bothered, and the captain and 1st officer decide they’re going to expand their little seafaring enterprise as a result. There’s a ship right behind with loads of passengers that go ashore and always paint the islands white and harm the natives, and occasionally the captain makes one of them walk a plank, but doesn’t seem that bothered by the harm they’re doing. They don’t have any lifebelts on that ship either.
The passengers frequently get together and talk to one another, but no-one ever has the bravery to arrange a passenger mutiny even though they keep having the cost of the planks added to their tips. Most of the passengers are too busy trying to protect themselves to look out for the others. The senior officers of the crew don’t talk to one another as they haven’t any tongues, and those passengers that become part of the crew and can still talk don’t want to resign as they say they’re the ones that keep the bridge visits and plank walking fair. The happiest are the mercenaries that get to puncture the lifebelts as they get a bonus especially if they can make it take longer. The manufacturers seem to want to really only give the lifebelts to those that will never use them as they don’t have to spend money readying them for plank walking or repairing the punctures. But their top repairers are happy because they get paid more when they have a puncture to repair.
What a silly story…. No one in their right mind would get on that ship if they read that, or stay on it a moment longer than they possibly could once they found out what was happening.
The Hired Gun with a smoking gun….
We all know the GDC has spent the last few years on its own little self-righteous planet, and even given its recent pitiful showing in front of the Health Select Committee there appears to be no sign they are planning to return to normality in the near future.
Indeed, this week, what can only really be described as damning evidence of the GDC’s utter and complete contempt for the process of Justice in its most fundamental form has been revealed.
A case in front of the Professional Conduct Committee this week has revealed that it is not only the initial stages of the disciplinary process that are woefully inadequate which resulted in their huge backlog of cases; but that the basic legal requirement of full disclosure of the case against a registrant may be riddled with horrific inefficiency and contempt for the fundamental tenets of justice. Not only that, the GDC is not following the rules set out for its registrants and flagrantly flouting them in order to pursue its own agenda of what now appears to be a persecution of the profession via its individual registrants. The PCC themselves described it as an ‘Offence to Justice’.
In this particular case, amongst other things, the GDC had 9 different versions of its expert witness report, and failed to submit many of them in a timely manner for the defence case to be prepared. It was still submitting them to the defence on the day of the scheduled hearing. Not only that, but it would appear that evidence the GDC held was not submitted to the defence at all, which may have helped the defence case. Thankfully the outcome has been for justice and propriety to be upheld by the members of the PCC. (who have for some reason remained anonymous)
With the facts that have come out about the way this case has been handled, the GDC has now plumbed new depths it seems. I didn’t think we could be treated with any more contempt that we already were; but this is jaw-droppingly bad. By what definition do the GDC expect us to have fair trial if they don’t submit the evidence as per the rules? They fail by their own standards throughout this case. Where is their duty of candour? Where is their transparency in their dealings with the registrant? Have they actually read the Human Rights act? I refer them particularly to Article 6, the right to a fair hearing, which quite obviously would not have occurred in this case had it not been for the integrity and the strength of the members of the PCC.
For the PCC to accuse the GDC of being egregious (or outstandingly bad) is an extremely strong and unusual stance for them to take. Whilst this occasionally happens in the criminal and civil courts when a judge or jury might take exception to the conduct of one of the sides, for a committee funded by one of the sides to effectively take a swipe at its paymaster is highly unusual. I know the PCC is made up of independent members, but don’t forget, despite this independence, they are funded by the prosecuting side, the GDC. I am not for one minute casting any doubt on the integrity of any of the members of these panels, and in this particular case nothing could be further from the truth. But one has to wonder how much of a culture of fear is being instilled that pervades throughout any process the GDC is remotely associated with including these committees. How many other cases have been similarly dealt with by the GDC and the PCC not spoken up in the same way? We know now that this is an organization that doesn’t seem to apply the rules of law and justice properly to those it pursues, and even think these rules don’t apply to itself, and then show no insight whatsoever into its failings. Even the GDC solicitor involved in the case appeared to have had an inappropriate contact (not contemporaneously noted incidentally!) with the patient witness in order to ask leading questions and to coach them which also a big no-no.
Just as strident but more worryingly to my eye is the criticism the GDC’s expert witness comes in for at the hands of the committee. I have not seen this amount of criticism of the expert in any case before. It almost seems like he has gone out of his way to act as some sort of private investigator in order to help the GDC secure its desired conviction. There have been a couple of cases recently where the GDC’s expert witness has come in for criticism, but not to this degree.
Expert Witnesses are required to be independent and objective. It is an enormously privileged position to be in as they alone are allowed to give opinion-based evidence to a court and not just statements of fact. They are not and should never be seen as a Hired Gun to destroy the defendant. For whatever reason it would appear that in this case the expert has gone beyond his remit in such a way that one could seriously question that if this were a civil or criminal case whether serious charges against him would be the result of such a deviation from the accepted role. All the expert witness training I’ve done (and I’ve done a lot) has stressed the importance of never being a Hired Gun. I’ve had solicitors request I change parts of my reports to better serve their cases; and the answer has always been an immediate refusal. An expert witness has a duty to the court and to no-one else. We are not Magnum PI no matter how much we might want to be.
But by acting as a hired gun, this expert has now turned this case into a smoking gun.
Experts are no longer immune from prosecution, and given the evidence in this case, one has to wonder if the abuse of process by the GDC and its expert means that this should now be taken further by the defence team in order to recoup their costs. Ironically, the expert could well be professionally covered by the same indemnifier involved in the defence, but then I’d have thought that might be an appropriate time for any discretionary support for the expert to be withdrawn since it appears he acted in such an unusual manner. Its also rather hypocritical of an expert who appears to be acting far outside his remit to feel he can stand in judgment of a practitioner who may or may not be acting outside his sphere of expertise. Unfortunately Expert Witnesses are not regulated in any way other than by their profession; but this behavior has to be close to bringing the ‘profession’ of expert witnesses into disrepute. I know a good many experts who are aghast at the revelations in this case.
I’m sure the acquitted practitioner will probably now want the whole thing to go away, but I really hope that he doesn’t take this lying down; the GDC should be massively on the back foot with this revelation, and the profession’s moral (and legal) advantage should be well and truly rammed home now.
The BDA should also now get very vocally involved again, and if they don’t they are going to miss a huge opportunity. If they approach it through lobbying MP’s they should broadcast this loudly to the profession so we can hear their voice. Some have said they should call for a complete halt to the GDC investigating process; but this would leave the public open to the risk of any truly dangerous individual being left free to practice. However, in my opinion they should press for every case both this expert and this particular GDC team been involved in to now be independently reopened, re-examined and all at the cost of the GDC. The costs of this should then be made exceptional from the annual GDC budget so they cannot then charge the profession for this. I’m sure they’ve got some indemnity insurance kicking around somewhere they can use. In addition, every pending case that involves just a single patient complaint should be now be suspended until a full independent inquiry (and I don’t mean by some equally flawed organisation like KPMG) into the above cases has been completed. There should be full and complete disclosure, and compensation paid to any registrants if the GDC are found to be in the wrong. Any employees of the GDC found to be in breach should feel the full weight of any legal process, and not be allowed to hide behind the corporate protection of Wimpole Street.
The GDC are quite obviously in breach of the Human Rights Act. There was no way this registrant was going to get a fair trial, and the GDC were quite obviously unconcerned by that. How many times they have done this before now needs to be made public. If we persistently did the same to our patients we would lose our careers, our livelihood, and our professional integrity. They should pay the same price and their executive should now be held vicariously liable if the law has been found to be broken (again…)
Resignations of individuals at the GDC are no longer enough for confidence to be restored in our regulator. The profession should demand the highest powers possible now decide their fate. Whether this should be up to individuals crowd sourcing an opinion from a barrister as to whether the GDC are breaching our human rights; or our indemnifiers taking their own legal action to seek redress for the expenses incurred in cases like the above; and whether the Health Select Committee recall the GDC Executive to be given the coup de grace; or the BDA continue their lobbying of MPs whilst we keep filling those same MP’s mail sacks with letters. It needs to be all of the above and simultaneously. We need to unleash a veritable storm that cannot be ignored.
Enough is enough. We need to keep taking firm action. Is the entire profession listening? It’s time to hit back again.
