Dear Mr Whiting,
Welcome to the world of dental regulation.
It is hard to know who is less popular in the mind of the public and the professionals; the police, the IOPC, the dental profession or the GDC. Both the police and the dental profession are called in a crisis and the interactions with the public are usually highly professional leading to positive feedback after those crisis situations. Unfortunately, only bad news stories about a tiny minority tend to make the press and leave lasting adverse impressions.
For regulation to succeed, those being regulated must have as much confidence in the regulator as the public, and that applies to the dental profession as much as it does to the police. You will shortly discover that the dental profession has completely lost confidence in the ability of the GDC to deal with fitness to practise concerns fairly and proportionately, with a grim sense of Post Office-like oppression of the registrants.
There is a desperate culture of fear which is damaging the confidence that dental professionals need when they treat patients. Practitioners need to be free to concentrate on the task at hand and not have to look over their shoulder at the GDC the whole time. This culture of fear interferes with treatment planning decisions and is in no-one’s best interests.
Here are a few of the pressing concerns that need to be addressed in your first 100 days.
Suicide and FTP proceedings
Firstly, please ask your team to urgently address two sad cases. In August last year HM Coroner wrote a Regulation 28 report to the GDC[1] requiring it to prevent future deaths. As a regulator, trying to re-establish good relations and confidence with the profession, it must address the prevention of suicides urgently.
There are some simple steps that can be taken particularly in relation to Interim Orders proceedings and the publication of determinations that list all the entirely untested allegations. This change need not take any time at all.
The profession has been asking the GDC to publish the number of dental professionals that have committed suicide during an FTP investigation, and assurances have been given that this data will be published. The most recent response to Keith Hayes[2] was a masterful but disappointing exercise in explaining in great detail why the GDC will not or cannot provide a full response.
The Williams case
Following the widely publicised Williams[3] case the GDC has just reviewed a number of other cases to find out if any action needs to be taken. A bland “nothing to see here” press release[4] is simply not good enough. It only adds to the sense of a Post Office style cover-up. The GDC should publish its review, showing which cases it considered and what questions it asked itself about these cases. In that way the profession and the public can have confidence in the GDC as a regulator. It should also waive Legal Privilege and publish Counsel’s Advice so that the profession can see exactly how the review has been carried out.
The Williams case arose from concerns about NHS care and patterns of claiming fees. Recent FTP cases show that there is some confusion about which organisation should be investigating this type of case. It is a hopeless waste of time and precious resources for the same facts to be investigated twice, particularly if the NHS has already closed the case requiring no further action. Please will you and your team meet the NHS England and their counterparts in the devolved nations to reach an agreement about which organisation will investigate these cases, publishing the outcome of those meetings so that we all know where we stand.
Dentist Act 1984
You will already know that the Dentist Act 1984 needs modernising. Your new team will tell you that nothing much can be done until the GDC comes to the top of the queue, and that won’t be until well into the next Parliament, if at all. I would like to make a few suggestions that don’t require a new Statutory Instrument or a new Act in relation to fitness to practise cases.
Progress
I must commend the current trial to speed up the initial stages of an investigation and its extension for a further six months. Anything that shortens the time between the notification of an investigation and the conclusion of that investigation is to be welcomed.
Having said that there are two significant problems with the early stages of an FTP investigation. The first is the gold standard of care applied by the Clinical Reviewers. The second is the lack of dental and legal input at the allegation drafting stage. Both lead to unnecessary investigations with the knock-on effect on the mental health and wellbeing of those under investigation.
The gold standard of care
The clinical reviewers, although practising dentists, don’t seem to appreciate that the standard of care should be measured against the Bolam standard, (the ordinary dentist/dental care professional) and not the apparent gold standard invariably described in the clinical reviews.
The consequence of this approach leads to two additional concerns:
The first is the allegation drafting at the Case Examiner stage. Allegations set against the gold standard are drafted by GDC officers without input from dentists or lawyers. This often results in vague and unparticularised allegations, putting the registrant and the Case Examiners in a position where they have to guess what the allegation is really about. This is plainly not fair and needs urgent reform.
The second problem is the test used by the Case Examiners when considering the issues. Case Examiners use the phrase “on one construction, that of the clinical reviewer, the facts are likely to be proved.” At no point do the Case Examiners consider the case the other way round, “on one construction, that of the registrant…” nor do they carry out a balancing exercise between the two positions when considering the disposal. The present approach leaves the registrant feeling that whatever they say at this stage it will make no difference to the outcome. This too is unfair. so, in terms of confidence of the profession, it is a huge problem. It is easily fixed with a review of the procedure.
Delays in case progression to a hearing
A quick review of the recently heard and upcoming cases in front of the PCC shows that registrants are being investigated for events that happened more than five and ten years ago. I am aware that the GMC has a five-year cut-off applied in all but exceptional cases. The GDC does not take the same view. Given that the final test is current impairment, it hard to see how misconduct from ten years ago, in anything other than the most egregious cases, could possibly amount to current impairment. Please will you arrange an urgent review of all open cases awaiting a hearing, so that cases which have little or no prospect of a finding of current impairment are referred back to the Case Examiners for closure.
Misconduct threshold
The GDC has always resisted asking the question of a case at the early stage as to whether the case would meet the threshold for misconduct, (which is serious) apparently on Counsel’s advice. If Counsel is asked whether the current process meets the legal requirements of the Act, the GDC won’t be given any alternatives, and the status quo is inevitably confirmed. But, if different Counsel is asked to advise on whether it is reasonable under the Act to close all cases that won’t meet the misconduct threshold without a formal investigation, a lot of stress and cost can be saved, whilst maintaining the confidence of the public and the profession. Alternatively, please waive privilege and publish the Advice that the GDC relies upon.
Corporate dentistry
Dentistry has changed significantly since the last major revision of the Act most notably with the advance of the corporates. You will soon come to know about a number of corporate collapses, from Clearstep to Finest Dental and sadly a number of others. As the GDC does not regulate corporate bodies patients have been left seriously disadvantaged with no regulatory recourse. It is high time that the GDC reconsiders its decision in 2005 not to regulate corporates.
Diversity
The recent research[5] published by the GDC shows the imbalance in those registrants subject to FTP proceedings. Male dentists with an ethnic category other than white and holding a qualification from outside the UK are overrepresented in FTP proceedings. This should be very concerning to you and needs to be addressed urgently, to understand why this is the case. I suspect that most informed dental professionals knew this was the case and has been so for years. Now you have the data, there is no excuse for not investigating the root cause and addressing it. This is crucial, mindful of the introduction of provisional registration for international dentists.
Continuing professional development
The rules for the declaration of CPD need urgent review. Far too many registrants are being threatened with removal from the Register because they have fallen short in their recording of CPD by a very small number of hours, the lowest I have seen being one hour. A simple fix would be to allow a short timebound grace period on application at any point in the process to close the CPD gap. The present system is too rigid because registrants only find out that they need a grace period, once the opportunity for requesting that has elapsed. Another hopeless unfairness.
Stakeholders
Finally, I would urge you to engage with key stakeholders, many of whom you will be told are difficult. I can assure you that all the stakeholders I know would look at themselves as critical friends rather than adversaries. It is in the profession’s interests to maintain constructive dialogue with the regulator.
Yours sincerely,
Stephen Henderson BDS LLM FCGDent(hon) FFFLM
[1] Barry Lall: Prevention of future deaths report - Courts and Tribunals Judiciary
[2] GDPUK Forum posting - ' GDC Told to take action before causing more deaths'.
[3] General Dental Council v Williams [2023] EWCA Civ 481
[4] Outcome of case review following ruling on interpretation of NHS regulations (gdc-uk.org)
[5] Fitness to practise data findings for improved performance and to support learning (gdc-uk.org)
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