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Published: Friday, 18 February 2022 17:34

Written by Peter Ingle

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The GDC has published it’s take on cross-regulatory research into the concept of seriousness in fitness to practise cases. This would imply that the level of perceived seriousness will affect both how far an issues goes down the disciplinary pathway, and also the level of sanction applied. 

So the question of seriousness will be germane to any registrant receiving one of the GDC’s feared letters. The work was jointly commissioned by the GDC and the Nursing and Midwifery Council (NMC). The report was produced by the University of Plymouth and supported by the majority of UK health regulators, and set out to review how the concept of seriousness is defined and applied by various healthcare regulators in their fitness to practice (FtP) function. The report also looked into what factors influence its application, and the similarities and differences in approaches across regulation. 

Given the concern from dental registrants, and even lack of confidence in the GDC’s FtP process, this could have major implications for all of its registrants. Dental teams will not be surprised to read that there are some, ”fundamental differences between regulators in how and when seriousness is considered during an FtP process.” Those who have seen the failure to record LA batch numbers, and a ledge on a temporary, appearing on GDC FtP charge sheets would probably agree. Reassuringly, the study found that cases involving sexual misconduct, dishonesty, and criminal convictions, tended to be recognised as serious by all the regulators.

Legislation – again

Commenting on the report GDC Executive Director, Fitness to Practise, John Cullinane, said: “The findings in this report will inform all our work where the concept of seriousness is relevant and this research provides useful evidence to inform our ongoing work to improve our fitness to practise processes. Our outdated legislation, however, severely limits how much progress we can make, preventing proportionate and responsive approaches in many areas of our work. We continue to press the Government to deliver the reforms they consulted on last year which we believe will give us the freedom to make significant improvements for the benefit of both patients and dental professionals.”  So once again, the GDC are claiming that they cannot act due to a lack of new legislation. This is a familiar excuse of the GDC’s. It was used for years to explain why they had to demand ARF’s from registrants for the year as a single payment. The implication in their refusals appeared to be that they sympathised with hard pressed DCP’s and newly qualified dentists having to stump up their ARF in one go, and would have liked to help. But they simply could not, in the absence of new legislation. And then, as if by magic, last year a quarterly payment option was introduced. Without any new legislation being required.

In contrast in the case of the ‘Therapist loophole’ the GDC felt that there was no problem that needed legislative change. This particular loophole meant that dentists with an overseas dental qualification requiring them to take the ORE practical, could fail it, but still join the register as a therapist. This was pointed out repeatedly to the GDC, and as long ago as 2019. They did not feel that there was a problem, countering that their systems were “robust.” Fast forward to 2022 and the GDC now welcome a consultation for legislation that could, at last, allow them to close this loophole.

So the GDC have claimed that they could not do something without new legislation, when they did not need it. Also the GDC have not requested a legislative change when they arguably did need it. With this record, and whatever the findings of this report, the GDC’s response that they need new legislation until they can actually act upon it, may not inspire confidence in the necessary changes happening.

Engagement

The GDC said that “This research shows that a registrants level of engagement with their regulator is an important factor in determining the seriousness of an FtP case and the eventual outcome of it. Although the vast majority of dental professionals will never be involved in an FtP case, the GDC advises any who do find themselves involved in one to be fully engaged with and responsive during the process. Professionals who do engage with the regulator typically see less severe outcomes than those who do not.”

Which sounds reasonable enough. But there may be differences in what engagement means to everyone. Reading enough GDC FtP reports, engagement may seem to include admitting charges and assumed motivation as well as graciously accepting the ensuing decision of the panel.

In the report a lay case examiner for one of the regulators said that “Then when considering current impairment obviously what’s really critical for us is whether or not there’s been a response from the registrant, insight, remorse, remediation etc., and again we don’t decide yes your fitness to practise is impaired, just if there is a realistic possibility that it would be found impaired.”

But in the actual document a glossary is provided and Engagement is defined as referring to “the registrant’s response to all stages of the fitness to practise process, including any written or verbal communications, sharing of relevant evidence, and attendance when requested at a panel hearing”

Mitigation

Dental team members, particularly those at the sharp end of UDA delivery will be interested to see that the report considered aggravating and mitigating factors that influence decisions about seriousness in FtP cases. In addition to the registrants’ levels of honesty, risk to patients, and insight, there has been a more recent interest in contextual issues. These included consideration of registrants’ health and personal circumstances, as well as the broader social and organisational context in which the misconduct occurred, with a focus on issues such as pressurised work environments, bullying, and workplace cultures. The last three of these, if they were included in the GDC’s FtP process, might be expected to provide a good deal of mitigation. In that case, registrants will be looking forward to the GDC obtaining and then using that new legislation.

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