Don’t believe everything you hear via social media, chatrooms and the professional grapevine, warns Kevin Lewis. Just because the GDC gets a decision wrong doesn’t make everybody else right.
I don’t know whose original truism I am purloining and misquoting here – my apologies. ‘Comedy of errors’ was an option, but what follows is not remotely funny.
I refer to the sad chronicle of events surrounding a GDC fitness to practise investigation and Professional Conduct Committee (PCC) hearing in January of this year, which led to a relatively young and inexperienced dentist being erased (struck off) from the dentists register, having worked less than a full year since graduating.
A few months ago, on appeal, a High Court judge overturned that decision on the grounds that the evidence did not support a key finding of dishonesty, and flowing from that, the sanction was excessive.
He ruled that a nine-month suspension would be a sufficient and more proportional determination (Lucy Jane Williams versus GDC, 2022).
The events reflect pretty poorly on just about all involved parties to a greater or lesser extent, and that includes, sad to say, the practice where this young dentist worked between September 2017 and mid-2018, the NHS-BSA, the two sets of instructing solicitors, barristers and experts, the GDC case officers who framed the long and overcooked list of charges, the PCC itself and not least, its legal adviser.
All in all, a monumental mess on an epic scale. But lest we forget, there was a young dentist – a human being and mother of a very young child – caught up in this maelstrom in the early years of her professional career.
She wasn’t blameless, but she didn’t deserve this.
Check the facts
You might be thinking that things couldn’t get any worse, but the dental grapevine and the pervasive strands of social media have since compounded the catalogue of errors by grotesquely – and dangerously – misrepresenting the facts and implications of the judge’s decision.
So you would be well-advised to sit in a dark corner somewhere with or without a cold towel draped across your brow, and read all the relevant regulations, the NHS provider contract and the High Court judgement itself, line by line.
If you can do that for long enough to deter yourself from reading any of the recent nonsense that has been circulating on the dental rumour mill, so much the better.
You might conclude that there must be a better way to earn a living. Clearly there is, given that all of the parties listed above have been well remunerated for getting it spectacularly wrong.
It seems ironic that the PCC found that the defendant dentist should not have relied upon handed-down wisdom and anecdote when ‘learning the ropes’ of NHS dentistry, but instead should have checked the facts by studying the actual regulations for herself to find out what they actually said – the very thing that just about everyone else involved in the case had singularly failed to do (!!).
Crucially, the 2005 NHS regulations, which were in force at the relevant time, were subtly but materially different from the 1992 regulations that they had replaced.
And that oversight/misapprehension on the part of almost every party involved, became outdated misinformation that pervaded the GDC case and proved to be the key difference between this young dentist being struck off or facing a relatively short suspension.
Popular myth
Cutting to the chase, and contrary to popular myth, the judge did not say that charging private ‘top-up fees’, in addition to the statutory patients charges for NHS treatment, is permissible under the relevant regulations – so don’t even think about it.
What he did say, however, was that it wasn’t entirely clear that such ‘top-up’ fees were forbidden in the specific situation(s) involved in this particular GDC hearing – and because of that fact, the PCC should not have concluded that the registrant had acted dishonestly (as defined by the law) when charging her patients those particular fees with their full knowledge and agreement.
Popular myth appears to have conflated NHS regulations with the separate legal issue of valid consent; largely (I suspect) because it suits popular myth to do so.
This issue was one amongst many in this case; it isn’t in dispute that the dentist had erred in other respects, both clinical and administrative.
But the central question that has fuelled the recent debate over this GDC case (and one of three grounds of appeal) was whether a patient can elect to pay extra if, when receiving necessary NHS treatment, they wish to ‘enhance’ some aspect of that treatment without entirely relinquishing their entitlement to NHS treatment – for example, aesthetically superior restorations or appliances (either via the use of a different/better material, or a more skilled/expensive laboratory technician).
Confusing guidelines
The 2017 Dental Handbook issued by the NHS-BSA ought in theory to offer clear and authoritative guidance on questions such as these but – as has been demonstrated by other cases in the past (such as Powys Teaching Local Health Board versus Dusza and Sobhani, 2015) – its unstated aim is always to save the NHS money and often to persuade dentists out of claiming money to which they are fully entitled.
With this aim, it provides some answers but not others, is highly selective in the regulations it chooses to quote, and is just as likely to be materially inaccurate and misleading as to be wholly accurate and helpful – and the judge points all this out.
Nor is any example given in the handbook of the question of using better materials privately on an NHS crown. So, the judge expresses his dismay as to how on earth any busy dentist can be expected to make sense of what they can and cannot do, when so many of the points of reference appear to be contradictory.
He cites the fact that the regulations themselves contain a separate clause that specifically allows mixing of ‘any part of a course of treatment’, which adds to the confusion.
While pointing out the contrariness of the guidance several times, the judge leaves unanswered the question of what this actually means in practical terms, in various situations.
It was not the question he was being asked to determine.
So, when some observers are wrongly claiming that this decision somehow changes the NHS regulations, or protesting that ‘the judge got it wrong’, I would say that judge was just about the only person in the entire saga who got it right. As you would expect him to do.
But nor did he change the law or set a new precedent – even for (especially for?) High Court judges, the law is often open to interpretation and its application is context-dependent.
The original intention of the author/draftsperson of any regulation is reduced to irrelevant conjecture once the words have been consigned to the statute books.
Win-win?
But there’s another point in this.
Many people have clung to the faux-reportage of this GDC case because a wider application of the ‘topping up’ principle, with the full knowledge, understanding and agreement of the patient, might just be a ‘win-win’ solution that could save NHS dentistry from the shredder at the eleventh hour.
A subsidy/top-up approach isn’t entirely dissimilar to what already happens in NHS ophthalmic services and the voucher scheme for spectacles and contact lenses, and has features in common with the grant-in aid arrangement which the (then) GDPA proposed in its evidence to the 1992 inquiry led by Sir Kenneth Bloomfield.
Unsurprisingly, that was a suggestion made against the similar backdrop of a previous crisis in NHS dentistry when the profession had completely lost trust in the government and was moving in droves to the private sector.
The NHS and the politicians could thereby save face by maintaining some kind of access to NHS dentistry partly and transparently subsidised by the state. The patients who choose to seek NHS treatment wouldn’t feel abandoned and denied by the NHS dentistry that their National Insurance contributions were designed to (partially) fund.
Meanwhile, the profession could be freed up to set fees according to normal business principles. It could reflect the actual cost of delivering the service to a proper standard, recouping investment and taking due account of regional and local variations in operating costs.
It’s demeaning when the profession is reduced to the appearance of ‘gaming’ around the fringes of a hopelessly flawed and inadequate model and it’s wholly wrong that the profession alone should carry the can.
For 16 years, the UDA system has enabled successive governments to turn ‘gaming’ into a predictable art form where they set the rules, they do the gaming and they’re the only winners.
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