David Obree, dentist and fellow in medical ethics at the University of Edinburgh Medical School, considers the ethics behind the case of GDC versus Williams.
The recent appeal court ruling against the General Dental Council (GDC) has received prominent coverage in the dental press and has even been discussed in Private Eye.
Much of the early commentary has been about the need for clearer NHS regulation on mixing NHS and private charges as, embarrassingly for everyone in the dentolegal world, the assumption that mixing was prohibited was wrong.
However, the case raises many more issues about the nature of professional regulation in dentistry, in particular the conduct of the GDC and the legal teams that both pursue and defend registrants.
Mixing NHS and private charges
Everyone thought this was prohibited in the 2006 NHS regulations. At the first appeal hearing, Judge Ritchie examined the regulations and found there was no such prohibition, and contrary to ongoing GDC and expert witness claims, three further Appeal Court judges agreed with him.
Regardless of the regulatory and legal interpretations, there has always been an ethical doubt about imposing a restriction on what a dentist and patient can agree on between themselves.
In essence, the imagined prohibition on mixing served to restrict patients accessing their NHS entitlement and, as Judge Ritche pointed out, leaving the patient with a much costlier option, to go fully private.
Why shouldn’t a patient have agency over the type of crown they have fitted on the NHS? To the judges it seemed that the patient and their autonomy had been unconsidered. There was no coercion to choose a more expensive crown, the patients had made voluntary requests.
As long as the principles of consent are followed such that patients make their own, voluntary and informed decisions, there is no ethical reason to oppose mixing.
The regulatory process
To reassure the public and maintain trust, professionals are subject to regulation. The regulatory process should be expert, judicious, prompt and proportionate, with consideration of both natural and distributive justice.
This means that regulation should cost no more than it needs to, is aligned with risk and monitored for efficiency. Whilst registrants foot the bill for regulation through their annual retention bill, the cost of regulation is ultimately passed on to patients.
The most striking aspect of this case is that a young dentist, just one year out of foundation training, was subjected to a 27 day conduct hearing. Inexplicably, the original conduct hearing report is no longer available on the Dental Professionals Hearing Service website.
This 72 page document has eight pages of charges arising from a falling-out with the practice owner who had reported concerns. There are 94 charges relating to 15 patients, 21 of the charges are alleged shortcomings in patient communication, 16 are record keeping omissions of which eight are failing to report on radiographs. Fifteen charges relate to NHS claims which include the mixing of fees issue, there are 17 added-on charges of dishonesty or lack of integrity.
Serious clinical charges
There are five charges about staff relations and bickering with a hygienist. The most serious clinical charges are failing to diagnose caries (three occasions) and perforating a root (one occasion).
The hearing was repeatedly adjourned and resumed over a period of 11 months, some of the delay arising from the GDC’s late submission of evidence and request for an additional witness.
There is no doubt that this young dentist needed to address some failings, many of the charges were admitted, however no opportunity of remediation was offered and the ultimate sanction of erasure was applied. As the erasure was predicated on findings of dishonesty relating to the mixing of fees this became an important part of the appeals.
As well as contradicting the ‘expert’ witness view on mixing fees Judge Ritchie also had some things to say about the conduct of the GDC and the legal teams in attendance:
The Appellant admitted in cross examination that she did not look up the Regulations. The PCC [Professional Conduct Committee] found that this was part of her inadequacy, but they themselves did not look up the Regulations or ask for them or see the NHS contract with the Practice and neither did the experts or the Respondents who prosecuted the charges.
He went on to say that: The sanction of erasure for this young dentist is too harsh […] In my judgment erasure is disproportionate and unnecessary […] Suspension is enough for these proven charges for this young and repentant dentist.
The appeal judges were equally critical on the issue of missing documents: It seems extraordinary that a PCC charged with investigating what was said to be a dishonest breach of the relevant Regulations did not have copies of those critical documents. […] on the unchallenged evidence before the PCC, the findings of dishonesty should never have been made.
Compassionate understanding
In summary, four senior judges have criticised the GDC’s regulatory processes and all concurred that the sanction of erasure was unduly harsh. This is hardly reassuring for members of the dental profession or members of the public.
The GDC and its conduct committee had failed to be expert, judicious, prompt and proportionate, ethical failings of some gravity. For those who have been claiming that the GDC is an out-of-control regulator intent on facing down dentists with aggressive, inappropriate and confrontational charges, this case confirms their anxiety.
Correcting the GDC failings identified by the judges is only part of what must change, a more compassionate understanding of how harsh, unremitting regulation affects registrants is called for.
That complainants can manipulate the system to weaponise their personal grievances against registrants, such that the GDC becomes complicit in acts of harassment, also needs to be acknowledged.
There is a workforce crisis in healthcare, a punishing regulatory regime amplifies the stress that prompts healthcare workers to retire early, work part time or move abroad and a depleted workforce is not good for patient access.
The tragic corollary of brutal regulation, mentioned in Private Eye, is the suicides by registrants while under investigation by the GMC and GDC, as well as teachers whose schools are targeted by Ofsted. Registrants and patients are harmed by poor regulation which is why the GDC must change its approach.
Support for dentists undergoing GDC investigations is available from Confidental (confidental-helpline.org), the Practitioner Advice and Support Scheme (PASS) run by Local Dental Committees (to find your LDC contact email [email protected]), Wellbeing Support for the Dental Team (supportfordentalteams.org), and the Dentists Health Support Programme (DHSP) (dentistshealthsupporttrust.org).
The fee for this article has been donated to support Confidental
