In light of the GDC versus Williams case, Neel Kothari argues why the profession needs to properly scrutinise its regulatory obligations.
Over the last few months there has been considerable criticism of the General Dental Council (GDC), relating to its Professional Conduct Committee (PCC) and determinations of dishonesty made against its registrants. Much of this has come to the fore because of the courage shown by dentist Ms Lucy Williams – and her family – who decided to challenge the GDC over findings of dishonesty that they considered unfair, and the courts agreed.
As set out by Mr Justice Ritchie in the High Court judgement (GDC versus Williams, part 49), the test for dishonesty involves, in part, evidencing whether the individual knew that they were acting dishonestly. Often this is beyond doubt, such as in cases of falsified records or theft but when dealing with breaches of NHS regulations this is fraught with difficulty.
Review the regulations
As Lord Justice Coulson stated: ‘…the relevant Regulations are not at all straightforward’ and ‘it appears that they have been accepted for many years as having a particular effect, but until the judgment below, no-one has troubled to analyse the actual words they use’ concluding that they ‘do not mean what the GDC had always assumed they meant’.
The issue of the fairness was also highlighted, as Ms Williams was determined to be dishonest without being told why. Mr Justice Ritchie stated: ‘I rule that it is not fair to make a finding that a professional has breached a regulation without stating accurately which regulation was allegedly breached’ (part 98).
As it transpires, the regulations do permit private top-up fees. However, in my opinion, this may be a moot point because the regulations are written for contract holders and not associates such as Ms Williams.
It’s not entirely clear why the GDC considers associates subject to NHS contract regulations, so I set about to try to find out. My initial thoughts were that they must do, how could they not? But after reviewing the regulations including the performers list regulations, I’m yet to find a credible reason to support this assertion.
This begs the question: How could a breach of NHS regulations accurately be stated for associate dentists?
Fair process
For the sake of argument, let’s assume I’m wrong. Well, the GDC still face an insurmountable task as NHS regulations are written for contractors and not associates. For example, let’s consider Part 5 reg.22 (2) which states: ‘The contractor shall not, either itself or through any other person, demand or accept a fee or other remuneration for its own or another’s benefit’.
Despite the unanimous acceptance by the PCC, High Court and Court of Appeal that Ms Williams was subject to this regulation, I would argue that this couldn’t possibly be true as ‘contractor’ is defined within the NHS regulations not as, for example, ‘self-employed contractor’, but specifically to mean the contract holder (the provider).
It stands to reason that if a dentist is accused of dishonesty over knowingly breaking a regulation, at the very least, there must be a fair process that sets about proving this and that this process requires an objective standard to be measured against.
Not being a lawyer, I concede that I may be wrong and apologise in advance if I am. However, having troubled to analyse the words, I cannot find a compelling reason to assume associates would be subject to NHS regulations especially when the terms themselves seem to explicitly exclude them. Unless my reasoning is flawed, I postulate that the GDC may have been relying on a false premise for the past 17 years, placing them now in somewhat of a legal quagmire.
It’s my contention that this may have happened through oversight, albeit a monumental one. I can only speculate that this has occurred because prior to 2006 all NHS dentists were contractors who contracted directly with NHS England.
Sobering conclusion
However, as the new NHS contract was introduced, this was no longer the case and, as outrageous as this may sound, my best guess is that the GDC hasn’t corrected for this change. Of course, I may be wrong. But it strikes me that Lord Justice Coulson is entirely correct to come to the sobering conclusion that no one has properly analysed the regulations.
It’s my belief that even if my arguments in this article are deemed wrong, we as a profession need to properly scrutinise our regulatory obligations and to challenge the assumption that the status quo must of course be correct.
Until this is done, I suspect that we will continue to let down members of our profession, who are placed in the impossible position of being subject to rigidly applied regulations that are often vague and incoherent.
In my view, it’s in everyone’s interest that our professional regulators can separate a ‘complaint’ from a genuine ‘concern’. In doing so, they seek to fairly draw a distinction between ethical and non-ethical conduct.
Regrettably, this is beyond the bounds of possibility without clear rules that are understood by all parties, including the GDC itself.
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