As the GDC hits the headlines once again, Simon Thackery wonders if this is the only road the regulator has ever known.
Recently I seem to be reminded of the title of the classic 1984 Whitesnake song whenever a new High Court case involving the General Dental Council (GDC) hits the dental news headlines.
In the last month, we have had two more court cases that have ruled against the GDC. These come on top of the assessment by the three judges in the Court of Appeal that the GDC didn’t act correctly in the case of Williams versus GDC.
Aga versus GDC
The first case is Aga versus GDC. Here, the court ruled that the GDC was incorrect in its interpretation of the legislation to impose consecutive suspensions (in the case of an immediate suspension pending appeal and the subsequent actual definitive suspension). There was no argument that the suspension of the registrant was a legitimate response to the charges.
An immediate suspension to cover the initial 28 days to allow an appeal to be made was made pending the commencement of the actual suspension for nine months. An immediate suspension is one that remains in place until an appeal is actually heard.
However, the court ruled that, as the immediate suspension would be in place prior to the hearing of the appeal and that the appeal might not take place for four or so months (given the lightning speed at which the GDC works in fitness to practice), and if an appeal was dismissed, then the registrant would then have the nine months suspension commence at the end of the appeal process, then the actual suspension served would have been in excess of 12 months.
‘Pandemic of dishonesty’
The judge kindly pointed out to the GDC that they didn’t have the powers to impose a suspension of that length, and this ‘during appeal’ suspension effectively resulted in discouraging the appeals process, and therefore was a human rights issue. The judge decided the nine-month suspension (which was deemed appropriate) should be concurrent.
This is effectively what happens in the case of sentencing in any other court, as time served on bail is offset against the actual sentence handed down.
This situation has more recently come to light due to the increasing numbers of immediate suspensions issued and the way the GDC has used them. We all know the GDC reached its nadir around 2015 and seems to want us to think it is far less likely to persecute the profession than before.
But it still seems the regulator is convinced there is a pandemic of dishonesty within the profession that justifies its pursuit of registrants.
Unlawful
Rather than retiring to lick their wounds after another defeat, the GDC came straight out with a swift press release suggesting the judge was wrong, with the additional comment that it would be instructing the Professional Conduct Committees (PCC) to continue to use the immediate suspension order in the same way as it had in the past. This appears to have been edited some nine days later as a response to a press release from the MDDUS.
What the GDC still seems to forget is that the ruling of a judge in a court of law is, in fact, the law until it is deemed to be otherwise by the Court of Appeal and the Supreme Court (if necessary). It appears that the GDC are so supremely confident in their righteousness that they are happy to instruct their PCC members to effectively ignore the court.
One can only presume that the GDC is also happy to indemnify all members of the PCCs in making these decisions against any comeback from acting unlawfully. There is a glorious irony here when you consider that a registrant committing such an unlawful act would in many cases land you in hot water with the GDC…
Balachandra versus GDC
The second recent case is one that would almost be comical in its ineptitude if it were not so serious. The case of Balachandra versus GDC overturned a decision by the GDC to erase a registrant. Interestingly, NHS England had found no evidence of the fraud that had brought this case to the attention of the GDC in the first place.
It is a lengthy catalogue of events, from around 2017 to the present day, which are too long to go into here, but involved the destruction of the original clinical records by either the GDC or its agents, NHS England, or Capita, but only after the records had been incompletely and incorrectly copied by Capita for NHS England.
It also involved one of the GDC experts being criticised by the judge for acting out of their sphere of expertise by offering an opinion on handwriting and document authenticity (as to whether records may have been non-contemporaneous or fraudulently made after the event); for effectively taking on the role as an advocate for the GDC case, and for not having any experience in the clinical practice of actual note taking since the mid 1990s.
Serious questions
In addition, the court suggested that the PCC had also acted incorrectly in the case, especially with regards to the issue of the apparent lack of application of the dishonesty tests in Ivey versus Genting it relied on when making its decision. Serious questions must also be asked of the legal advisors present as to whose role it is to advise the PCC in fitness to practice cases, especially in cases like the above where it is made clear there has been a problem with the outcome and its application of the law.
There were some aspects of this appeal that were in fact dismissed, so at least the GDC got something right; however the erasure was ordered to be overturned, and the case referred back to the PCC to re-hear. Interestingly, there was no question of an interim suspension pending the hearing so it seems that this judge was possibly also acting with the ruling in Aga versus GDC in mind as well.
If a registrant had appeared in front of its regulator on three separate occasions in such a short time, and been found to be so wrong in their actions, we all know what the outcome would be. It would also be an especially harsh outcome if the registrant followed it up with a lack of insight, such as publishing a press release saying ‘business as usual’.
Lack of insight
It seems that the GDC often doesn’t have the correct opinion about the rules and even the legislation that it prosecutes registrants under. This was made clear to them in both Williams and Aga. Both of these cases involve prosecutions in the ‘new era’ of the GDC where it is supposed to have made changes and tried to become less like the secret police of a dictatorial regime, and instead become a more approachable regulator.
I must caveat this and say that my experience of regularly meeting with senior members of the GDC would suggest they are acutely aware of these past issues, and they are very personable, approachable and professional people.
It is still a matter of fact that registrants are paying for the GDC’s costs in all of these cases. In effect, the more incompetent the GDC are, the more cases they get wrong that lead to appeal, the more the registrants must pay to fund the GDC’s errors through the Annual Retention Fee (ARF). The lack of insight shown by the GDC is staggering in that despite the rulings of the high court in all these cases, it still maintains its position of righteousness and infallibility.
This is the same GDC that if it makes a mistake collecting the ARF it erases the registrant even if evidence exists it wasn’t the registrant’s error. It is a shame that the GDC’s own regulator, the PSA, is about as much use as a three-legged asthmatic chihuahua in a greyhound race.
Restore confidence
It is clear to us, as registrants, that while the GDC is operating under outdated legislation (The Dentists Act was written in 1984), it would seem fair to suggest that before it gets new legislation to work with it might be helpful if it went back and correctly interpreted the current legislation first. Who knows, perhaps they can then start to fulfil their remit of protecting the public by doing something about companies such as the now insolvent Smile Direct Club.
If it were not for the financial cost to registrants I would suggest that they consider instructing one of the King’s Counsels that have so recently shown them up in court to go through their own policies and legislation to clarify it to them. This could actually help the GDC to show the insight that it so often demands of its registrants when undergoing fitness to practice cases, and might even start to slowly restore the much-needed confidence in our regulator.
In the meantime, it would appear that the GDC might want to consider getting its own parking space at the High Court… which we will no doubt get to pay for.
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