Free article: Recent changes to GDC fitness to practise investigations

Published: Wednesday, 18 January 2017

Laura Paton at Ridouts highlights the main changes to the GDC’s fitness to practise investigations.

Summary

  • The Care Quality Commission (CQC) and the General Dental Council (GDC) require dental care providers to have an internal complaints system in place.
  • If a patient makes a complaint against a dental practice, this may trigger an investigation under the GDC’s fitness to practise process, which applies to all registered members of the dental team.
  • Amendments to the GDC’s fitness to practice rules include new powers that permit decisions to be made at an earlier stage.
  • Resolving complaints earlier improves patient protection and reduces the stress on the dental professional who finds themselves the subject of a complaint to the regulator.

Complaints

Both the Care Quality Commission (CQC) and the General Dental Council (GDC) require providers of dental care services to have an internal complaints system in place. This system must be publicised, accessible and understood by staff and the people who use the service.

To ensure that your practice complies with this requirement, you should make sure that all staff are aware of the complaints procedure and how it works, and that they are adequately trained in handling complaints.

Unfortunately, no matter how robust your internal complaints procedure is, there will be occasions when an aggrieved patient will escalate their complaint to the professional regulator, the GDC. This may trigger an investigation under the GDC’s fitness to practise (FtP) process, which applies to all registered members of the dental team, including dentists and dental care professionals (DCPs). A complaint to the regulator can be a very stressful experience for a professional. If a dental professional is the subject of a complaint, they should discuss the complaint with the practice manager to ensure that the internal complaints procedure is being followed. If the complaint is escalated to the GDC, they should seek advice from their indemnifier in the first instance, who can usually provide legal advice and representation through the FtP process if necessary.

This article highlights some of the changes to the GDC’s FtP processes. These changes aim to make the processes more efficient, as their efficiency has been subject to criticism in the past.

Amendments to the Dentists Act 1984 and the GDC Fitness to Practise Rules 2006 came into force in April and November 2016 respectively. These amendments include new powers to permit FtP decisions to be made at an earlier stage, improving patient protection and reducing stress on the dental professional who is the subject of the complaint.

Case examiners

One of the key changes that came into effect on 1 November 2016 was the introduction of case examiners to carry out the decision-making functions that were previously carried out exclusively by the GDC’s Investigating Committee. 

From November 2016, if the GDC decides that a complaint amounts to an allegation of potential impairment of a registrant’s fitness to practise, it will refer the case to two case examiners (one a registered dentist or DCP and the other a lay person). They will review the papers and decide whether the allegation ought to be referred to a Practice Committee for a full hearing. 

If the case examiners decide that the allegation ought not to be referred to a Practice Committee for a full hearing, they can close the case with no further action, issue a warning or issue advice, in the same way as the Investigating Committee could before the legislative changes came into effect.

However, if the case examiners consider that there is a real prospect of the allegation being found proved by the Practice Committee and there is a real prospect of the Practice Committee finding that the registrant’s fitness to practise is currently impaired, before deciding whether to refer the case to a Practice Committee, the case examiners can consider whether it is appropriate to dispose of the case by way of the registrant agreeing undertakings. This is a new power that was not available to the Investigating Committee before the legislative change. 

Undertakings are steps that the case examiners consider that the registrant is required to take to bring their fitness to practise up to the required standard (for example by completing further training and/or stopping aspects of treatment until they have completed additional training). The GDC will monitor the registrant’s compliance with the undertakings for their duration, and they can change or remove them if appropriate. The undertakings will normally be published, unless they relate to health concerns or an identifiable third party. It is unlikely that undertakings will be appropriate in cases where the indicative outcome of the allegation is that the registrant will be removed from the register. However, in other cases, it is hoped that this new power will make the FtP process more efficient by allowing some cases (for example those that might previously have been dealt with by Practice Committee conditions) to be disposed of at an earlier stage, avoiding the expense and stress of a full hearing before a Practice Committee.

If the case examiners cannot reach a decision on an allegation, they will refer it to the Investigating Committee to decide whether it ought to be referred to a Practice Committee. The new rules give the Investigating Committee similar powers to those of the case examiners in relation to undertakings, warnings and advice.

Review of warnings

Another new power introduced by the changes to the Dentists Act 1984 and the Fitness to Practise Rules is the power to review warnings. This came into force for the Investigating Committee in April 2016 and for case examiners in November 2016.

This is a significant power from the perspective of a dental professional, since a warning (which can be published or unpublished) remains on the professional’s record indefinitely and can have disproportionately adverse consequences as a result, not least on indemnity premiums. Before this new power was introduced, the only way of challenging a warning was via judicial review, which was an inefficient and costly mechanism. Where a warning is considered to be flawed, the changes to the legislation allow the registrant, or the Registrar of the GDC, to apply for the warning to be reviewed. They must apply within two years of the date the warning was issued. This timescale has already been the subject of judicial review at the High Court. The GDC had attempted to put in place guidance stating that the change was not retrospective and did not apply to warnings issued in the two years before the legislative changes came into effect in April 2016. However, the High Court found against the GDC, stating that the legislation should have retrospective effect. This means that a practitioner who has received a warning in the past two years can request a review of that decision, provided that the application is made within two years of the date of the warning.

If, on review, it is determined that the earlier decision to impose a warning was materially flawed or that there is new information that indicates it was not appropriate to issue a warning, then the warning must be revoked. If it was a published warning, the details of it must be removed from the entry in the register. The power of review is limited to revoking the warning or determining that it should stand. There is no power to substitute the warning with advice, nor is there any power to refer to a Practice Committee as a result of a review. As such, there would be minimal risk to a dental professional in seeking a review of a warning.

Detailed guidance on the new powers and processes can be found on the GDC website. We are still in the early days of their implementation and it remains to be seen whether they will improve efficiency as promised.

About the author

Laura PatonLaura Paton is a solicitor for Ridouts LLP (qualified in Scotland), a law firm specialising in health and social care law. Laura joined Ridouts from the Fitness to Practise department of the General Dental Council where she gained a wealth of experience in professional disciplinary cases. www.ridout-law.com 

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