Article
The determinations from the GDC's Case Examiners are rolling off the printers and, whilst there are some ‘teething’ problems, from an early view of the situation, the main aim of reducing the number of cases being stuffed into the Fitness to Practice ‘sausage machine’ might just be slowing down.
There have been many drivers to introduce Case Examiners, not least of which is that the General Medical Council have had them for many years without too many tears.
Under the legislative framework, a Section 60 order is required to allow amendments to the Dentists Act 1984. The GDC has been looking for these changes since the Department of Health committed to proposals to make the necessary legal changes as far back as November 2014. Two years later, the Case Examiners, appointed and directly employed by the GDC, began their work in earnest on 1st November 2016.
So what is so different now?
The triage and initial investigation of a complaint or concern about a dentist's fitness to practice are the same as before. Following an investigation and involvement of external clinical advisors who review any clinical issues, the allegations are referred not to the Investigating Committee, as before, but to Case Examiners.
These allegations are drafted by the lay case workers based on the complaint and the clinical advisors' report. The allegations are considered on the papers alone by two Case Examiners, one of whom must be a lay person, the other a registered dentist or registered dental care professional. There are currently nine clinical and five lay Case Examiners. The Case Examiners are not asked to determine the facts of the case or consider whether the allegations made against the dentist are true or not. They perform a filtering role to decide whether or not the allegations before them ought to be considered by a practice committee (Conduct, Health or Performance).
They have to consider whether firstly, there is a real prospect that the allegations in the case could be proved on the balance of probabilities and secondly, if proven, it would suggest that the registrant's fitness to practice is currently impaired.
The Case Examiners will have in front of them the dentist's own response to the allegations, provided with indepth support from an indemnity provider, hopefully, and may therefore be faced by conflicts of evidence between the two parties. These can be resolved by the Case Examiners but, where there is a significant dispute about what happened or what treatment was provided, the Case Examiner, as the Investigating Committee did before them, will have to refer to a hearing to test the live evidence with the parties themselves in a hearing.
The Case Examiners have much the same powers as the Investigating Committee, but now have the added spice of agreeing undertakings with the registrant instead of onward referral to a practice committee.
These undertakings are designed to protect the public and are essentially an agreement about the dentist's future conduct or practice. These undertakings are not available if the allegations are so serious that they could warrant erasure.
The undertakings may include an agreement by the dentist to do something positive, such as attend further training, work with a clinical supervisor or carry out audits. They might also be invited to desist from something like a particular clinical discipline, such as implants or restrict their hours. The Case Examiners have a veritable smorgasbord of undertakings to pick from the GDC's ‘undertakings bank’ if they so wish.
The Case Examiners can now also issue warnings. They can be published against the dentist's name for up to 24 months with a narrative of the events and the warning itself. It must be remembered that none of the allegations has been tested in live evidence at this point and may still be disputed by the dentist. This does not prevent the Case Examiners from issuing the published warning however. Unlike the Investigating Committee, the Case Examiners now have a legal obligation to notify the dentist that a warning is contemplated, inviting representations about it before it is issued.
What difference might the introduction of Case Examiners actually make?
Well costs for starters. An average fitness to practice hearing lasts 4 days at a cost of £78,000. That is £19,000 a day of annual retention fee income. Whilst it is not far off what a top Premiership footballer earns a day, it is not sustainable. The defence organizations are also paying separately to defend the case from the very start of the complaint right through to the hearing, with support from dento-legal advisors, as well as barristers and solicitors. The number of hearing days at the GDC in 2014 was 1,246.1
If fewer cases end up at the doors of the practice committees of the GDC, there will be substantial savings. The GDC really cannot afford not to make the savings it needs to, but it has to do so safely and proportionally. Failure to do so will result in further scrutiny from the Professional Standards Authority (PSA) whose role is to ensure that the decisions made by the GDC are not overly lenient.
Dentists have, of course, also to accept the undertakings or the warning offered to them, but they may choose not to do so, as is their right, choosing instead to try their luck at a substantive hearing where the facts are in dispute. It could be argued, however, that a failure to accept a warning or undertaking demonstrates a lack of insight, the very thing a professional is required to have when things go wrong.
The GDC are also simultaneously looking at how complaints can be prevented in practice, dealt with more expeditiously by appropriate training and, more importantly, ensuring that low level complaints do not roll onto the GDC conveyor belt as they have done for the past 5 years. The threshold of ‘seriously below the standard expected potentially requiring a sanction of suspension or erasure’ is the only case that should find itself at Conduct, Performance or Health Committee.
The GDC has just launched a consultation (Shifting the Balance January 2017) looking at the very real problems of how it deals with complaints and then how fitness to practice works – or doesn't as is the present case. It appears that the GDC has finally got this message and we can perhaps now look forward to far fewer of our profession facing the anxiety, stress and sheer terror of a hearing in 2017 and beyond.