Assessing Fitness to Practice; what test must the GDC satisfy?
DENTAL BULLETIN, ISSUE 44
Just the mere mention of Fitness to Practice can strike fear into the heart of a dentist. Patients have become increasingly litigious and more likely to complain, even in the absence of good cause.
Unfortunately there are rarely any consequences for patients who make spurious complaints which are not upheld; however, the same cannot be said for the professional. The time, stress and expense of misconduct hearings can have a devastating effect. Many feel that their stress is exacerbated by an unsympathetic and heavy handed regulator.
What test does the Professional Conduct Committee (PCC) apply when assessing Fitness to Practice?
The test the PCC applies is twofold;
1. Has misconduct taken place?
2. Is the dentist’s fitness to practice impaired?
Whether or not misconduct has occurred will depend on the allegations raised and the evidence produced and as such this element of the test will be fact sensitive. The PCC must decide whether ‘it is more likely than not’ that the allegations took place, which unfortunately is a relatively low threshold. However, even if any of the allegations are found to be proved, case law has established that the conduct must be ‘serious’ before moving to the next stage of the test.
Is this a potential area that can be challenged? Are you able to obtain evidence or refer to previous cases that show the misconduct is not serious and therefore no further action should be taken?
When considering if a dentist’s fitness to practice is impaired, the PCC should look at the dentist’s current fitness to practice? It will not be sufficient to show historic impairment, unless the misconduct is so grave as to warrant it.
It should be noted that impairment is not assessed against any established standards of proof; it is a matter of judgment for the PCC committee. However, a failure to comply with the fundamental standards laid out in the ‘Standards for Dental Professionals’ is likely to lead to a finding of impairment.
Even if you do not accept the allegations against you, you should consider what actions you can undertake to show your fitness to practice is not impaired. For example, attending training courses, amending your policies and procedures, or being mentored/shadowing another dental professional. This should not be seen as an admission of guilt but a recognition that professionals can always seek to improve.
If impairment is found, the PCC will go on to decide which of the following sanctions to impose:
In deciding what sanctions to impose, the PCC must apply the principle of proportionality by weighing the interests of the public against those of the dentist.
This is where you need to put forward your mitigating circumstances so as to reduce the sanction imposed. Also you are allowed to suggest out what sanctions should be imposed and if you are able to give the PCC well thought-out sanctions bearing in mind the allegations, this could prevent erasure or suspension.
Stage 1 – Case Assessment
When the GDC receives a complaint, it first considers if it is the correct body to deal with it. If so, it will obtain more information from the complainant to assess whether one of the ‘Standards for Dental Professionals’ may have been breached. It is important to note that the Case Assessors do not make any findings of fact.
You will be asked to provide:
– Evidence of your indemnity insurance cover;
– Details of your current employers/anyone you are contracted to provide services to;
– If the complaint is about dental treatment, the patient’s medical records.
At this stage do not provide any further information than the above. Whilst it will be tempting to explain what has happened, at this stage the GDC has not set out what the allegations are against you, so you do not know what you are responding to. Any statement given could later be used against you.
Stage 2 – Case Examiner
If the Case Assessors consider a dentist’s fitness to practice may be impaired the case is referred to the Case Examiners; the case will be considered by one lay person and one professional. At this stage you will be sent details of the specific allegations against you and it is at this stage you will be asked to respond. The Case Examiners are not making findings of fact. Their role is to consider whether there is sufficient information to make a referral to the Practice Committee.
If the allegations are not clear, seek clarification. If evidence is referred to, ask for copies of that evidence.
Whilst the Case Examiners are not determining the case, if you can show there was no misconduct, we would recommend responding fully to the allegations and providing evidence to support your assertions. However, if you think there may be a case against you on the evidence received think very carefully before making any admissions at this early stage. It may well be worth seeing the extent of the case against you before admitting any wrong doing.
Stage 3 – Hearing
Should the case progress to a hearing then you will need to fully prepare for the same bearing in mind the test set out above. Consider:
– What evidence do you need to rebut the allegations?
– Are you able to show the misconduct is not serious?
– What have you done to show your fitness is not impaired?
– Will other dentists/patients provide statements as to your character?
– What mitigating circumstances are there?
– What sanctions should be imposed?
If you are not happy with the GDC’s decision you have the right to appeal to the High Court within 28 days. We set out the circumstances when you can appeal in Issue 2 of our dental bulletin.
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Laura Pearce, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.