PCC slams GDC’s conduct of FtP Proceedings
DENTAL BULLETIN, ISSUE 1
In recent times there has been criticism by dentists of the GDC’s approach in Fitness to Practice proceedings, in particular the culture of “naming and shaming” those who are unfortunate enough to come to their attention. So it may not surprise many dentists to hear that the Professional Conduct Committee (PCC) have made some damning criticisms of those who investigate fitness to practice on behalf of the GDC. In particular, in relation to the investigation of Dr Jasbinder Singh, and his fitness to practice.
This case has made news because of the PCC’s criticisms of the GDC. However, it is unclear if this is genuinely an isolated incident by the GDC or not. If those who are representing dentists at FtP hearings are not raising their concerns with the PCC, then it is likely that this level of manipulation of the process will continue, to the detriment of dentists.
Application to Stay a Fitness to Practice Hearing: Dr Jasbinder Singh
Jasbinder Singh’s Fitness to Practice hearing took place on 11th May 2015.
Prior to that hearing, the parties had agreed standard directions and disclosure of documents was due to take place on 2nd December 2014. The GDC did not disclose their documents until 12th December 2014. Mr Singh’s representative made a request for additional disclosure. The GDC took several months to comply with this request and did so on a piecemeal basis. Disclosure continued up until Saturday 9th May 2015, despite the GDC being aware that Mr Singh was not available over that weekend. Documents were still being sent on the morning of the hearing.
Mr Singh’s representative made a verbal request to the GDC to see undisclosed information. On 6th May 2015 the GDC refused this request. It was later discovered that some of the information within the undisclosed material could have helped Mr Singh prepare his defence.
On 6th May 2015 the GDC sent an amended witness statement to Mr Singh, which contained new material.
The GDC stated this was a simple case with one witness, however, they proceeded to produce nine expert reports. Five of these reports were only disclosed on 6th May 2015. The GDC called three of these experts to give evidence and relied on a further report in the document bundle, despite that report potentially being inadmissible.
A stay of proceedings on the basis of an abuse of process will only be granted in exceptional cases. The PCC has to balance the public’s interest in the proper regulation of dentists with the dentist’s right to a fair hearing. The PCC has to ask itself two questions when considering granting a stay of proceedings:
- Will it be impossible for the accused to have a fair hearing?
- Will it offend the court’s sense of justice and propriety if it is asked to try the accused?
The PCC criticised the GDC for ‘serious, consistent and ongoing failures’ in relation to disclosure and felt that this prevented a fair hearing from going ahead on 11th May 2015.
The PCC commented that the issues with disclosure also meant that the GDC knew Mr Singh’s defence before he knew the case against him. In fact, a paralegal at the GDC wrote to Mr Singh’s representative stating ‘we cannot draft final charges until you disclose your case to us’. However, the PCC found that Mr Singh’s defence would have been similar irrespective of the late disclosure and so no prejudice was caused in this regard.
GDC’s questions to the witness
In respect of the amended statement, the PCC felt the questions asked of the witness prior to amendments being made were leading questions and coaching of the witness. The GDC had asked the witness:
‘Were you shown a video explaining the treatment?’
‘Can you comment upon the dentists version of events – i.e. that he could have a (removable) essix retainer for free but had to pay for (removable) invisalign or fixed retainers, and/or that the delay in getting the retainer was because you were uncertain about what option you wanted to go for.’
‘Are you able to say anything that would clarify these apparent conflicts in time periods?’
The GDC’s lawyer advised the witness ‘only state something when absolutely sure’. When in fact a witness should answer to the best of their ability and be free to say that they are sure or unsure as may be the case.
However, the PCC felt that these irregularities could have been rectified at hearing and would not cause a prejudice to Mr Singh having a fair hearing.
The most damming comments from the PCC came in the GDC’s actions in asking Mr Singh to disclose his case before the GDC finalised the charges against him and then widening the charges 28 days before the hearing. In respect of the first point, the PCC quite rightly found this to be ‘perverse and inherently unfair’. In relation to the later, the PCC felt this had a detrimental effect on Mr Singh preparing his defence.
The PCC also criticised one of the GDC’s experts, who it found was motivated to make the charges against Mr Singh easier so that they could be proven, and made unfounded allegations against Mr Singh. The PCC highlighted in the judgment that an expert’s role is to be independent and provide a clinical opinion, which had not been the case here. The PCC also criticised the GDC, who failed to take any action to rectify the expert’s actions.
Based on the above, the PCC found that it was still possible for Mr Singh to have a fair hearing and therefore would not stay the case on this basis.
The PCC then went on to consider if it’s sense of justice and propriety would be offended by hearing the case.
The PCC found that the GDC’s case against Mr Singh was in a ‘chaotic state’. The PCC commented that this was not a case of one singular failure but ‘multiple, repeated and very serious failings in the fair prosecution of the case… the GDC has shown a cavalier disregard for fairness and due legal process’.
The PCC also stated:
The Committee was deeply concerned by the apparent lack of understanding by the GDC of the disadvantage its behaviour has caused to Mr Singh in the preparation of his defence and the lack of fairness with which he has been treated. Regulatory processes can result in a loss of professional reputation and potentially the loss of a professional’s livelihood. Accordingly, such proceedings must be prosecuted in a scrupulously fair manner.
As a result the PCC found that the answer to the second question was clearly yes and stayed the proceedings in this case.
A full copy of the Amended Determination (stay of proceedings) Singh is available here.
If you are facing a Fitness to Practice hearing, and you are concerned about how the case is being conduct, please feel free to contact us on 0207 388 1658 or by email at firstname.lastname@example.org. Whilst your insurer may have a panel solicitor, you are entitled to choose who you want to appoint as your representative in FtP cases.
Laura Pearce, Senior Solicitor
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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.