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Executive summary
Dental Protection is pleased to respond to this GDC consultation which sets out revisions to its guidance for those on the Interim Orders Committee, and the Interim Orders Committee Conditions Bank.
Dental Protection is part of MPS, the world’s leading protection organisation for doctors, dentists, and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world, and is proud to have supported over 31,000 dentists and dental care professionals in the UK for many years.
Of particular relevance to this consultation, membership of Dental Protection provides members with the right to request assistance and indemnity for GDC investigations.
Consultation Question Responses
Improving consistency in the management of immediate risk
We want to improve consistency in our approach to assessing immediate risk by the Interim Orders Committee (IOC).
We are proposing updates to the IOC Guidance that give further information on the factors that should be considered when assessing immediate risk to public safety and confidence in the following areas:
- clinical cases (paragraphs 64 and 65)
- alleged lack of indemnity insurance (paragraph 68)
- failure to cooperate with an inquiry (paragraph 69-71)
- alleged sexual misconduct and violence (paragraphs 72-76)
- working beyond of scope of practice (paragraphs 77-79)
- concerns about the health of a dental professional (paragraph 80).
2. Are the descriptions of the factors that should be considered by the IOC under each of the allegation types listed above, clear and comprehensive enough to support the IOC to make consistent and appropriate judgements on immediate risk to public safety and confidence?
3. Do you have any views on how we can further improve the IOC Guidance to support consistent and appropriate assessments of risk by the IOC?
Paragraph 73 – Assessing risks in relation to allegations about sexual misconduct; the criteria do not include reference to how historic the allegation is. For example, would an unproven allegation regarding an incident 20 years ago with no other history be considered differently? We have seen cases of allegations being made many years after the event with no evidence to support the allegation. There is also no consideration of whether the allegation is proven.
Paragraph 76 – We are concerned about the ambiguity of “mainstream opinion”. This paragraph does also not consider whether the misconduct has been proven or not.
Paragraph 77 – Whilst the section heading refers to ‘Scope of Practice’ the wording in paragraph 77 does not reference GDC guidance on scope of practice.
Paragraph 79 – The guidance refers to whether the registrant’s actions resulted in patient harm but should the IOC consider the potential to cause harm, e.g. was the alleged action so far outside of their training / competence that the action(s) could have resulted in serious harm.
Paragraph 80 – This paragraph states that ‘factors which may point towards an interim order being imposed on public protection grounds include… where it is alleged that the registrant is not following medical advice’. This is very broad, and we would like to see further detail to ensure that the IOC has comprehensive descriptions of the allegation type, in a way that helps the IOC consider whether these present a risk to the public. For example, if a registrant was consistently ‘not following medical advice’ by refusing to take statins or heart medication, does that pose a risk for the public? A registrant’s incidence of ill health while treating a patient may be increased in that case, and one could construe that poses a risk. If this is not the type of matter to be regarded by the IOC on whether a registrant is fit to practise unrestricted, then further guidance with examples is needed. Accordingly, we suggest that the wording of the bullet point is amended to say “where it is alleged that the registrant is not following medical advice which impacts their ability to practise safely”.
Paragraph 85 – In relation to bullet point 3, we are concerned about the second limb “or serious breaches of guidance relating to the COVID-19 pandemic”. Given the varied and changing guidance proscribed by NHS England and other professional bodies and associations over the past 3 years due to the COVID-19 pandemic, Dental Protection would seek further clarity about what constitutes a ‘serious’ breach. We would like to note that guidance was changing rapidly, occasionally conflicting and was arguably slightly different at various points in time, and across the UK.
Assessing risks posed by allegations of serious misconduct
Based on the findings from our research on how different healthcare regulators apply the concept of seriousness, we have updated IOC Guidance to provide additional information on dealing with allegations considered to be particularly serious.
We have added alleged serious and/or persistent dishonesty to the list of allegations with the potential to damage public confidence in the dental professions (paragraph 85). And provided further information on cases involving:
- sexual misconduct, harassment, and violence (paragraphs 72-76)
- criminal proceedings (paragraphs 87-91).
4. Do these updates provide sufficient information to panellists on how to treat serious allegations of misconduct and how to effectively assess the immediate risk to public safety and confidence in the areas listed above?
5. Do you have any views on how we can improve or better reflect the research evidence on seriousness in the IOC Guidance?
There is no mention of account to be given to repeatability/previous similar history with regard to criminal proceedings either with the GDC, or at the practice or Trust level. This guidance is provided for sexual misconduct, harassment and violence concerns.
Ensuring decisions are proportionate to the risk posed
We want to ensure that the judgements and decisions made by the IOC are proportionate and appropriate to the risks posed to public safety and confidence.
To help achieve this goal we have expanded the section on proportionality (paragraphs 98-105) in the IOC Guidance, alongside the changes we set out at Question 2 of this survey in reference to the assessment of immediate risk.
6. Do these updates provide sufficient information to panellists on how to ensure decisions are proportionate to the risk posed and that any restrictions imposed on a dental professional’s practice are proportionate to the issues identified?
7. Do you have any views on how we can further improve the IOC Guidance to ensure that decisions are proportionate and appropriate to the risks posed?
We have seen cases of allegations being made many years after the event with no evidence to support the allegation, and there is also no consideration of whether the allegation is proven. Further clarification for panellists should be included.
Paragraph 101 – This paragraph makes reference to conditions only being appropriate when there is reasonable confidence in the registrant’s capacity to comply with the conditions. It would be helpful to have clarification of what is meant by capacity and whether it amounts to an assessment that the registrant would not cooperate with conditions, rather than cannot practically comply. For example, in the case that direct supervision is deemed necessary but that the registrant is a sole practitioner.
Paragraph 106 – This paragraph as drafted makes it appear that less than 18 months duration will be the exception rather than the norm; the latter being the position pursuant to the case law noted in the footer.
Improving transparency of rules, considerations and decision making
We want to improve transparency of interim order rules, considerations and decision making by the IOC. We have updated the IOC Guidance and the IOC Conditions Bank to delivery these improvements. The IOC will refer to the IOC Conditions Bank and the risk being posed, when taking decisions on restricting the practice of a dental professional.
We have updated the IOC Guidance to provide further details on what should be considered when assessing immediate risk to public safety and confidence (as set out at Question 2). We have also added information on procedural matters that were not previously covered, but that may arise in the context of an IOC hearing. Updates have been made to the following sections:
- postponements and adjournments (paragraphs 9-26)
- joint hearings (paragraphs 27-30).
- registrants with existing restriction on registration (paragraphs 31-46).
- mode of hearing (paragraphs 50 and 51)
- the approach to testimonial evidence (paragraphs 95-97).
We have made presentational changes to the IOC Conditions Bank to provide further clarity and, where appropriate, timescales to relevant conditions on practice, as follows:
- Standard conditions (section 1, rows 1-4).
- Conditions involving, supervision, reporting, submitting logs, and the use of a chaperone (throughout).
8. Do the additions to the IOC Guidance on considerations for the assessment of immediate risk and procedural matters, and the clarifications to the IOC Conditions Bank on timescales, supervision and reporting provide sufficient transparency for users?
9. Do you have any views on how we can provide further transparency in interim order rules, considerations and decision making through updates to the IOC Guidance or IOC Conditions Bank?
The hyperlink which should lead to more details on the process for agreeing the mode of hearing (paragraphs 50 and 51) is broken. Regardless, Dental Protection would like to see more detail in this piece of guidance on what the process is so that users of this guidance are not directed away from it. It would also be helpful if some explanation of why IOC Review hearings are routinely conducted ‘on the papers’. This would assist understanding and provide more transparency.
Ensuring panellist [sic] have comprehensive guidance
We want to provide comprehensive IOC Guidance to panellists and stakeholders.
We have made extensive updates to the IOC Guidance and IOC Conditions Bank based on case law, audit findings and research evidence.
10. Do the updates made to the IOC Guidance and IOC Conditions Bank reflect the latest evidence and provide for a comprehensive guide to the interim orders process for panellists and stakeholders?
11. Do you have any views on how the IOC Guidance or the IOC Conditions Bank could be improved, made more comprehensive, or better reflect the evidence?
Misprint in that there is an extra numbered point in ‘Using this conditions bank’.
Supporting improved understanding of the process and terminology
We have updated the Glossary of Terms to support improved understanding of the interim orders and the wider fitness to practise process, from the making of allegations to the completion of sanctions.
12. Do the updates on the Glossary of Terms support improved understanding of the terminology used and the fitness to practise process?
13. Do you have any views on how the Glossary of Terms could be improved to support improved understanding of the fitness to practise process or the terminology used?
Dental Protection believes that the Glossary of Terms should also include the terms ‘Investigating Committee’, ‘Practice Committee’ and ‘Interim Orders Committee’. We also have some concerns with the Glossary of Terms document as follows:
- ‘Clinical Audits’ – Is the “reviewer” the registrant? This is unclear. Is the “individual” referred to, the supervisor or reporter? Furthermore, perhaps the term ‘auditor’ should be used instead of ‘reviewer’. We suggest that there could then be a separate definition of an ‘auditor’ as follows: ‘registrant, appointed supervisor, independent auditor / third-party’. Irrespective of Dental Protection’s suggestion of a change in terminology, the noun ‘reviewer’ needs to defined in this document in order for the remainder of the refences to the ‘reviewer’ to make sense.
- ‘Case based discussion’ – Again, further clarity is required as to who the “reviewer” is.
- ‘Conflict of Interest’ – The examples provided are ambiguous. It is often the case that a practice partner will assist another partner or dentist in the practice by fulfilling the role of supervisor and/ or reporter and this does not necessarily amount to a conflict of interest. The definition confirms a conflict might be a ‘potential’ conflict therefore each needs to be considered on a case by case basis the need to assess on a case by case basis.
- ‘Contracting body’ – This requires clarification. As drafted, the glossary suggests that a dentist under conditions would need to inform every single patient of such an order. Dental Protection assumes this is not the intention of the GDC. A contract would also exist between the registrant and a practice owner – would this fit the definition? Further clarification is required.
- ‘Medical Supervision’ – This definition should be titled ‘Medical Supervisor’. The definition refers to the role of the individual supervisor.
- ‘Out-of-hours work’ – We would suggest this definition confirms that the hours that apply would be considered on a case by case basis. Weekends might be part of normal business hours for some practices.
We also believe that for the benefit of those who are subject to an Interim Orders Committee hearing in future, a high level flowchart of the procedural stages would assist in understanding the processes and procedures. A flowchart showing a loose timeline of steps that occur, could be helpful for a registrant who may be quite overwhelmed with information at a stressful time. A one-page visual overview would help understanding, especially for those who are not represented.
Impacts on equality, diversity and inclusion
We work to ensure that our regulatory activity is fair, transparent and accessible to all. Fulfilling our commitment to equality, diversity and inclusion means understanding where our processes and policies may impose inappropriate barriers, and taking action to remove them.
Our initial assessment of the potential impacts of the changes we are proposing can be found in the draft Equality Impact Assessment.
14. Please review and provide any comments you may have on the draft Equalities Impact Assessment, particularly the likely impact of our proposals, positive or negative, on different groups of people.
Dental Protection commends the move towards seeking to reduce or eliminate the risk of unconscious bias from all GDC processes.
Any final views, and equality monitoring
15. Are there any other comments you would like to make on the proposed IOC Guidance or IOC Conditions Bank that are not covered by your answers to the questions above? (Please refence paragraph numbers in the IOC Guidance or rows in the IOC Conditions Bank where necessary.)
Dental Protection welcomes the proposed amendments to the IOC Guidance and processes. We would also welcome the GDC reviewing its processes by which registrants are referred to the IOC in the first instance. Separately, there is a misprint in paragraph 27: ‘66oncerns’ should be ‘concerns’.