The Northern Ireland Disciplinary Procedure
16 November 2016
The Health and Social Care (Disciplinary Procedures) Regulations (Northern Ireland) 2016 currently govern disciplinary proceedings in relation to some family health practitioners, including some family health practitioners. When the Health & Social Care Board receives information which it considers could amount to an allegation that a practitioner has failed to comply with his or her terms of service, the Health & Social Care Board (‘the HSCB’) can either decide to:
- Take no action;
- Conduct an investigation, following which the HSCB may:
- Take no further action;
- Determine that an amount should be recovered from a practitioner'
- Require a dentist to submit estimates for prior approval for specified treatment for a set period; or
- Issue a warning;
- Refer the matter to the Tribunal;
- Refer the matter to the General Dental Council; or
- Refer the matter to the Police Service of Northern Ireland.
Where the allegations being investigated by the HSCB Investigating officer are the subject of a complaint which has been made against the practitioner, the HSCB shall decide whether to exercise its powers to investigate the allegation within 28 days of the allegations having ceased to be subject to a complaint which is being investigated. In other cases, where the dentist has not been the subject of a complaint, the HSCB, shall decide whether to investigate the potential disciplinary allegation(s) within:
- 26 weeks of the matter being brought to their attention; or,
- For matters which do not concern the treatment of the patient and which are reported to the HSCB by the Business Services Organisation (‘the BSO’), 26 weeks of the matter being brought to the BSO’s attention (Where the BSO reports a matter to the HSCB in circumstances in which the time limit would otherwise expire within 28 days of the date on which the HSCB received the report, the relevant time limit shall be extended, so that it expires on the 28th day after the date on which the HSCB received it.
Reference and Disciplinary Committees
Addressing Performance Concerns
Performance concerns can arise in a number of ways including:
- Information arising from probity checks or audits;
- During clinical governance meetings; or
- As a result of an analysis of prescribing data.
It is the Reference Committee’s role to consider serious disciplinary matters relating to family health services practitioners, including dentists.
Where it is considered that a practitioner may have failed to comply with their terms of service a Case Officer will be appointed and a preliminary report prepared for consideration by the Health and Social Care Board’s (‘the HSCB’s’) Reference Committee. That Committee will then decide either to take no action, to investigate the matter or to refer the matter to the Tribunal, the General Dental Council or the Police.
If the Reference Committee decides that a matter should be investigated it will be referred to the Disciplinary Committee for consideration and decision.
The role of the Disciplinary Committee is to undertake the HSCB’s functions as appropriate under the Health and Personal Social Services (Disciplinary Procedures) Regulations (Northern Ireland) 2016 with respect to disciplinary matters for dentists referred to it by the Reference Committee.
The Disciplinary Committee comprises of a legally qualified chairman, a lay person and, in dental cases, a dentist.
The procedures to be followed by the Disciplinary Committee are set out in the HSCB’s Standing Orders. The procedures require that:
- A minimum of 28 days' notice will be given of a meeting of the Committee;
- Copies of any documents upon which the HSCB intends to rely will be served on the dentist where practicable 10 working days and not less than 7 working days before the date set for the meeting;
- Copies of any document on which the dentist intends to rely should be served on the HSCB not more than 5 working days before the meeting;
- The Case Officer will prepare a set of case papers for use by the Disciplinary Committee, which will include the summary of case, supporting documents and witness statements of both parties;
- Meetings of the Disciplinary Committee take place in private. It is anticipated that the practitioner and their representative will attend. The practitioner may be legally represented;
- The Disciplinary Committee will be required to reach a finding of facts and draw such inferences from those findings as the Committee sees fit, as to whether a practitioner has failed to comply with any one or more of their terms of service. If so, then the Disciplinary Committee will hear submissions in relation to sanction. The Disciplinary Committee shall then deliberate in private, prior to reaching a decision on the appropriate sanction; and
- Written notice as to a decision on sanction will be provided to the dentist, normally within 4 weeks of the determination being made.
The Appeals Process:
One of the key differences created by the 2016 Regulations are the changes to the appeals process which operated under in its predecessor, the 2014 Regulations. Although the make-up of the Appeal Panel has remained the same (the panel will still be made up of three individuals; one must be a legal professional and two members from the same area of professional practice), the process and procedure of the appeals have to some extent been reformed.
Under the 2016 Regulations, a practitioner will be able to appeal to the Department of Health, Social Services and Public Safety (the Department), against a determination which has been made by the HSCB (which includes determinations of the Disciplinary Committee). Where the practitioner challenges a determination on any of the grounds below, the Department is under a duty to appoint an Appeal Panel and hold a hearing to consider the appeal which has been raised. The Department can no longer summarily dismiss an appeal on the basis that no reasonable grounds for the appeal have been disclosed or that the appeal is vexatious or frivolous in nature.
The practitioner can challenge any of the following in the appeal:
- A finding of fact, or an inference drawn from a finding of fact which is adverse to the practitioner;
- Any determinations by the HSCB that
- An amount of money should be recovered from the practitioner;
- A determination that a practitioner should be required to submit estimates for prior approval; or
- A warning given to the practitioner to comply more closely with their terms of services in the future;
- A determination that an overpayment has, or has not, been made in respect of a practitioner’s remuneration.
In order for an appeal to be heard, the practitioner in question must provide the Department with Notice of the appeal within 45 days of the HSCB original disciplinary determination having been communicated to him/her. The notice should clearly set out the grounds which are being relied upon for the appeal. The Practitioner’s notice of appeal along with any further evidence which they have provided to the department will be sent to the HSCB, who will be invited to provide their observations on the appeal within 28 days of the information being made available to them. Once the HSCB have provided their comments, these will be sent to the practitioner who will be invited to submit any comments which they may have to the observations within 28 days.
As part of the appeal hearing, the Appeal Panel will reconsider all previous evidence which the HSCB used in reaching its determination along with any further new evidence which the parties may present. Furthermore, there is now a presumption that an oral hearing will take place to determine the appeal, unless both parties have notified the Department from the outset of the appeal that they are content for the appeal to be considered on the basis of paper submissions from both parties. This has replaced the previous regulations that it was only for the practitioner to decide how a hearing would be conducted. Both parties will be provided with no less than 21 days’ notice in writing of the date on which the appeal hearing will be held. For an oral hearing, the practitioner may choose to be accompanied by their legal counsel, should they wish to do so.
Once the appeal hearing has concluded, either by an oral hearing or through paper submission, he Appeal Panel will provide both the practitioner and the HSCB with its determination in writing including reasons for its determination.