FGDP(UK) comments on the General Dental Council’s draft guidance on Rule 9 (Power of Review)

Following the granting to the General Dental Council of the Section 60 Order, the Faculty views the power of Case Examiners to make decisions very positively, as it should reduce the number of cases proceeding to formal Fitness to Practise hearings, and also the waiting times for hearings, all of which is beneficial for both registrants and informants.

The decisions which will be open to review will generally have been in favour of the registrant; nevertheless we also agree with the Council’s implicit position that such decisions should be subject to a transparent and structured review/appeal process, not least as some evidence can sometimes come to light later on which may lead to alteration of the judgement as to whether there is a realistic prospect of Fitness to Practise being found to be impaired.

Clearly the downside is that if there is a decision to review, it adds to the stress and uncertainty for the registrant, who may have thought the case was closed. Nonetheless, as Fitness to Practise cases typically take 18 months to reach a hearing, the two year time frame is not unreasonable.

We are pleased to see some safeguards, such as the need for directly relevant information which on the balance of probabilities would change the outcome of the decision, and the requirement to seek representations from the registrant.

It is vitally important that registrants have appropriate latitude to exercise the right to make representations. This must include a generous amount of time to respond - taking into account among other things the need to seek legal advice.

The draft states that where an application for appeal is received it can be considered by a legal advisor or GDC lawyer. However, while the legal advisor is generally impartial, as the GDC lawyer is a prosecutor does this not introduce bias, even with a procedure to be followed?

We are concerned that the reconsideration in the event of an appeal may not always be considered by different personnel. This means that where there may have been a material flaw made by a caseworker, the same person could re-investigate the case. We believe thatthe ultimate purposes of reconsideration set out in the draft – “necessary for the protection of the public” and “prevention of injustice to the registrant” are of far greater importance than the GDC’s concern over that such independence “[may not be] possible for operational reasons”, and that therefore, to avoid any bias, the use of different personnel in reconsideration of a case be an absolute requirement rather than merely something ‘endeavoured’ towards.

Finally, the guidance is not straightforward to understand, so we would recommend that a simpler version be developed and given to registrants and informants to accompany all communications about decisions.

29 July 2016