Revised GDC guidance on issuing warnings

Following a public consultation earlier this year the General Dental Council (GDC) has published new guidance for the Case Examiners to consider when determining whether a warning would be an appropriate method of closing an investigation. The Guidance will come into effect on 1 November 2016 at the same time as Case Examiners take over the functions which currently lie with the Investigating Committee.

We analyse this new guidance and how it may have shifted this element of GDC regulatory proceedings.

Substantive changes

The Investigating Committee Guidance Manual (September 2014) stated that a warning may be appropriate where (amongst other examples), “there is no real prospect of either misconduct or deficient professional performance being found…”

Misconduct and deficient professional performance are two of the limited statutory grounds which can provide the foundation for a finding of impaired fitness to practise. In the subsequent versions of the Manual (April 2015) that reference was removed but it noted that “there is no legal bar to a warning being issued where the IC considers that there is no real prospect of one or more of the statutory grounds being established.”

No such observation appears in the new Guidance (July 2016) which provides that a warning may be appropriate in cases where there is a real prospect of the statutory ground being proved. Consequently where the Case Examiners determine that there is no real prospect of a finding of misconduct the options available to the Case Examiners will be limited to closing the case with no further action or issuing unpublished advice.

This would appear to be a sensible narrowing of the criteria in light of the move toward publication of warnings as the default position (see below). The change will highlight the importance of Case Examiners giving proper weight to the term ‘misconduct’ when applying the ‘real prospect’ test. A finding of misconduct requires a significant departure from the expected standards, serious negligence or conduct which is deplorable or involves moral blameworthiness.

Procedural changes

The new procedure will be more closely aligned with the approach of other healthcare regulators such as the General Medical Council (GMC) and General Optical Council (GOC).

Where one or both Case Examiners have considered a matter and are minded to issue a warning, the registrant will be notified and invited to make written representations in response.

The notification will include:

  1. the reasoning for the proposed warning
  2. the details of the warning that it is proposed will be issued
  3. decision as to whether it will be published
  4. summary of facts and particular concerns, and
  5. the duration of its imposition.

This represents an opportunity for the registrant and their advisors to deal with the Council’s case in its entirety and critically assess exactly how a warning might be averted. The registrant will be afforded 28 days to make their representations to the Case Examiners.

The opportunity to address the council in this way is important. Our experience dealing with comparable regimes at other regulators suggests that carefully considered representations can avert a warning.

The warning

The new guidance is likely to effect a change in the extent to which warnings are published and the duration of publication. The new guidance envisages that warnings will ordinarily be published for a period of up to 24 months but indicates that publication for periods of up to 12 months may be appropriate in the presence of certain mitigating factors.

The presumption of publication in the new guidance is also a departure from the present position. The change in approach reflects a presumption that a warning needs to be published in order to satisfy the public interest and to uphold proper professional standards. It would appear that unpublished warnings will be limited to exceptional circumstances and to cases which directly relate to the health and/or private life of the registrant and/or their family or an identifiable third party.

It must be remembered that Case Examiners will retain the power to issue formal advice, which is unpublished. An equivalent power is not available to Case Examiners at the GMC or GOC where advice has no statutory standing.

Comment

Whilst this guidance may restrict the number of cases in which warnings are considered, it is also likely to lead to an increased percentage of warnings being published and published for a longer period than at present. This may be a cause for concern to registrants bearing in mind that a warning can be imposed in respect of disputed facts but without a fact finding hearing and that warnings may cause real prejudice to a practitioner, particularly where the warning is published.

Members of the public are not likely to appreciate the subtleties of the GDC’s procedure and may see misinterpret a warning as evidence of proven misconduct.

Perhaps the most attractive aspect of the new procedure is the registrant’s entitlement to notice that the Case Examiners are minded to issue a warning and the attendant opportunity to make representations specifically on that issue. That is an opportunity which should not be passed up.

For further information or advice please contact:

Stewart Duffy
Partner

T. 0207 227 7418
E. stewart.duffy@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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