Start as you mean to continue: Preliminary meetings in the GDC fitness to practise process

The General Dental Council Fitness to Practice Rules provide for preliminary meetings to be held in advance of Practice Committee hearings so that a variety of case management function can be performed.

Whilst such a facility is not uncommon amongst the professional regulators, the relevant provisions of the GDC Rules are very precise as to the nature of the Committee sitting at the preliminary meeting. This appears to be overlooked by many, not least the GDC themselves.

The facts

In a recent case, a preliminary meeting was convened to consider the issue of joinder between two entirely separate complaints, albeit that they were of a similar nature.

The earlier matter had already been referred to the Professional Conduct Committee (PCC), with the listing for that PCC hearing having been postponed after an earlier preliminary meeting. The GDC then sought joinder immediately following the Registrar’s assessment that the new complaint amounted to an ‘allegation’, thus bypassing the stage when their case examiners would otherwise have applied the realistic realistic prospect test to the new matter

This approach was contested by the defence as circumventing the registrant’s entitlement to the procedural safeguards prescribed by the Dentists Act. A second preliminary meeting was therefore arranged.

The relevant rule

‘the practice committee may, before they hold a hearing, hold a preliminary meeting in private, if those persons who are to form the membership of a practice committee at the hearing consider that it would assist them in performing their functions’.[1]

A separate provision allows the meeting to be heard by the Committee chair, sitting alone.

The problems

This (second) preliminary meeting was being held before a new listing had been identified for the postponed PCC hearing, which was obviously many months off. Inevitably, the membership of the PCC for the substantive hearing had not yet been identified. The more pressing concern was whether the relevant rule meant that the Committee which had dealt with the first preliminary meeting was bound to deal with any subsequent hearing, whether preliminary or substantive. The Committee which had been convened for the second preliminary meeting was not the same as the first.

The GDC argued that the Rule could be broadly interpreted so that ‘those persons’ referred to a pool of Committee members that are available and that it should be interpreted purposively in line with the overarching principle to deal with cases fairly and expeditiously. The defence argued that the Rule was unambiguous; the second committee, different to the first had no jurisdiction and only the first committee (or at the chair of it sitting alone) had jurisdiction to hear the same matter.

The Committee agreed with the defence and declined to hear the GDC’s application. They accepted their legal advisor’s advice that, whilst they could interpret the Rule purposively, they could not read in words that were absent or imply a meaning that was not present on the face of the Rule.

Comment

Whilst this Committee’s determination on the correct interpretation of the Rule does not provide a binding authority on the point, it demonstrates that this is an issue which the GDC will need to consider with great care when convening preliminary meetings in the future.

This is unlikely to present any significant problems where a preliminary hearing takes place shortly before the listed hearing. However, where applications are being made at an early stage, there is a real risk that the Committee sitting at the preliminary meeting maybe unavailable at the substantive PCC.

However, joinder of cases is a particularly thorny issue because, if the GDC’s application is declined, then the same Committee members will ordinarily be bound in to the proceedings even though they are now aware of other matters which are potentially prejudicial to the registrant.

Footnote
[1] Rule 51 of the General Dental Council (Fitness to Practise) Rules


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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