The GDC and Investigating Committee decisions
Although only the first stage of a GDC investigation, the Investigating Committee (IC) stage, is by no means the least important. The options open to ICs are varied and carry potentially very serious consequences. An IC referral to a Professional Conduct Committee may be the most stressful events of a dentist’s professional life, and one protracted over a period of many months or even years. Lower down the scale, IC warnings can last for years and may have an impact on a dentist’s employment prospects, particularly if at a relatively junior level.
That being so, why has experience revealed so many cases in which the reasoning of the IC falls short, appearing sometimes to disregard a practitioner’s observations and to provide only the briefest explanation of the rationale behind the decision taken? Until recently, absent any clear guidance, obligation under the Dentists Act or requirement under the GDC’s own Fitness to Practise rules, many dentists were being presented with incomplete reasoning for IC determinations and were consequently left in the dark about a decision which could have a profound impact on their career.
The good news for the dentists, is that the position has been changing, in part following the case of Stuart Lutton for judicial review of a decision of the Investigating Committee of the GDC  CSOH 96 in the Court of Session in Scotland. Mr Lutton was a dentist who brought a successful claim for Judicial Review of an IC warning arising out of a patient complaint. The case highlighted that the GDC have a duty to give sufficiently detailed reasons for their decisions in the interests of fairness and openness. In his judgment, Lord Doherty drew parallels to the case of Stefan v General Medical Council  1 WLR 1293, stating that “where the decision of a body is susceptible to judicial review it may be important for reasons to be disclosed so that there is an effective means of detecting the kind of error which would enable the court to intervene.” He went on to add that reasons are essential to allow a practitioner to tell whether the “decision making process has been flawed by illegality, irrationality or unfairness”.
Reflecting the need for greater transparency in reasoning identified in Lutton and also in a September 2011 audit of the GDC’s initial stages fitness to practise process by the Council for Healthcare Regulatory, on 7 November 2011 the GDC introduced its Investigating Committee Guidance Manual 2011 (The Guidance).
The Guidance is long and detailed, with Part 6 the section dealing specifically with IC reasons. Part 6 sets out a solid framework for ICs to give adequate reasoning for their decisions. Crucially, it advises Committee members that “[g]iving clear reasons does not mean that lengthy, elaborate or complex explanations or decision documents are required” however they should “leave the reader with a clear understanding of the decision made; why the decision was made; and how the decision was reached.” The GDC wants to ensure that it operates an open and transparent fitness to practise process. IC decisions form a central part of that, and may have the most weighty of consequences for the practitioners concerned. It is hoped that the new Guidance will provide clearer and fairer reasons for their decisions.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.