Health Regulator Defeated in Landmark Case

Mark Russell · Dec 20, 2014

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Yet anther health regulator - the General Dental Council - attracts criticism over prosecution costs of Fitness to Practise Hearings, which on average are £78K/hearing. One wonders what excuses the HCPC will come up with in due course....
https://www.bda.org/news-centre/pre...egulator-defeated-in-landmark-legal-case.aspx

Health regulator defeated in landmark legal case
General Dental Council deemed to have acted unlawfully on setting professional fees, but gets to keep its “ill-gotten gains”
Judge slams "gaping hole" in regulator’s argument
Judgement follows critical failings at regulator, and Fitness to Practise cases that cost £78,000
Verdict comes as MPs single out "bunker mentality" at failing regulator
Dentists' union calls on government for wholesale reform of regulation
The General Dental Council (GDC), the regulator for dentists and dental care professionals, has been found to have acted unlawfully in a landmark judgement this morning (18 December).

The British Dental Association (BDA), initiated Judicial Review proceedings to prevent the regulator implementing a staggering £15 million pound increase to the fees levied on the dental profession. The consultation behind the fee rise has been deemed unlawful, but the judge declined to reverse the fee rise, their counsel citing the risk of “administrative chaos” at the GDC.

The troubled regulator has been taken to task by the Professional Standards Authority and parliament. In a parliamentary debate Health Minister Dr Dan Poulter, confirmed that he had "not been presented with compelling evidence to justify the increase" and called on the GDC to make "significant improvements." Sir Paul Beresford MP, who called the debate, accused the regulator of operating a "bunker mentality".

The dentists' union was awarded costs, and has now called on government to act on inadequate health regulation.

Mick Armstrong, Chair of the British Dental Association, said:

"We regret that it came to this, but there was so much more at stake here than just fees. We've seen patients and practitioners left in limbo for over 18 months when complaints are raised, and hearings with an average price tag of £78,000. We had to take action because health professionals should not have to subsidise failure at their regulator.

"Today a judge singled out a ‘gaping hole’ in the GDC's arguments. The regulator demonstrated it wasn't clear on its own powers and claimed it was facing ‘administrative chaos’. And that utter confusion has allowed it to escape the full weight of the law.

"This super-sized fee rise still stands, and now serves as a monument to the failures of health regulation. This case has revealed that a regulator, unaccountable to government, can be found to have acted unlawfully but still walk away with its ill-gotten gains. We are now looking to the government to act.

“The chaos at the GDC serves as a warning to all healthcare professionals. The Prime Minister once called for action on the 'outdated and inflexible' laws applied by our regulators. It's time for the government to honour that pledge, in full."

The BDA has written to the Department of Health to outline the worrying implications of this case.

Background: The General Dental Council

1. The General Dental Council (GDC) is the statutory body responsible for regulating dental professionals in the UK.

2. The GDC is currently the subject of a Professional Standards Authority (PSA) enquiry into the way it deals with whistle blowers. Another one was conducted last year into inappropriate processes within its Investigating Committee. It failed to meet two out of five standards for registration, and six (possibly seven) standards out of ten for Fitness to Practise (FTP) in the PSA's last annual performance report. The GDC has been criticised, by the PSA and by the profession, for not progressing FTP cases more swiftly, resulting in a large backlog and some cases taking in excess of 18 months to go to a hearing. The regulator has been accused of breaches of the Data Protection Act and potentially misleading parliament with inaccurate performance data.

3. The GDC has suggested the cost of an average FTP case reaching a hearing in 2013 was £78,000. FOI requests have shown this is based on the 160 cases that reached its Practise committee, at a total cost of £12.4 million.

4. GDC Chair Bill Moyes took up office a year ago and has repeatedly stated his intention to substantially broaden the remit of the regulator well beyond the statutorily defined boundaries.

5. The GDC has lost the trust and confidence of the profession. A survey of BDA members took place in July 2014. Nearly 6000 members, or 42 per cent of those invited to take part, responded. It indicated that 79 per cent of members are not confident that the GDC is regulating dentists effectively, and that 66 per cent of those who had experience of the GDC's Fitness to Practise function rated the function fairly poor or very poor.

The High Court Challenge

6. The GDC held a consultation during the summer of 2014 over its intention to increase the professional annual retention fee for registration by 64 per cent to £945, making it the most expensive regulator in the UK.

7. The annual retention fee (ARF) is the fee that dental professionals pay to be registered and practise dentistry lawfully. Based on advice from Queen's Counsel, the BDA believes that the consultation, and subsequent decision, were so flawed as to be unlawful.

8. The BDA therefore challenged the GDC's consultation and its subsequent decision and regulations of 30 October 2014, to increase its retention fee by 55 per cent to £890.

9. The BDA was granted a 'rolled up' judicial review, with the case heard on 15 December 2014. General Dental Council vs. British Dental Association (CO/4825/2014).

10. Over the GDC's three-year budget period the original proposal would have cost the profession an estimated £45 million.

Political inertia

11. The General Dental Council was the subject of an adjournment debate in Parliament on 9 December 2014. Dr Dan Poulter, Parliamentary under Secretary of State, Department of Health confirmed he "not been presented with compelling evidence to justify the increase" and called on the GDC to make "significant improvements." Sir Paul Beresford MP, who called the debate, described the regulator as "not fit for purpose" and was now operating a "bunker mentality".

12. The Prime Minister, in his response to the Francis inquiry report into Mid Staffordshire Foundation Trust, promised action to "sweep away our outdated and inflexible framework" facing healthcare regulators. In the command paper Enabling Excellence, published in 2011, the government acknowledged that the current legislative frameworks for all of the health and social care regulators are "expensive, complex and require continuous government intervention to keep them up to date". The Law Commissions of the four UK nations were tasked with compiling a Draft Bill on Health and Social Care Regulation, with the expectation of sweeping reform across all healthcare regulators. Published in May 2014, it did not feature in the June 2014 Queen's Speech.
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In separate developments, the case against Desmond D'Mello - a dentist suspended in Nottingham for unhygienic practice allegations which linked the death of Amy Duffield - has concluded there was no link to the dentist's practice....

http://www.bbc.co.uk/news/uk-england-nottinghamshire-30560274

A coroner has concluded a woman's death was not connected to the treatment she received from a dentist who is under investigation for poor hygiene.

Amy Duffield died in August 2013 shortly after treatment at Daybrook practice, Nottinghamshire.

Desmond D'Mello has been suspended by the General Dental Council and thousands of his former patients are being tested for blood borne viruses.

Police investigated the 23-year-old's death but found no link.

Desmond D'Mello
Desmond D'Mello treated Amy Duffield
Mr D'Mello is under investigation after a whistleblower covertly filmed him at his practice in the Nottingham suburb apparently not washing his hands or sterilising equipment between patients.

It prompted one of the largest patient recalls in NHS history and thousands of people are being tested for hepatitis and HIV. NHS England said the risk of infection was low.

The Nottinghamshire coroner's office asked for further investigations into Miss Duffield's death, which was previously determined to be natural, following the announcement in November.

Further tests were carried out before experts concluded there was no link.

"On the basis of this additional evidence and information available at the time of the death, the experts are all agreed that Amy's final illness and death were not linked to her dental care or the visit to her dentist," a statement said.

A temporary clinic set up specially to test Mr D'Mello's former patients will close on Tuesday.

More than 4,300 people have been tested since it opened last month.
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The BDA's statement about the regulator's misleading press release.....isn't it refreshing to se a professional body like the BDA take the regulator to task over misleading the public and the profession?

https://www.bda.org/news-centre/pre...-Executive-of-the-General-Dental-Council.aspx

An open letter to the Chief Executive of the General Dental Council
The British Dental Association (BDA) has published an open letter to Evlynne Gilvarry, Chief Executive of the General Dental Council, following their press statement on today’s High Court judgment.

The regulator was found to have acted unlawfully in its handling of the consultation on the annual retention fee (ARF). In the statement the regulator appeared to sidestep the substance of Justice Cranston’s judgment.

Evlynne Gilvarry
Chief Executive
General Dental Council
37 Wimpole Street
London W1G 8DQ

Dear Evlynne

We have been alerted to your press statement with regard to today’s judgment by Mr Justice Cranston. You quote, highly selectively, from paragraph 36 of the judgment, which credits the GDC for its public announcements on a commitment to transparent consultation. However, that specific paragraph goes on to outline that ‘a transparent consultation meant that consultees had to be put in a position to test the validity of the assumptions purporting to underlie the suggested fee increase’.

Elsewhere in the consultation, Mr Cranston is unambiguous that, whilst the GDC may have made these public announcements, it did not live up to them. For example:

- ‘In my judgment…there was a gaping hole in the GDC annual retention fee consultation’ (paragraph 37)

- ‘The GDC’s answer to the freedom of information request…was distinctly unhelpful’ (paragraph 37)

- ‘In my judgment this substantially increased projection of the number of fitness to practise hearings clearly required a transparent explanation and adequate information as to how it was calculated. […] None of the key information as regards closure rates and fitness to practise trend information was disclosed as part of the consultation (paragraph 38)

- ‘The gap [in information] was fundamental to the whole edifice. As a result the consultation was not transparent’ (paragraph 40)

Therefore, to highlight this extract from the judgment, without recognising the context – that the GDC has been found not to have lived up to its public announcements on transparency, which is the basis for the finding of unlawfulness of the consultation – is enormously misleading.

It is also interesting to note that today’s release sits just above the GDC’s position statement on the duty of Candour and Honesty. In light of the fact that a High Court Judge has today handed down a judgment that finds the GDC to have acted unlawfully, I would be interested in your views as to whether your reportage properly accords with the underlying principles of such duties.

Yours sincerely

Peter Ward
Chief Executive
British Dental Association
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Full copy of judgement: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4311.html

Mark Russell · Sep 22, 2016

Here's a link to the BDA statement. Can you imagine the podiatry profession being so unified? Even a little bit..?

Mark Russell · Dec 21, 2014

Dentists revolt against regulator following court decision:

Wales: http://www.walesonline.co.uk/news/health/north-wales-dentists-rebel-against-8258477

Bradford: http://www.thetelegraphandargus.co....ote_of_no_confidence_in_regulator_is_carried/

Bexley & Greenwich: http://www.bexleytimes.co.uk/news/bexley_dentists_rebel_against_regulator_1_3877935

Devon & Corwall: http://www.westernmorningnews.co.uk...sation-heavy/story-25442293-detail/story.html

North Staffs: http://www.stokesentinel.co.uk/Dentists-rebel-national-regulator/story-25452221-detail/story.html

CakeCrumbs73 · Dec 23, 2014

Thanks Mark, interesting read, I'm unaware of HPC's response to litigation claims?.. Out of interest has it a good or poor response time interval. 74% of Dentists being unhappy must have gone a long way in challenging their service, how happy are Podiatrists?
Just glad, touching wood, I've not needed them yet.(..:santa:all the best everyone for a safe, no need for HPC involvement year!)

Health Regulator Defeated in Landmark Case

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Health Regulator Defeated in Landmark Case

Mark Russell MVP

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CakeCrumbs73 Welcome New Poster

Super-regulator to oversee health

Podiatry health

Ultrasound clinical references of the healthy toenail unit

Mental health and outcomes of foot and ankle surgery

Intersectionality, vulnerability and foot health inequity

Flat feet: deformities or healthy anatomical variants?

Perspectives toward feet, foot health, and footwear

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