Investigating Committee Guidance Manual July 2016 Guidance Manual - July 2016.pdf · Investigating Committee Guidance Manual . July 2016 . 2 ... IC may issue advice to any other person

1 IC Guidance Manual (July 2016)

Investigating Committee Guidance Manual

July 2016


Contents

1. Executive Summary

2. Definitions, Abbreviations and Acronyms

3. Part 1: Introduction – the General Dental Council and its fitness to practise functions

4. Part 2: Fitness to practise functions – process

5. Part 3: IC – constitution

6. Part 4: IC – functions

7. Part 5: IC – powers

8. Part 6: IC – reasons

9. Part 7: Miscellaneous matters


Executive Summary

1. This manual describes the statutory duties, functions and powers of the Investigating Committee (IC) as well as its role within the General Dental Council’s (GDC) fitness to practise (FtP) process. It is intended to be a ‘living document’ and will be subject to appropriate revision and update.

2. The IC’s powers are outlined in the Dentists Act 1984 as amended (the Act) and The General Dental Council (Fitness to Practise) Rules Order of Council 2006 (the Rules).

3. The GDC is a statutory body which registers dentists and dental care professionals. The GDC has various duties to act, in the public interest, when concerns are raised that a Registrant’s fitness to practise may be impaired by some reason, such as misconduct, deficient professional performance, adverse physical or mental health, or a criminal conviction or caution.1 Further information about these matters is set out in Part 1 of this Guidance Manual.

4. Concerns about a Registrant’s fitness to practise are initially considered by the Registrar, through the casework team. The casework team must decide whether the concerns amount to an allegation of impaired fitness to practise. If a concern amounts to an allegation, it is referred to the IC. A more detailed overview of the fitness to practise process is provided in Part 2.

5. It is for the IC to determine whether the allegation ought to be considered by a Practice Committee. The IC sits in private and in the absence of the parties. It is constituted with a mixture of lay, dentist and dental care professional members. Part 3 of the Guidance explains the constitution of the Committee and provides guidance on conflict of interest and bias issues.

6. In considering a case the IC determines:

(i) whether there is a ‘real prospect’ of the facts, as alleged, being found proved, and if so,

(ii) whether or not there is a ‘real prospect’ of the statutory ground being established, and if so,

(iii) whether or not there is a real prospect of a finding of current impairment being made.

7. The IC does not decide whether an allegation is true or untrue although it is entitled assess the weight of the evidence before it. It is for the Practice Committees to make findings on the alleged facts of a case and to determine whether any facts, admitted or otherwise, are found proved. It is also for the Practice Committees to determine whether on the basis of the facts found proved the Registrant’s fitness to practise is impaired and, if so, what sanction, if any, is appropriate. Part 4 provides guidance on the application of the ‘real prospect’ test.

1 Section 27 & Section 36N of the Dentists Act 1984


8. There are a number of options available to the IC which are set out in greater detail at Part 5. In brief these are:

• to adjourn consideration of an allegation in order for further enquiries to be undertaken;

• to determine that an allegation ought not to be considered by a Practice Committee2 and to close the matter with:

(i) no further action,

(ii) advice, or

(iii) a warning, which may be published; or

• to determine that an allegation ought to be considered by a Practice Committee and, if so, which one.

9. If the IC determines that an allegation ought not be considered by a Practice Committee, the IC may issue advice to any other person involved in the investigation on any issue arising in the course of the investigation.3

10. The IC, if referring an allegation to a Practice Committee, may also refer the allegation to the Interim Orders Committee, if it considers it appropriate to do so.

11. The IC should provide reasons for its decision in a case. The reasons should be clear and explain in broad terms why the Committee has reached a particular decision. The decisions of the IC are reviewable and may be open to challenge through a claim for Judicial Review (JR). An application for JR may be successful if it appears, for example, that the IC has reached a perverse decision; has failed to apply the appropriate test in its decision making; or has provided inadequate reasons to explain its determination. As the Lord Ordinary outlined in the case of Lutton4:

“Reasons need not be elaborate or lengthy, but they should tell the parties in broad terms why the decision has been reached.”

12. Part 6 offers guidance on the giving of reasons by the IC.

2 See definition at section 2(3) of the Act 3 Sections 27A(2)(b) and 36O(2)(b) of the Act 4 [2011] CSIH 62; the Lord Ordinary was referring to the case of Stefan v General Medical Council (No.1) [1999] 1 WLR 1293


Definitions, Abbreviations and Acronyms

The following definitions, abbreviations and acronyms are used in this guidance:

the Act Dentists Act 1984 (as amended)

the Rules The General Dental Council (Fitness to Practise) Rules Order of Council 2006

the 2009 Rules The General Dental Council (Constitution of Committees) Rules 2009

Council General Dental Council

DCP Dental Care Professional

FtP Fitness to Practise

GDC General Dental Council

IC Investigating Committee

Informant the member of the public or other body which has brought a complaint or information regarding a Registrant’s fitness to practise

IOG Indicative Outcomes Guidance

PCC Professional Conduct Committee

PPC Professional Performance Committee

Practice Committee Professional Conduct Committee, Health Committee or Professional Performance Committee

Registrant an individual registered on either the Dentists Register or the Dental Care Professions Register

Respondent a registered dentist or registered dental care professional whose fitness to practise is alleged to be impaired

Rule 10 review an application made to the IC under rule 10 of the 2006 Rules for a review of a previous determination to refer a matter to a particular Practice Committee

Statutory ground the matters listed in section 27(2) of the Act by which a registrant’s fitness to practise may be regarded as impaired, including misconduct, deficient professional performance, adverse physical or mental health, conviction, caution etc.


Part 1 – Introduction

This part sets out a summary of the statutory basis on which the General Dental Council exists, identifies the general functions and duties of the Council and sets out its principal fitness to practise function and powers.

The General Dental Council

13. The GDC exists as a statutory body by virtue of the provisions of section 1(1) of the Act.5 As a statutory body, the GDC can only do that which it is required of or authorised by statute to do. A statutory body which acts beyond the powers, duties and functions given to it by legislation may be challenged and held to be acting ultra vires.

14. The Act places general duties and obligations on the GDC. Two such general obligations are contained in sub-sections 1(1A) and 1(2), both of which contain overarching principles which are relevant to the work of the IC.

15. Sub-section 1(1A) requires the GDC to have “proper regard” to the:

(a) interests of those using or needing dental services; and

(b) differing interests of different categories of those registered with the Council.

16. When exercising its functions under the Act, sub-section 1(2) requires the GDC to have “a general concern” to promote:

(a) high standards of education at all its stages in all aspects of dentistry; and

(b) high standards of professional conduct, performance and practice amongst registrants.

17. The Act requires the GDC to establish two registers:

• a register of dentists – the Dentists Register, and

• a register of members of professions complementary to dentistry - the Dental Care Professions Register.

18. In order to register with the GDC, an individual must either have a qualification listed in the Act, which has been awarded by an institution approved by the GDC, or qualify for registration by virtue of a route open to those qualified overseas or to those with EU citizenship.

19. Registration with the GDC permits particular groups of registrants to conduct certain reserved tasks and use specific protected titles. It is a summary offence to undertake a reserved duty (illegal practice) or use a protected title without registration in the correct register. Where

5 Section 1(1) of the Act, “There shall continue to be a body corporate known as the General Dental Council.”


appropriate, the GDC will bring a private criminal prosecution for illegal practice or for unlawful use of a protected title as part of its role under sub-section 1(2) of the Act to protect patients and the public.

The Public Interest

20. The Act imposes various functions on the GDC to act, in the public interest, when concerns are raised as to whether a Registrant’s fitness to practise is impaired by some reason. The public interest includes:

• protection of the public and, in particular, patients requiring dental services;

• maintenance of public confidence in the dental and dental care professions and their regulation;

• declaration of proper standards for the dental and dental care professions.

Impaired Fitness to Practise

21. A Registrant’s fitness to practise may be regarded as “impaired” by reason only of one or more of the grounds set out in the Act6, the principal of which are:

• misconduct;

• deficient professional performance;

• adverse physical or mental health; and

• a criminal conviction or caution.

22. In judging whether a Registrant’s fitness to practise is impaired, the GDC must focus on the practitioner’s current fitness to practise. However, to do so it must take into account both past events and current circumstances. It must consider whether the reason by which fitness to practise is allegedly impaired:

• is easily remediable;

• has been remedied; and

• is highly unlikely to be repeated in the future.

23. In making that assessment, the GDC should also bear in mind that case law has identified that there may be some cases, including where there has been serious or persistent violation of the standards of conduct to be expected, where the need to declare and uphold proper

6 See sections 27 and 36N of the Act


standards and to maintain public confidence in the professions would be undermined if a finding of impairment of fitness to practise were not made.

24. A Registrant’s fitness to practise can be assessed against guidance produced7 by the GDC which includes a formal set of documents, examples of which are:

• Standards for the Dental Team (effective from 30 September 2013) and/or Standards for Dental Professionals (which applied until 30 September 2013)8 – which contains guidance as to the standards of conduct, performance and practice expected of registered dentists and dental care professionals.

• Scope of Practice - which identifies the skills and abilities that each registrant group should possess and lists the ‘reserved duties’ that can only be practised by a particular registrant group9.

25. As a registered professional it is expected that all dentists and DCPs will keep up to date with GDC policy and guidance. Accordingly, a Registrant’s fitness to practise can also be assessed against guidance produced by the GDC in terms of policy statements or other updates which are published by the Council. It is a requirement that a Registrant ensures that any work they undertake is both appropriate and legal.

26. If a Registrant’s fitness to practise is judged to be impaired by reason of one of the grounds identified in the Act, the GDC may cease to register him or her on a permanent or temporary basis or attach conditions of practice to his or her registration.10

27. The Act and the Rules together identify that the GDC’s fitness to practise process has three main stages which, briefly, are:

• Initial consideration of a matter through an administrative assessment11.

• Consideration by an IC of any matter assessed to amount to an allegation12.

• Consideration of the allegation by a Practice Committee at a hearing13.

7 As required by sections 26B and 36M of the Act 8 The IC should refer to the version of the Standards which was in force at the time in question 9 As with the Standards, the IC should refer to the version of Scope of Practice which was in force at the time in question (2009 and/or 2013) 10 See sections 27B(6) and 36P(6) of the Act 11 See Rule 3 of the Rules 12 See Rule 7 of the Rules 13 See Part 3 of the Rules


Part 2 – Fitness to Practise Process

This part explains the fitness to practise process operated by the GDC in accordance with the statutory regime. The part is designed to enable members of the IC to place the role of the Committee into context.

28. When concerns are raised that a Registrant’s fitness to practise is impaired, a matter may progress through three main stages:

• an assessment as to whether the concerns amount to an allegation of impaired fitness to practise;

• a determination by an Investigating Committee as to whether the allegation ought to be considered by a Practice Committee, namely the Professional Conduct Committee, the Professional Performance Committee or the Health Committee;

• a hearing of the allegation before a Practice Committee, which makes findings of facts and judges the allegation.

Assessment

29. On receipt of a complaint or other information about a Registrant, Rule 3 of the Rules requires the Registrar to undertake an initial consideration of the matter. The Registrar must assess whether the complaint or other information amounts to an allegation that the Registrant’s fitness to practise is impaired by reason of a particular ground as identified at Sections 27 and 36N of the Act.

30. If it is assessed that there is an allegation of impaired fitness to practise then the matter should be referred to the IC for consideration. The Registrar is required only to investigate the complaint or other information for the purpose of deciding whether the matter should be referred to the IC14.

31. The Registrar’s assessment considers whether the matter amounts to an allegation that a Registrant’s fitness to practise is impaired. It does not:

• consider the merits of the complaint or information;

• assess whether the complaint or information is capable of being proved; or

• make any findings.

32. In practice, the initial assessment is conducted by a caseworker acting under delegated authority from the Registrar, in discussion with the casework manager and/or a senior

14 See sub-sections 27(5)-(6) and 36N(5)-(6) of the Act


caseworker. As part of these discussions issues such as next steps and the specific wording of the allegation are considered.

33. If a complaint or information is assessed to amount to an allegation, the caseworker sends a notice to the Registrant and the maker of the allegation (if any). As it is open to the GDC to act of its own volition15, there may be occasions where there is no informant to formally notify.

34. The notice should contain the following information16:

• a summary of the allegation17 and the particulars of the allegation of impairment;

• copies of the documents held by the GDC which relate to the allegation, bearing in mind the requirements of the Rules with regard to disclosure of information to the Informant18;

• an invitation to the Respondent to provide a written response to the allegation, addressed to the Investigating Committee, within a specified time period;

• notice that representations received from the Respondent may be disclosed to the informant for comment;

Generally the GDC offers the Respondent four weeks in which to provide a response. However, this may be shortened or extended depending upon the individual circumstances of the case.

35. The Registrar may, if she considers it appropriate, refer an allegation to the IOC. The test for the IOC is to determine whether it is necessary for the protection of the public, or is otherwise in the public interest, or is in the interests of the persons concerned, for the person’s registration to be suspended or to be made subject to conditions.

15 See sub-sections 27(4) and 36N(4) of the Act 16 See Rule 4 of the Rules 17 The summary should outline the particulars and the heads under which it is alleged the respondent’s fitness to practise is impaired 18 Rule 7(3) of the Rules provides that “The registrar shall not disclose to the maker of the allegation any evidence relating to the health or private and family life of the respondent or a third party which has been provided by the respondent or third party.”


Investigating Committee

36. The next stage in the fitness to practise process is for the IC to meet to consider an allegation referred to it.

37. Sections 27A and 36O19 of the Act establish the function of the Investigating Committee. The IC is to investigate an allegation and determine whether it ought to be considered by a Practice Committee.

38. The IC meets in private and its papers and discussions are confidential. Care should be taken to ensure that the confidentiality of the Committee’s deliberations and decision is maintained. This includes a responsibility to ensure that papers are kept safely and protected against loss and/or unauthorised disclosure. The Code of Conduct for Members included in the GDC’s Governance Manual provides further details of the duties of confidentiality placed on Committee and Council members.

39. The parties do not attend the IC meeting, nor are they represented. The Rules provide that the IC meet in the presence of the Registrar. The Committee Secretary fulfils this requirement under delegated authority from the Registrar20.

40. An IC may:

• adjourn consideration of an allegation in order for further enquiries to be undertaken;

• decide that an allegation ought to be considered by a Practice Committee and, if so, which one;

• determine that an allegation ought not to be considered by a Practice Committee and:

(i) close the case taking no further action, or

(ii) close the case with advice, or

(iii) close the case with a warning, which may be published in the Registrant’s entry in the relevant register;

• having determined that an allegation ought not to be considered by a Practice Committee, issue advice to any other person involved in the investigation on any issue arising in the course of the investigation.21

19 Section 27A sets out the IC’s function in connection with allegations against dentists. The provisions are reflected in section 36O which sets out the IC’s function in connection with allegations against dental care professionals. 20 See Rule 5 of the Rules 21 Sections 27A(2)(b) and 36O(2)(b) of the Act.


41. Where an IC determines that a matter ought to be considered by a Practice Committee, it should specify which of the three practice committees should hear the matter. The three committees are as follows22:

• the Professional Conduct Committee - which considers allegations of impairment by reason of misconduct or a criminal caution or conviction;

• the Professional Performance Committee - which considers allegations of impairment by reason of deficient professional performance; and

• the Health Committee - which considers allegations of impairment by reason of the Registrant’s physical or mental health.

42. If two or more allegations have been referred to the IC that relate to a different reason for impairment (a multifactorial case) – such as a performance issue with a conduct matter or a conviction case with a health concern – then the IC should refer the matter to whichever of the Practice Committees the IC considers most appropriate23.

43. Following referral to a Practice Committee, further investigation is conducted in order to prepare the case for hearing. These further investigations may uncover concerns which are different from those initially considered by the IC, and/or may reveal new information which suggests that the original referral should be reviewed. Any different concerns should be referred for assessment and, if assessed to amount to an allegation, referred to an IC for consideration. If the IC determines that a matter ought to be referred to a Practice Committee, it may be possible to join the new referral with the original matter.

44. New information which suggests that the referral to the Practice Committee should be reconsidered, can be referred back to the IC for review under Section 27A(8)/Section 36O(8) of the Act and Rule 10 of the Rules.

45. If considered appropriate, the IC may, when referring an allegation to a Practice Committee, also refer an allegation to the IOC.

Practice Committee

46. A Practice Committee is tasked with reaching final conclusions. The Practice Committee:

• determines whether the facts alleged are established on a balance of probabilities;

• judges whether any facts admitted or found proved amount to impairment of the Registrant’s fitness to practise;

22 See sections 27A(4) and 36O(4) 23 See sections 27A(6) and 36O(6) of the Act


• decides whether a direction should be made for the Registrant’s name to be removed from the register on a permanent24 (erasure) or temporary (suspension) basis or whether conditions should be attached to the practitioner’s registration.

47. The PCC and the PPC sit in public, although they have discretion to hold all or part of their hearings in private25 where it is deemed to be:

• required in the interests of the parties,

• required for the protection of the Registrant or another person’s private and family life, or

• strictly necessary to avoid publicity which would prejudice the interests of justice.

48. The Health Committee sits in private, owing to the confidential issues relating to a practitioner’s physical or mental health which will be considered by that Committee.

49. PCC and PPC hearings generally trigger Article 6 of the European Convention of Human Rights which include the right of a party to insist on a public hearing. In addition, a public hearing provides the transparency which helps to maintain public confidence in a regulator. For these reasons as much of a PCC or PPC hearing, as possible, should be held in public.

24 Except where the registrant is found to be impaired solely by reason of adverse physical or mental health 25 See Rule 53 of the Rules


Part 3 – IC Constitution

This part sets out how the IC should be constituted in accordance with the 2009 Rules as well as complying with the principles of natural justice and the law relating to human rights. It also reviews issues which may impact on the suitability of an individual Committee member to consider a particular allegation.

50. The General Dental Council (Constitution of Committee) Rules 2009 (‘the 2009 Rules’) stipulate that the IC shall consist of a maximum of 40 persons who are appointed by the GDC’s Appointments Committee. These 40 individuals will be a mix of lay and Registrant members.26

General

51. The 2009 Rules state that no individual who is currently serving on the IC can be a member of any other specified committee27 or of the Council. These provisions are to ensure the structural and constitutional independence of the IC, the other FtP Committees and the proper separation of functions.

52. If the independence of the Committees and the separation of the various functions of the GDC were not observed, the FtP Procedures could breach the principles of natural justice and possibly also the European Convention on Human Rights. Such breaches could undermine public confidence and expose the GDC to criticism and legal challenge.

Committee Meetings

53. A group of members is invited to attend an individual IC meeting and only those members are entitled to attend that meeting28.

54. The quorum29 for an IC meeting is three, of which there shall be at least:

• one registered dentist;

• one lay person;

• one registered dental care professional where a case involves a Registrant from the dental care professional register.

55. The quorum includes the Chair who may count as the registered dentist, lay person or registered dental care professional.

26 See Rule 4(1) of the 2009 Rules 27 See Rule 4(2) of the 2009 Rules. The specified committees are: the Interim Orders Committee, Professional Conduct Committee, Health Committee, Professional Performance Committee and the Registration Appeals Committee (see interpretation in Rule 2 of the 2009 Rules). 28 See Rule 4(5) of the 2009 Rules 29 See Rule 4(7) of the 2009 Rules


56. All members of the IC are expected to30:

• work within a framework of rules and understand complex legal and procedural issues;

• respect the confidential and sensitive nature of information received;

• assimilate written information or evidence in a fair and balanced way and arrive at objective and reasoned decisions;

• analyse large-volume and complex sets of information quickly;

• generate the trust and confidence of all parties;

• communicate clearly orally and in writing;

• behave in a fair, balanced and non-discriminatory fashion;

• listen attentively to others and have regard for the views of others;

• accept corporate responsibility once a decision has been made.

57. In addition, the Chair of the Committee performs a variety of other functions at each meeting which, amongst other things, include31:

• balancing the need for proper consideration of the issues with the expeditious conduct of the Committee to reach clear and justified decisions;

• facilitating the participation of all members and welcome challenge;

• supporting members and observe and feed back on performance to improve effectiveness;

• maintaining firm and effective control of the team and manage any unexpected issues;

• assisting the Committee Secretary with any necessary issues in advance of the meeting and assisting the Committee Secretary in proof-reading the Committee’s reasons and decisions prior to publication.

Other Attendees at the Meeting: the Committee Secretary

58. The IC is charged with the responsibility of investigating an allegation, and considering whether it ought to be referred to a Practice Committee. Rule 5 of the Rules sets out that the IC shall

30 These expectations are taken from the Competency Framework for Statutory Committee members 31 These functions are taken from the Chair’s competencies contained in the Competency Framework for Statutory Committee members and from the current IC practice in relation to Committee Meetings


hold a meeting, in the presence of the Registrar, to consider an allegation which has been referred to them.

59. The Committee Secretary acts as the representative of the Registrar in those meetings and assists the IC in carrying out its statutory function.

60. A Committee Secretary will therefore be assigned to each case scheduled for consideration by the IC. The Committee Secretary will read the case bundles in order to familiarise him or herself with the issues on each case scheduled to be considered at the IC meeting, and to identify any issues arising which may need to be dealt with before the meeting is convened.

61. The Committee Secretary may, as part of his or her preparation for the meeting:

• check the history of the case (including whether it may have been adjourned on a previous occasion, or is linked to another case);

• make notes;

• flag up pages of the case bundle containing evidence which supports or which does not support, the allegation;

• flag up relevant guidance32; and

• liaise with others about any missing documentation, including in relation to the registrant’s fitness to practise record, indemnity status, and in relation to any issues surrounding the case.

62. The Committee Secretary may also, in advance of the meeting, discuss any house-keeping issues with the Chair. Such preliminary discussions can have a helpful purpose, if they enable both sides to discuss matters which will assist in the efficient running of the meeting. However, such discussions must be confined to “house-keeping” matters which might include (but are not necessarily limited to) introductions, agenda planning, and discussions regarding obvious typographical errors in the allegation, legibility of documents, or missing information which is likely to be in the hands of the GDC (including in relation to fitness to practise history, service of documents upon the registrant or informant, or indemnity status).

63. As such discussions do not involve the other members of the IC, there should not be any discussion between the Chair and the Committee Secretary about the substance or detail of cases, including any reference to possible outcomes, to avoid any possibility or perception of the IC’s independence being compromised by way of the IC as a whole not having been involved in all the discussions about a case.

32 This may include the Standards for the Dental Team (and GDC supplementary Guidance), the Scope of Practice Guidance, CPD for Dental Professionals, the Indicative Outcomes Guidance, the Investigating Committee Guidance Manual, and any other guidance referred to in the case bundle.


64. Similarly, other IC Members may also wish to raise “house-keeping” issues before the day of the meeting, and again, these may be raised with the Committee Secretary, but any discussion of the substance or detail of cases, including any reference to possible outcomes, should be avoided for the reasons set out above.

65. In addition, whilst IC Members may wish to discuss “house-keeping” issues amongst themselves, they should avoid any discussion of the substance or detail of cases, including any reference to possible outcomes. This is because Rule 5 of the Rules sets out that the Investigating Committee shall hold a meeting, in the presence of the Registrar, to consider an allegation which has been referred to it. Any consideration of an allegation in the absence of the Registrar (or his/her representative, i.e. the Committee Secretary), is therefore outside the scope of the legislation.

66. In practice, this means that any case specific discussions between IC Members, outside the “house-keeping” issues set out in paragraph 62 above, should only take place at the meeting of the IC, in the presence of all IC Members and the Committee Secretary.

67. Pre-meeting discussions may be conducted over the telephone, or via email (so that all relevant participants can be copied in, and so that there is an audit trail).

68. The Committee Secretary is in attendance at meetings of the IC, as the representative of the Registrar, to observe, assist, and provide guidance. The Committee Secretary assists in drafting a fully reasoned determination for consideration and approval by the IC, which captures and fully reflects the IC’s decision and its reasons for that decision.

69. The Committee Secretary may prepare the introductory/factual paragraphs of the determination in advance of the session. This may include:

• a brief summary of the factual background to the case. This is likely to include an outline, in lay terms and in sufficient detail for the reader to understand, of the nature and seriousness of the allegations;

• identifying the evidence the IC had available to it in reaching its decision (bearing in mind that the IC does not have to identify each individual piece of information taken into account, but should set out in broad terms the evidence available, and that the IC may wish to supplement or amend this at the session, by highlighting anything of particular importance to the decision reached);

• the introductory sentences in relation to the IC’s consideration of each allegation;

• the introductory sentences in relation to the IC’s consideration of whether there is a real prospect of the Practice Committee making a finding of current impairment; and

• a factual summary of the Registrant’s previous fitness to practise history, if any.


70. The pre-drafted introductory/factual paragraphs of the determination should be made available to the IC upon request. However, members of the IC may prefer (or find it quicker) to use their own forms of words, in which case the Committee Secretary should, at the meeting, draft accordingly.

71. The Committee Secretary must not prepare in advance any reasoning relating to the decision on the real prospect test (in relation to the facts or as to impairment), as to the relevance of any fitness to practise history, or relating to the ultimate disposal of the case by the IC, including any commentary as to the relevant factors which the IC may wish to consider.

72. At the IC meeting, the Committee Secretary plays no part in the Committee’s deliberations or its decision. The Committee Secretary may, however, at the request of the IC and in a structured manner, explain GDC policy and procedure, assist the IC with where evidence might be found in the bundle, assist the IC in identifying the relevant GDC Standards or Committee Guidance, and identify any evidence which the IC may have overlooked.

73. If the Committee Secretary considers that his or her input, of the nature set out in paragraph 72 above, might be helpful at any other point during proceedings, he or she should not be inhibited from giving such input, but permission should always first be sought from the Chair. Practically speaking, this means that the Committee Secretary:

• should not take part in discussions on the same footing as IC Members, to avoid the danger that the deliberations will no longer be the Committee’s own;

• should seek permission from the Chair if he or she wishes to provide input;

• if asking questions, should ensure that these are open questions;

• should have no interest in achieving any particular outcome;

• should not, with a view to attempt to persuade the IC to alter its views on a case, refer to the fact that their decisions will be subject to scrutiny (internally, or via the PSA and others) and possibly challenge (by way of judicial review and otherwise), as the IC Members will be aware of this in any event.

74. In providing such input, the Committee Secretary should avoid giving the IC the impression that he or she is seeking to steer the IC in any given direction, as this has the potential for influencing the decision and thereby compromising the independence of the IC. The Committee Secretary should note that there is a fine line between simply pointing out what the guidance says as matter of information, and doing so with the intention of persuading the Committee to follow that guidance. If guidance is brought to the IC’s attention for information purposes only, reference should not be made to it more than once.

75. If the Committee Secretary perceives that the IC is moving in a direction contrary to the IOG or other guidance, then he or she can ask the IC to articulate, for the purposes of the decision


reasoning and the drafting of the determination, how it is distinguishing the case in hand from similar cases in the guidance concerned. This may include asking the IC to identify where the evidence in support of the decision it is intending to make can be found within the bundle.

76. In addition, the Committee Secretary may ask the IC to give evidence based reasoning and if necessary for detailed clinical reasoning which he or she can understand (and which therefore is likely to be comprehensible to an external audience) and which will assist in drafting a determination which reflects the IC’s decision. Ultimately, however, it is for the IC to decide each case on its own facts and merits.

77. During the Committee meeting, the Committee Secretary (assisted by the Committee Co-ordinator as necessary) will also act as the IC’s external link, and will pass on any external messages, relating to withdrawal requests, late addenda and otherwise, via the Chair for consideration by the IC.

78. Although he or she may be legally qualified, the Committee Secretary is not a legal adviser to the IC33 and therefore, like members of the IC, must not provide legal advice to the IC.

79. The Committee Secretary should also proceed with caution when signposting members of the Investigating Committee towards advice or case law contained in any training materials with which they may have been provided previously, or when expanding upon matters set out in this Guidance Manual or other GDC guidance document. This is not only because of the risk of misapplying the relevant principles, but also because the registrant concerned will not have had the opportunity to comment upon the training materials, or explanation of the Guidance Manual or other GDC guidance document, in advance of the meeting.

80. Where the Investigating Committee requires such additional input, it should instead adjourn, in accordance with paragraphs 197 - 207 below, for the information to be obtained via the appropriate channels.

81. In addition, if the Committee Secretary is concerned that the IC may be moving towards a decision which is wrong in law, or that there may be any serious procedural irregularity in the IC’s proceedings, he or she may suggest to the IC, via the Chair, that advice is sought. This may involve the IC making a decision to adjourn for the appropriate advice to be obtained, in accordance with paragraphs 197 - 207 below.

82. Where, once the IC has convened its meeting, the Committee Secretary requires advice or assistance in dealing with any matters within his or her remit, such as a point of GDC policy or procedure (including the powers of the IC), or help in drafting the determination, he or she should ask the IC, via the Chair, whether there is any objection to such help being sought from within the Secretariat on that matter.

83. Where the initiative for sourcing such advice or assistance is the Committee Secretary’s, and the IC agrees to such advice or assistance being obtained, there is no potential for compromise

33 The statutory meaning of the role of 'Legal Adviser ' is set out in paragraph 1 to Schedule 4C of the Act


of the independence of the IC or for inappropriate influence on the IC’s decision making. Equally, if IC members decide that they need assistance when carrying out their responsibilities which the Committee Secretary cannot or should not provide, it is permissible for them to seek it elsewhere (see paragraphs 197 - 207 below).

84. The Committee Secretary should not, save in the exceptional circumstances referred to in paragraph 85 below, seek assistance externally (electronically or otherwise during the course of meetings or during a break) without the IC being privy to, and agreeing to, the contents of such contact. If input from outside the IC is sought, the Committee Secretary should, in seeking agreement to this, make clear to the full IC the reasons for wishing to seek input. A note should be made of those reasons and of the results of any input obtained.

85. Exceptionally, there may be cases in which the advice being sought by the Committee Secretary is whether additional information should (and/or could legally) be placed before the IC. In these exceptional circumstances, disclosing the reasons for seeking advice to the IC could, in effect, amount to disclosure of that information. In those exceptional circumstances, the Committee Secretary must be as open as possible with members of the IC about the wish to seek advice and the reason why, but should not provide the information in question, or anything which might allow IC members to infer the existence of such information.

Other Attendees at the Meeting: the Committee Co-ordinator

86. The Committee Co-ordinator assists with the practical arrangements surrounding a meeting of the IC. This may include:

• checking for any late addenda and forwarding these to the Secretary;

• assisting with practical arrangements on the day, including setting up the room in advance of the meeting, ordering lunch, and tidying at the end of the session;

• sitting in the IC meeting in order to assist the Committee Secretary;

• relaying messages; and

• post-meeting administration including completing the attendance sheet, and updating the GDC’s systems with details of outcomes of the cases from that day’s meeting.

Other Attendees at the Meeting: Observers

87. Observers may attend the IC on occasion. For example, newly appointed Committee members or officers of the GDC in order to assist those individuals understand the process and work of the IC.

88. IC members will be advised who is present at their meetings and what the purpose of their attendance is. This may be done in advance via the IC Team, or by the Secretary on the day of the meeting.


89. Any potential observer will be given a briefing to outline the private and confidential nature of the meeting and its discussion. Further, an observer must have no role in the meeting and should not contribute (or be invited to contribute) to discussions at the meeting.

90. If the IC is unhappy with the presence of observers in its meeting, then it may consider whether to adjourn the meeting to take advice regarding their attendance, or may simply determine that the observers should be excluded.

Non-attendees

91. The following do not attend the meeting:

• The Informant;

• The Respondent;

• Legal, dental, medical or other representatives of either party; and/or

• The GDC caseworker.

Conflicts of Interest and Bias

92. The concept of natural justice applies to proceedings before the Investigating Committee, and the IC must therefore be mindful of ensuring fairness. In addition to the natural justice and human rights aspects protected by the manner in which the IC is appointed and constituted, individual members should not be tainted by conflicts of interest and should be aware of the standards and principles which apply to those who hold a public office. The Committee on Standards in Public Life34 has set out Seven Principles of Public Life (the Nolan Principles) which apply to all aspects of public life and are applicable to individuals who sit on Council and the GDC’s Committees. The Seven Principles are as follows:

• Selflessness - Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

• Integrity - Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.

• Objectivity - In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

34 An independent public body advises government on ethical standards across the whole of public life in the UK - www.public-standards.org.uk


• Accountability - Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

• Openness - Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

• Honesty - Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

• Leadership - Holders of public office should promote and support these principles by leadership and example.

Further details of the Nolan Principles are set out in the Code of Conduct for Members.

93. Proceedings are unfair where there is either actual bias, real potential for bias, or where there is the appearance or perception of bias (for example if there is an impression that the decision maker is not independent or impartial or that the decision making process is biased).

94. The current test for bias is whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased. This test for bias should be considered by individual members in determining whether to stand down from consideration of a case on the IC’s agenda. A member who considers that they may have a conflict of interest should contact the Committee Secretary as soon as possible to discuss the issue.

95. Examples of actual or perceived bias which have been considered by the courts include where a Committee member:

• has a financial or other personal interest in the outcome of the matter;

• has a close personal or professional relationship with the Registrant, informant, potential witness, or other individual connected with the case, where this relationship may affect the member's ability to consider the allegation with an open mind;

• has had previous acrimonious personal dealings with one of the parties or the representatives in the matter;

• is active (for example, by making statements, writing articles or being a representative) in an organisation which has declared a particular stance on an issue under consideration by the committee.

96. Further details and advice are contained in the Principles of Managing Interests within GDC’s Governance Manual.


97. Where a member has previously considered a case or other allegations against a Registrant, this does not, in itself, create a conflict of interest. Additionally, where a member has previously considered a case which has been referred back to the IC on a Rule 10 review this also, in itself, does not create a conflict of interest. However, conflicts of interest may, on occasion, arise in these situations, depending on the individual circumstances of the case.

98. If there is any justifiable concern that an individual committee member is actually, potentially or perceptually prejudiced or biased on either an objective or subjective basis, that individual should withdraw from the case. This means that the individual concerned must not discuss the case with those who are making the decision in question, and must leave the room when that item is being discussed. The IC should then consider whether it remains quorate to deal with a particular matter. When a decision has been reached, any member who has declared a conflict of interest and has been excluded is not entitled to know the IC’s decision on that case, as the IC’s deliberations are confidential and private.


Part 4 – IC Functions

This part explores the statutory function of the IC and how this function has been interpreted by case law.

Statutory Test

99. Section 27A of the Act sets out the statutory function of the IC as:

“to investigate [an] allegation and determine whether the allegation ought to be considered by a practice committee.”

100. In exercising its function, the IC is required to act as a filter on what allegations are referred to a Practice Committee and what cases are disposed of by an alternative means, if any. The filtering role requires the IC to balance the interests of the informant and the public with those of the Registrant. The informant and the public have an interest in concerns about a Registrant’s fitness to practise being investigated and ventilated in a public forum (the Practice Committee). The practitioner and the profession have an interest in not having to deal (further) with unfounded or unmeritorious complaints.

101. In determining whether an allegation ought to be referred to a Practice Committee, the IC should bear in mind the principles listed below which have been established and endorsed by case law. Of particular import is the ‘real prospect’ test which informs the IC’s decision as to whether a matter ought to be referred to a Practice Committee.

The IC’s function

102. The IC’s function is not to find fact. It cannot test the veracity of the evidence, definitively resolve significant conflicts of evidence or reach a final conclusion as to whether or not an allegation is true or untrue.

103. The IC should only decide whether or not there is a real prospect of a matter being established before a Practice Committee. It falls solely to the Practice Committee to make a final determination and judge whether any facts are proved, and if so whether the statutory ground (misconduct, deficient professional performance etc) is established, and whether the registrant’s fitness to practise is currently impaired as a result.

104. The IC should not act beyond its powers (ultra vires), attempt to reach a conclusion about the allegations, or seek to resolve the issues alleged. The risk of acting ultra vires is that the GDC may be exposed to a claim for judicial review. Such a legal challenge has costs and reputation consequences for the GDC.


Principles of Decision-Making

105. The list below contains the principles by which an IC should reach its decisions. The list captures the principles which the courts35 have held should be applied by a preliminary committee within a regulatory body which has the function of deciding whether a matter should be considered at a hearing.

The Real Prospect Test

106. The real prospect test requires the IC to determine whether there is a genuine possibility of a matter being established before a Practice Committee as opposed to a remote or fanciful prospect or a probability.

107. In deciding whether a matter ought to be referred to a Practice Committee, the IC should consider whether there is a real prospect of the allegation being established before a Practice Committee – or whether there is, as the courts have described it, ‘a cogent indication of a question to be answered’ by a Practice Committee36.

108. The real prospect test applies to the likelihood of the facts alleged being proved, the likelihood of the statutory ground being established, and the likelihood of the allegation of current impairment being established. The IC must not (normally) seek to resolve substantial conflicts of evidence. Any doubt as to whether there is a real prospect of success should be resolved in favour of the matter being referred to a Practice Committee.

109. Although the IC should not normally seek to resolve substantial conflicts of evidence, it can, when considering whether there is a real prospect of the allegations being established, assess the weight of the evidence before it. In some cases where there is a dispute there may be very clear and cogent evidence supporting one side of the dispute which is confirmed or supported by other evidence, whereas the evidence to the contrary may be wholly implausible or inherently inconsistent. However, there will also be some cases where there is a marked evidential dispute which it is not possible for the Investigating Committee to resolve at a meeting, because there may be no proper, rational basis for the Committee to accept one version of events and reject another. In such cases, if determination of which version is correct is critical to the disposal of the allegation, referral of the allegation to a Practice Committee is likely to be required.

110. In considering whether there is a real prospect of the facts being found proved before a Practice Committee, the IC should bear in mind that the Practice Committee will consider whether the facts have been proved on the balance of probabilities, (rather than so that they are sure or beyond a reasonable doubt). In other words, a Practice Committee must be satisfied that it is more likely than not that an event happened.

35 See, for example, R (on the application of Toth) v General Medical Council, Court of Appeal - Administrative Court, June 27, 2003, [2003] EWHC 1675 (Admin) and Woods v GMC [2002] EWHC 1484 36 See Henshall v General Medical Council & Ors [2005] EWCA Civ 1520


111. The real prospect test and the principles flowing from that test, recognise that the central feature of the statutory scheme is a public hearing before a Practice Committee and that it is only at that stage of the process that there is full, advance disclosure of documents and evidence, and a proper examination of the merits of the complaint in a public setting.

Statutory ground

112. If the IC considers that there is a real prospect of some or all of the facts supporting the allegation being established before a Practice Committee, the IC should go on to consider whether there is a real prospect of the statutory ground (misconduct, deficient professional performance etc) being established as a result of those facts. Further guidance on what might amount to misconduct or deficient professional performance is set out at paragraph 131, below.

Impairment

113. In judging whether there is a real prospect of the allegation of impairment being established before a Practice Committee, the IC should be aware that a Practice Committee must consider a practitioner’s current fitness to practise. In other words, the Practice Committee must consider whether the reason by which fitness to practise is said to be impaired is easily remediable, whether it has been remedied and whether it is highly unlikely to be repeated in the future.

114. An assessment of current impairment will involve consideration of past events and steps taken to remedy the past misconduct, deficient performance etc. However, case law has identified there may be some instances of past conduct or performance or criminal offences that are so deplorable that a Registrant is unfit to practise unrestricted or at all, or where the need to uphold proper professional standards and public confidence would be undermined if a Practice Committee did not make a finding of impaired fitness to practise. Examples of such cases would include violations of the fundamental rules of the professional relationship – such as matters involving (but not limited to) dishonesty, persistent and deep-seated attitudinal issues or sexual impropriety.

Evidence & Other Matters

115. The IC should not second guess whether a Practice Committee would exercise its discretion to admit evidence, which would not generally be admissible in civil court proceedings or what weight it would give to such evidence.

116. The IC should exercise utmost caution when disagreeing with the conclusion of another body with appropriate expertise, such as a Primary Care Trust or a Health Board, which has reached its decision after a hearing where all the evidence before the IC was considered.

117. The IC is not entitled to go behind the fact of a conviction. Equally the IC is not entitled to go behind the giving of a caution which involves an admission of guilt by the Registrant. It should


not take into account submissions by the Registrant that he or she was not in fact guilty of the offence of which they were convicted or in respect of which they were cautioned. This does not, however, prevent the IC from considering the facts and circumstances surrounding the conviction or caution, which are likely to be of relevance in assessing whether the matter ought to be referred to a Practice Committee.

118. The IC should take care to distinguish between matters of culpability and mitigation. The Committee is entitled to consider whether there is a real prospect of it being proved that the Registrant did what he or she is alleged to have done but should take matters of purely personal mitigation into account with caution. Personal mitigation is more properly considered by a Practice Committee at the sanction stage, if necessary.

119. An IC should not decide legal arguments such as complaints that there has been unreasonable or unjustifiable delay in the bringing and processing of a complaint by the informant or the GDC. The IC should not seek to answer the matters in dispute; it should only decide whether there is a question for a Practice Committee to answer. These other issues will be argued before a Practice Committee, if the IC determines that the case ought to be referred.

120. The IC only considers documentary evidence at a private meeting in the absence of the parties, where the Respondent does not have an opportunity to make oral representations.

121. The Courts have identified the dangers of reaching final conclusions on paperwork only and have commented that whilst the IC’s process may serve to maintain standards, in their view, it does not ensure public confidence in the process. This is upheld through complaints of impairment being thoroughly and openly explored by a Practice Committee at a public hearing. It is in this context that the filtering role of the IC should be considered.

122. The decisions of the IC may be open to challenge through a claim for judicial review if it appears, for example, that a Committee has reached a perverse decision (that is a decision which no reasonable IC could have reached taking into account the evidence), has failed to apply the appropriate test to its decision-making or has provided inadequate reasons to explain its decision.


Part 5 – IC Powers

This part sets out the powers available to the IC and explains some of the circumstances in which the IC may wish to exercise particular powers.

123. In considering an allegation, the IC has the following powers37. It may:

• refer a case to a Practice Committee;

• decide that a case ought not to be referred to a Practice Committee and to:

• issue a warning (which may be published or unpublished),

• issue advice,

• close a case with no further action.

124. The IC may also adjourn consideration of the allegation to direct the Registrar to carry out specified enquiries which may include38:

• undertaking specific factual enquiries,

• commissioning of medical or other expert reports,

• commissioning an assessment of the Respondent’s professional performance.

125. Any enquiries that the IC asks the Registrar to undertake should be for the purpose of helping it to decide whether a matter ought to be referred to a Practice Committee.

126. In making its determination, the IC is entitled to consider any documentary evidence, provided the material is relevant to the issues and it is fair for it to be admitted in evidence. Rule 6 of the Rules specifically provides that documentary evidence may be considered by the IC whether or not it would be admissible in court proceedings, provided it satisfies the requirements of “relevance and fairness”.

127. For reasons of fairness, an IC must not consider any advice, information or documentation which has not been disclosed to the Registrant prior to the IC meeting. The IC should reach its decision based solely on the material it has received and members should not (for example) use the internet to locate additional information about a Registrant.

FtP History

37 See Rule 7 of the Rules 38 See Rule 8 of the Rules


128. The IC will be provided with information showing the Registrant’s fitness to practise history, such as a previous finding of impairment by a Practice Committee or that another IC has issued a warning or advice letter and the details in relation to that history. The IC does not receive details of any matters which have been closed with no further action, and has no power to re-open an allegation that has already been closed by an IC. In reviewing any fitness to practise history, the IC should:

• exercise care and caution;

• consider the relevance of the fitness to practise history to the issue under consideration, for example, does the history reveal a pattern of similar behaviour or is the current allegation unrelated in nature to any previous concerns;

• bear in mind that if the fitness to practise history relates to a warning or an advice issued by another IC, no final finding of fact or judgement on impairment has been made as the issues were not tested before a Practice Committee;

• take into account the fact that, if it refers the allegation under consideration to a hearing, the Practice Committee will not be made aware of the fitness to practise history unless it finds the factual basis of the allegation proved.

Ought to be Referred

A Real Prospect

129. The first question for the IC is whether it considers that there is a real prospect of an allegation being proved before a Practice Committee. If so, it should refer the matter to a Practice Committee. In cases where there are multiple allegations of impairment, the IC should make it clear which allegations are referred.

130. In deciding whether the matter ought to be referred to a Practice Committee, the IC should consider whether there is a real prospect of:

• the facts alleged being proved on the balance of probabilities – in other words, the Practice Committee finding that the alleged event is more likely to have happened than not to have happened;

• a Practice Committee finding that the statutory ground is established, as a result of those facts; and

• a Practice Committee considering that the Registrant’s fitness to practise is currently impaired as a result of the specified ground (or grounds).

Factors


131. The IC must bear in mind that, amongst other things, case law has provided that:

• there should be a link between the misconduct and the dental professions. Such a link may be:

(i) direct, or

(ii) indirect (for example, where the conduct is outside the scope of the Registrant’s profession/practice but may have an impact on the reputation of the profession);

• misconduct denotes serious acts or omissions suggesting a significant departure from what would be proper in the circumstances;

• a single neglectful act or omission is less likely to constitute misconduct than multiple acts or omissions. However, there will be some circumstances in which a single neglectful act or omission could amount to misconduct, especially where the act or omission is particularly grave;

• a finding of deficient professional performance indicates a standard of professional performance which is unacceptably low;

• it would be very rare for a single instance of negligent treatment, unless very serious indeed, to constitute deficient professional performance. A finding of deficient performance is generally based on a consideration of a fair sample of a Registrant’s practice;

• a Practice Committee should assess whether a Registrant’s fitness to practise is currently impaired. This necessitates a review of present and past fitness to practise. It should bear in mind past events and whether the reason by which fitness to practise is said to be impaired is easily remediable; whether it has been remedied; and whether it is highly unlikely to be repeated in the future. However, there may be some instances of past conduct or performance that

(i) are so deplorable – perhaps involving (but not limited to) dishonesty, persistent and deep-seated attitudinal issues or sexual impropriety – as to indicate that a Registrant is unfit to practise unrestricted or at all,

(ii) where the need to declare and uphold proper professional standards and to maintain public confidence in the professions would be undermined if a Practice Committee did not make a finding of impairment of fitness to practise;

• factors which may be relevant to the assessment of whether a Registrant’s fitness to practise is currently impaired include but are not limited to any remedial action taken by the Registrant, demonstrations of insight and remorse (perhaps by early admissions) and the risk of recurrence. These should be weighed against the public interest factors in


upholding proper professional standards and maintaining public confidence in the professions.

132. The IC should bear in mind that the following are viewed as particularly serious:

• The serious abuse of a clinical relationship;

• A sexual or violent offence or indecency;

• Undertaking treatment or procedures beyond competence;

• Serious abuse of the privileged position enjoyed by registered professionals;

• Lack of appropriate indemnity cover/lack of evidence of appropriate indemnity cover;

• Risk of patient harm due to the Registrant’s alcohol or drug use;

• Failing to co-operate with an employer or the Council;

• Misleading behaviour, deliberate or otherwise and dishonesty; all of which can include deliberate acts and/or omissions; and/or

• Failure of duty of candour in failing to raise concerns about matters which may (or may have) posed a risk to patient or public safety; and/or by inhibiting others from raising concerns which may (or may have) posed a risk to patient or public safety.

Referring to a Practice Committee

133. If the IC considers that an allegation ought to be considered by a Practice Committee, it should identify to which Practice Committee the allegation is referred. Unless there is reason otherwise the IC shall39:

• refer an allegation of impairment relating to deficient professional performance to the Professional Performance Committee,

• refer an allegation of impairment relating to adverse physical or mental health to the Health Committee,

• refer an allegation of impairment relating to any other type of reason – for example, misconduct or a conviction – to the Professional Conduct Committee.

134. Where two or more allegations have been received which relate to different grounds of impairment, a multifactorial case, the IC should refer the matter to whichever Practice

39 See sections 27A(4) and 36O(4) of the Act


Committee it considers most appropriate. The IC should bear in mind that a Practice Committee can refer any outstanding matters to another Practice Committee.40

135. The IC should take into account that, whilst the GDC’s Practice Committees all have equivalent powers of disposal, a Registrant cannot be erased when his or her fitness to practise is found to be impaired solely by reason of adverse physical or mental health.41

Adjourning

136. If the IC considers that the papers reveal concerns, which are different to the allegations referred to it by the Registrar, it should adjourn the case to enable those further concerns to be assessed.

137. The IC cannot adjourn consideration of parts of a case. In other words the IC cannot assess or close some heads of the allegation and adjourn other parts.

138. If the new concerns are assessed as amounting to an allegation, the Registrant will be notified and the matter referred to another meeting of the IC at which members will also resume consideration of the allegations originally referred to it.

139. If an allegation is due to be considered by an IC and a new complaint or additional information is received about the same Registrant, the GDC may either adjourn consideration of the case in order for two or more matters relating to the Registrant to be considered at the same time, or may decide that the original allegation should be considered by the IC, notwithstanding receipt of the new matter.

140. The factors to be considered when reaching a decision to adjourn a case as a result of a new matter coming to light include:

• whether the new matter is similar in kind to the original allegation such that it could impact on the IC’s determination as to whether there is a real prospect of the allegation being established before a Practice Committee. This may be particularly relevant when the new matters may demonstrate a pattern of behaviour, or the age of issues raised by the new matter or the original allegation may impact on a decision as to whether there is a real prospect of current impairment of fitness to practise being established;

• whether the new matter relates to a different reason of impairment to the original allegation such that if the IC determined that both the new matter and the original allegation ought to be referred to a Practice Committee, the decision as to which Practice Committee is the most appropriate would be influenced by consideration of the new matter;

40 Rule 26(1) of the Rules 41 See sections 27B(7) and 36P(8) of the Act


• what decision would be the most effective and efficient use of the IC’s resources – although administrative convenience should not be prioritised over what is fair and reasonable in the circumstances.

141. When the IC determines that, as a result of a new matter coming to light, the present matter should be adjourned, the IC should also consider whether, in line with the guidance at paragraphs 217 – 234 below, it is appropriate for the present matter to be referred to the Interim Orders Committee, whilst the registrant’s fitness to practise continues to be investigated42.

142. Otherwise, there may also be circumstances in which a decision is taken by the Committee Secretary or a Committee Manager that, prior to an Investigating Committee meeting, a matter has to be removed from the agenda. As much advance notice of the withdrawal of a matter will be given as is possible.

Closing a case

143. The IC may close a matter in one of the three ways identified below. A matter should be closed when the IC considers that there is no real prospect of a Practice Committee:

• finding the facts proved on a balance of probabilities; and/or

• finding that the statutory ground is established; and/or

• judging that there is current impairment of fitness to practise by reason of the statutory ground.

144. Clear reasons should be given to explain in broad terms why the Committee reached its decision.

145. The IC should exercise caution when deciding to close a case particularly when any element of its decision would be inconsistent with the conclusion reached by another expert body following a hearing of the same evidence.

146. The IC must not seek to go behind a conviction or a caution.

Interim Orders

147. On closing a case, the IC should revoke, with immediate effect, any interim order that has been imposed on the Registrant in respect of the allegation or allegations that will not be referred to a Practice Committee.

148. A difficulty arises where the Registrant has an interim order in place owing to a number of different issues, some of which may still be under investigation or waiting ventilation at a Practice Committee. In those circumstances the IC should indicate in its decision that the

42 See sections 27A(4A) , 27A(6A), 36O(4A) and 36O(6A) of the Act


interim order in place remains in effect in relation to any outstanding matter but not in relation to the matter that has been closed.

149. It is then a matter for either party to consider whether it wishes to make representations that new evidence relevant to the making of the order has become available such that an early review of the interim order is appropriate.

Issuing a warning

150. The IC may issue a warning43 to the Registrant about his or her future conduct, performance and practice.

151. A practitioner’s registration status is not affected by a warning. However, the fact that a warning was issued will become part of the Registrant’s fitness to practise history and may have a number of potential consequences for the Registrant. Case law44 has held that there is a degree of censure implicit in a warning, which in itself, for a professional person of hitherto unblemished reputation, is no trivial thing.

152. In addition, a Registrant may need to declare the receipt of a warning to current and prospective employers, insurers and other bodies. Accordingly, careful consideration should be given prior to issuing a warning and the Committee should examine carefully the circumstances to determine whether the necessary threshold has been met.

153. A warning should clearly identify where the Registrant needs to reflect on his or her future conduct, performance and practice. The warning should be designed to outline the need to ensure future compliance with the Council’s Standards for the Dental Team and associated guidance.

154. A warning cannot be issued in respect of a third party.

Threshold

155. The question as to what is serious enough to require a warning is a matter for the IC. In practical terms it is likely that most cases which are appropriate to be closed with a warning are very close to warranting a referral to a Practice Committee.

156. If the Committee determines that there is no real prospect of the facts alleged being found proved, then it should not issue a warning.

157. However, a warning may be appropriate where:

(i) there is a real prospect of the facts alleged being found proved; and

43 See sections 27A(2) and 36O(2) of the Act 44 Lutton v General Dental Council [2011] CSOH 96


(ii) there is a real prospect of the statutory ground being established; and

(iii) the IC considers that there is no real prospect of a Practice Committee judging that the Registrant’s fitness to practise is currently impaired, but

(iv) it is appropriate and necessary to warn the Registrant of the need to reflect on his or her conduct, performance or practice.

158. The IC may consider that a warning is appropriate where:

• there appears to be evidence of a breach of the Council’s guidance (which may include a breach of the Standards for Dental Professionals, or of one of the “musts” in Standards for the Dental Team45) but not a repeated breach or a breach which is so serious as to indicate that a case should properly be referred to a Practice Committee;

• any re-occurrence of the conduct or performance would suggest that there is an underlying pattern of behaviour giving rise to fitness to practise concerns;

• there appears to be a slip in the standards of professional performance expected of a dental professional but not one which is so low as to be unacceptable or to indicate that a case should properly be referred to a Practice Committee;

• there appears to be a single incident which may be serious but is not so grave as to indicate that a case should be properly referred to a Practice Committee;

• there appears to be a serious failing which has been remedied, and where there is a low risk of re-occurrence. In these circumstances the Committee’s duty to the public interest must also be considered and taken into account.

159. 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. However, it will be relatively rare for an IC to issue a warning in these circumstances, and the IC should proceed with caution, explaining carefully why it considers a warning to be appropriate.

Considerations

160. The case of Lutton specifically deals with the issue of warnings and the IC. The judgments of the Outer House46 and Inner House of the Court of Session47 outline a number of issues which the Committee must bear in mind when considering issuing a warning. It also establishes, amongst other things, that there are circumstances where the issuing of a warning is appropriate, even where the factual basis of the allegation is disputed.

45 For conduct on or after 30 September 2013 46 Judgment of the Outer House, Court of Session, Petitioner Stuart Lutton 2011 Scot (D) 5/7 or [2011] CSOH 96 47 Judgment of the Extra Division, Inner House, Court of Session, Petition of Stuart Lutton, [2011] CSIH 62


161. However, the Committee must bear in mind that it cannot find fact or resolve substantial conflicts of evidence, although it is entitled to form a view on the evidence for the purpose of fulfilling its functions.48

162. It should also bear in mind that the issues which led to the warning may be reviewed as part of a Registrant’s FtP history should any further allegations be raised against the Registrant.

163. The Committee must take into account the fact that a warning, if given, is made upon unproven facts, unless the factual basis of the allegation is either not in dispute or has been admitted by the Registrant.

164. Accordingly, a warning should only be issued where there is some evidence in support of the factual allegations. If the alleged issues are disputed the Committee should clearly identify why it is has preferred one person’s evidence over another and both why and how it has reached this conclusion.

165. In practical terms when considering issuing a warning the Committee must ensure that its concerns are clear and specific and that it asks itself:

• what, on balance, has been identified in the Registrant’s practice/conduct to be possibly deficient/below the standard expected;

• why, on balance, the warning is considered necessary;

• where issuing the warning involves resolving factual dispute between the Informant and the Registrant, why, in broad terms, that dispute has been resolved against the Registrant, if that is in fact what has happened;

• what has been identified in Registrant’s conduct that requires to be addressed, and why it is thought necessary for him to address such matters as a result of the allegation received; and

• what area of practice/conduct should be addressed, or what specific remedial steps (if appropriate) should be undertaken, and why.

166. In drafting a warning the Committee must ensure that it is particular and precise about the remedial action expected and what conduct and/or practice the Committee is warning the Registrant about.

167. If the IC considers that a warning should be issued about a concern that was not contained within the allegation originally referred to it, the matter should be adjourned in order to permit the Registrant to be notified of the new concerns and invited to provide a written response for consideration by a further meeting of the IC.

48 Opinion of Lord Doherty, Outer House, Petition of Stuart Lutton, CSOH 96


Published Warnings

168. The decision of the IC is not a public decision, although it may be disclosed to appropriate parties, such as employers, upon request.

169. However, if the IC considers it appropriate, it may direct the Registrar to enter details of a warning in the Registrant’s entry in the dental or DCP register49, thus making the warning public. This may be appropriate where there is a public interest in a public declaration that the conduct must not be repeated, for example when:

• the IC considers that a warning is necessary in the interests of declaring and upholding proper professional standards (i.e. highlighting to the wider professions that particular conduct is not acceptable);

• where there is a public protection element in the case (for example, where a registrant has practised whilst unregistered, without appropriate indemnity insurance, or beyond the scope of his or her practice);

• where there is otherwise a public interest in publication (including in order to maintain public confidence in the professions and their regulation).

Appropriate care and consideration should be given when directing that a warning be published where the effect of a published warning would be merely to “name and shame” the Registrant, bearing in mind that FtP proceedings are not intended to be punitive.

170. In each case, the IC should state why it has decided to publish (or not to publish) the warning. Where the IC directs that a warning should be published, the text to be published should include a public facing summary of the facts, but care should be taken not to publish any confidential details, including those relating to the health or private and family life of the Registrant or a third party. The IC should specify the length of time that a warning should be entered against the Registrant’s name on the register – i.e. published. Reasons for this decision should be given as this must be proportionate to the concerns the Committee is trying to address. If the IC determines that the warning should be published for longer than 12 months, reasons should be given to explain why the Committee decided that allegation ought not to be referred to a Practice Committee.

Issuing advice

171. Where the IC considers that an allegation ought not to be considered by a Practice Committee, it may issue advice.50 An advice letter can be sent to the Registrant or any other person51 involved in the investigation.

49 See sections 27A(3) and 36O(3) of the Act and Rule 7(1)(c) of the Rules 50 See sections 27A(2)(a) and 36O(2)(a) of the Act and Rule 7(1)(b) of the Rules 51 See sections 27A(2)(b) and 36O(2)(b) of the Act


172. Consideration has been given as to whether or not a Committee can issue advice to a third party if it has decided to close a case with, for example, a warning. It is generally accepted that the powers in Rule 7 are alternatives and are mutually exclusive. However, Section 27A(2) of the Act provides that if the IC determine that the allegation ought not to be considered by a Practice Committee then the IC may issue advice to any other person involved in the investigation on any issue arising in the course of the investigation.

173. Advice does not affect a Registrant’s registration status, but the fact that advice was issued will become part of the Registrant’s FtP history. Further, a Registrant may need to declare the fact that advice has been issued to current and prospective employers, his or her insurers and other bodies. Accordingly, careful consideration should be given prior to issuing advice.

174. Advice should, usually, be issued where there is some evidence in support of the factual allegations. If the alleged issues are disputed the Committee should clearly identify both why and how it is has reached the conclusion it has arrived at and its reasons for issuing advice.

175. Advice can be offered to a Registrant in connection with his or her future conduct, performance or practice and may be appropriate where the IC considers that there is no real prospect of a Practice Committee judging that the Registrant’s fitness to practise is impaired.

176. The advice should be designed to ensure future compliance with the Council’s guidance and should clearly identify where the Registrant needs to reflect on his or her future conduct, performance and practice.

177. There may be rare circumstances where the IC considers that advice should be issued in connection with a concern that was not part of the allegation originally referred to it. If this occurs, fairness would require the IC to adjourn to enable those new concerns to be notified to the Registrant. This would permit the Registrant the opportunity to make further representations for consideration at a future meeting of the IC. The same applies where the IC is considering issuing third party advice to any registrant who is not the subject of the investigation, and who has not therefore been notified of any issues arising.

No further action

178. If the IC determines that there is no real prospect of the allegation being established before a Practice Committee, it may close the case with no further action52 if it considers that no other form of disposal option is appropriate. Reasons should be provided for the decision to close the case with no further action. Examples of matters that may be appropriate to be closed with no further action include cases where it appears that the Registrant has complied with the Council’s standards, or that any breach of the Standards was so minor as to justify no further action.

179. It may be possible that the IC will prefer the account of the Registrant over that of the informant. Due care must be given in this circumstance both to the fact that the IC cannot resolve

52 See Rule 7(1)(b) of the Rules


substantial conflicts of evidence, and also the fact that the courts have identified the dangers of reaching final conclusions on paperwork only, and have commented that whilst the process of considering documents in private, as the IC does, may serve to maintain standards, it does not ensure public confidence in the process.

180. A determination to close the case must not be made unless the IC is satisfied that the Registrant and the informant have had a reasonable opportunity to submit written representations commenting on the allegation and the evidence relating to the allegation53.

181. In this regard, the Investigating Committee should be mindful that the Registrar will have provided the Registrant with notification of the allegation and the documents held by the GDC in relation to it and will have invited him or her to provide a written response54. Further, the Registrar has discretion to provide the informant with the Registrant’s response for comment. Evidence relating to the health or private and family life of the respondent or third party should not be disclosed to the informant55.

Adjourn to direct the Registrar to make further specific enquiries

182. The IC has a specific power to adjourn a case in order to direct the Registrar to carry out further enquiries56. If it chooses to exercise the power, the IC should expressly identify what enquiries the Registrar is directed to undertake on its behalf.

183. Rule 8 of the Rules includes a non-exhaustive list of what enquiries the Registrar may be directed to conduct. These include:

(a) specific factual enquiries;

(b) the commissioning of medical or other expert reports;

(c) the commissioning of an assessment of the Registrant’s professional performance.

184. When the IC determines that a case should be adjourned for further enquiries to be conducted, the IC should also consider, in line with the guidance at paragraphs 217 – 234 below, whether it is appropriate for the present matter to be referred to the Interim Orders Committee whilst the registrant’s fitness to practise continues to be investigated57.

Specific factual enquiries

185. If the IC considers that there is a gap in the information it has received or a document is missing from its papers, it should adjourn consideration of the case to seek this information or

53 See Rule 7(2) of the Rules 54 See Rule 4 of the Rules 55 See Rule 7(3) of the Rules 56 Rule 7(1)(a) of the Rules sets out that upon consideration of an allegation the IC may determine to adjourn consideration of the allegation and direct the Registrar to carry out such enquiries as the IC shall specify 57 See sections 27A(4A) , 27A(6A), 36O(4A) and 36O(6A) of the Act


document. The adjournment is necessary to ensure that the information or document can be shared with the Registrant (and any informant) prior to the material being considered by the IC. It would be unfair for the IC to consider material that has not been sent to the Registrant with as much notice as is reasonable and fair in the circumstances.

186. The IC may direct the Registrar to carry out other forms of investigation, which it regards as appropriate, provided these are relevant to its decision as to whether a matter ought to or ought not to be referred to a Practice Committee.

Record card audits

187. A record card audit (where a defined number of the Registrant’s records are obtained, and reviewed by an expert) may assist the IC in determining whether the Registrant’s case ought to be referred to a Practice Committee, and if so, which Practice Committee is the most appropriate. What amounts to a legitimate trigger for such an enquiry will depend on the facts and circumstances of each case, but factors to consider may include:

• the IC’s duty of due enquiry (i.e. the need to ensure that potential issues of professional performance are appropriately investigated) – the 1984 Act provides (s27(1)) that the IC “shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee” and therefore a RCA can be seen as part of the IC’s investigative role;

• whether the alleged deficiencies are of a basic and/or fundamental nature e.g. record keeping, examination/assessment, treatment planning/provision (including use of inappropriate or outdated techniques, and under/over treatment), informed consent, prescribing etc.

• where the concerns raised are wide ranging (i.e. across a number of patients), and/or span an extended period of time.

188. In all cases, the IC’s written determination should explain why it has decided that the enquiries are necessary and proportionate. As with other enquiries directed by the IC, a record card audit should be linked to the allegations before the IC and must not amount to a fishing expedition.

Commissioning medical or other expert reports

189. A medical report may assist the IC to determine whether a Registrant ought to be referred to a Health Committee.

190. An expert report may assist the IC determine whether there is a real prospect of allegations being established before a Practice Committee.


191. In directing the Registrar to commission medical and other expert reports, the IC should be mindful that it is a filtering committee whose function is limited to deciding whether there is a real prospect of an allegation being established before a Practice Committee. The IC should not attempt to resolve substantial conflicts of evidence or questions of fitness to practise.

192. In determining whether a medical or other expert report should be obtained, the IC should also be mindful of the ability of the parties to refer a matter back to the IC for review under Rule 10 of the 2006 Rules. The power of review means that if a matter is referred to a Practice Committee and further evidence is obtained in preparation for the hearing that suggests the IC would have reached a different decision had it been in possession of that information, an application for a review of the referral can be made back to the IC.

Commissioning a performance assessment

193. The IC may adjourn its consideration of a case to direct that an assessment of the Registrant’s performance should be commissioned. When directing the Registrar to commission a performance assessment, the IC should take into account a number of factors including:

• The courts have held58 that a finding of deficient professional performance could be based on, “a single episode of treatment on one day” but considered that such a finding will be, “very rare and will arise from exceptional circumstances”. Case law suggests that other than in exceptional cases, a finding of deficient professional performance should be based on a “fair sample” of the Registrant’s practice.

• This general requirement will necessarily impact on the IC’s consideration of whether there is a real prospect of an allegation being established where a case referred to it is based on a limited number of incidents and patients. In such circumstances, the IC should consider whether it is appropriate and proportionate to obtain an assessment of a practitioner’s performance to assist its assessment of whether the allegation ought to be referred to a Practice Committee.

• Alternatively, the IC may consider that the matter ought to be referred to the Professional Conduct Committee if it is satisfied that there is a real prospect of the facts being found proved and an allegation of impairment by reason of misconduct being established.

• If the practitioner is not working, it may not always be possible for a full assessment of current performance to be conducted. He or she may be subject to a GDC interim suspension order or may have been suspended from the performers’ list by a Primary Care Trust. However, depending on the nature of the performance issues referred to the IC, an assessor may be able to interview the Registrant, assess procedures conducted on a phantom head and/or conduct an analysis from patient records.

• The limited filtering role of the IC should be recognised when commissioning performance assessments and care taken to avoid usurping the role of the Practice Committees. The

58 Calhaem v General Medical Council [2007] EWHC 2606


IC may direct the Registrar to obtain a preliminary report rather than commission a full analysis into the Registrant’s performance. Depending on the circumstances of the case, a preliminary assessment may involve one or more elements of a full performance assessment. The purpose of the preliminary assessment would be to assist the Investigating Committee determine whether there is a real prospect of the allegation being established before a Practice Committee or could be commissioned where there are significant concerns that the allegations referred to the Investigating Committee raise a question about the wider competence of the Registrant. If, following receipt of the performance assessment, the matter is referred to a Practice Committee, fuller investigations can be conducted at that point.

194. Where the IC determine that it is proportionate and appropriate to commission a performance assessment, the report may be obtained from a number of sources including:

• the National Clinical Assessment Service (NCAS),

• Dental Referral Officers/Clinical Advisers, if available,

• NHS dental advisers,

• vocational trainers,

• other appropriate persons or organisations.

195. The IC may wish to specify the elements of the Registrant’s performance that it considers should be assessed and allow the Registrar discretion as to the source from which the assessment/report is obtained.

196. The assessment report will be disclosed to the Registrant for comment and the matter re-listed before the IC in order for it to complete its consideration of whether the matter ought to be referred to the Practice Committee.

Other enquiries: external advice

197. Rule 8 is non-exhaustive and therefore the power of the IC to direct the Registrar to conduct enquiries is wide ranging and is not limited to the matters listed. If the IC considers that dental, medical, legal or any other advice is necessary before it can determine whether a matter ought to be considered at a hearing, it can adjourn the case to direct the Registrar to undertake specific enquiries.

198. Any enquiries must be relevant for the purpose of determining whether a matter ought to be referred to a Practice Committee.


199. Although he or she may be legally qualified, the Committee Secretary is not a legal adviser to the IC within the meaning of Schedule 4C to the Dentists Act 198459. As such, neither the Committee Secretary, nor any other person who is not a legal adviser within the meaning of Schedule 4C, should be providing legal advice to the IC in its meeting.

200. Further, the FtP Legal Team (Prosecution Lawyers) cannot provide legal advice to the IC. This is to ensure that a clear separation of functions is maintained between the IC, which should make an independent decision as to whether an allegation ought to be referred to a Practice Committee, and the FtP legal team which will assume responsibility for any allegation if referred. However, it is open to either party (prosecution or defence) to place a submission on the law to the IC as part of any case papers. That submission should, as a matter of fairness, be shared with the other party prior to the IC meeting.

201. If the Committee Secretary, the Chair or other member of the IC is concerned during the IC meeting that advice may be required (including where there is a concern that the IC may be moving towards a decision which is wrong in law, that there may be a serious procedural irregularity in the IC’s proceedings, or where the IC requires input upon a matter which the available guidance, including the Investigating Committee Guidance Manual, does not address the issue to the satisfaction of the IC) he or she may suggest to the IC that it seeks advice. As above, the person suggesting that input should make clear to the full IC the reasons for seeking input, and those reasons should be noted.

202. Should the IC determine that advice is required, it may use its powers under Rule 7(1)(a) of the General Dental Council (Fitness to Practise) Rules Order of Council 2006 to adjourn consideration of the allegation to direct the Registrar to obtain advice on the point or points in question.

203. The Registrar (or his or her representative) shall then seek the advice requested, either within the GDC or from an external adviser. Once the advice has been obtained, it should be noted and provided to the IC. The IC shall then resume consideration of the allegation in accordance with Rule 9 of the 2006 Rules.

204. Information obtained as a result of these enquiries must be shared with the Registrant and with the GDC before the IC resumes its consideration of the allegation. An IC should only consider formal advice, information or documentation which has been disclosed to the Registrant with adequate notice.

205. A similar approach should be taken where the Committee Secretary, the Chair or other member of the IC considers that external advice is required on another issue, in order to assist the IC in carrying out its statutory function.

59 Under paragraph 1 of Schedule 4C, the Council shall appoint persons to be legal advisers. Those legal advisers shall have the general function of giving advice to various bodies of the GDC (including, under paragraph 1(2)(c), the IC) on questions of law arising in connection with any matter under consideration by that body. Such legal advisers are also required, under paragraph 1(5) of Schedule 4C, to meet minimum standards of qualification and experience. The Council has not currently appointed any persons to be legal advisers to the IC.


206. Should the IC determine that such outside input is necessary, the IC may use its powers under Rule 7(1)(a) of the General Dental Council (Fitness to Practise) Rules Order of Council 2006 to adjourn consideration of the allegation to direct the Registrar to obtain advice on the point or points in question.

207. Once that advice has been obtained it should be noted, and provided to the IC. The IC shall then resume consideration of the matter in accordance with Rule 9 of the 2006 Rules. Again, any advice provided to the IC should be shared with the Registrant and with the GDC before the IC resumes its consideration of the allegation. In exceptional circumstances, where it is not possible to do this, the advice in its entirety must be appended to the determination for that case, so that the process is entirely transparent.

Adjourning to add further allegations, including dishonesty and sexual motivation

208. Where the IC considers that a Registrant may have been dishonest, or may have acted in a sexually motivated manner, or that there are other matters which, in the view of the IC, ought to be raised as part of an allegation against the Registrant, the IC may wish to adjourn the case for these issues to be considered by the Registrar.

Adjourning for lack of time, where the IC meeting is inquorate, or whether further information is awaited

209. On occasion, the IC may need to adjourn for lack of time, or because, following the withdrawal of a member (owing to a conflict of interest, or for any other reason) it is no longer quorate to consider an allegation. In addition, there may be occasions where, after the IC meeting has commenced, the IC is informed by the Committee Secretary that further information will shortly be available, and again, the IC will need to consider whether to use its discretion to adjourn in order to await that information.

Following an adjournment

210. When the IC resume consideration of an allegation following an adjournment for the Registrar to carry out a specific enquiry, it may60:

(a) adjourn to direct the Registrar to carry out (further) specified enquiries;

(b) refer the allegation to a Practice Committee;

(c) decide that an allegation ought not to be considered by a Practice Committee and close the case with no further action;

(d) determine that an allegation ought not to be considered by a Practice Committee but that an advice or warning (published or unpublished) should be issued.

60 See Rule 9 of the Rules, which provides that when the IC resumes consideration of an allegation after an adjournment under rule 7(1)(a), it shall deal with the matter in accordance with rule 7.


Other Reasons for an Adjournment

211. The IC may adjourn consideration of the case when it considers it fair and reasonable to do so.

212. One example where the IC may consider whether to adjourn is in connection with the late submission of papers, material, representations or observations. Strict deadlines are imposed on the Registrant and informant (if any) for the submission of any representations or observations. If these are not supplied within the timeframe set the matter may be removed from the IC’s agenda prior to the meeting.

213. If it is considered inappropriate for the matter to be removed without the input of the IC itself (including where the IC has commenced its meeting), the Committee Secretary will bring the matter to the attention of the IC, and it will be for the IC to consider whether it wishes, bearing in mind the principles of fairness and proportionality, to:

• consider the late material;

• adjourn consideration of the case to enable the late representations or observations to be reviewed properly at a subsequent IC;

• refuse to accept the late material.

• If the IC is inclined to refuse the late material, it should consider carefully whether, in the particular circumstances of the case, it is fair (to the Registrant, the Council and the wider public interest) for it to do so or whether there is a risk of the IC reaching an inappropriate decision.

214. The Council, Registrant or informant may apply to adjourn consideration of the case. Such an application must give reasons. If an adjournment is referred to the IC for consideration members should consider whether:

• it is fair and reasonable for the application to be granted;

• the application should be refused – for example, where an application is for additional time to supply representations or documents, but the IC consider that the party has had ample time to prepare the material.

215. In refusing an application the Committee must balance fairness to all parties and recognise the risk of it reaching an inappropriate decision without the benefit of the missing material or representations.

216. When the IC adjourns a matter, it should give reasons to explain its decision and should provide, if appropriate (and taking into account any guidance as to timescales offered by the casework team), a timeframe in which it considers the matter should be relisted before another


IC along with any other appropriate directions. This helps to promote the effective and efficient management of fitness to practise processes.

Interim Orders

217. The Interim Orders Committee (“the IOC”) has the power to impose an interim order which either suspends a Registrant’s registration, or imposes conditions upon the Registrant’s registration, for a period of up to 18 months.

218. If the IOC decides that an order is appropriate, it should consider the issue of proportionality and should impose the minimum restriction on the registrant’s registration that is necessary. The IOC should therefore first consider whether to impose interim conditions of practice on the registrant’s registration.

219. Conditions can only be appropriate when there is reasonable confidence of the registrant’s capacity to comply with them. If circumstances prevent the registrant from complying with possible interim conditions, or they would otherwise be insufficient to protect the public, the public interest or the interests of the registrant, then interim suspension should be chosen.

220. The IOC is required to review an interim order at least every six months and may in certain circumstances (including where new evidence becomes available) be asked to review an order earlier61.

221. If it wishes to extend the interim order beyond the period initially set by the IOC, the Council may apply to the High Court (in England and Wales) or the Court of Session (in Scotland) for the order to be extended.

222. The IC may refer an allegation to an IOC if it considers it appropriate to do so62. Consideration of whether it is appropriate to refer a matter to the IOC is triggered:

• when the IC is referring a matter to a Practice Committee;

• since 13 April 2016, when the IC is adjourning63 a matter;

• since 13 April 2016, when the IC is maintaining a referral on a “Rule 10 Review” case64; and

• since 13 April 2016, otherwise at any time between the referral of a case to a Practice Committee and the hearing of that case commencing65.

61 See sections 32/36V of the Act 62 It is also open to the Registrar to refer a matter to the Interim Orders Committee 63 See sections 27A(4A), 27A(6A), 36O(4A) and 36O(6A) of the Act. NB the Act and Rules are silent as to the threshold

test and as per Perry v Nursing and Midwifery Council [2013] EWCA Civ 145 the IOC may make an order where a decision has not yet been made that there is a case to answer

64 See sections 27A(8A) and 36O(8A) of the Act 65 in accordance with section 27A(4A)/(6A) and section 36O(4A)/(6A) of the Act and section 27A(6B)/36O(6B) of the Act


223. However, the IC does not have the ability to refer an allegation or allegations to the IOC where they have determined that the allegation or allegations ought to be considered by a Practice Committee and the hearing before a Practice Committee has commenced (or, where there is not to be a hearing, the Practice Committee have begun to consider written statements or representations).

224. Before deciding whether to refer a matter to the IOC, the IC should:

• be mindful of whether an interim order is already in place and, if so, the nature of that order;

• take into account whether the IOC has previously considered the matter following a referral from the Registrar but declined to impose any interim order. If so the IC should carefully consider whether there is any new information amounting to a change of circumstance which was not available to the IOC; if not, it would be highly unusual for the allegation to be referred through to the IOC for a second time;

• bear in mind that IOC can only impose an interim order when it is satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the Registrant. 66

225. The test for the IC to refer a case to the IOC is simply whether it considers it appropriate to do so in all the circumstances. However, in considering whether it is appropriate to refer a case the IC should bear in mind that, as set out below, that the IOC will apply a different test.

Public protection

226. For example, before the IOC can impose an order on the basis that it is necessary for the protection of the public, it must be satisfied on the information before it that there is a real risk of significant harm (actual or potential) to the health, safety or well-being of a patient, visitor, colleague or other member of the public if the practitioner is allowed to practise without restriction. In assessing the risk to members of the public, the IOC will consider the seriousness of the matter, and the cogency and weight of the evidence, including evidence about the likelihood of recurrence while the matter is investigated.

227. As such, when considering whether to refer a matter to the IOC, the IC should take into account the seriousness of the risk of harm (actual or potential) if the registrant were to continue to hold unrestricted registration.

228. In those circumstances, delay may be fatal to the application, and the longer the regulator takes to apply for an interim order without good reason, the less likely it is that an order based on public protection will be made by the IOC67. The IOC will also consider the current risk posed by the registrant, and, bearing in mind the principle of proportionality, will balance the

66 See section 32(4) of the Act 67 Bradshaw v General Social Care Council [2010] UKFTT3 (HESC)


need to protect the public against the needs of the registrant, considering the impact of the order on the registrant both professionally and financially68.

Public interest

229. The IOC may also impose an order where it is otherwise in the public interest to do so i.e. in order to maintain public confidence in the profession and to declare and uphold proper professional standards. However, it will be a relatively rare case where an order is made solely in the public interest and the standard is a high one53F69.

230. In deciding whether to impose an interim order, the IOC will consider whether serious damage will be caused to public confidence in the profession and the maintenance of good standards if an order is not imposed, and whether an informed member of the public looking on would be surprised if the IOC did not make an order in respect of a matter that was later found proved.

231. Although the word “necessary” is not used for this ground, it does at least carry some implication of necessity and desirability, because the imposition of any order must be proportionate.

232. Again, the IOC must balance the need to protect the wider public interest against the Registrant’s own interests, including the impact of any order on the Registrant both professionally and financially70. The IOC will take the minimum necessary and appropriate steps to address the concerns identified.

233. In cases where there are criminal proceedings, the IOC will consider the seriousness of any police charges as well as the acceptability of a decision either to make or not make an order, should the Registrant later be convicted or acquitted (including the requirement to maintain public confidence in the profession).

Registrant’s own interests

234. This ground may apply where the Registrant is ill and does not recognise it, or if there are other factors suggesting lack of insight where the Registrant needs to be protected from him or herself. The IOC will look at the risk of harm in the future if there is no restriction on registration.

Power to make a referral to the IOC after the IC has considered a matter, but prior to the commencement of a Practice Committee hearing

235. Since 13 April 2016, the Act has allowed the IC to make an IOC referral at any time after their consideration of the matter, until the Practice Committee hearing has commenced.

68 Houshian v General Medical Council [2012] EWHC 3458 69 Sheikh v General Dental Council [2007] EWHC 2972 (Admin)

70 Houshian v General Medical Council, supra


236. In practice, the Council (i.e. the GDC’s in-house prosecutions team or external solicitors) will provide the IC with the relevant information and will ask the IC to consider whether to make an IOC referral based on that information.

237. It should however be noted that, in contrast to the provisions for notification of the registrant and informant and the opportunity for them to provide observations when the IC initially considers an allegation or allegations, there is no such similar provision in the Act or Rules allowing the registrant or informant opportunity to comment in advance of a potential IOC referral at this stage of the proceedings.

238. In such circumstances, if a decision is made to refer the case to the IOC, the IC must explain carefully how that decision was reached, including identifying the basis (or bases) upon which referral is considered appropriate, so that the registrant can fully understand the reasons for their decision.

Revocation

239. If the Committee determines that a case should be closed, it should revoke, with immediate effect, any interim order that has been imposed on the Registrant in respect of the allegation or allegations that have not been referred to a Practice Committee.71

240. A difficulty arises where the Registrant has an interim order in place owing to a number of different issues, some of which may still be under investigation or waiting for ventilation at a Practice Committee. In those circumstances the IC should indicate in its decision that the interim order in place remains in effect in relation to any outstanding matter but not in relation to the matter that has been closed.

241. It is then a matter for either party to consider whether it wishes to make representations that new evidence relevant to the making of the order has become available such that an early review of the interim order is appropriate.

Rule 10 Review72

242. As identified above, the IC has discretion to review a previous decision to refer an allegation to a particular Practice Committee73. This is known as a ‘Rule 10 Review’ and may be triggered by an application by the Council, the Registrar, the Registrant who is the subject of the allegation or the informant, provided the review is prior to consideration of the case by a Practice Committee74.

71 See sections 27A(10) and 36O(10) of the Act 72 See also Rule 10 Guidance for the Investigating Committee 73 See sections 27A(8) and 36O(8) of the Act and Rule 10 of the Rules 74 See sections 27A(8)(b) and 36O(8)(b) of the Act


243. The party which requests the review must provide written representations in support of the application. The other interested parties should be given a reasonable opportunity to submit written representations in response75.

244. In addition, where76 a Practice Committee considers that any allegation should not have been referred to it by the IC under section 27A of the Act, it may refer that allegation back to the IC. Rule 10 does not apply to such referrals back, although the reason for the application, and the issues to be considered by the IC, are likely to be similar

245. On review, it is open to the IC to maintain its referral to the particular Practice Committee, to revise its decision and refer the matter to a different Practice Committee, to issue a warning or advice letter77, or to close the matter with no further action. The IC’s discretion is not fettered by any submission or expert or legal advice contained in the Rule 10 letter. However, it should provide full reasons for its decision especially if the parties are agreed and its decision is contrary to the submission or advice provided.

246. If the IC determines that the original reference to a Practice Committee should be revised and a case closed following a Rule 10 Review it should revoke, with immediate effect, any interim order that has been imposed on the Registrant bearing in mind the circumstances whereby a Registrant may be subject to an interim order for multiple reasons/cases.

75 See Rule 10 of the Rules 76 pursuant to section 27B(4) or section 36P(4) of the Act 77 See the effect of sections 27A(8) and 27A(9) and 36O(8) and 36O(9)


Part 6 – IC Reasons

This part details principles that an IC should apply in providing reasons for the decision or decisions it has reached.

Notification of Decision

247. The Rules require the Registrar to serve the Registrant and the informant with a notice setting out the IC’s determination as to whether an allegation ought to be referred to a Practice Committee.78 There are no other provisions relating to the nature of the notice of decision sent to the interested parties. In practice, the notice takes the form of a letter prepared by the caseworker using the reasons given by the IC.

248. Other than where an IC has directed that a published warning should be issued, the decisions of an IC are not made public. However, there may be rare occasions when the fact that a matter has been before the IC becomes public knowledge. Should this be the case, the Council will consider what information about the IC’s activities can be properly disclosed in order to maintain public confidence in its regulatory activities, in accordance with the Council’s disclosure policy.

Reasons

249. The statutory framework governing the IC does not require the Committee to provide reasons for its decision. However, taking into account the issues below, it is best practice for the IC to do so. Specifically:

• the courts have held that fairness requires the giving of reasons;

• it underlines the openness and transparency of the GDC’s fitness to practise processes, to the extent possible within a private meeting;

• it assists the Registrant and informant (and the Registrar) understand why the IC has reached the decision;

• it allows those entitled to bring a claim for judicial review to assess whether to accept the decision or whether there are any grounds by which the Committee’s decision should be challenged;

• it provides the GDC with the basis on which the Committee’s decision can be defended if a claim for judicial review is threatened or mounted – with some minor exceptions the courts expect, “bodies such as the [IC] to “stand or fall by the terms in which those decisions were notified through the reasoned notification document”79 and it will only be in

78 See section 27A(7) and 36O(7) of the Act 79 As per Lord Justice Jonathan Parker, R (on the application of Holmes) v General Medical Council [2002] EWCA Civ 1838


exceptional circumstances that additional evidence will be admitted to elaborate or expand upon the decision and reasons contained in the letter of notification.

250. Clear and adequate reasons should be given for every decision the IC makes, including decisions to adjourn, direct that further enquiries are undertaken, issue advice or a warning letter, take no further action, or refer to the IOC and/or a Practice Committee.

251. Giving clear reasons does not mean that lengthy, elaborate or complex explanations or decision documents are required. A Committee does not have to identify each individual piece of information taken into account.

252. The IC should aim to provide reasons that are adequate and sufficient to allow readers to understand in broad terms why a particular decision has been reached. However, they must be appropriate in the circumstances of the case and leave the reader with a clear understanding of:

• the decision made;

• why the decision was made; and

• how the decision was reached.

253. The reasons should:

• demonstrate that the Committee considered only issues appropriate to its powers and reached a decision that it was entitled to make;

• show that the IC did not make a final decision about whether the facts alleged were established or whether the Registrant’s fitness to practise was impaired;

• show that where the Committee preferred evidence or an account it identifies why and how it reached its conclusion;

• show that where the Committee has reached a view on the facts it identifies why and how it reached its conclusion;

• show that the Committee applied the appropriate legal tests;

• avoid what the courts describe as ‘incantations’ - in other words, the reasons should be specific to the individual case. It is acceptable to apply a formulaic approach to drafting so long as the reasons themselves are specific and accurately reflect the individual circumstances of the case;

• be clear and demonstrate logic and reasoning;


• be intelligible and adequate;

• not usually be elaborate or lengthy – a succinct explanation of the basis for the decision will generally suffice;

• be expressed in greater detail where an IC has got “its sleeves rolled up”80 and engaged in an in depth review of the evidence as part of assessing whether the allegation had a real prospect of being established before a Practice Committee. The Courts have held that it may well be appropriate to subject such reasoning to more careful scrutiny; and

• explain, where relevant, why the IC has departed from the Indicative Outcomes Guidance (or other guidance document).

254. The Committee Secretary can ask the IC during the meeting to clarify what it is proposing, and may also ask the IC to give evidence based reasoning (with references to the case bundle where appropriate) and for detailed clinical reasoning which he or she can understand and which is accessible to the relevant audiences.

255. Further, if the Committee Secretary perceives that an IC is about to make a decision which, absent proper reasons, might appear to be inconsistent or perverse, the Committee Secretary may prompt the IC to give clear reasons to explain in broad terms why that decision has been reached.

256. Where it is helpful for the IC to remind itself of what the Indicative Outcomes Guidance (or other guidance document) says, it should do so, but there must be no pressure on the IC to decide a case within the parameters of the guidance.

257. The Committee Secretary will then draft the determination for correction and approval by the IC. Secretaries may if they wish use the GDC’s precedent bank to assist in preparing the determination, but should ensure that the text they prepare is not formulaic and reflects the IC’s decision in the individual case.

258. Each member of the IC should then check the determination for each case, line by line, to ensure that the reasons given properly reflect the decision reached by the IC.

259. The determination is that of the IC. This means that what the IC decides by way of wording should therefore prevail, and the voice of the IC should be audible in the determination. Whatever wording is decided upon, it should be clear and concise and care should be taken to ensure that reasons are written in plain English and are grammatically correct.

260. A summary list of the outcomes of each case considered at the meeting of the IC will also be drawn up by the Committee Secretary at the end of each IC meeting. This outcome document will be checked by the Chair and the Committee members to ensure it is accurate. Decisions

80 See comments of Mr Justice Sullivan at para 74, R (on the application of Richards) v General Medical Council [2001] Lloyd’s Rep. Med. 47


should not be shared prior to the publication of the outcome by the Committee Secretary to the Fitness to Practise Team following the conclusion of the IC meeting. This will avoid any suggestion that a party has been able to interfere or influence the IC’s independent decision.

261. The Committee as a whole will see and approve the substantive reasons for each decision during the meeting.

262. Where the decision of the Committee is not to refer a case to a Practice Committee but instead to dispose of the matter by way of a published warning, or, on occasion, where the Committee is considering an urgent Rule 10 case, the determination will be finalised during the meeting and published in the form agreed at the meeting without further amendment.

263. However, in all other cases, on the next working day after the meeting (and simply because of the pressure of work on the day of the meeting), the Committee Secretary, if available (or other member of the Secretariat if not) will proof read the IC’s determinations and will correct any inaccuracies, typographical errors, grammar, unnecessary repetition or genuine mistakes, marking them up as track changes.

264. The amended determinations will then be sent to the Chair. The Chair will check and, if appropriate, approve the track changed amendments made by the Committee Secretary, and may also proof read the determinations, correcting any inaccuracies, typographical errors, grammar, unnecessary repetition or genuine mistakes (again, marking these as track changes) before returning the determinations to the Committee Secretary before the end of the next working day .

265. If the Committee Secretary is of the view that the corrections suggested by the Chair may be going beyond the permitted categories of correction, the Committee Secretary may ask the Chair to confirm that he/she is satisfied that the suggested corrections fall within the permitted categories. At the Chair’s discretion, he/she may, in response to such an enquiry or in any event prior to returning the determinations to the Committee Secretary, circulate his/her Members with any such proposed corrections in order to obtain their approval. The Chair’s decision on what post IC-meeting corrections are to be made, as communicated to the Committee Secretary will be final.

266. The Committee Secretary will, on receipt of the determinations from the Chair arrange for them, as marked up, to be sent to the members of the IC for their information, and for the final versions to be uploaded to the GDC’s systems, ready for notification to the parties in accordance with the GDC’s statutory scheme.

267. No changes which go beyond the correction of inaccuracies, typographical errors, grammar, unnecessary repetition or genuine mistakes should be made or proposed after the conclusion of the IC meeting, by the Chair, or by the Committee Secretary, save as set out below.


268. Should the IC wish to re-consider a case after its meeting has concluded the IC should contact the Secretariat, which may arrange for the meeting to be re-convened81. In addition, where, in exceptional circumstances, there is some substantial reason why any determination should be amended in style or in substance (including, for example, where the IC’s decision appears to be unlawful) the Director of Fitness to Practise (or nominated deputy) may arrange for the IC to reconvene in order to consider the issues.

269. In either case, the IC meeting may only be reconvened where it is lawful to do so, bearing in mind the stage the proceedings have reached.

270. As set out above, the IC’s consideration of an allegation referred to it should take place only in the presence of the Registrar (or his/her representative, i.e. the Committee Secretary). In practice, this means that the IC should not, after the meeting has concluded, re-consider the substance, detail or outcome of any cases, in the absence of the Committee Secretary

81 The Courts have outlined that a valid meeting normally consists of people who can both see and hear each other: Byng v London Life Association [1989] 2 WLR 738. This would mean that an IC meeting could be re-convened using technology such as video-conferencing or internet meeting software


Part 7 – Miscellaneous Matters

This section contains a number of miscellaneous issues which may impact on an IC’s decision making or run parallel to the work of the IC.

Voluntary Removal

271. A Registrant can apply for voluntary removal from the register. Where a Registrant who makes such an application is in fitness to practise proceedings, one of the factors which the Registrar will consider when deciding whether to grant the application is whether it is in the public interest for the Registrant to remain registered, thus allowing the fitness to practise proceedings to continue. The Registrar receives guidance on the factors that should be considered in determining whether the application for voluntary removal should be granted.

272. The IC is not involved in the decision as to whether a Registrant should be granted voluntary removal from the register. If the IC becomes aware that a Registrant has applied or may apply for voluntary removal, it should disregard this information, and not allow it to affect its decision as to whether a matter ought or ought not to be referred to a Practice Committee or a reference maintained on a Rule 10 Review.

273. The IC will be notified if a case is removed from the agenda due to a successful application for voluntary removal.

Equality and diversity

274. The IC should be aware of and apply the law and the Council’s policies on equality and diversity.

Useful reading

275. The following documents may provide further information and useful reading should members wish to undertake further research:

• Dentists Act 1984

• General Dental Council (Fitness to Practise) Rules Order of Council 2006

• General Dental Council (Fitness to Practise) Rules Order of Council 2009

• Seven Standards of Public Life

• Standards for Dental Professionals/Standards for the Dental Team

• Fitness to Practise Guidance for the following committees:


(i) Interim Orders Committee

(ii) Health Committee

(iii) Professional Performance Committee

(iv) Professional Conduct Committee

• Council for Healthcare Regulatory Excellence/Professional Standards Authority reports

276. Guidance documents for the committees listed above are available on the GDC website – www.gdc-uk.org together with other relevant information, including the following:

• The General Dental Council’s Fitness to Practise Procedures;

• Guidance for Handling Fitness to Practise Cases at Preliminary Meetings; and

• The relationship between the Dental Complaints Service (DCS) and Fitness to Practise (FTP processes)

277. For further information regarding this document, the Investigating Committee or to provide any suggestions or comments for future versions please contact the Investigating Committee Team at [email protected].

http://www.gdc-uk.org/

mailto:[email protected]

Documents

Investigating Committee Guidance Manual July 2016 Guidance Manual - July 2016.pdf · Investigating Committee Guidance Manual . July 2016 . 2 ... IC may issue advice to any other person