Regulation, litigation and NHS dentistry
Apparently, dentists should “not feel constrained by the threat of sanctions from regulatory bodies” – if only life was that simple!
In 1956, the General Dental Council (GDC) was introduced as the regulator of dentistry. The GDC comprised a body of dentists voted in by their peers, responsible for overseeing the training of dental students at dental schools and for regulating the profession. In order to practise, dentists had to pay the GDC an annual registration fee.
The GDC had the authority to suspend or erase dentists from the register – for example, for inadequate standards of work or dishonesty. Dentists were judged by the standards practised by their peers.
However, if a treatment had failed in spite of the dentist’s best efforts with current techniques and materials, the dentist would be deemed not at fault. Significantly, dentists brought before the GDC had their cases examined by a panel of dentists who, being experienced members of the profession, readily understood the issues and were able to make informed judgements.
It’s my opinion that the GDC had little dental experience and expertise
In 2009, under Gordon Brown’s Labour government, the dentist-led GDC was dissolved. It was replaced by a new GDC headed by a council of 12 lay and 12 dentist members, which was reduced to six lay and six professional in 2013. The last dentally qualified and elected Chair of the GDC, Kevin O’Brien, was replaced by an appointed lay Chair, Bill Moyes, in 2013. Thus, the new GDC was born.
Mr Moyes is a professional bureaucrat who, interestingly, was Executive Chairman of Monitor,
the regulator of NHS Foundation Trusts at the time of the Mid Staffordshire Foundation Trust scandal where, at Stafford Hospital, an estimated 400 to 1,200 patients died of poor care between 2005 and 2009.
Coincidentally, Cynthia Bower was the chief executive for NHS West Midlands strategic health authority at this time. It was Ms Bower who failed to act in response to the alarmingly high death rates1. In spite of this disastrous failure. Ms Bower was subsequently appointed Chief Executive of the Care Quality Commission (CQC) in 2009. Along with the GDC, the CQC was also given the remit to regulate dental practices.
Why two separate regulatory bodies?
A cynic might reply: “Jobs for the boys”, but the official stance was that the GDC would regulate the dental team and the CQC would regulate the dental practices. Each dental practice now had to pay an annual CQC registration fee.
CQC inspectors, all lay people with no dental or medical qualifications, were dispatched to carry out routine dental practice inspections. They checked numerous items on tick box sheets, which practices were obliged to complete following internal tests and monitoring – for example, autoclave performance records, surgery benchtop residual protein tests, data protection and vulnerable patient protection protocols.
This meant a considerable increase in administration and cost for dental practices. It particularly affected NHS practices as their fixed income from the UDA system made it impossible to pass costs on.
The new GDC introduced compulsory registration for nurses, hygienists, therapists and laboratory technicians. This resulted in a substantial addition to the GDC’s income from annual registration fees. It also brought these professionals under the regulatory jurisdiction of the GDC.
Like dentists, they now had to complete a minimum quantity of continuing professional development (CPD), which consisted of attending courses or the study of topics relevant to dentistry. The cost of annual registration fees rose sharply – in 2021, this was £680 p.a. for dentists and £114 p.a. for nurses, hygienists, therapists and technicians.
In comparison, doctors paid £408 p.a. for their full registration fee. At least the dentist’s fee had been reduced from the £890 p.a. payable between 2015 and 2019.
The GDC is funded only by its registrants. The registrants have no vote or power over the GDC and the GDC appears answerable to no one, although it has received criticism from the Professional Standards Authority (PSA). The PSA is accountable to the UK Parliament. All members of the dental team (except receptionists) must pay their registration in order to work legally. Whatever happened to no taxation without representation?
Before the introduction of the new GDC in 2009, the burden of bureaucracy for dentists was relatively light and, aside from their professional duties, was similar to most other self-employed people. The new GDC requirements, with additional regulation from the CQC, vastly expanded the administration dental practices were mandated to undertake.
Many practices appointed practice managers to cope with the torrent of paperwork. Dentally qualified consultants well versed in the requirements of the new system were called upon to help practices comply with the numerous new regulations.
Much of this work boiled down to recording daily activities, such as autoclave cycles and surgery clean-down procedures. Where professionalism and responsibility were sufficient previously, the new regulatory order demanded that only an extravaganza of box-ticking was sufficient to ensure patient safety.
Why all this extra bureaucracy?
It’s my opinion that the GDC had little dental experience and expertise and the CQC had none at all, which led to a situation where the regulators felt they could only fulfil their roles by ensuring there was a rule for every situation.
They themselves did not possess the knowledge to decide if a dentist or other member of the dental team was acting reasonably and professionally, and so were obliged to fall back on micromanagement of the minutiae.
Naturally, this comes at a cost. The extra cost of registration fees and implementing compliance and administration has to be met. Private practices, like all other businesses, pass these costs on to the patients. The NHS contract does not allow for this. Yet another reason why so many dentists are leaving the NHS.
The new GDC soon made a name for itself for its dysfunctional style of regulation. Its ‘Fitness to Practise’ procedure, where dentists or other members of the team who were alleged to have transgressed were summoned to the GDC in London, became feared for its gruelling and unnecessarily protracted nature.
A dentist could be suspended from practice pending a decision, resulting from a process of ‘investigation’ that could drag on for months or even years. When investigating a registrant, the GDC would look not only into the matter at hand but trawl the patient notes for any other infractions it could find, turning a single issue into a witch hunt.
The 2019/2020 PSA review of GDC performance continued to have concerns regarding the time taken to conclude its fitness to practise procedures.
The GDC encouraged anonymous whistleblowing (reporting colleagues for breaches of professional conduct or regulations). This is good in theory but led to a rise in vexatious reporting (groundless accusations maliciously intended to cause trouble).
The PSA was critical of the GDC’s handling of a whistle-blower report from within the GDC itself. Ironically, the GDC whistleblower reported concerns relating to the GDC’s Investigating Committee and the GDC’s whistleblowing policy. The PSA expressed serious concerns with the operation of the Investigating Committee and said of whistleblowing “that often the GDC’s response was muddled and ill thought-out2.
In 2014, the GDC placed full-page advertisements in Saga Magazine, The Guardian’s ‘Health Matters’ supplement and The Telegraph Magazine, which stated: “Not completely happy with your private dental care? Don’t keep quiet about it.”
These advertisements encouraged patients to complain directly to the GDC. The dental profession found this confrontational and provocative, not least because the GDC were encouraging patients to bypass a practice’s own complaints handling procedure mandated by the GDC itself.
Also, the wording “Not completely happy” encouraged spurious complaints (e.g. “I was kept waiting at reception,” or “My dentist was running late”). In an online forum for dentists (GDPUK) where this was discussed, many participants wondered if this was an attempt by the GDC to generate more complaints in order to justify their having just raised the registration fee from £576 to £890 p.a.
A freedom of information request to the GDC made by dentist Alastair MacDonald revealed that the GDC had spent £27,715 of registrants’ money on the three advertisements.
In 2016, the GDC was suspicious that a dental technician was working outside his scope of practice and hired two private investigators to pose as relatives of ‘Evelyn’, a fictitious housebound elderly lady. The investigators set up a trap for the technician, asking him to visit Evelyn to make her a new set of dentures, overlooking the requirement for the dentures to be prescribed by a dentist.
The technician doing this would be acting outside his scope of practice, which would be punishable by the GDC. The investigators claimed that the technician had agreed to make dentures for Evelyn. The GDC sought an order of suspension on the basis of his alleged misleading and dishonest conduct.
To cut a long story short, the technician was exonerated and awarded undisclosed damages against the GDC. It subsequently admitted it had acted unlawfully by using entrapment
As Mick Armstrong, Chair of the British Dental Association (BDA), said: “These sorts of Stasi tactics are not a good look for a professional regulator that lists its values as fairness, transparency, responsiveness and respect.”
The BDA reported that the GDC had spent £59,258.85 on investigators between 2013 and 2019, expressing disbelief that registrants’ fees had been used not only to fund the entrapment but to cover the resulting legal costs as well.
No win, no fee
Another challenge to the practise of dentistry was introduced when Tony Blair’s Labour government passed the Access to Justice Act, which came into force in 2000, laying the foundations for litigation on a no win, no fee basis.
This led to a dramatic increase in litigation. Before no win, no fee, the client would be responsible for the lawyer’s fee, whether or not the case was successful. Now, a lawyer could accept a case they thought was winnable and take a share of what the court awarded as payment.
The Dental Law Partnership
In 2000, a group of dentists took fast-track law degrees and formed The Dental Law Partnership. This new law firm specialised in taking on cases of alleged dental negligence.
They have been so successful that many dentists consider them to be the main contributor to the meteoric rise in the cost of professional indemnity, which all dentists, nurses, hygienists, therapists and technicians are obliged to hold.
But isn’t it simply that more dodgy dentists are getting caught? While there are certainly patients who deserve reparation for poor or inappropriate dental treatment, the introduction of no win, no fee litigation has meant that dentists have become easy prey to vexatious and unjust claims.
Complaints and claims
Once a claim is made, it is usually down to the dentist’s patient records whether or not the claim can be defended successfully. The pressure to keep detailed patient records is enormous and can occupy a disproportionate amount of time.
This is one example of the rise of ‘defensive dentistry’, which has had the effect of shifting the focus from doing the best for the patient to making copious notes and providing treatment that is least likely to result in a patient complaint.
It often means a dumbing down of the dental treatment provided. For example, instead of pushing the limits of the dentist’s skills and materials to restore a broken-down tooth, the dentist may declare the tooth unrestorable and only offer an extraction. Attempting a difficult restoration opens the dentist up to complaint and litigation should the restoration fail. Taking the tooth out avoids this scenario.
The toxic trinity
The combination of dysfunctional regulation, a meteoric rise in litigation and conditions in NHS dentistry have formed a toxic trinity with widespread and negative impact on the dental profession.
In order to understand why NHS dentistry is performing so badly both for patients and for dentists, it is helpful to understand how these three factors contribute. The GDC is generally feared, mistrusted and regarded as hostile by the profession. A dentist will go out of their way to avoid getting hauled up before a Fitness to Practise committee as this is costly, highly stressful and may result in removal from the Dental Register and subsequent loss of their livelihood.
No win, no fee law firms are a constant threat and pursue litigation on the basis that they can win, never mind if the dentist is blameless. The NHS UDA system exposes dentists to providing unlimited treatment for a small, fixed fee and the perverse incentives of both overtreatment and supervised neglect.
Its treatment bands group together alternative treatments of vastly different complexity and potential for generating a patient complaint. This encourages practitioners to choose the treatment that is less complex, therefore less likely to lead to complaints.
‘Defensive dentistry’ has led to an emphasis on detailed patient notes as a defence against possible litigation. It has also encouraged dentists to refer cases of any complexity to NHS dental hospitals or private specialists where there is a risk of problems that could lead to litigation or to being reported to the GDC.
A dentist friend pointed out that it is not just a toxic trinity; it is a toxic quartet that includes the escalating costs of running a dental practice since Brexit and COVID 19. These have been brought about by a reduction in the workforce and increases in the costs of staff, materials and energy. NHS practices are poorly equipped to adapt to rapidly rising costs as their income is essentially fixed.
Robert Caplin argues3 that the nature of dentistry is such that the rigid guidelines, authoritative guidance and expert opinion as handed down by the regulatory bodies is of questionable value and should not be regarded by dental practitioners as the ‘rule’. Instead, Caplin recommends that dentists should “exercise their clinical judgement, putting the interests of patients first and not feel constrained by the threat of sanctions from the GDC or other regulatory bodies.”
If only life was that simple!
- Cynthia Bower never escaped the shadow of the Stafford hospital scandal – The Guardian
- A report on the investigation into the General Dental Council’s handling of a whistleblower’s disclosure about the Investigating Committee – professionalstandards.org (PDF download, 2.2mb)
- Dentistry – art or science? Has the clinical freedom of the dental professional been undermined by guidelines, authoritative guidance and expert opinion? – Robert L Caplin, PubMed, US National Library of Medicine.
- Extracted from I Hate the Dentist! (But I Hate Toothache More) – A Patient’s Guide to Dental Care and Dentistry in the UK by Dr Tim Coates. Published by Troubador Publishing. ISBN: 9781805140061.
Editor’s note: While the majority of what the author writes in this extract is relevant to practitioners in Scotland, some specifics – such as to do with contracts and inspection – apply only to England and Wales.