HEARING HEARD IN PUBLIC

Transcription

1 HEARING HEARD IN PUBLIC KERR, Jamie Raymond Registration No: PROFESSIONAL PERFORMANCE COMMITTEE NOVEMBER 2016 MAY 2018* Most recent outcome: Suspension extended for 12 months; case referred to the PCC under Rules 26 and 33. *See page 25 for the latest determination Jamie Raymond KERR, a dentist, BDS Lond 2008, was summoned to appear before the Professional Performance Committee on 7 November 2016 for an inquiry into the following charge: Charge (as amended on 9 November 2016) That, being a registered dentist: 1. Between January 2010 and February 2014 you were in general dental practice and the principal dentist at Broadwater Gentle Dental in Worthing, Sussex. 2. You provided care and treatment under private contract to the patients identified in Schedule A 1. Patient 1 3. On or before 13 January 2014 you failed to diagnose and/or adequately treat caries at: (c) Patient 2 LL8; LL7; UR5. 4. In 2011 or 2012 you provided linked crowns at UL4 and UL5 which were inappropriate in that: (c) (d) (e) the post at UL5 was of poor design; there was a periapical radiolucency at UL5; there was little coronal tooth remaining at UL5; the linked crowns provided an unhygienic restoration; a more appropriate course of treatment was available, namely, extraction of the UL5 followed by a conventional bridge. 5. In early 2013 you provided linked crowns at LR6 and LR7 which were inappropriate in that: 1 Schedule A is a private document and cannot be disclosed. KERR, J R Professional Performance Committee November 2016 May 2018 Page -1/29-

2 the LR6 was unrestorable as it had: 1. divided roots due to extensive caries; 2. extensive bone loss surrounding the roots due to infection; the LR6 had an untreated infection requiring extraction. 6. Prior to the end of 2013, you provided substandard root canal treatment at LL7 in that: the filling was poorly condensed in the distal root; there was radiographic evidence of residual infection. 7. On or before the end of 2013, you failed to diagnose and/or treat caries at: Patient 3 UR5; LL6. 8. In 2013 you provided substandard root canal treatment at UR5 in that you failed to fill the palatal root canal. Patient 4 9. On or before 5 November 2013 you failed to diagnose and/or adequately treat caries at: (c) Patient 5 UR8; LR8; As amended - LL7 10. On dates between 2010 and 2013, you failed to remove all of the amalgam prior to the provision of a composite restoration at: UR7; UL Prior to November or December 2013 you failed to diagnose and/or adequately treat caries at: Patient 6 UL7; UL In 2012 you provided substandard root canal treatment to LL7 in that you omitted to fill the distal root canal. 13. In 2012 you provided root canal treatment to LL6: when it was inappropriate to do so given the extensive loss of coronal tissue; which was substandard in that: 1. the access cavity was over prepared, KERR, J R Professional Performance Committee November 2016 May 2018 Page -2/29-

3 2. As amended - there was a perforation flaw of the pulp chamber. 14. On or before 20 January 2014 you failed to diagnose and/or adequately treat caries at: (c) Patient 7 LL7; LL6; LL In about June 2012 you provided substandard crown and root canal treatment to UR6 in that: (c) Patient 8 you omitted to fill the mesio-buccal and disto-buccal root canals; the filling in the palatal canal was short of the apex; there were defective crown margins, mesially and distally. 16. In 2013 you provided substandard root canal treatment to LR6 in that: (c) Patient 9 you omitted to fill the distal root canal; you made an extensive access cavity; you did not treat mesial decay. 17. In 2012 or 2013 you provided substandard crown and root canal treatment to LR6 in that: (c) (d) (e) the filling in the distal and mesial canals stopped short of the apices; you created an extensive access cavity; you perforated the floor of the pulp chamber; you left excess cement in situ; the crown had a large mesial defect. 18. You provided excessive adjustment to the opposing tooth UR6. Patient On or before 10 February 2014 you provided a crown at LR7: when it was inappropriate given that the tooth was carious when the crown was fitted; was substandard in that: 1. the margins were poor; 2. excess cement was left in situ. 20. On or before 10 February 2014 you failed to diagnose and/or treat caries at LR6. Patient 11 KERR, J R Professional Performance Committee November 2016 May 2018 Page -3/29-

4 21. In about August 2013 you provided crowns at UR1 and UL1 which were: Patient 12 inappropriate in that there were more conservative options available such as composite and/or porcelain veneers; were substandard in that: 1. they were wide in proportion to their length; 2. they were excessively white; 3. excess cement was left in situ. 22. On or before January 2013 you failed to diagnose and/or treat caries at: (c) (d) LL6; UL5; UL4; LR As amended - In 2012/13 you provided a crown to the LL6 when it was inappropriate to do so given that the tooth was unrestorable as the LL6: Patient 13 had extensive caries causing a vertical tooth fracture and divided roots; had extensive apical pathology. 24. In about February 2014 you prepared the LR6 for a crown when it was inappropriate to do so given radiological evidence of apical periodontitis. 25. Your preparation of the LR6 was deficient in that the preparation did not extend through the contact area distally. Patient In about May 2013 you failed to remove the retained root of the UL5 prior to the provision of a bridge at UL5. Patient On or before August 2013 you failed you to diagnose and/or treat caries at: (c) (d) (e) Patient 16 UL6; LL7; LR7; LL6; WITHDRAWN 28. Between May and July 2013 you failed to adequately discuss with the patient the treatment options, risks and benefits with regard to the management of UR6. KERR, J R Professional Performance Committee November 2016 May 2018 Page -4/29-

5 29. You failed to let sufficient time lapse for healing and resorption between the extraction on 10 December 2013 of UR6 and bridge preparation on 6 January Patient In May 2013 you provided a linked crown unit at LL6 and LLE which was inappropriate in that it involved a failing deciduous tooth. 31. In or before January 2014 you failed to diagnose and/or treat caries prior to the provision of a crown at LR6. Patient In about February 2013 you failed to remove the retained root of the UL2 prior to the preparation for a bridge at UL3. Patient On about 6 February 2014 you placed a filling at LL6 when it was inappropriate to do so given: Patient 20 extensive caries at LL6; the patient s complaint of pain at LL In about November 2013 you failed to remove an infected retained root fragment at UL2 prior to the provision of a bridge at UL The bridge provided at UL2 was substandard in that: Patient 21 it was of a poor design being a single abutment rather than a fixed-fixed design; had a marginal defect at UL On or before 12 February 2014 you failed to diagnose and/or treat caries at: (c) Patient 22 LR6; UR3; UR On or before October 2013 you failed to diagnose and/or treat caries at: (c) (d) (e) Patient 23 UR6; LL7; LR7; UL6; UR In about February 2014 you provided root canal treatment at LL7 that was substandard in that: KERR, J R Professional Performance Committee November 2016 May 2018 Page -5/29-

6 the root filling at LL7 was short of the apices; the root filling at LL7 was poorly condensed. 39. In about February 2014 you provided linked crowns at LL6 and LL7 when it was inappropriate to do so given that the LL7 was unrestorable due to extensive decay and coronal tooth loss. Patient Between May and June 2013 you caused or allowed the patient to be charged for the provision of: root canal treatment at LL1; a gold post at LL You did not provide: root canal treatment at LL1; a gold post at LL You failed to inform the patient that: root canal treatment at LL1 had not been provided; a gold post at LL1 and not been provided. 43. Your conduct as set out above at 40, 41 and/or 42 was: (c) Patient 25 unprofessional; misleading; dishonest. 44. Between June and July 2011 you failed to adequately discuss with the patient the treatment options, risks and benefits with regard to the replacement of his upper front teeth. 45. In about July 2011 you provided substandard root canal treatment to UL1 and UL2, in that: the root filling at UL1 fell short of the apex; the root filling at UL2 was poorly condensed. 46. On or before 18 September 2013 you failed to diagnose, or failed to inform the patient of a diagnosis of and treatment options in respect of infection at UL1 and/or UL You failed to promptly provide information to the Criminal Injuries Compensation Authority notwithstanding repeated requests: by way of letter dated 15 March 2012; by way of dated 15 October 2012; (c) by way of telephone message left on 7 December 2012; (d) As amended - by way of telephone call and letter on 12 December 2012; KERR, J R Professional Performance Committee November 2016 May 2018 Page -6/29-

7 (e) by way of letter dated 11 February You failed to respond promptly, or at all, to the patient s letter of complaint dated 5 November Patient In 2013 you failed to remove an infected root, or root fragment, at UL3 prior to the provision of linked crowns at UL3 and UL You provided substandard crowns at UL3 and UL4. And that, by reason of the facts alleged, your fitness to practise is impaired by reason of your: 1. Misconduct; and/or 2. Deficient Professional Performance. On 18 November 2017 the hearing adjourned part heard and resumed on the 26 April On 26 April 2017 the Chairman made the following statement regarding the finding of facts: Mr Kerr, The Committee heard the submissions made on behalf of the General Dental Council (GDC) by Miss Barnfather, and those made on your behalf by Ms Alam. The Committee accepted the advice of the Legal Adviser. Admissions Ms Alam, on your behalf, admitted the following heads of charge at the outset of the hearing: 1, 4, 5, 6, 7, 8, 10, 11, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 33, 36, 38, and 50(ii). The Committee deferred making any findings of fact in respect of any of the admitted heads of charge until all the relevant evidence had been adduced by both parties. Amendment to the Charge Ms Barnfather applied to amend heads of charges 9(c), 13(ii), 23, 32, 33 and 47. Ms Barnfather also applied to withdraw head of charge 27(e). Ms Alam did not oppose the changes and the withdrawal sought by Ms Barnfather. The Committee determined that the proposed amendments and the withdrawal did not cause unfairness to either party, nor would they result in any injustice. Accordingly, it granted the proposed amendments pursuant to paragraph 18 of the GDC (Fitness to Practise) Rules Order of Council GDC Application to present evidence by witness statements An application was made by Ms Barnfather on behalf of the General Dental Council (GDC) to read in the witness statements from the wife of Patient 20 and Patient 26. Ms Barnfather explained that although Patient 20 had withdrawn his complaint to the GDC on 6 July 2016, his wife had agreed for her written statement to be used at this hearing. Ms Barnfather stated that the wife of Patient 20 holds a power of attorney. She has indicated in previous correspondence that her mother is unwell and, in consequence she is not able to give evidence in person or via Skype. KERR, J R Professional Performance Committee November 2016 May 2018 Page -7/29-

8 In respect of Patient 26, the Committee has not had sight of her statement. Ms Barnfather explained that there were medical reasons for Patient 26 not being able to give evidence either in person or via Skype. Ms Barnfather submitted that the Committee are permitted to receive evidence under Rules 57(10) and (2) of the Act, and that these hearsay statements are admissible under civil law. The application was resisted by Ms Alam on your behalf. In reaching its decision on the application, the Committee took into account the submissions of both parties. The Committee accepted the advice of the Legal Adviser. In considering the application, the Committee has taken into account the interests of the GDC, the registrant and the public interest generally. The Committee took into account the authority of NMC v Ogbonna. The Committee noted that both witnesses have not attended this hearing. It recognised that it had a discretion to accept their written evidence. Both the wife of Patient 20 and Patient 26 were advised by the GDC that their written statements would be used for the purposes of prosecuting the case. In respect of the witness statement of the wife of Patient 20, the Committee noted that Patient 20 has withdrawn his complaint. Nevertheless his wife, who has power of attorney, has expressed a desire to provide evidence to this Committee but is unable to do so in person. The Committee was satisfied that it is appropriate to allow in evidence her written statement. The Committee, having considered all the submissions in respect of Patient 26 and a telephone attendance note from her dated 17 October 2016, determined that it was appropriate to allow the patient clinical records and the documentation concerning payments made to the practice in evidence and to exclude the written statement. In reaching its decisions, the Committee was satisfied that the public interest outweighed the private interests of each patient. General Background The charges relate to a series of dental appointments that took place at your surgery between January 2010 and February Concerns were first raised with the General Dental Council (GDC) as a result of a complaint received from a former patient. Evidence On behalf of the GDC, the Committee heard oral evidence from Dr A, and Patients 4, 16, 24 and 25 and from Patient 25 s mother. In your defence, it heard oral evidence from you and from L C, a dental nurse. The Committee accepted that all the patients gave their evidence honestly in accordance with their recollection of events. The Committee noted that all patients tried their best to recollect events given the length of time that has elapsed. Dr A and her brother purchased the practice from you in March 2014 at which time they changed the name of the practice to Dental Essence. She produced in evidence four cash/card ledgers which assisted the Committee in respect of a number of factual allegations. KERR, J R Professional Performance Committee November 2016 May 2018 Page -8/29-

9 The Committee received written reports and heard oral evidence from the GDC expert witness Dr Ward. The Committee found Dr Ward to be well informed and concise. She was prepared to reflect on her opinions and make concessions when it was appropriate. The Committee found her report to be helpful especially in relation to information concerning alleged failures to diagnose and perform root canal treatments. The Committee was not provided with contemporaneous patient records as they were stolen from the practice in March However, the Committee did receive a number of documents from the GDC, including patient records and radiographs from patients who continued to receive treatment at the practice. So far as your evidence is concerned the Committee acknowledged that you made a number of admissions and that you accepted that you provided poor quality treatment to a number of patients. In respect of several patients you denied that you were the treating dentist and the Committee had to determine this not only on the basis of your evidence but also on the basis of such contemporary documentary material as was available, including the cash/card ledgers. You denied dishonesty in respect of your treatment in respect of Patient 24. Whilst accepting many of the points that you made, the Committee had reservations about the accuracy of your account. In respect of Ms C, the Committee accepted that she was endeavouring to assist it as to whether you were Patient 4 s treating dentist, but in the event, it rejected her evidence. Committee s findings of fact The Committee has taken into account all the evidence presented to it, both written and oral. It has also considered the submissions made on behalf of both parties. The Committee has accepted the advice of the Legal Adviser. In accordance with that advice it has considered each head of charge separately. The Committee has been reminded that the burden of proof rests with the GDC, and has considered the heads of charge on the civil standard of proof, the balance of probabilities. I will now announce the Committee s findings in relation to each head of charge: Proved (c). in respect of Patients 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26. Not proved Not proved Not proved. No contemporaneous clinical records were available for Patient 1; therefore, the Committee could not confirm if there was anything in Patient 1 s records to indicate that caries was present at the material time. The Committee found that you did not adequately treat caries for this patient. However, it did not find that you failed in your duty of care in that regard as there was evidence that the patient refused to allow you to provide such treatment. Moreover, this was supported by the manner Patient 1 conducted herself when KERR, J R Professional Performance Committee November 2016 May 2018 Page -9/29-

10 (c). 4(d). 4(e) being treated by subsequent treating dentists. Therefore, the Committee found this charge not proved (c) Proved. Proved. Proved. The Committee found Patient 4 s recollection of events to be clear and consistent in respect of her appointments with you. The Committee noted that there was no evidence to support your contention that she was not your patient. The Committee was satisfied that Patient 4 was your patient at the material time. The Committee noted the findings of the GDC expert witness and found that it was more likely than not that you did fail to diagnose and/or adequately treat caries in Patient 4 s teeth the subject of the charge on or before 5 November Therefore, the Committee found charge 9 proved in its entirety. 12. Not proved The Committee noted that no witness statement of Patient 6 was produced for this Committee. The only evidence available to the Committee was in the patient notes taken by the subsequent treating dentist, which stated that you had previously confirmed that you would correct any remedial treatment for free. The Committee further noted that there was no financial evidence indicating that KERR, J R Professional Performance Committee November 2016 May 2018 Page -10/29-

11 Patient 6 was your patient. Although the GDC expert witness made reference to appointments on two dates in January 2014, there was no evidence that these appointments ever took place. The Committee noted that the suggestion of these appointments came from a witness statement which the GDC did not rely upon. Based on the limited evidence available, the Committee did not find on the balance of probabilities that Patient 6 was your patient. 13. Not proved for reasons set out in charge Not proved for reasons set out in charge Not proved for reasons set out in charge Not proved for reasons set out in charge Not proved for reasons set out in charge 12 14(c). Not proved for reasons set out in charge (c) (c) (c). 17(d). 17(e) Not proved. The Committee was satisfied, based on the evidence provided, that Patient 11 was properly informed of all available options. The Committee noted that she had very specific requirements and that she was dissatisfied with crowns at UR1 and UL1. The Committee also noted that, at an earlier stage of her treatment, composite fillings had been provided which left her dissatisfied. The Committee found that it was appropriate at this stage to provide crowns to Patient 11. The Committee noted that Patient 11 had made visits to the laboratory on more than KERR, J R Professional Performance Committee November 2016 May 2018 Page -11/29-

12 211. Proved one occasion to change the appearance of her crowns. The Committee was satisfied that there were more conservative options available, However, based on her experience and dental history, Patient 11 had made an informed choice to have the treatment provided. The Committee noted that Patient 11 chose the crowns to fill the space and that she was satisfied when the crowns were tried in. However, following the fitting of the crowns and subsequent adjustments, the Committee found that these crowns were wide in relation to their length. In the circumstances, the Committee found that the crowns were substandard in this regard Not proved 213. Proved (c). 22(d) Patient 11 chose the tooth shade herself and made repeated visits to the laboratory for adjustments. She did not express any discontent with the colour. The Committee was therefore satisfied that the crowns were not excessively white and therefore they were not substandard. The Committee preferred the account of Patient 11 in her letter that you were responsible for leaving the cement in situ as seen the photographic evidence, following the treatment of her that you provided. Having seen the photographic evidence, the Committee was satisfied on the balance of probabilities that you left access cement in situ, which was likely to have exacerbated Patient 11 s periodontal condition. In the circumstances, the Committee found that the crowns were substandard in this regard Not proved. The Committee was satisfied, based on the evidence before it, that the retained root was still present after the provision of a bridge at UL5. However, the Committee found no evidence that you had treated this patient. Exhibit 5, page 7, and exhibit 6, page 20 stop short of identifying you as the treating dentist at the relevant time. In your observations in your letter dated 20 KERR, J R Professional Performance Committee November 2016 May 2018 Page -12/29-

13 (c). 27(d). 27(e). February 2015, you acknowledged that the treatment in respect of Patient 14 was sub-standard, but it was clarified that you were speaking on behalf of the practice only. WITHDRAWN 28. Proved. The Committee, having read the patient notes, was satisfied that Patient 16 did not understand the treatment to be provided. The Committee noted Patient 16 s statement in which she states that no written treatment plan or consent form identifying alternative treatment options and risks was provided to Patient 16. The Committee was therefore satisfied that you failed to adequately discuss treatment options, risks and benefits of the management of UR6, with Patient Not proved. 30. Proved. 31. Proved 32. Proved 33. In the Committee s view, although a metal ceramic bridge was fitted, it was only ever intended to be a temporary bridge. The Committee rejected the GDC expert s assumption that the bridge was intended to be cemented in as a permanent bridge simply because of the material of which it was made. The Committee acknowledged the entry in the patient notes dated 7 March 2013, that when Patient 16 returned to see DB, there was no temporary in place, and that Patient 16 has not been sensitive since the prep. The Committee considered that this is consistent with there having been minimal tooth preparation, something which would be appropriate for a temporary restoration. The Committee was satisfied that this was clinically inappropriate. You have also acknowledged that this was inappropriate and indicated that you would not do this again. The Committee was satisfied that on the balance of probabilities you failed to diagnose and/or treat caries prior to the provision of a crown at LR6. The Committee accepted that Patient 18 was your patient because of the financial records, and because of the commentary contained in the clinical records of the subsequent treating dentist. The GDC expert noted in her report that there was a retained root at UL2 prior to the preparation of the tooth at UL3. Whilst the Committee acknowledged that a dental practitioner might choose to remove a retained root when a bridge was ready to be fitted, this was not your case. You simply asserted that Patient 18 was not your patient. KERR, J R Professional Performance Committee November 2016 May 2018 Page -13/29-

14 Proved (c) (c). 37(d). 37(e). The Committee rejected your contention that you were not Patient 20 s treating dentist. It noted the evidence of cash payments against your name in the cash book in respect of this specific treatment. It was satisfied on the balance of probabilities that you failed to remove the infected retained root fragment at UL2 prior to the provision of a bridge. Not proved. The Committee was satisfied that the use of a single abutment for the bridge at UL2 may have been an appropriate clinical decision having noted the GDC expert s opinion regarding the alternate fixed-fixed design. On the balance of probabilities, and in the absence of information gained from a clinical examination, either alternative treatment plan may be considered to be appropriate. Consequently, the Committee did not consider the bridge provided to be substandard in respect of its design. Proved. The Committee noted the marginal defect contained in the radiographs. The Committee had regard to the passage in the expert report at paragraph 220 to support this charge deficient performance illustrated by poor assessment, planning and treatment, (large gap beneath the bridge where food was packed, UL3. You offered to fill this for 82). 38.a 38.b Proved You denied that patient 24 was a patient whom you treated. Patient 24 gave evidence that you were her treating dentist in May/June 2013 and again in December 2013 when she attended for a review. The cash book for December 2013 confirms her account of payments made to you at that time. The Committee is satisfied that you were her treating dentist and that you caused or allowed this patient to be charged for the provision of a root canal treatment at LL1. The KERR, J R Professional Performance Committee November 2016 May 2018 Page -14/29-

15 financial documents provided contained evidence that the patient made several payments around the dates in question that strongly indicated that you were the treating dentist. On 3 rd December 2013, the patient paid 37. She stated that she also paid a further 401. Bank statements confirm this. You have previously stated that you refunded her. In the view of the Committee the payment of 401 is consistent with the provision of root canal therapy and associated additional treatment. Proved. The Committee accepted the evidence of Patient 24 that she understood that the proposed treatment at LL1 included the provision of a gold post and that that was what she had received. The patient remembers being shown what she perceived to be a gold coloured post prior to the procedure. The Committee further noted that the payment of 401 (noted in HOC 40a) is consistent with the provision of root canal therapy and associated additional treatment. On the balance of probabilities, the Committee accepted that you caused or allowed a patient to be charged additional treatment which would include the gold post. Proved The Committee noted the clear evidence in the radiograph that root canal treatment was not delivered at LL1. Proved The Committee was satisfied that at the initial consultation you suggested to the patient that you provide a gold post. Patient 24 stated in her witness statement that you held up to her a gold post with a pair of tweezers. During the subsequent examination appointment on 3 rd December, you said you would replace this at the next appointment in June The Committee noted that there was no evidence of any post having been placed at LL1 on subsequent radiographs. Proved The Committee accepted Patient 24 s evidence that you did not disclose to her that root canal treatment had not been provided. It therefore found that you failed in your duty to inform her that a proposed treatment for which you levied a charge had not been provided. Proved. The Committee was satisfied that you failed to provide a post for Patient 24 in June 2013, contrary to what you told her, and in respect of which she was charged a sum which reflected such treatment. You also did not inform her about the true position six months later during her review appointment on 3 rd December. The Committee noted Patient 24 s assertion in her letter to Dr A, that you reinforced her understanding that a post had been placed by informing her that you would replace the gold post with something different at her next check-up. The Committee found that you had an obligation to inform Patient 24 that you had not provided her with the gold post which you had undertaken to place between May and June 2013 and that you failed to discharge that obligation at that time KERR, J R Professional Performance Committee November 2016 May 2018 Page -15/29-

16 (c). and in December Proved. When you are proposing treatment to be carried out, you must inform the Patient of your intentions. Standards for the dental team (2013): 2.3 Give patients the information they need, in a way they can understand, so that they can make informed decisions. You failed to do this on more than one occasion. The Committee considers that failing to keep the patient informed at every stage of treatment, is unprofessional. Proved. The Committee is satisfied that your actions misled Patient 24 in May /June 2014 you did not inform Patient 24 that you had not carried out root canal treatment or placed a gold post which you told her you would provide and for which you had levied a charge. When she returned for a review appointment six months later, yet again you failed to inform her of the true position. Proved. The Committee applied the test for dishonesty set out in the case of Kirschner v General Dental Council [2015] EWHC 1377 (Admin), as follows, the tribunal should first determine whether, on the balance of probabilities, a defendant acted dishonestly by the standards of ordinary and honest members of that profession; and, if it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was, by those standards, dishonest. Taking into account this test, the Committee found that your actions in regard to Patient 24 were dishonest. It was satisfied that the public would consider your actions dishonest by the standards of ordinary and honest members of your profession. It was satisfied that you knew that it would be so regarded. It found that you caused or permitted Patient 24 to be charged a significant amount of money for treatment that you knew she did not receive. You had more than one opportunity to correctly inform Patient 24 of the true position in respect of the gold post and the root canal treatment, yet you failed to so inform her. 44. Not proved. 45. The Committee considered that it is more likely than not that a discussion took place between you and Patient 25 concerning treatment options and risks and benefits regarding his upper front teeth. The Committee preferred your evidence on this charge. You stated in oral evidence that you had a very clear recollection of this and that various options were discussed including the provision of a denture and composite build ups. You stated that Patient 25 did not want implants for financial reasons, and that together you decided upon a six-unit bridge which was ultimately modified to a five-unit bridge through clinical expediency. Not proved. KERR, J R Professional Performance Committee November 2016 May 2018 Page -16/29-

17 45. You stated in evidence that you do not undertake re-root treatment and that you would have referred Patient 25 to a specialist. In the letter of complaint dated 5 November 2014, Patient 25 makes no mention of any root canal treatment done by you. The Committee considered that on the balance of probabilities you did not provide root canal treatment for Patient 25. The Committee noted that there was no mention of root canal treatment on the form to CICA setting out Patient 25 s treatment plan. Further Patient 25 s mother made no mention of root canal treatments in her written statement. Not proved. 46. Proved (c). 47(d). 47(e). For the same reasons as set out in 45. The Committee considered that the root canal treatments for Patient 25 were of poor quality and contributed to infections at UL1 and UL2. The Committee was satisfied that you failed to diagnose the infection appropriately and therefore could not have informed Patient 25 of appropriate treatment options. Not proved. The Committee accepted that you did send information to the Criminal Injuries Compensation Authority on 29 March 2012 in response to their letter to you dated 15 March Not proved. You stated that you had asked your receptionist to make a copy of the original form, and for this to be sent again. Evidence before the Committee indicated that you had asked the practice manager to deal with this. The Committee found that on the balance of probabilities you did respond to the sent on 15 October Not proved. The Committee heard conflicting evidence with regards to this charge. The Committee was satisfied that, although you were not in the practice on 7 th December to answer the call directly, there was evidence that the call was returned on 12 th December The Committee was not satisfied on the balance of probabilities that you did not respond to the telephone message of the 7 th December Proved You were sent a form following a telephone call on 12 December There was no evidence that you responded by completing the form and sending it back. Therefore, the Committee finds this charge proved. Proved. For the same reasons as set out in charge 47(d). 48. Not proved. You stated in oral evidence that you never received the letter dated 5 November There was no evidence to suggest that you had received it. There is a KERR, J R Professional Performance Committee November 2016 May 2018 Page -17/29-

18 49. Proved. 50. Proved record of you having responded to other complaints. The Committee is therefore satisfied that you would have responded to this letter if you had received it. On the balance of probabilities, the Committee is not satisfied that you did receive the letter and therefore found that you did not have a duty to respond to it. The Committee was satisfied that it is more likely than not that Patient 26 was your patient, and that you failed to remove an infected root fragment prior to the provision of linked crowns at UL3 and UL4. The Committee has had sight of financial records and your letter of observation. The latter does not suggest that Patient 26 was not your patient. The Committee noted the records made by the subsequent treating dentist together with subsequent x-rays taken. These give a clear indication that an infected root, or root fragment was still present at UL3. The Committee noted the GDC expert s addendum report which states, on the balance of probabilities I would expect this lesion to have been present for at least 6 months and not to have developed after crown placement. The infected root or root fragment should have been removed prior to advanced restorative work. The Committee noted the GDC expert s addendum report in support of this head of charge and additionally that you have accepted that the crowns at UL3 and UL4 are likely to be substandard. We move to Stage Two. On 28 April 2017 the Chairman announced the determination as follows: Having announced its finding on all the facts, the Committee heard submissions on the matters of misconduct, deficient professional performance, impairment and sanction. The Committee fully considered all the evidence in this case as well as the submissions made by Ms Barnfather and Ms Alam. It accepted the advice of the Legal Adviser, which included the factors relevant to the considerations of the Committee and relevant case law. Decision on whether the facts found proved amount to misconduct: When determining whether the facts found proved amount to misconduct the Committee had regard to the terms of the relevant professional standards in force at the time of the incidents. The Committee, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage. The Committee has carefully considered the paragraphs of the allegation found proved, and as to whether they amount to misconduct. It bore in mind the dictum of Lord Clyde in Roylance v. the GMC namely that misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner. KERR, J R Professional Performance Committee November 2016 May 2018 Page -18/29-

19 The Committee first considered whether there were any paragraphs of the allegation found proved, which should be regarded as so serious as to amount to misconduct individually. It identified the following paragraphs as falling into that category for the following reasons. Patient Paragraph Reason Patient 2 5 You provided linked crowns using an unrestorable tooth which should have been extracted due to extensive caries. Patient 3 8 You would or should have known that you failed to fill the palatal root canal. Patient 5 10 You failed to remove all of the amalgam from the teeth prior to placing composite restorations. This was clearly visible in the clinical photographs provided and you must have known the amalgam was still in the teeth. Patient 7 15 a+b You failed to fill the mesio-buccal and disto-buccal roots and insufficiently filled the palatal root. Yet you provided a crown at some expense for the patient. If the roots were not filled, the patient should have been informed and referred. Patient 8 16 You would or should have known that you did not fill the distal root canal and left mesial decay in LR6. The patient was charged for treatment that was inadequate treatment. Patient 9 18 The LR6 was root treated to a poor standard and was subsequently crowned. The occlusion was incorrect and traumatic, and the opposing UR6 was adjusted so extensively that it required additional treatment. Patient You should not have provided a crown on an un-restorable tooth. The patient was charged for this procedure which was wholly inappropriate. Patient 13 24/25 It was wholly inappropriate to prepare a tooth for a crown with pre-existing apical periodontitis. The patient was charged for this procedure. Patient In the context of the patient suffering pain, the filling which you provided at LL6 simply covered up extensive caries. The patient was charged for this procedure. Patient The root fragment of UL2 which you did not remove was infected, yet you provided a bridge to replace this tooth. The patient was charged for this procedure. Patient You provided linked crowns at LL6 and LL7 while the LL7 was un-restorable. The patient was charged for this procedure. Patient to 43 You did not carry out the treatment which you had told Patient 24 you would perform. You promised Patient 24 a procedure, namely root canal treatment (followed by the provision of a post) through a bridge, which was beyond your competence. You did not carry out this treatment, yet you failed to inform Patient A of KERR, J R Professional Performance Committee November 2016 May 2018 Page -19/29-

20 that fact and charged her for it. The proper thing to have done would have been to disclose to her that you could not successfully complete the treatment and refer the patient appropriately. When she complained of pain in December 2013, you again failed to disclose the truth to her and indeed led her to believe that you would address the problem in a further 6 months. Instead you covered up your dishonesty of May and June This dishonesty was born of your failure to acknowledge the limitation of your practice and the fact that you should not have promised something you could not deliver. The dishonesty included the fact that you charged Patient 24 for this work and was compounded by the fact that you covered it up in December Your initial dishonesty was not premeditated. Patient 26 49, 50 The root fragment which you did not remove was infected, yet you provided linked crowns which were sub-standard. The patient was charged for this procedure. The Committee next considered whether the paragraphs of the allegation found proved which were not in the category identified above amounted to misconduct. It considered these paragraphs collectively, noting common themes as follows: the failure to diagnose and / or treat caries (paragraphs 7, 9, 11, 19, 20, 22, 27, 31, 36, and 37) the provision of substandard root canal treatment (paragraphs 6, 17 and 38); the provision of inappropriate / substandard linked crowns (paragraphs 4 and 30) the provision of substandard crowns (paragraphs 15(c), 17(e) and 19 and 35 ). The Committee determined that collectively the frequent instances of your failing to diagnose and / or treat caries as set out above, coupled with its findings of misconduct in paragraphs 16(c), 23, 33 and 39 amount to serious misconduct. The Committee determined collectively that the instances of your providing substandard root canal treatment, coupled with its findings of misconduct in paragraphs 8, 15 and and 16 amount to serious misconduct. The Committee determined that collectively the instances of your providing inappropriate / substandard linked crowns (paragraphs 4 and 30) coupled with its findings of misconduct in paragraphs 5 and 39 do not amount to serious misconduct. There is a body of opinion that would place linked crowns in extreme circumstances. The Committee determined that collectively the instances of your providing substandard crowns (paragraphs 15(c), 17(e), 19 and 35 do not amount to serious misconduct as, although the provision of sub-standard crowns falls below the standard required, it does not reach the threshold of far below. It did not find misconduct in respect of: paragraph 21(1) as Patient 11 participated in the decision-making process; paragraphs 28 and 46 as these were relatively isolated instances of failing to discuss matters with a patient; KERR, J R Professional Performance Committee November 2016 May 2018 Page -20/29-

21 paragraph 47(d) and (e) as these were not found to be serious misconduct and paragraph 32 as the Committee does not discount the possibility that you intended to remove the retained root when fitting the bridge. Decision on whether the facts found proved amount to Deficient Professional Performance The Committee next considered whether the established facts amount to deficient professional performance. It was referred to the case of Calhaem v General Medical Council [2007] EWHC 2606 where it was noted that: Deficient Professional Performance within the meaning of Section 35C (2) of the Medical Act 1983 is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor s work. In respect of those paragraphs of the allegation found proved which did not amount to misconduct as set out above, the Committee found Deficient Professional Performance in respect of the provision of inappropriate / substandard linked crowns. This is an unusual choice of treatment. The Committee noted that the paragraphs of the allegation which were found proved relating to inappropriate / substandard linked crowns number 4, namely paragraphs 4, 5, 30 and 39, a significant number in the context. It therefore considered that this represented a fair sample of your work in that regard. The Committee did not find deficient professional performance in relation to: the provision of substandard crowns (paragraphs 15(c), 17(e), 19 and 35 of the allegation), as Mrs Ward, the GDC expert did not consider your performance in this regard to be far below the required standard; paragraphs 21(1) of the allegation as Patient 11 participated in the decision-making process, paragraphs 28 and 46 of the allegation as these were relatively isolated instances of failing to discuss matters with a patient; paragraphs 47(d) and (e) of the allegation as these matters did not concern clinical performance and the Committee therefore determined that a finding of deficient professional performance in this regard was inappropriate. paragraph 32 as the Committee does not discount the possibility that you intended to remove the retained root when fitting the bridge. The Committee has concluded that your conduct was in breach of each of the standards as set out below. Standards for Dental Professionals (2005) 1.1 Put patients interest first before your own or those of any colleague, organization or business 1.3 Work within your knowledge, professional competence and physical abilities. Refer patients for a second opinion and for further advice when it is necessary, or if the patient asks. Refer patients for further treatment when it is necessary to do so. 2.2 Recognise and promote patients responsibility for making decisions about their bodies, KERR, J R Professional Performance Committee November 2016 May 2018 Page -21/29-

22 their priorities and their care, making sure you do not take any steps without patients consent (permission). 2.4 Listen to patients and give them the information they need, in a way they can use, so that they can make decisions. This will include: communicating effectively with patients; explaining options (including risks and benefits); and giving full information on proposed treatment and possible costs. 5.1 Recognise that your qualification for registration was the first stage in your professional education. Develop and update your knowledge and skills throughout your working life. 5.2 Continuously review your knowledge, skills and professional performance. Reflect on them, and identify and understand your limits as well as your strengths. 5.3 Find out about current best practice in the fields in which you work. Provide a good standard of care based on available up-to-date evidence and reliable guidance. Standards for the Dental Team (2013) You must discuss treatment options with patients and listen carefully to what they say. Give them the opportunity to have a discussion and ask questions You must justify the trust that patients, the public and your colleagues place in you by always acting honestly and fairly in your dealings with them. This applies to any business or education activities in which you are involved as well as to your professional dealings You must make sure you do not bring the profession into disrepute. 2.1 Communicate effectively with patients listen to them, give them time to consider information and take their individual views and communication needs into account. 2.2 Recognise and promote patients' rights to and responsibilities for making decisions about their health priorities and care. 2.3 Give patients the information they need, in a way they can understand, so that they can make informed decisions. 3.2 Make sure that the patient s consent remains valid at each stage of investigation or treatment. The Committee bore in mind that a breach of rules or guidance did not automatically lead to a finding of misconduct / deficient professional performance. However, the Committee considered that it demonstrated the wide-ranging nature and seriousness of your failings. The Committee was in no doubt that the above facts found proved are serious and amounted to misconduct / deficient professional performance as indicated above. Decision on impairment: The Committee then went on to consider whether your fitness to practise is currently impaired by reason of misconduct and deficient professional performance. In doing so, it has exercised its independent judgement. KERR, J R Professional Performance Committee November 2016 May 2018 Page -22/29-

23 Throughout its deliberations, it has borne in mind that its primary duty is to address the public interest, which includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Committee firstly considered whether the misconduct and deficient professional performance was remediable, and concluded that, with embedded learning, it may be possible for you to address the clinical aspects of your practice. Where the behaviour involves dishonesty, the Committee considers that with proper reflection and insight, this too may be capable of remediation. This is particularly true when there is a single incidence of dishonesty, by a person of otherwise good character. The Committee next considered whether any of the failings identified have been remedied. It has seen sparse evidence of training or learning undertaken by you, nor any personal development plan which has focused on clinical deficiencies identified in this case The Committee notes that you have been placed under a set of the conditions imposed by the Interim Orders Committee on 22 December The Committee was furnished with many Clinical Supervisor Reports prepared by your Clinical Supervisor, KH. It also heard oral evidence from KH who confirmed that he made 21 visits to your practice, and that he has never had a concern. However, the Committee has not seen evidence of independently random audits undertaken. The Committee has seen very little evidence of Continuing Professional Development dealing with your insight into the issues in this case, either in respect of patient protection or in respect of the reputation of the profession. It considers your reflective statement to be lacking in insight. It considers that the courses you attended were not focussed towards the clinical deficiencies in your practice. The Committee considers that whilst you have made some improvement in your clinical practice, it is not satisfied that you have done enough to address all of your failings. Nor have you fully reflected and demonstrated sufficient insight into your failings. The Committee is therefore not satisfied that your deficiencies have been remedied and in consequence the Committee considers that there remains a significant risk that the clinical issues will occur again. Further, it considers that, in respect of the finding of dishonesty, a finding of impairment is required to maintain public confidence in the profession, confidence in the system of regulation of dental professionals, and to declare and uphold proper professional standards. In consequence, the Committee considers that your fitness to practise is currently impaired by reason of misconduct and deficient professional performance as set out above. Decision on sanction The Committee next considered what sanction, if any, to impose on your registration. It recognised that the purpose of a sanction is not to be punitive, although it may have that effect, but rather to protect patients and the wider public interest. The Committee has taken into account the GDC s Guidance for the Practice Committees: Including Indicative Sanctions Guidance. The Committee applied the principle of proportionality, balancing the public interest with your interests. The Committee has considered the range of sanctions available to it, starting with the least serious. KERR, J R Professional Performance Committee November 2016 May 2018 Page -23/29-