Information about cases being considered by the Case Examiners

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1 Information about cases being considered by the Case Examiners 13 October

2 Contents Purpose... 3 What should I do next?... 3 Background... 4 Criteria that Case Examiners will consider... 5 Closing a case without further action... 5 Issuing advice... 5 Issuing a warning... 6 Referring your case to a Practice Committee... 7 Undertakings... 7 Essential requirements for undertakings... 8 The Process... 9 Providing a Response to the Case Examiners Health Misconduct / professional performance Costs Insight About this guidance document

3 Purpose This document is for Dentists and Dental Care Professionals (DCPs) who have been referred to the Case Examiners of the General Dental Council. This leaflet is aimed at assisting you in: 1. Preparing a response to the allegation(s); 2. Understanding what will happen next; and 3. Understanding the decision that the Case Examiners might take. In order to assist with the preparation of your response to the Case Examiners, please complete the attached form as fully as you are able. Please note that the information you provide may impact on how your case will proceed. If you have not already done so, we strongly recommend that you notify your defence organisation or other professional indemnity provider of the content of this document and the attached response form. Please note that legally you do not have to complete the attached form, but it may assist your case if you are able to do so. What should I do next? 1. Read this information leaflet carefully before completing the attached form. 2. If you have any queries regarding the form, please call Please return the form to us in the prepaid envelope enclosed on or before the relevant deadline for your response to the Case Examiners 3

4 Background The Case Examiners role is to consider the allegations about your fitness to practise and whether those allegations ought to be referred to a Practice Committee. A Dentist or DCP s fitness to practise may be impaired by any or all of the following:- 1. Misconduct; 2. Deficient professional performance; 3. Conviction, Caution or determination by another healthcare regulatory body; 4. Adverse physical or mental health; There are a number of possible outcomes from the Case Examiners meeting. They can determine the following:- 1. To refer your case to one of our Practice Committees; Performance, Conduct or Health. If so, the Case Examiners may also, if appropriate, refer your case to the Interim Orders Committee, which has the power to impose restrictions on your registration pending resolution of the concerns. 2. That your case ought to be referred to a Practice Committee, but that as an alternative it can instead be disposed of by way of undertakings 3. Decide that your case ought not to be referred to be considered by a Practice Committee and: a) Issue a warning (which will usually be published, but may be unpublished); b) Issue advice to you or anyone involved in your case; c) Close the case with no further action; 4. They may also adjourn consideration of the allegation(s) to direct the Registrar to carry out specified enquires to help them decide whether a matter ought to be referred to a Practice Committee. Such enquiries may include:- a) Undertaking specific factual enquiries; b) Commissioning of medical or other expert reports; c) Obtaining legal advice; d) Commissioning an assessment of your professional performance (which may be a full assessment, or a more limited record card audit). 4

5 When adjourning the case for further information, the Case Examiners may also, if appropriate, refer your case to the Interim Orders Committee, which has the power to impose restrictions on your registration pending resolution of the concerns. Criteria that Case Examiners will consider The criteria that the Case Examiners will consider in determining how your case is dealt with are as follows:- Closing a case without further action The Case Examiners will close your case where they consider that there is no real prospect of a future Practice Committee:- a) Finding that the facts are likely to be proven on the balance of probabilities; and/or b) Finding that misconduct/health/deficient professional performance/conviction or caution or finding of another regulatory body is established. Issuing advice Where the Case Examiners consider it appropriate, they may issue advice. An advice letter can be sent to you or any other person involved in the investigation. Advice will not affect your registration status, but the fact that advice was issued will become part of your fitness to practise history and may be taken into account if you are referred to the GDC in the future. Further, although the fact that advice has been issued to you will not be published by the GDC, you may need to declare it to your current and prospective employers, your insurers and other bodies. Advice may be appropriate where there is some evidence in support of the factual allegations, but where the Case Examiners believe that there is no real prospect of a Practice Committee finding that misconduct, deficient professional performance or other ground of impairment is established. Advice may be offered to you in connection with your future conduct, performance or practice. 5

6 Issuing a warning The Case Examiners may issue a warning about your future conduct or performance in cases 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 Team) 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; 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 be referred to a Practice Committee; there appears to be a single incident which may be serious but is not so severe that it should be referred to a Practice Committee; there appears to be a serious failing which has been remedied, and where there is a low risk of this happening again. In these circumstances the Case Examiners duty to the public interest must also be considered and taken into account. The GDC s Rules provide the Case Examiners with discretion to decide whether a warning should be published on the GDC s online register. However, as a matter of policy, the GDC considers that a warning should be published, save: for any information which directly relates to your health or private and family life, or which directly relates to any identifiable third party; or there are other exceptional circumstances giving rise to reasons why a warning should not be published (this will be considered by the Case Examiners on a case by case basis). Where the Case Examiners are minded to issue a warning, we will write to you to notify you that they are so minded and that you are entitled to make written representations about this. 6

7 In the event that the Case Examiners do issue a warning, you have the right to request a review of that decision. Further information about that process is available in the Case Examiner Guidance Manual 1. Referring your case to a Practice Committee Alternatively, the Case Examiners may determine that your case ought to be referred to a Practice Committee for final determination. They may take this action where there is a real prospect of the facts alleged being found proved at a hearing, that there is a real prospect of misconduct/health/conviction (etc.) being established, and that there is a real prospect of a Practice Committee finding your fitness to practise to be impaired. There is no definition in law of fitness to practise but this is commonly considered as your suitability to remain on the register without some form of restriction or warning on your registration. Undertakings The GDC s Act and Rules provide that, where the Case Examiners have determined that your case ought to be referred to a Practice Committee they may, as an alternative to making an immediate referral, propose to you that your case is dealt with by way of undertakings. Undertakings are an agreement between the GDC and you about your future practice. Undertakings can include restrictions on your practice, for example by preventing you from practising in certain circumstances, from carrying out certain treatment or from treating particular categories of patients. If undertakings are agreed, this would avoid the need for your case to be determined at a hearing, unless there was a future breach of the undertakings. We believe that undertakings have the following benefits:- 1. It encourages early engagement in our process; 2. It addresses concerns about a registrant s fitness to practise, and proportionately disposes of particular types of cases; 1 see 7

8 3. It avoids unnecessary attendance of witnesses, reducing the stress and inconvenience to them; 4. It avoids unnecessary hearings, which frees up resources for other cases; 5. It allows us to conclude cases more quickly. Essential requirements for undertakings When considering whether undertakings are appropriate, the Case Examiners will consider a number of different factors. Undertakings will only be appropriate if the Case Examiners are satisfied that they are sufficient to protect patients and the public and they are an effective way of addressing the concerns about your fitness to practise. Case Examiners have detailed guidance about the types of cases where undertakings may be appropriate. They cannot agree undertakings if there is a realistic prospect that, if the allegation was referred for consideration by a Practice Committee, your name would be erased from the register. Erasure is not available, however, where a registrant s fitness to practise is impaired solely on the grounds of adverse physical or mental health, and undertakings may be suitable in these cases. Examples of where undertakings would be inappropriate include where: 1) There remains a substantial (rather than minor) dispute over the facts alleged, or a dispute as to whether those facts alleged amount to impairment of fitness to practise; 2) Any deficiencies identified are such that patients may be put at risk directly or indirectly, even with undertakings in place; 3) They would fail to maintain public confidence in the professions and their regulation and/or would fail to declare and uphold proper professional standards. As a result it may be in the wider public interest for the issues involved in the case to be examined by a Practice Committee (this may occur where the case raises concerns about dishonesty, abuse of trust, serious violence, sexually motivated conduct, or financially motivated conduct to the detriment of the patient). There may, however, be circumstances where undertakings would still be appropriate if they fully addressed the risk of any harm to the public and/or to the public interest; and/or 4) There is reason to believe that you will not comply with them (for example, if there is evidence of limited or no insight into any shortcomings, or you have in the past failed to comply with undertakings or conditions of practice, imposed by the GDC or otherwise). Undertakings can only be considered to provide adequate public protection 8

9 if the Case Examiners can reasonably be confident in your capacity and intent to comply with them. 5) It is not possible to formulate workable undertakings to address the potential issues; The Process The Case Examiners will carefully review all of the evidence including any response from you in considering whether it would be appropriate to conclude the case by agreed undertakings. If the Case Examiners consider that undertakings are appropriate, we will write to you inviting you to agree a set of undertakings. The undertakings are designed to allow you to continue to practise whilst providing a framework of support and supervision. You will have 28 days to agree the undertakings, unless further time is provided by the Case Examiners. If undertakings are agreed, we will inform your employer and will ordinarily publish the undertakings on our online register for the duration of the period for which they are in force. The exception is where an undertaking or undertakings directly relates to your health or private and family life, or to any identifiable third party, or there is another reason why an undertaking or undertakings should not be published. We will review the undertakings on a regular basis and consider whether these need to be varied or, if there are no longer concerns about your fitness to practise, removed. If undertakings are not agreed, or if you fail to comply with the undertakings, your case may be referred to a Practice Committee for a full hearing. Equally, if your performance or health has deteriorated, or if further concerns have come to light about your fitness to practise, then your case may be referred to a Practice Committee for a full hearing. 9

10 Providing a Response to the Case Examiners You do not have to provide a response to the Case Examiners about the allegation(s), or indicate whether you admit or deny them. However, if you chose not to respond to the allegations at this stage, it is helpful if you let us know that you are choosing not to comment. In deciding how or whether to respond, you should carefully review all of the material sent to you, consider if you have any evidence to support your version of events or your arguments and consider what points you would like to make to the Case Examiners. If you consider that the matter should not be referred to be considered by a Practice Committee and they should either issue a warning (which may be published or unpublished), issue advice or close a case with no further action, it may be helpful for you to indicate why this is the case. If you consider that undertakings might be appropriate, it would be helpful for the Case Examiners to have a response from you as this may inform their decision. You may wish to confirm to the Case Examiners which undertakings might be suitable from the bank of undertakings, which is available on our website, Health If the allegations suggest that your fitness to practise is impaired for health reasons, suitable undertakings may include a requirement that you undergo medical examination and/or testing. All medical information is treated in confidence. Misconduct / professional performance If the allegations relate to your professional performance or misconduct, undertakings that protect patients and allow for remediation may be appropriate. These might include undertakings that require you to be under supervision or to undertake retraining. Costs Before you consider whether this is appropriate, you may be responsible for the associated costs involved with undertakings including the costs of supervision, training or health assessments. It would be helpful for the Committee to know more about your background and 10

11 your ability to meet these associated costs before it considers which (if any) undertakings may be appropriate in your case. You should provide as much information to the Case Examiners about your personal circumstances so that it can consider which undertakings may be appropriate for you. Insight Insight into any shortcomings in your practice is likely to be an important factor in considering whether your case ought to be referred to a Practice Committee and if so, whether undertakings are appropriate for your case. You might wish to indicate in your response how you have demonstrated credible evidence of insight in relation to the allegations. Insight can include the following: 1) The ability to step back from the situation and consider this objectively; 2) Recognising what went wrong; 3) Accepting your role and responsibilities at the material time; 4) Appreciating what could and should have been done differently in the circumstances; 5) Evidencing what measures you have put into place since the allegations to avoid risk or reoccurrence; and 6) Demonstrating how you would act differently in the future to avoid reoccurrence of a similar situation. About this guidance document This document has been written as a guide to responding to the Case Examiners. It does not seek to cover all scenarios that might arise. You should seek trade union or independent legal advice before acting on the contents of this document. 11

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