HEARING HEARD IN PUBLIC RYAN, Derek Registration No: 38045 PROFESSIONAL CONDUCT COMMITTEE DECEMBER 2017 Outcome: Fitness to Practise Impaired. Reprimand Issued Derek RYAN, a dentist, BDS Lond 1962, LDS RCS Eng 1962was summoned to appear before the Professional Conduct Committee on 4 December 2017 for an inquiry into the following charge: Charge That, being a registered dentist: 1. On 11 April 2013, you were the principal dentist at [redacted] and provided dental treatment to Patient A, a then eight year old child patient, under conscious sedation, namely: (a) (b) extractions to URD, LRC and LRD; intra-coronal restorations to URE, ULD, ULE, LLD, LLE and LRE. 2. Prior to providing the treatment described at paragraph 1 above, you failed to: (a) (b) 3. REMOVED to obtain radiographs for the teeth in all four quadrants; provide Patient A s mother with an adequate explanation of the proposed treatment. 4. You failed to obtain Patient A s mother s written consent prior to commencement of the conscious sedation. 5. In the circumstances set out in paragraphs 2(b) and/or 4 above, you failed to obtain informed consent. 6. The treatment described in paragraph 1 was inadequate in that you failed: (a) (b) (c) to restore with extra-coronal preformed metal crowns the URE, ULD, ULE, LLD, LLE and LRE, rather than the intra-coronal restorations you did provide to these teeth; REMOVED REMOVED 7. Your record keeping was inadequate in that you failed: (a) (b) to record the restorative material provided; REMOVED RYAN, D Professional Conduct Committee - December 2017 Page -1/11-
(c) 8. REMOVED to record in the discharge letter that you had restored the LRE. 9. You failed to conduct yourself appropriately in that: (a) (b) (c) you used words towards Patient A s mother to the effect of: (i) (ii) (iii) Can you let the man [the anaesthetist] do his job? ; I ll do what I want to do ; This is my place, I ll sit wherever I want ; you held the consent form to Patient A s mother s face and told her that she was wasting precious sedation time, or words to that effect; you raised your voice at Patient A s mother. And that, by reason of the facts alleged, your fitness to practise is impaired by reason of misconduct. On 7 December 2017 the Chairman made the following statement regarding the finding of facts: Mr Ryan You are present at this hearing of the Professional Conduct Committee (PCC) and are represented by Mr James Leonard, instructed by BLM solicitors. Mr David Collins of Capsticks solicitors appears for the Council. Preliminary matters At the outset of the hearing Mr Leonard made a number of admissions to the heads of charge that you face. The admissions were noted by the Committee and are set out below. Background to the case and summary of allegations The allegations that you face relate to your care and treatment of a patient, referred to for the purposes of these proceedings as Patient A, on 11 April 2013. You were in practice at that time as the principal dentist at St. Faith s Dental Anaesthetic Clinic in East Grinstead, West Sussex. Patient A was eight years of age at the time of the appointment that has given rise to the allegations. Patient A was referred to you by her general dental practitioner for the purposes of performing extractions and fillings for a number of deciduous teeth. At the appointment on 11 April 2013 you performed extractions of URD, LRC and LRD, and provided intra-coronal restoration fillings of the patient s URE, ULD, ULE, LLD, LLE and LRE. The treatment was provided under conscious sedation. Patient A s mother, who is referred to for the purposes of these proceedings as Witness 1, accompanied her daughter at the appointment. The GDC specifically alleges that, prior to providing that treatment, you failed to obtain appropriate radiographs and provide Witness 1 with an adequate explanation of the treatment that you proposed to provide. It is further alleged that you failed to obtain Witness 1 s written consent prior to commencing the conscious sedation of her daughter, and that more generally you failed to obtain informed consent to treatment. The GDC relies on the evidence of Witness 1 to the effect that she had not consented to the extraction of her daughter s LRD, and that she had instead understood that her daughter s LRC would be extracted. RYAN, D Professional Conduct Committee - December 2017 Page -2/11-
The GDC further alleges that the restorations that you provided as described above were inadequate, in that you used intra-coronal restorations rather than extra-coronal preformed metal crowns. It is also alleged that your record-keeping was inadequate, in that you failed to record the restorative material that you used, or record in the discharge letter that you had restored the patient s LRE. You also face allegations about your conduct and behaviour at the appointment, in that you made comments to Witness 1 to the effect of, I ll do what I want to do and this is my place, I ll sit wherever I want. It is further contended that you raised your voice when speaking with Witness 1, and that you held a consent form to her face and stated to her that she was wasting precious sedation time, or words to that effect. Evidence The Committee has heard oral evidence from Witness 1. The Committee also heard oral evidence from Professor Christopher Deery, who is the expert witness instructed by the Council, and from Mr Christopher Holden, who is the expert witness instructed by your defence team. The Committee also heard oral evidence from you. The Committee has also been provided with documentary material in relation to the heads of charge that you face, including the witness statements and documentary exhibits of Witness 1, two witness statements prepared by you; the expert reports and joint statement of Professor Deery and Mr Holden, and the dental records of Patient A. The Committee was assisted by the evidence provided by Witness 1. It has heard that she made a complaint to the GDC shortly after the incidents that have now given rise to these proceedings, and her discontent with your conduct and care on 11 April 2013 was clear from that initial complaint, from her subsequent formal witness statement and from the oral evidence that she has given to this Committee. Although the Committee considers that there were some minor discrepancies in her evidence, the Committee nonetheless found her to be an honest, credible and reliable witness. The Committee was also assisted by the oral and written evidence that you provided. The Committee was however not always able to rely on your account for the reasons set out below. 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 by Mr Collins on behalf of the GDC and by Mr Leonard on your behalf. The Committee has accepted the advice of the Legal Adviser. The Committee has been reminded that the burden of proof lies with the GDC, and has considered the heads of charge against the civil standard of proof, that is to say, the balance of probabilities. The Committee has considered each head of charge separately. I will now announce the Committee s findings in relation to each head of charge: 1. a) Admitted and proved The Committee finds the facts alleged at head of charge 1 (a) proved on the basis of your admission. The Committee also finds the other heads of charge to which you have made admissions proved on the basis of your respective admissions. RYAN, D Professional Conduct Committee - December 2017 Page -3/11-
1. b) Admitted and proved 2. a) Not proved 2. b) Proved The Committee finds the facts alleged at head of charge 2 (a) not proved. The Committee has heard that you did not, as a matter of fact, take radiographs for the teeth that were to be treated in all four quadrants. The Committee considered whether you were under a duty to do so. The Committee has heard expert evidence from both Professor Deery and Mr Holden. Professor Deery stated that, as the practitioner providing treatment on referral on the date in question, you should have taken radiographs before commencing the proposed treatment, particularly in order to detect the presence of disease so that treatment can be appropriately planned. Mr Holden stated instead that, although it would have been good practice to have taken such radiographs, you were not obliged to do so and the omission of radiographs was not a culpable failure on your part. The Committee prefers the expert evidence of Mr Holden in this regard, namely that you were not under a duty to take radiographs of the teeth that were to be treated prior to providing the restorations and extractions in question. Mr Holden was able to give more helpful and relevant evidence on this point, given that he is an experienced general dental practitioner practising in circumstances more closely aligned to those in which you were working at the time. Mr Holden also has experience in assessing practices undertaking paediatric sedation referrals in 2012. Your evidence is that you conducted a clinical examination of the teeth that you were to treat. This clinical examination and the re-filling of the patient s URE, ULD, ULE, LLD, LLE and LRE was sufficient for you to determine the extent of dental disease. You further stated that you considered that radiographs would have been of no further diagnostic value given your clinical findings. The Committee accepts your account that, as the re-filling of the patient s URE, ULD, ULE, LLD, LLE and LRE would have involved the exposure of the interproximal surfaces of those teeth and the extent of decay, you would have been well placed to make an informed judgement as to the extent of disease present and as to the appropriate treatment for those teeth. Your clinical examination of the patient s LRD in particular, and your more doubtful prognosis of that tooth following your examination, demonstrates that you identified primary dental disease and took appropriate remedial action. As the GDC has not demonstrated to the standard required that radiographs of the quadrants that were to be treated should have been taken, the Committee finds the facts alleged at head of charge 2 (a) not proved. The Committee finds the facts alleged at head of charge 2 (b) proved. The Committee has heard that both Mr Holden and Professor Deery agree that you were under a duty to provide Witness 1 with an adequate explanation of the treatment that you planned to provide to her daughter. The Committee has heard that Witness 1 had a general appreciation of the treatment that was proposed, but the evidence presented to the Committee RYAN, D Professional Conduct Committee - December 2017 Page -4/11-
3. Withdrawn 4. Proved 5. Proved suggests that there was a considerable degree of doubt and confusion as to the number of extractions, and in particular whether you would extract Patient A s LRD, or LRC, or both. The Committee has heard that the conversations that you had with her about these possible extractions were conducted in rather hurried circumstances, and that you considered that you needed to act quickly to maximise the amount of time available for treatment once Patient A had been sedated. Your oral evidence to the Committee is that you provided Witness 1 with an explanation of what you would do on two occasions prior to performing the extractions, and that you did your best to ensure that she understood. Witness 1 however states that she did not understand what you planned to do, and that you were vague as to what extractions you were proposing. The Committee prefers Witness 1 s account of these conversations. It finds that your account is not entirely consistent. In your witness statement you stated that you would extract the patient s LRD and URD, but elsewhere in that statement you stated that you informed Witness 1 that you would try to avoid extractions and would only extract teeth where necessary. In your oral evidence you stated that you informed Witness 1 that you would extract Patient A s LRD, but at other times in your evidence you stated that you informed Witness 1 that you would do what you could, or words to that effect. The lack of clarity about what extractions were planned, and therefore what could be communicated to Witness 1, is further demonstrated by the consent form that Witness 1 later signed, as this form does not specify what extractions or restorations were proposed. You also accept that the conversations about the proposed extractions came to a premature end because the patient had already been sedated, and this is further suggestive of a conversation that had not been sufficiently detailed and clear. Accordingly, the Committee finds that, you did not take adequate steps to ensure that she had understood and, ultimately, that the conversation was not an adequate explanation of the treatment that you planned to provide. The Committee further finds that this amounts to a failure on your part, and therefore that the facts alleged at head of charge 2 (b) are proved. The Committee finds the facts alleged at head of charge 4 proved. The Committee accepts the evidence of Witness 1. You accept that the conscious sedation of Patient A had already commenced by the time at which you asked Witness 1 to sign the consent form for treatment. The Committee has heard that both Professor Deery and Mr Holden agree that you were under a duty to obtain Witness 1 s written consent for treatment prior to the start of sedation. The Committee accepts their evidence and finds that you failed in this duty. Accordingly, the Committee finds the facts alleged at head of charge 4 are proved. The Committee finds the facts alleged at head of charge 5 proved in respect of the circumstances set out at head of charge 2 (b) and 4 above. It follows that if RYAN, D Professional Conduct Committee - December 2017 Page -5/11-
you did not provide Witness 1 with an adequate explanation of the treatment that you planned to provide, you could not have obtained her informed consent for that treatment. The Committee finds that you were under a duty to obtain her informed consent, and that you failed in this duty. The Committee has had regard to its findings as set out at heads of charge 2 (b) and 4 above. It also had regard to the fact that it accepts Witness 1 s evidence as to how the consultation unfolded. It therefore follows that you did not obtain informed consent. 6. a) Not proved 6. b) Withdrawn 6. c) Withdrawn The Committee finds the facts alleged at head of charge 6 (a) not proved. The Committee is not persuaded that the evidence presented to it is sufficient to demonstrate that extra-coronal preformed metal crowns should have been used instead of intra-coronal restorations. The Committee accepts the expert evidence of Mr Holden, namely your choice of restorations was acceptable and that this choice does not amount to a failure in your duty of care to Patient A. Although Professor Deery advocated the use of extra-coronal preformed crowns, he accepted in evidence that such crowns might be the choice of a specialist, rather than a general dental practitioner. The Committee has also heard from Witness 1 that, other than one filling coming out, which it has heard is common, your choice of intra-coronal restorations has not caused any problems for Patient A. The Committee is not persuaded that your treatment was inadequate, and accordingly it finds the facts alleged at head of charge 6 (a) not proved. 7. a) Admitted and proved 7. b) Withdrawn 7. c) Admitted and proved 8. Withdrawn 9. a) i) Admitted as a fact; failure denied; proved 9. a) ii) Proved The Committee finds the facts alleged at head of charge 9 (a) (i) proved. You accept that you made the comment in question, but you deny that this amounts to a failure to conduct yourself appropriately. The evidence presented to the Committee by Witness 1 is that this was a pejorative interjection into the conversation that she was having with the sedationist. You accept that you interrupted that conversation, and the Committee finds that the tone and sentiment of the comment amounts to a failure to conduct yourself appropriately. Accordingly the Committee finds the facts alleged at head of charge 9 (a) (i) proved. The Committee finds the facts alleged at head of charge 9 (a) (ii) proved. You accept that you said similar words to Witness 1 in the context of planned RYAN, D Professional Conduct Committee - December 2017 Page -6/11-
9. a) iii) Proved 9. b) Proved 9. c) Proved We move to stage two. extractions, namely that you would do what you could, or what needs to be done. Witness 1 s account is that you stated, I ll do what I want in relation to the planned extractions. The Committee accepts her account. It is consistent with your stated intention to come to your own conclusions as to which teeth needed to be extracted rather than relying on the proposals of the dentist who referred Patient A to you. The Committee finds that your comment amounts to a failure to conduct yourself appropriately, and accordingly the facts alleged at head of charge 9 (a) (ii) are proved. The Committee finds the facts alleged at head of charge 9 (a) (iii) proved. You admit making this comment in your witness statement, although you maintain that you made the comment to avoid escalating the difficult situation that was developing with Witness 1. The Committee accepts Witness 1 s account that this comment was pejorative, and it finds that by making the comment in question you did not treat Witness 1 with dignity and respect. The Committee is also mindful that her daughter, who was receiving treatment, was also present, and that this further emphasises the need to act appropriately. Although it is clear that your professional relationship with Witness 1 was breaking down, you were under a duty to ensure that you conducted yourself in an appropriate manner. The Committee finds that you did not do so, and that accordingly the facts alleged at head of charge 9 (a) (iii) are proved. The Committee finds the facts alleged at head of charge 9 (b) proved. The Committee finds that, on balance, it is more likely than not that you referred to wasting precious sedation time, or words to that effect, given that you have provided evidence of your appreciation of the pressing need to commence treatment once the patient had been sedated. You also used similar words when giving evidence to the Committee. Given your perception of the urgency of the situation, the Committee finds that it is plausible that you held up the consent form to Witness 1 and made the comment referred to above. The Committee finds that this amounts to a failure to conduct yourself in an appropriate manner, and accordingly it finds the facts alleged at head of charge 9 (b) proved. The Committee finds the facts alleged at head of charge 9 (c) proved. Although Witness 1 was not always consistent in her oral evidence as to whether you raised your voice when speaking to her, the Committee accepts her evidence of you having done so. The Committee finds that it is plausible that you did so, given the apparent breakdown in communication with Witness 1. The Committee finds that this amounts to a failure to conduct yourself in an appropriate manner, and accordingly it finds the facts alleged at head of charge 9 (c) proved. RYAN, D Professional Conduct Committee - December 2017 Page -7/11-
On 8 December 2017 the Chairman announced the determination as follows: Mr Ryan The Committee has considered all of the evidence presented to it, both written and oral. It has taken into account the submissions made by Mr Collins on behalf of the General Dental Council (GDC) and those made by Mr Leonard on your behalf. In its deliberations the Committee has had regard to the GDC s Guidance for the Practice Committees, including Indicative Sanctions Guidance (October 2016). The Committee has accepted the advice of the Legal Adviser. Evidence submitted The Committee has been provided with a number of documents submitted on your behalf, namely testimonial letters from two former colleagues and a report following a record card audit undertaken on 22 April 2015. Fitness to practise history Mr Collins addressed the Committee in accordance with Rule 20 (1) (a) of the General Dental Council (Fitness to Practise) Rules 2006 ( the Rules ). He confirmed that you have no fitness to practise history with the GDC. Misconduct The Committee first considered whether the facts that it has found proved constitute misconduct. In considering this matter, the Committee has exercised its own independent judgement. In its deliberations the Committee has had regard to the following paragraphs of the GDC s Standards for Dental Professionals (May 2005) in place at the time of the incidents giving rise to the facts. These paragraphs state that as a dentist you must: 1.4 Make and keep accurate and complete patient records, including a medical history, at the time you treat them. Make sure that patients have easy access to their records. 2.1 Treat patients politely and with respect, in recognition of their dignity and rights as individuals. 2.2 Recognise and promote patients responsibility for making decisions about their bodies, their priorities and their care, making sure you do not take any steps without patients consent (permission). Follow our guidance, Principles of patient consent. 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. In light of the findings of fact that it has made, the Committee has concluded that your conduct fell far short of the standards reasonably expected of a general dental practitioner. Your acts and omissions in relation to the obtaining of informed consent and conduct towards the mother of Patient A were serious, and the Committee concludes that these specific shortcomings amount to misconduct. In exercising its own independent judgement, RYAN, D Professional Conduct Committee - December 2017 Page -8/11-
the Committee notes the views of the two expert witnesses that your conduct towards Witness 1, your omission of an adequate explanation of treatment to her, and your failure to obtain informed consent fell far below the standards reasonably expected of a registered dentist. The Committee does however agree with the expert witnesses shared view that your record-keeping failures, whilst not consistent with good practice, were not so serious as to amount to misconduct. The Committee considers that your acts and omissions in respect of your provision of information to Witness 1, the obtaining of her consent and your behaviour and conduct towards her represent significant departures from appropriate standards of conduct and relate to fundamental areas of the safe and effective practice of dentistry. Although the Committee has heard that you were not aware that Patient A had been placed under sedation by your colleague, and that you sought to obtain consent once you had realised, the Committee considers that this omission nonetheless amounts to a culpable failure on your part. It considers that you had ultimate responsibility for the safe and effective care of Patient A at the appointment in question, and that you should have taken appropriate steps to ensure that the patient s mother had provided the relevant consent to treatment at the correct time. Although you have stated that your colleague who sedated Patient A was new to the practice, the Committee considers that you were therefore under a heightened duty to ensure that proper procedures were followed. Your behaviour and conduct towards Witness 1 also amounts to misconduct. Although your proven conduct relates to one episode at a single appointment, you had a number of opportunities to modify and reflect on your behaviour at the appointment in order to deescalate the developing situation. The Committee has heard that you consider that Witness 1 contributed to, or even caused, the breakdown in communication. The Committee considers that, as the responsible treating practitioner, you were under a clear duty to ensure that your conduct towards and communication with Witness 1 was at all times appropriate and professional, particularly when attempting to explain significant and invasive treatment to her which was to be performed on her young daughter. The Committee has found that you failed in your professional responsibilities, and that fellow professionals would consider your conduct to be deplorable. Your actions placed Patient A at risk of harm and caused considerable upset to her mother. The Committee finds that your departures from acceptable practice in the areas of patient communication, informed consent and professional conduct amount to misconduct. Impairment The Committee then went on to consider whether your fitness to practise is currently impaired by reason of your misconduct. In doing so, it has exercised its independent judgement. 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. In exercising its own independent judgement, the Committee considers that the shortcomings that it has identified are capable of being remedied. It considers that your provision of information to the mother of Patient A, and the omission of informed consent, are shortcomings that can be remedied with appropriate reflection, insight, learning and modifications in your practice. Similarly, although the Committee has found that you failed to maintain appropriate standards of conduct towards Witness 1, the Committee is satisfied RYAN, D Professional Conduct Committee - December 2017 Page -9/11-
that this failing is also capable of being remedied by way of reflection, targeted learning and practical changes to how you communicate and conduct yourself with patients. The Committee then considered whether the misconduct that it has identified has been remedied. Having taken all of the information presented to it into consideration, the Committee has determined that you have not demonstrated that you have remedied the misconduct that it has identified. You have provided very little in the way of evidence of having acknowledged, reflected upon and rectified your acts and omissions in relation to the provision of information, obtaining of informed consent and professional conduct towards patients. Although you made some admissions to allegations which the Committee has since found proved, you have not demonstrated any real appreciation of the effect that your communication with and conduct towards Witness 1 has had. You have instead sought to ascribe blame to Witness 1 for the breakdown in communication, and you have not provided any evidence to suggest that you have considered how you might deal with a similar situation in a different way in the future. The Committee considers that you lack insight into your conduct towards Witness 1. You have also not provided sufficient evidence to suggest how you would ensure that, if practising, there would not be a repeat of your omissions in obtaining patient consent and explaining treatment to patients. The Committee concludes that, because of the lack of insight and remediation presented to it, it cannot be satisfied that it is highly unlikely that there will not be a repeat of the misconduct that has been identified. Accordingly, the Committee considers that your fitness to practise is currently impaired on the basis that there is an ongoing risk of harm to the public. The Committee further considers that a finding of impairment is required to maintain public confidence in the profession and to declare and uphold proper professional standards. The Committee considered that the public s trust and confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances of this case. Sanction The Committee then determined what sanction, if any, would be appropriate in light of the findings that it has made. The Committee recognises that the purpose of a sanction is not punitive, although it may have that effect, but is instead imposed in order to protect patients and safeguard the wider public interest. In reaching its decision the Committee has again taken into account the GDC s Guidance for the Practice Committees including Indicative Sanctions Guidance (October 2016). The Committee has applied the principle of proportionality, balancing the public interest with your own interests. The Committee has had regard to the mitigating and aggravating factors that are present in this case. In terms of mitigating factors, the Committee notes that you are otherwise of good character and that you have provided two positive testimonial letters from former professional colleagues. The Committee is also mindful that over four years have passed since the incidents giving rise to these proceedings, and that your misconduct relates to a single patient appointment. However, your conduct involved a patient who was vulnerable on account of her young age, and your conduct involved the risk of harm. You have also not demonstrated any remorse for, reflection upon or insight into your misconduct. RYAN, D Professional Conduct Committee - December 2017 Page -10/11-
The Committee has considered the range of sanctions available to it, starting with the least serious. In the light of the findings made against you, the Committee has determined that it would not be appropriate to conclude this case with no action, as to do so would risk undermining the public s trust and confidence in the profession and would not be sufficient to declare and uphold proper professional standards of conduct and behaviour. The Committee next considered whether it would be proportionate and appropriate to conclude the case with a reprimand. The Committee has considered the extent that your retirement has on what sanction should be imposed. You have informed the Committee that you have retired from clinical practice and that you do not intend to return to practice in the future. The Committee notes that you have not practised for almost three years, having ceased work in January 2015. You have also stated that, upon the sale of a dental practice for which you have remained the NHS contract holder, you intend to seek voluntary removal from the register. The Committee is mindful that retirement is not irrevocable and that it is entirely open to you to decide to return to practice. However, the Committee accepts that such a course is most unlikely, and that your retirement is indeed settled and final. The Committee is satisfied that, in circumstances where you have retired from practice, there is not likely to be a real risk of repetition of your misconduct such that a higher, and restrictive, sanction should be imposed. Instead, the Committee considers that your retirement from practice has had the effect of reducing the risk of repetition to a level that makes a reprimand an acceptable, proportionate and appropriate sanction. The Committee did specifically consider whether a conditional period of registration should be imposed, but concluded that such an order would be disproportionate given that a reprimand can adequately meet the present risks. The Committee is also satisfied that a reprimand is sufficient to meet the public interest considerations referred to above, and that in particular the public would consider that a sanction higher than a reprimand would be disproportionate. The Committee is again mindful that your misconduct relates to a single patient at a single appointment, that you have practised for some 50 years, that your conduct did not cause harm, and that you are otherwise of good character. The Committee considers that a reasonable and informed observer would not expect a sanction higher than a reprimand, and that a reprimand is sufficient to declare and uphold proper professional standards of conduct and behaviour and to maintain trust and confidence in the profession. The Committee has therefore decided, and now directs, that a reprimand be recorded against your name in the register. This reprimand, and a copy of this determination, will appear alongside your name in the register for a period of 12 months. The reprimand forms part of your fitness to practise history and is disclosable to prospective employers and prospective registrars in other jurisdictions. That concludes this case. RYAN, D Professional Conduct Committee - December 2017 Page -11/11-