HEARING HEARD IN PUBLIC JUDGE, James Gerrard Registration No: 52094 PROFESSIONAL CONDUCT COMMITTEE February 2017 Outcome: Erased with Immediate Suspension James Gerrard JUDGE, a dentist, BDS Glasg 1978, was summoned to appear before the Professional Conduct Committee on 6 February 2017 for an inquiry into the following charge: Charge (as amended on 6 February 2017) That being registered as a dentist Mr James Gerrard Judge s (52094) fitness to practise is impaired by reason of misconduct. In that: 1. Between 30 December 1999 and 8 September 2011, you failed to provide an adequate standard of care to Patient A, including by: a. Not carrying out sufficient diagnostic assessments, b. Not diagnosing periodontal disease, c. Not adequately monitoring periodontal disease, d. Not adequately treating periodontal disease or referring Patient A for appropriate treatment of periodontal disease, e. Not informing Patient A of her periodontal disease, f. Carrying out endodontic treatment on or around 4 May 2001 on the upper left first permanent molar without a pre-operative and/or post-operative radiograph, g. Carrying out the removal of the lower right third permanent molar on or around 27 July 2005 without a pre-operative radiograph. 2. Between 30 December 1999 and 8 September 2011 in respect of your treatment of Patient A, you failed to maintain adequate records relating to: a. Medical and dental history, b. Examination of the dentofacial area and oral mucosa, c. Periodontal status, d. Existing restorations, e. Radiographs, f. Written Radiographic reports, g. Consent provided for treatment, JUDGE, J G Professional Conduct Committee February 2017 Page -1/11-
h. Clinical diagnoses, and/or i. Treatment plans. 3. You failed to respond adequately to Patient A s complaint dated 29 June 2015. 4. Between 28 October 2015 to 26 August 2016, you failed to adequately cooperate with a GDC investigation into your care of Patient A. Mr Judge was not present and was not represented. On 7 February 2017 the Chairman announced the findings of fact to the Counsel for the GDC: Service and proceeding in absence Mr Judge is not present nor is he represented at this hearing. The Committee has seen a copy of the notification of hearing dated 5 January 2017 that was sent to his registered address by first class post and Special Delivery. The Committee has seen a printout from the Royal Mail Track and Trace website service which states that the Special Delivery item was returned to sender on 11 January 2017 after being refused. The notification was also sent to Mr Judge by email, however it was not successfully delivered. The Committee was satisfied that the General Dental Council had made reasonable efforts to notify Mr Judge of this hearing. It next considered whether to proceed with the hearing in his absence. It took account of Mr Judge s consistent failure to respond to the extensive attempts made by the GDC to communicate with him. The Committee determined that it was implausible he was unaware of these proceedings and took the view that he was choosing voluntarily to absent himself. It determined that there is a public interest in the expeditious disposal of a matter such as this, involving as it does, serious allegations of inadequate treatment and substandard record keeping. It balanced this against Mr Judge s right to be present. It bore in mind that there is no evidence to indicate an adjournment would secure Mr Judge s attendance at a later date. Furthermore, the Committee bore in mind that an expert witness was in attendance and ready to give evidence before it. He would no doubt be inconvenienced by adjournment. In all the circumstances, the Committee determined that it would proceed with the case notwithstanding Mr Judge s absence. It was satisfied that to do so would not result in undue prejudice or unfairness to Mr Judge. Amendment to head of charge 1(f) At the start of the hearing you applied under Rule 19 to amend head of charge 1(f) by way of insertion of the word left between the words upper and first. It would therefore read: Carrying out endodontic treatment on or around 4 May 2001 on the upper left first permanent molar without a pre-operative and/or post-operative radiograph, You submitted that the amendment was for clarification purposes only and that it tied in with the GDC s expert report, which Mr Judge has had for some time. JUDGE, J G Professional Conduct Committee February 2017 Page -2/11-
The Committee was satisfied that there was no prejudice caused to Mr Judge by the amendment, and that it was fair and in the interests of justice to state clearly which tooth was being referred to. It therefore accepted the amendment. Factual matters The Committee has taken into account all the evidence presented to it. It has accepted the advice of the Legal Adviser. It has considered each head of charge separately. It is alleged that Mr Judge failed to provide an adequate standard of care to Patient A and that he failed to maintain adequate records between 30 December 1999 to 8 September 2011. Additionally it is alleged that he did not respond adequately to a complaint from Patient A and he did not cooperate with the GDC s enquiries. The Committee heard evidence from the General Dental Council s (GDC) expert witness, Paul Jackson. It also had the benefit of reading his written report. The Committee found him to be a fair and balanced expert witness. He applied the appropriate standard of the average dental practitioner at the time that these matters occurred. The Committee was also assisted by the witness statements of five further witnesses; Patient A, Witness JF who was a subsequent treating dentist of Patient A, Witness AJ who is a Paralegal employed by the GDC s representatives at Capsticks solicitors, Witness PD who is a dental nurse who worked with JF, and Witness OB who is a Paralegal employed by the GDC. I will now announce the Committee s findings in relation to each head of charge: 1.a Proved. 1.b Proved. Mr Jackson told the Committee that sufficient diagnostic assessment would include a basic periodontal examination, six point pocket charting and radiographs. Mr Judge made no record of these matters within Patient A s records. The Committee noted the absence of any radiographs taken by Mr Judge in relation to Patient A during her time in his care. The Committee is aware that some of Patient A s records are missing. However, it has had regard to the record of claims for payment made by Mr Judge and notes that he made no claims for the taking of radiographs nor for any other diagnostic assessments. The Committee is therefore satisfied that Mr Judge failed to carry out sufficient diagnostic assessments over the relevant period. The Committee accepts the uncontested evidence of Patient A. In her statement, she stated that she was not aware of her periodontal disease until she was told of it by Witness JF in July 2013. Mr Judge has made no note in the patient records of such a diagnosis. The records available to the Committee indicate that another dentist at Mr Judge s practice, Mr G, diagnosed periodontal disease in 2005, and noted 5mm pockets. The Committee is satisfied that Patient A will have had periodontal disease for a significant period of time prior to 2005 and that this would have been apparent to a reasonably competent dentist. The Committee is therefore satisfied on a balance of probabilities that Mr JUDGE, J G Professional Conduct Committee February 2017 Page -3/11-
1.c Proved. 1.d Proved. 1.e Proved. 1.f Proved. 1.g Proved. Judge failed to diagnose Patient A s periodontal disease. Mr Judge failed to diagnose Patient A s periodontal disease. It therefore follows that he failed to monitor it. The Committee noted that Patient A underwent simple scaling treatment on at least two occasions over the years whilst under Mr Judge s care. However it accepts the evidence of Mr Jackson that simple scaling is a superficial treatment that would not have adequately dealt with Patient A s periodontal disease. He told the Committee that a root surface debridement would have been the appropriate treatment for her condition. Furthermore, Patient A s evidence is that she only ever underwent brief check-ups, each appointment lasting approximately ten minutes. She says she did not receive the kind of in-depth treatment she later received at the Dental Hospital for her periodontal disease. Patient A states that she was never referred anywhere by Mr Judge. It was only when she took the decision to seek the advice of another dentist for cosmetic treatment that she was made aware of the extent of her periodontal disease. The Committee is therefore satisfied that Mr Judge did not treat Patient A s periodontal disease, nor did he refer her on for treatment. The Committee accepts the evidence of Patient A that it came as a shock to her to learn that she had periodontal disease from her subsequent treating dentist, Witness JF. She indicated clearly that she was not aware of it and was not informed of it by Mr Judge. The Committee first considered whether the GDC had established that endodontic treatment had in fact been undertaken. It noted from the record of claims that Mr Judge claimed fees for a root filling in May 2001. It further noted that a series of appointments occurred around that time that would be consistent with Patient A undergoing root canal treatment. Patient A also had presented with pain prior to this treatment which would have been appropriately treated by root canal therapy. Mr Judge s charting states that RCT occurred. The Committee is therefore satisfied that it can infer that such treatment was carried out and it notes that at no point has Mr Judge claimed that it was not. Mr Jackson gave clear evidence that with endodontic treatment, pre and post-operative radiographs should be taken. The evidence seen by this Committee indicates that Mr Judge took no radiographs at any time, let alone before and after this treatment. It therefore finds this head of charge proved. JUDGE, J G Professional Conduct Committee February 2017 Page -4/11-
2.a Proved. 2.b Proved. 2.c Proved. 2.d Proved. 2.e Not proved. 2.f Not proved. 2.g Proved. 2.h Proved. The charting in February 2007 indicates the presence of the lower right third permanent molar, the charting in July 2005 indicates the absence of the tooth. Mr Judge submitted a claim for the extraction. The Committee is therefore satisfied that the extraction occurred. Mr Jackson stated that a pre-operative radiograph should have been taken prior to extraction. Mr Judge took no radiographs. The Committee therefore finds this head of charge proved. Patient A. He noted a lack of medical and dental histories. Patient A. He noted a lack of records of examinations of Patient A s dentofacial area and oral mucosa. Patient A. He noted a lack of records of Patient A s periodontal status. Patient A. He noted a lack of records of Patient A s existing restorations. The Committee has found that no radiographs were taken, therefore Mr Judge cannot be guilty of failing to maintain an adequate record. The Committee has found that no radiographs were taken, therefore Mr Judge cannot be guilty of failing to maintain an adequate record. Patient A. He noted a lack of records of consent provided by Patient A for treatment. JUDGE, J G Professional Conduct Committee February 2017 Page -5/11-
2.i Proved. 3. Proved. 4. Proved. We move to Stage Two. Patient A. He noted a lack of records of clinical diagnoses. Patient A. He noted a lack of records of treatment plans. Mr Judge failed to respond at all to Patient A s complaint dated 29 June 2015. She received an acknowledgement from his colleague DG, but heard nothing further from anyone at the practice. The Committee accepts the evidence of Witness AJ and Witness OB that Mr Judge has not responded to any correspondence nor has he provided information or documentation requested of him on behalf of the GDC in relation to the investigation leading up to this hearing today. On 8 February 2017 the Chairman announced the determination as follows: The Committee took into account the evidence presented to it at the fact-finding stage and the submissions made by you at this second stage of the proceedings. It accepted the advice of the Legal Adviser. FACTUAL BACKGROUND This case arises as a result of Mr Judge s inadequate care and treatment of Patient A. Mr Judge failed to carry out sufficient diagnostic assessments; he failed to diagnose, monitor, treat or refer Patient A for the treatment of her periodontal disease. He also failed to inform her of the presence of periodontal disease. These failings continued for a period approaching 11 years. The Committee found that he took no radiographs prior to or after carrying out endodontic treatment to Patient A s upper left first permanent molar, nor did he take any radiographs before the removal of her lower right third permanent molar. Mr Judge failed to maintain adequate records in a range of areas including in relation to Patient A s medical and dental histories, her periodontal status, clinical diagnoses and treatment plans. When Patient A made her complaint of 29 June 2015, he failed to respond to her at all. Between 28 October 2015 and 26 August 2016 the General Dental Council (GDC) sought Mr Judge s engagement and cooperation with the investigation into his care of Patient A. Mr Judge failed to respond or provide Patient A s dental records and to date, still has not done so. JUDGE, J G Professional Conduct Committee February 2017 Page -6/11-
MISCONDUCT The Committee considered whether the facts it found proved against Mr Judge amounted to misconduct. It bore in mind that misconduct is a matter for its own judgement, however it had regard to the expert opinion of Mr Jackson, particularly regarding the applicable standards at the time of the matters in issue. As Mr Judge s relevant conduct persisted for over a decade, different dental standards were applicable. The Committee had regard to the following sections of the GDC s Maintaining Standards document (published in 1997 and amended in 2001): 3.1 Acting in the best interest of patients. 3.2 Providing a high standard of care 4.12 Assessment, consent and instructions 6.1 Professional responsibility 8.2 Professional duty and liability It also had regard to the following sections of Standards for Dental Professionals (2005 to 2013): 1 Putting patients interests first and acting to protect them. 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. 2.4 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 relation to Mr Judge s inadequate care of Patient A, it is clear to the Committee that earlier intervention was likely to have resulted in a different outcome. Instead Patient A suffered harm to her oral health, which included significant bone loss. Whilst the Committee appreciates that this case involves a single patient, it notes that Mr Judge s poor care persisted for over a decade. Patient A had been attending the practice since her mid-teens and apparently trusted that her oral health was being properly looked after by Mr Judge during the period in which he was her treating dentist. In failing to provide an adequate standard of care to Patient A in a range of areas over a period of many years, Mr Judge s standard of care fell far below that expected of a reasonably competent dental practitioner and Patient A suffered actual harm as a result. The Committee noted that the dental records before it were incomplete despite a number of requests to Mr Judge to provide them and so had to focus its assessments on the available records. In relation to Mr Judges poor record keeping, the Committee determined that he displayed a consistent pattern of failure in a number of areas over many years. It was assisted by Mr Jackson s assessment of Mr Judge s record keeping and noted his view that when looked at in the light of the Current Guidelines for General Dental Practice (2000) (what he described as the gold standard ), it fell far below that standard. Mr Jackson also JUDGE, J G Professional Conduct Committee February 2017 Page -7/11-
considered the standard of record keeping of the typical dental practitioner of the time, as described in a 2001 study authored by RG Morgan and published in the British Dental Journal, and took the view that Mr Judge s record keeping fell below that standard. The Committee determined that it would not be appropriate to apply today s standards to Mr Judge s record keeping and therefore concluded that it fell below the appropriate standard at the relevant time, rather than far below. The Committee next considered Mr Judge s failure to respond to Patient A s complaint. It had regard to the following section of Standards for the Dental Team (2013): 5.3 Give patients who complain a prompt and constructive response. In the Committee s view, it is completely unacceptable for a dental professional to ignore a patient complaint. He did not acknowledge the issues Patient A raised, nor did he offer her any explanation. As his patient, she was entitled to an appropriate response. He also failed to comply with her request for the disclosure of her dental records, which subsequently went missing. In the Committee s view, Mr Judge s failure in this regard, fell far below the appropriate standard. Finally, the Committee considered Mr Judge s failure to respond to correspondence and requests for information from the GDC, which included failing to provide the GDC with Patient A s records. It had regard to the following section of Standards for the Dental Team (2013): 9.4 Co-operate with any relevant formal or informal inquiry and give full and truthful information. In failing to cooperate with the GDC s investigation into his treatment of Patient A, Mr Judge hindered the GDC s regulatory function. Every regulated professional is under an obligation to cooperate with their regulator. The Committee considered this to be a very serious matter and was in no doubt that fellow professionals would consider Mr Judge s conduct to be deplorable. In failing to engage with the GDC, his conduct fell far below the standard expected of a registered dentist especially given the evidence of actual harm caused to Patient A. A finding of misconduct in the regulatory context requires a serious falling short of the standards expected of a registered dental professional. The Committee has determined that in failing to provide adequate care to Patient A, failing to respond to her complaint, and failing to cooperate with the GDC, Mr Judge s conduct fell seriously short of the standards expected of him as a dentist. The Committee therefore determined that Mr Judge s actions in this regard amounted to misconduct IMPAIRMENT The Committee next considered whether Mr Judge s fitness to practise is currently impaired. It considered whether his misconduct was remediable. It took the view that his clinical failings could be remediated possibly through training, undertaking relevant courses and the implementation of a personal development plan. It considered that his failure to respond to Patient A s complaint and cooperate with the GDC, were indicative of deep seated attitudinal concerns that would be more difficult to remediate. It considered whether Mr Judge s misconduct had in fact been remedied and determined that it had not. The Committee saw no evidence of any Continuing Professional Development (CPD), a Personal Development Plan (PDP) or any reflective documents from JUDGE, J G Professional Conduct Committee February 2017 Page -8/11-
Mr Judge at all. There was a complete lack of engagement and an absence of any material that would indicate that he has taken any corrective action since these matters occurred. The Committee took the view that in the absence of any evidence of attempts to remediate his failings, and the lack of evidence that Mr Judge has any insight at all, there was a real risk of repetition of his misconduct. The Committee was particularly concerned by his apparent total lack of insight into the harm he had caused Patient A, which is further compounded by his complete lack of engagement. The Committee determined that Mr Judge s fitness to practise is currently impaired. Had the Committee not made a finding of current impairment on the basis of a real risk of repetition, it took the view that in light of Mr Judge s failure to cooperate with the investigation by his professional regulator into his conduct, this was a case which would have merited a finding of current impairment on public interest grounds alone. One of this Committee s functions is to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession and in the regulatory process. SANCTION The Committee considered what sanction, if any, to impose upon Mr Judge s registration. It bore in mind that the purpose of a sanction is not to be punitive, but rather to protect patients and the wider public interest. It noted that Mr Judge has no previous Fitness to Practise history. In considering sanction, the Committee took into account the Indicative Sanctions Guidance for the Practice Committees (October 2016). It applied the principle of proportionality and balanced the public interest against Mr Judge s own interests. The Committee considered whether it would be sufficient to conclude the case with no further action. However, it determined that in the light of the serious findings it had made, concluding the case with no further action would not be an appropriate or proportionate response. It next considered whether to issue Mr Judge with a reprimand. It determined that a reprimand would neither serve to safeguard patients, nor uphold public confidence in the profession. It next considered whether conditions of practice could be formulated that would address Mr Judge s impairment. It determined that in the light of his failure to cooperate with the GDC and his total lack of engagement with the proceedings, conditions would not be appropriate. Furthermore, it determined that no workable and measurable conditions could be formulated that would address Mr Judge s non-clinical failings. The Committee next considered whether to suspend Mr Judge s registration for a period of time. It noted the GDC s submission that a suspension should be imposed upon his registration for a period of 12 months. It had regard to the mitigation in Mr Judge s favour; namely his lack of a history before the GDC and the fact that this case involved only one patient. It balanced these considerations with the aggravating factors. Patient A suffered actual harm to her oral health as a result of Mr Judge s poor care which went on for over a decade. In failing to treat her appropriately and in ignoring her complaint he failed to justify the trust that she was entitled to have in him as a dental professional. He compounded all of these matters, which were sufficiently serious in themselves, by failing to respond to the GDC, his professional regulator. In the JUDGE, J G Professional Conduct Committee February 2017 Page -9/11-
Committee s view, this final failing is a very serious matter; members of the profession are required to cooperate with their professional regulatory body and not impede the regulatory process because these processes exist to protect patients and safeguard the public interest. The Committee noted paragraph 7.28 within the Indicative Sanctions Guidance, which sets out the factors indicative of a suspension order and concluded that suspension would not a sufficient sanction given the failings and risks identified. It then had regard to the following paragraph setting out the factors indicative of erasure: 7.34 Erasure will be appropriate when the behaviour is fundamentally incompatible with being a dental professional: any of the following factors, or a combination of them, may point to such a conclusion: serious departure(s) from the relevant professional standards; where serious harm to patients or other persons has occurred, either deliberately or through incompetence; where a continuing risk of serious harm to patients or other persons is identified; a persistent lack of insight into the seriousness of actions or their consequences. The Committee considered the matter very carefully and decided that the factors set out in paragraph 7.34 above are engaged in this case. It was satisfied that Mr Judge s failure to cooperate with the GDC raises a significant public interest issue. His behaviour in this regard indicates that he has no appreciation of the central role of the GDC in his professional life and he has failed at any stage to acknowledge the harm he has caused to Patient A. The Committee had no confidence that he was capable of understanding that he is subject to standards and regulations that he must abide by. Taking all of the above matters together, the Committee concluded that Mr Judge s conduct fell seriously short of what is expected of a reasonable dental practitioner in both clinical and non-clinical contexts. It determined that cumulatively, Mr Judge s behaviour is fundamentally incompatible with being a registered dental professional. Mr Judge s name is therefore erased from the Dentists Register. IMMEDIATE ORDER The Committee considered the submissions made by you. It accepted the advice of the Legal Adviser. You invited the Committee to impose an immediate order of suspension on Mr Judge s registration for the protection of the public and otherwise in the public interest. The Committee determined that an immediate order is necessary in this case for the protection of the public and is otherwise in the public interest for the same reasons as given for the substantive order. JUDGE, J G Professional Conduct Committee February 2017 Page -10/11-
The effect of the foregoing determination and this order is that Mr Judge s registration will be made subject to an order of suspension with immediate effect. If he chooses to appeal the substantive decision, this immediate order of suspension will remain in place until the resolution of that appeal. If no appeal is pursued, the immediate order will remain in place for 28 days, following which the substantive order will take effect. JUDGE, J G Professional Conduct Committee February 2017 Page -11/11-