The General Dental Council has recently published new guidance for the Professional Conduct Committee, including Indicative Sanctions Guidance, which came into effect on 6 April 2015. It is important that all practitioners, whether representing the Council or the registered professional, are familiar with it. Most of the document will be familiar to practitioners in healthcare regulation. This article seeks to briefly explore the more noteworthy elements of this new guidance.
The guidance attempts to define “insight”. This is no easy task nonetheless a helpful three limbed definition is provided:
“Insight might be defined as an expectation that they will be able to:
- Review their own performance or conduct;
- Recognise that they should have behaved differently in the circumstances being considered; and
- Identify and put in place measures that will prevent a recurrence of such circumstances.”
Additionally the guidance states that the language used by a registrant in expressing their insight is not the major issue: “the fact that a dental professional has recognised that corrective actions need to be undertaken is more important than the manner in which their insight is expressed.”
The Government’s decision not to support the introduction of a criminal offence for a failure to abide by the duty of candour has passed the responsibility for ensuring that Robert Francis QC’s call for increased candour in healthcare to the professional regulators. The GDC has responded to the calls in the Francis Inquiry by making clear that:
“Failure to be open with a patient may be considered by the panel as a factor when determining impairment and sanction…professionals who seek to obstruct others in raising concerns or being candid would be in breach of their professional responsibilities.”
The guidance summarises the position on a professional’s failure to be candid: “The PCC should therefore take very seriously a finding that a dental professional took deliberate steps to avoid being candid with a patient, or to prevent someone else being so.”
Standard Of Care
The Guidance also reflects on those cases where the standard of treatment or care falls below acceptable standards. The Guidance expresses, with admirable clarity, the fact that not all instances where the care provided to a patient has been less than ideal require professional sanction. “Dentistry is neither a precise, nor infallible, science. Dental professionals may make judgements which are questionable or simply mistaken, or carry out treatments or procedures which do not work. Not all treatments are successful and unfortunately patients sometimes suffer harm. This does not always indicate that the registrant did not provide an acceptable standard of care. Fitness to practise cannot be judged in hindsight solely on the outcome of treatment.” This passage is difficult to disagree with and no doubt in cases regarding the standard of treatment it will be highlighted to the PCC. The fine distinction between unacceptable levels of care and regrettable, but ultimately bearable, mistakes and errors will depend to a large extent upon the expert evidence as to the standard of care provided. The guidance does not however act all in the registrant’s favour. The same section goes on to say: “If a patient suffers serious harm which could and should have been avoided, and the dental professional knew better (or ought to have known better, but failed to inform him or herself adequately), then in principle that dental professional has demonstrated behaviour that is incompatible with registration.”
For the first time social media and the internet are included in the document. There have been no cases brought by the GDC relating to the inappropriate use of social media or the internet but the GDC has nonetheless provided guidance in the event that any such case does appear before the PCC. It states that the inappropriate use of social media can be damaging to public confidence in the profession. “When considering cases relating to the use of social media, the PCC may wish to take into account some or all of the following: whether any statements provided by the registrant in respect of their social media use raise questions about the registrant’s judgment or sense of professional responsibility, for example expressing a view that social media content can be ‘private’, or that personal social media does not impact on professional standing; whether the dental professional has shown insight into the potential impact of their behaviour; whether the registrant’s social media use would be likely to undermine public confidence in the profession.”
Perhaps the greatest impact this guidance will have is in relation to the requirements of candour. The Francis Report made candour, or the lack of it, a hot topic within the healthcare world. The Government’s decision to pass on responsibility for encouraging an environment where candour is the norm to regulators means that individuals can expect the PCC to consider any failure to be candid to be dealt with sternly. In fact, the sections of the guidance dealing with the standard of care and candour echo the words of the Secretary of State for Health in the wake of the Morecambe Bay Report: “Within sensible professional boundaries, no one should lose their job for an honest mistake made with the best of intentions. The only cardinal offence is not to report that mistake openly so that the correct lessons can be learned.” Registered professionals would be well advised to heed those words of warning.