Creeping unfairness and remote hearings at the General Dental Council
At the start of the pandemic almost 19 months ago, there was an urgency to keep the wheels of justice moving and for cases to continue to be heard if at all possible. Technology, regulators, practitioners and registrants all rose to the challenge and within weeks of the order to work from home, interim order hearings began being heard remotely with full hearings recommencing in the following months.
This was always understood to be an extraordinary response to extraordinary times and in fact there is no power within the Fitness to Practice Rules which govern either the Medical Practitioners’ Tribunal or the General Dental Council Fitness to Practice Proceedings for hearings to be heard remotely. Whilst the MPTS has in the main adopted a pragmatic approach and facilitated live hearings where requested by the Registrant, the GDC has unilaterally decided that the default position should be for all hearings to be conducted remotely.
In the final quarter of last year, and it appears without consultation, the GDC informed stakeholders that hearings listed for the first quarter of 2021 would by default be heard remotely. We are now in the final quarter of 2021 but this remains the case. There is no coherent reason why this position has been adopted and little guidance or explanation as to when and how exceptions will be made to this blanket policy. In addition, the procedure adopted for making an application to a Preliminary Committee for full a hearing to be heard live is itself opaque at best. The GDC maintain – based on no authority in the Dental Act or the rules – that these applications must themselves be heard on the papers and not by way of oral submissions.
Rule 51(4) of the General Dental Council Fitness to Practice Rules 2006 (as amended) provides Practice Committees with case management powers. It is noteworthy that Rule 51(4) does not include a specific power to order remote hearings. Rule 2(3) of Schedule 3 and Rule 2(3) of Schedule 4B of the Dentists Act 1984 do not include a specific power to order remote hearings. The Schedules do not in fact identify any case management powers available but state: “Each stage in proceedings before a Committee under Part 3 of this Act shall be dealt with expeditiously and a Committee may give directions as to the conduct of the case (my emphasis) and the consequences of failure to comply with such directions (which may include the making of an order or refusal of an application if the failure to comply was without reasonable excuse).”
Moreover, Rule 51(4) empowers Practice Committees to make case management decisions not the GDC itself. Practice Committees sit independently of the Regulator itself and are required to exercise the discretion vested in them to make case management decisions based on the individual circumstances of each case. Absent a legal basis for the announced policy for hearings to be held remotely, it is suggested that it is in fact incumbent on the GDC to make an application in each individual case setting out why an in-person hearing is not possible and how a remote hearing preserves the interests of justice. There can be no justification for any default basis that all hearings are conducted remotely.
In fact, the default position that cases are heard in person before the Committee is supported by a specific derogation from this position set out in Rule 56(3) of The Rules, which provides for video links for vulnerable witnesses.
The legal basis for the current position adopted by the GDC is unclear, there is no power in the Rules for such an approach. Furthermore, a blanket policy is questionable because it fetters the decision making of those vested with the discretion to make case management decisions. In addition, there is no clear guidance on when the default position will be varied. Is it based on the nature of the allegations, the number of challenged witnesses, the complexity of the allegations or individual characteristics of a Registrant? This approach is unfair and opaque. Perhaps the only course now open to Registrants to restore the fairness of proceedings is Judicial Review.