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Health regulator defeated in landmark legal case

  • General Dental Council deemed to have acted unlawfully on setting professional fees, but gets to keep its “ill-gotten gains”
  • Judge slams "gaping hole" in regulator’s argument
  • Judgement follows critical failings at regulator, and Fitness to Practise cases that cost £78,000
  • Verdict comes as MPs single out "bunker mentality" at failing regulator
  • Dentists' union calls on government for wholesale reform of regulation

The General Dental Council (GDC), the regulator for dentists and dental care professionals, has been found to have acted unlawfully in a landmark judgement this morning (18 December). 
 
The British Dental Association (BDA), initiated Judicial Review proceedings to prevent the regulator implementing a staggering £15 million pound increase to the fees levied on the dental profession. The consultation behind the fee rise has been deemed unlawful, but the judge declined to reverse the fee rise, their counsel citing the risk of “administrative chaos” at the GDC.
 
The troubled regulator has been taken to task by the Professional Standards Authority and parliament.  In a parliamentary debate Health Minister Dr Dan Poulter, confirmed that he had "not been presented with compelling evidence to justify the increase" and called on the GDC to make "significant improvements." Sir Paul Beresford MP, who called the debate, accused the regulator of operating a "bunker mentality".
 
The dentists' union was awarded costs, and has now called on government to act on inadequate health regulation. ​
 
Mick Armstrong, Chair of the British Dental Association, said:
 
"We regret that it came to this, but there was so much more at stake here than just fees. We've seen patients and practitioners left in limbo for over 18 months when complaints are raised, and hearings with an average price tag of £78,000. We had to take action because health professionals should not have to subsidise failure at their regulator.

"Today a judge singled out a ‘gaping hole’ in the GDC's arguments. The regulator demonstrated it wasn't clear on its own powers and claimed it was facing ‘administrative chaos’. And that utter confusion has allowed it to escape the full weight of the law.

"This super-sized fee rise still stands, and now serves as a monument to the failures of health regulation. This case has revealed that a regulator, unaccountable to government, can be found to have acted unlawfully but still walk away with its ill-gotten gains. We are now looking to the government to act.

“The chaos at the GDC serves as a warning to all healthcare professionals. The Prime Minister once called for action on the 'outdated and inflexible' laws applied by our regulators. It's time for the government to honour that pledge, in full."

The BDA has written to the Department of Health to outline the worrying implications of this case.

 

Background: The General Dental Council

1. The General Dental Council (GDC) is the statutory body responsible for regulating dental professionals in the UK.

2. The GDC is currently the subject of a Professional Standards Authority (PSA) enquiry into the way it deals with whistle blowers. Another one was conducted last year into inappropriate processes within its Investigating Committee. It failed to meet two out of five standards for registration, and six (possibly seven) standards out of ten for Fitness to Practise (FTP) in the PSA's last annual performance report. The GDC has been criticised, by the PSA and by the profession, for not progressing FTP cases more swiftly, resulting in a large backlog and some cases taking in excess of 18 months to go to a hearing. The regulator has been accused of breaches of the Data Protection Act and potentially misleading parliament with inaccurate performance data.

3. The GDC has suggested the cost of an average FTP case reaching a hearing in 2013 was £78,000. FOI requests have shown this is based on the 160 cases that reached its Practise committee, at a total cost of £12.4 million.

4. GDC Chair Bill Moyes took up office a year ago and has repeatedly stated his intention to substantially broaden the remit of the regulator well beyond the statutorily defined boundaries.

5. The GDC has lost the trust and confidence of the profession. A survey of BDA members took place in July 2014. Nearly 6000 members, or 42 per cent of those invited to take part, responded. It indicated that 79 per cent of members are not confident that the GDC is regulating dentists effectively, and that 66 per cent of those who had experience of the GDC's Fitness to Practise function rated the function fairly poor or very poor.

 

The High Court Challenge

6. The GDC held a consultation during the summer of 2014 over its intention to increase the professional annual retention fee for registration by 64 per cent to £945, making it the most expensive regulator in the UK.

7. The annual retention fee (ARF) is the fee that dental professionals pay to be registered and practise dentistry lawfully. Based on advice from Queen's Counsel, the BDA believes that the consultation, and subsequent decision, were so flawed as to be unlawful.

8. The BDA therefore challenged the GDC's consultation and its subsequent decision and regulations of 30 October 2014, to increase its retention fee by 55 per cent to £890.

9. The BDA was granted a 'rolled up' judicial review, with the case heard on 15 December 2014. General Dental Council vs. British Dental Association (CO/4825/2014).

10. Over the GDC's three-year budget period the original proposal would have cost the profession an estimated £45 million.  

 

Political inertia

11. The General Dental Council was the subject of an adjournment debate in Parliament on 9 December 2014. Dr Dan Poulter, Parliamentary under Secretary of State, Department of Health confirmed he "not been presented with compelling evidence to justify the increase" and called on the GDC to make "significant improvements." Sir Paul Beresford MP, who called the debate, described the regulator as "not fit for purpose" and was now operating a "bunker mentality".

12. The Prime Minister, in his response to the Francis inquiry report into Mid Staffordshire Foundation Trust, promised action to "sweep away our outdated and inflexible framework" facing healthcare regulators. In the command paper Enabling Excellence, published in 2011, the government acknowledged that the current legislative frameworks for all of the health and social care regulators are "expensive, complex and require continuous government intervention to keep them up to date". The Law Commissions of the four UK nations were tasked with compiling a Draft Bill on Health and Social Care Regulation, with the expectation of sweeping reform across all healthcare regulators. Published in May 2014, it did not feature in the June 2014 Queen's Speech.