Challenging a General Dental Council Decision via a Court

[heisenberg]

Dear all,

I have had an unfortunate experience with the General Dental Council (GDC) - they made a total hot mess (putting it mildly and politely) of a complaint I presented to them regarding a dentist on their register.

I have initiated their complaints procedure and the response I eventually received some months later only added to my concerns.

I understand I need to challenge their decision through the courts (high court it seems). Does anyone know the deadlines for this as I fear I have missed this due to the deliberate delay in receiving a response to my complaint? Also, does anyone know if legal aid is available for cases such as this?

Many thanks.

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

The GDC are a body established by and given powers by the Dentists Act 1984.

If your complaint was about the conduct of a dentist which was considered as one potentially affecting their registration as a dentist they will have considered that it in the context of those regulatory powers.

So, yes, my understanding is that the only way of challenging it would be by way of a Judicial Review, which is in the Administrative Court, a specialist division of the High Court. They are notoriously expensive.

Without a little more context it is difficult to say whether legal aid would be available although civil legal aid is now hugely restricted and so even without knowing about it, the starting point would be that it is hugely unlikely.

If it is a matter of general public importance then it is possible you may be able to interest one of the prominent solicitors that take on public law cases. This would be, for example, if the general conduct of the GDC acts to prejudice patients. If it concerns your treatment only, no.

Part 54 of the CPR governs judicial review. Proceedings must be brought "promptly and in any event within 3 months" which means exactly what it says, promptly but the absolutely limit is 3 months. There have been cases brought within 3 months which the court have refused to hear because they have not been brought promptly.

That time period, though, runs from the date of the decision on your complaint rather than the original decision.

Hope that helps.

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

Hi StevemLS,

Many thanks for the prompt response to my thread. Your response has been immensely helpful.

I complained to the GDC regarding the fact that a registrant/dentist failed to make reasonable adjustments and discriminated against me relating to issues arising from a disability. They further failed to follow the dental practice complaints process/procedure which further entails unfavourable treatment arising or as a consequence of a disability. Essentially, the dentist in question ended the professional relationship when I asked him a question he didn't like which directly relates to my disability.

What is worrying is the GDC assert that a dentist does not need to justify his decision (to end a professional relationship) in any way allowing dentists to discriminate with impunity (hopefully I am not advertising this here). The General Medical Council (GMC) are a lot more strict and sensible about this and rightly so. I also understand the GDC are meant to be following their 'best practices' yet this is seemingly not the case.

So to clarify, the clock starts ticking once I get a response to my 'service complaint' which is currently with the Fitness to Practice Director? I understand they cannot retrospectively correct their decision though I am not sure if that is correct or not.

With regards to the legal aid issue, this very much seems a chequebook justice system. I have raised the issue with the Professional Standards Authority but they are completely powerless.

Many thanks again for the pointers.

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

Access to justice in England has sadly always been dependent on ability to pay and seems to becoming ever more so, but don't get me started.

Again, very fact specific, but the GDC are generally concerned with whether the matter complained of affects the fitness to practice of the dentist, in much the same way as the GMC are - and you won't have to look far to find complaints about the GMC's effectiveness.

However, if this is a complaint about disability discrimination have you thought about approaching the Equalities and Human Rights Commission, they certainly used to take up cases on behalf of individuals and "intervene" in cases where they thought there was a wider public interest although I believe they have themselves recently had fairly savage funding cuts. Even if they can't directly help, they might be able to direct you towards others who could - their advice no is 0808 800 0082

Running JR proceedings is immensely complicated and, I'm afraid, I don't believe an LiP could realistically expect to do so no matter how much they get support from forums such as this.

ETA: I should have said, sorry, that JR is always about process and public law principles, not merits.

Which means you can't challenge a decision just because you don't like it. You have to show that they were procedurally wrong in the manner in which it was reached or that it was otherwise wrong on public law grounds - which can include unreasonableness but that means the decision was so unreasonable that no public body, in possession of the same facts, could have come to that decision - a very high bar.

The Administrative Court is not an appellate court on the basis of facts that have been found, it "supervises" arms of the Executive (of which GDC is one).

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

Thanks again StevemLS.

I indeed spoke to the Equalities and Human Rights Commission a day or so ago and they agreed, after 2 seconds, the issues complained of did, at the very least, amount to discrimination arising from a disability. As for the GDC, the penny still hasn't dropped after some significant correspondence and quite some time.

I have brought the issue to the Health Service Ombudsman but they took on the case extremely reluctantly as they argued they are not the organisation or body to direct disability discrimination complaints to. Needless to say, I fear the worst there.

I get the sense that the GDC rely on court findings in regards to discrimination and won't act in any way independently in this respect due to their competence levels (non existent). They have no robust means of testing 'disability' and do not have the foggiest idea when it comes to the relative principles. Strangely they make this a must for the dentists on their register. With access to justice being as expensive as it is and the the widely accepted ineffectiveness of the GDC (the Professional Standards Authority describe them as the worst of all the 9 statutory regulators), I fear dentists can easily get away with murder.

What is an LiP by the way?

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

ETA: I should have said, sorry, that JR is always about process and public law principles, not merits.

Which means you can't challenge a decision just because you don't like it. You have to show that they were procedurally wrong in the manner in which it was reached or that it was otherwise wrong on public law grounds - which can include unreasonableness but that means the decision was so unreasonable that no public body, in possession of the same facts, could have come to that decision - a very high bar.

The Administrative Court is not an appellate court on the basis of facts that have been found, it "supervises" arms of the Executive (of which GDC is one).

I know in an employment context that if you challenge an Employment Tribunal decision on the basis they made a perverse finding you are pretty much doomed for failure from the outset. If you are unrepresented it is not even worth giving it even the slightest bit of consideration as the Employment Appeal Tribunal will dismiss the appeal without even considering it. Are we talking the same thing?

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

I can say without doubt that, if the PHSO accept your complaint, it will be about your circumstances only and you will not have an outcome within 3 months. The PHSO are talking nonsense, btw, if they say they can't take on discrimination complaints, if your argument is that you received poor, or poorer, treatment as a consequence of disability there is no reason they can't investigate.

Have you complained to NHS England who are responsible for commissioning primary care - I am guessing that by where you are now you have.

To be entirely fair to the GDC, all regulators are, to an extent, dependent on court precedent for interpretative assistance, but the legal test for "disability" is not terribly difficult to understand.

Is yours a "borderline" disability? By which I mean no disrespect but is it arguable whether you are disabled or not (I ask only because of para 3 of your last post)?

At this time of day anyhow, I am running out of ideas!

LiP, sorry, = Litigant in Person (i.e. without a lawyer)

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

Regarding the PHSO, I know they move slower than a crippled snail. It certainly did sound like nonsense they tried to feed me. They argued they could only look at cases where it could be considered that the party in question could be considered as acting 'unreasonably'. I said to them in return that discrimination is certainly not reasonable conduct.

The funny thing with NHS policy is that the NHS can't look at complaints when the complainant has raised a complaint with the dental practice (would you believe it?). So the next stop was the PHSO.

With regards to the issue of 'disability', I have had my fair share of discrimination with employment and have fought various battles in the Employment Tribunal. I have proved I meet the legal tests even when it was the Disability Discrimination Act. Is is now arguably easier to prove with the advent of the Equality Act (which I understand was partly introduced to make things more equal across the board as there was various degrees of protection based on various types of discrimination ironically, albeit in part, thanks to the higher courts).

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

Are we talking about employment, which is not my bag?

Perversity is a valid challenge of grounds in public law, but with a narrow scope.

Sorry to say I was assuming you were claiming discrimination as a patient not an employee.

As I said at the outset, context is vital and I am sorry if I have misinterpreted what you have already said.

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

Are we talking about employment, which is not my bag?

Perversity is a valid challenge of grounds in public law, but with a narrow scope.

Sorry to say I was assuming you were claiming discrimination as a patient not an employee.

As I said at the outset, context is vital and I am sorry if I have misinterpreted what you have already said.

Nope, everything relates to being a patient (or historic patient). Just referring to employment as have experience in that area and same principles apply (i.e. legal test for the meaning of 'disabled').

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

OK, of course test of disabled is the same.

I feared I had veered off entirely the wrong tangent.

So, you need to work out, if you want to, whether you have public law grounds to challenge what the GDC have done - which may well be unrelated to your own treatment, although can be woven in, if that follows.

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

[QUOTE=heisenberg;566259]

The funny thing with NHS policy is that the NHS can't look at complaints when the complainant has raised a complaint with the dental practice (would you believe it?). So the next stop was the PHSO.

/QUOTE]

This is also nonsense.

See Reg 7 Local Authority Social Services and National Health Service Complaints (England) Regulations 2009/309

If they commission the services, which they do, they must also deal with complaints under the Regs, there is no "leapfrog" procedure avoiding NHSE and the PHSO would rightly avoid any complaint which had not been first considered by NHSE.

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

OK, of course test of disabled is the same.

I feared I had veered off entirely the wrong tangent.

So, you need to work out, if you want to, whether you have public law grounds to challenge what the GDC have done - which may well be unrelated to your own treatment, although can be woven in, if that follows.

Okay. With regards to the 'disability', It seems I suffer from something called 'atypical facial pain' or 'trigeminal nueralgia' depending on who you ask (this taken together with other health issues amount to the disability all of which were disclosed). I queried a comment made by my dentist in a consultation made in this respect and I did this in writing. I sense my dentist got a bit defensive and next thing I knew he was refusing to see me again (on the grounds of a 'relationship breakdown'). He went on to assert that he had referred me to a consultant and I shouldn't have directed any queries to him in this respect.

I took the complaint to the GDC and they seemingly fired a lot of disability discrimination questions at the 'clinical reviewer' who I understand is just a dentist who works at the National Clinical Assessment Service (NCAS). Needless to say he refused to comment on disability issues and things he did comment on amounted to him reporting on a different dentist (he didn't bother looking at the initials next to the patient notes).

The GDC then write to me saying there is absolutely no evidence, seemingly of any kind, of discrimination (it seems on the back of the 'clinical report' they received) and reject my complaint at the first opportunity. The GDC went on to assert the dentist need not justify their decision to end the professional relationship (which begs the question as to how they can be so sure). I looked at their guidance in this respect and that states, quite plainly and conversely, that the dentist needs to make sure this decision is fair and they need to justify it.

So not sure where to think about challenging the decision. It seems they have misdirected themselves, not made appropriate enquiries, not applied any independent thinking and made a perverse finding of fact.

[heisenberg]

Re: Challenging a General Dental Council Decision via a Court

[QUOTE=stevemLS;566264]

The funny thing with NHS policy is that the NHS can't look at complaints when the complainant has raised a complaint with the dental practice (would you believe it?). So the next stop was the PHSO.

/QUOTE]



This is also nonsense.

See Reg 7 Local Authority Social Services and National Health Service Complaints (England) Regulations 2009/309


If they commission the services, which they do, they must also deal with complaints under the Regs, there is no "leapfrog" procedure avoiding NHSE and the PHSO would rightly avoid any complaint which had not been first considered by NHSE.

Attached is an extract from the letter they sent me. Is this complete nonsense? They may be referring to Section 8? Another unnecessary step in favour of the dentist(s)...

[stevemLS]

Re: Challenging a General Dental Council Decision via a Court

I'm not clever enough to do multiple quotes.

I have come across your condition a couple of times before.

I has been dealt with as a MDT issue dealt with by the GP co-ordinating dental, acute, psychological and other services (psychological services always have a role on long term management, (it carries no negative aspirations).

I have never seen it ranked as a disability but this must be regarded on a case by case basis.

Unless the behaviour of your dentist has been poor, i see nothing to do with the GDC, they essentially do primary care - this is tertiary it is about securing the right treatment for you, which in your case is especially for you.

So, I fear your dire (and I understand this condition can be very distressing) )to be directed at the wrong place. It is a rare conditioners and you cannot expect everyone to be familiar with it.

Your GP needs, in conjunction with the CCG, to identify what is necessary to treat it as far as it can be.

It isn't direction through the legal system it seems to me, rather through the NHS!

That latter from NHSE extract is horseshoe, but they are not respecters of their statutory obligations until forcefully reminded of them..

Hope that helps a little - get some rest.