General Dental Council (Fitness to Practise etc.) Order 2015

Lord Hunt of Kings Heath Excerpts

Monday 18th January 2016 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, thank the Minister for his careful explanation of the order. I welcome the opportunity to debate it as well as the performance of the General Dental Council.

This is one of a number of Section 60 orders that the Minister has brought before your Lordships’ House in the absence of a Bill following up the Law Commission’s work. Will the Minister be able to update the Committee on exactly where we stand with the Government’s intention with regard to whether they see that any part of the Law Commission’s work will lead to legislation in the future? On the order itself, its terms seem unexceptional, although I would like to raise a few points with the noble Lord. The real question before us is whether the General Dental Council is a fit and proper organisation, capable of implementing the changes.

I shall start, however, with the order and will come on to the issues with the GDC and the various reports that have been published about its poor performance over the past four years. On the order, first, I refer to paragraph 8.4 of the Explanatory Memorandum, which refers to a number of organisations which have commented. The British Dental Association is not listed there. I have received a briefing from the British Dental Association, and I wondered whether it had submitted a response to the department. If it has, I am surprised that it is not listed in paragraph 8.4.

The other point I want to make about the order concerns the question raised by the noble Lord, Lord Colwyn, which is about the performance of the GDC. The BDA briefing that I have received states that while the GDC is,

“Britain’s most expensive healthcare regulator”,

it,

“is also the least efficient, most troubled and enjoys little confidence among”,

either dentists or the Professional Standards Authority. It states that the GDC failed to meet eight out of 24 of the PSA standards of good regulation in its 2014-15 performance review and, crucially, fully met only one of the 10 standards relating to fitness-to-practise processes, representing what the PSA describes as,

“a significant decline in its performance compared to the assessment of the year before”.

The BDA points out that, in comparison, last year, the GMC met every one of the 24 standards while charging its members less than half of the annual retention fee that the GDC charges.

I also pick up the point raised by the noble Lord, Lord Colwyn, about the importance of the independence of case examiners. This is a point that we have raised before on some of these Section 60 orders. It is crucial because of the problems that have arisen from the way the GDC has conducted cases in the past, as identified by the various inquiries. I very much support the noble Lord in emphasising that case examiners must be, and be seen to be, independent.

We then come to the real issue for me, which is GDC governance. The Minister will be aware that in February 2013, the Professional Standards Authority published a report following the resignation of the GDC’s chair, Alison Lockyer, in May 2011. The Department of Health had asked the PSA to investigate several concerns which the then chairman had raised in a letter she had written to the Secretary of State on her resignation.

The PSA’s findings were complex. It did not find that the GDC was failing, but it identified some general learning which could be gained from the experiences of the GDC. Following the PSA’s report into the allegations made by Lockyer, it wrote that new evidence had come to light about poor practice in the support and operation of the GDC’s investigation committee. In July 2013, a member of the investigation committee raised concerns under the GDC’s whistleblower policy that certain processes were compromising the independence of the investigating committee’s decision-making. The GDC also commissioned an independent review into the concerns of the whistleblower, which was published in 2014, but in April 2014 the PSA started its own investigation. This was published on 21 December 2015.

The PSA came to a number of conclusions and found several areas of improvement for the GDC. I will come to the main recommendation but I read this report with considerable disquiet. I do not think I have ever seen a report relating to a statutory regulator quite like it. It was published only a few weeks ago, before Christmas. Paragraph 2.1 of the summary states:

“The approach taken by the GDC to recruiting, training and supervising the Investigating Committee Secretaries is likely to have contributed to the development/continuance of objectionable practices”.

These are objectionable practices by the statutory professional body concerned with dentistry. It is a very long report of more than 300 pages but, to get the flavour of it, here are some of the objectionable practices listed that the PSA looked into. First, there are:

“Discussions about cases between Investigating Committee Secretaries and Investigating Committee Chairs prior to Investigating Committee meetings”.

Then, quite remarkably, there is,

“advance drafting of Investigating Committee decision documents/reasons by Investigating Committee Secretaries”.

There are irregularities around the,

“provision of legal advice by Investigating Committee Secretaries to the Investigating Committee during Investigating Committee meetings … Inappropriate interventions/undue influence by Investigating Committee Secretaries during Investigating Committee meetings”,

and,

“amendment of Investigating Committee decision documents after Investigating Committee meetings by Investigating Committee Secretaries without appropriate authorisation”.

There are other identified irregularities but I do not need to go into them; I have made the point. The PSA report goes through this in great detail and its overall recommendation is:

“The GDC’s Council, executive management team and the relevant committees should consider this report in full, both individually and collectively, in order to identify all the lessons that should be learnt in particular in relation to governance, accountability and management oversight, as well as the actions the GDC should take to address our recommendations”.

The point I want to make about this is that these matters now go back some years. It was 2011 when the then chairman first raised those issues. This report was started in 2014 and finished only a few weeks ago. It clearly found continuing improper practices—or at least those that would not accord with good practice. Reading between the lines, I see here a culture of utter complacency within the GDC. It looks as though the GDC has simply not accepted the core conclusions of the various reports written about its conduct and carried on with that complacent culture. It is also clear from reading between the lines of the report and the careful way it has been put together that the PSA lacks confidence in the performance of the GDC. Frankly, I would have expected the entire board of the GDC to resign in the light of that report just before Christmas. I understand that the chief executive has resigned but no one else on the board seems prepared to take responsibility for a culture that has clearly lasted over a good many years. That is not acceptable. Can there be any confidence that this organisation is fit for purpose?

I now understand the concerns that the profession has about the GDC. I had not realised until I went through this information just why there was so much angst within the profession. It is absolutely justified. I would be doubtful of putting any order through in relation to the GDC unless we were absolutely certain that it is able to carry out its job properly.

[Lord Prior of Brampton]

My Lords, a number of points have been raised. I will start with those raised by my noble friend Lord Colwyn. He said that independence is critical for the case examiners; I will address that issue first. It is important to remember that case examiners will not be making findings of fact in respect of whether a registrant’s fitness to practise is impaired. They will make the decision about whether a case needs to proceed to the adjudication stage and be considered by a practice committee.

Additionally, in its rules and guidance, the GDC will provide that the case examiners must make decisions based on documentary evidence, which will be supplied to them in the same manner as is currently the case for the investigating committee. The case examiners will not be involved in evidence-gathering. There will be one lay and one registrant case examiner considering an allegation. I accept, however, that they will be employees of the GDC. Nevertheless, our feeling is that sufficient safeguards are built into the way that case examiners will work.

The issue raised by my noble friend and expanded on by the noble Lord, Lord Hunt, is fundamental. If the GDC is not a fit organisation—if its governance and performance are not right—that is a much more profound worry than the details of the order before us today. Before I address this, I will deal with one other point that the noble Lord raised. He asked whether the BDA had submitted anything. It has; it was omitted in error and is now being attached.

Clearly, we are concerned about the performance of the GDC. The report from the PSA is indeed extremely worrying. As the noble Lord said, this has not happened just recently; it goes back many years. It is very important that the council takes responsibility for the proper running of its organisation. My colleague Ben Gummer is the Minister with direct responsibility for the GDC and he has a meeting coming up in the very near future to discuss the GDC’s performance in the light of the PSA report. It is not all bad news in that report. There are some signs that the GDC is working hard to improve. Nevertheless, as my noble friend and the noble Lord have both said, there is a lack of confidence in the GDC among the profession and that confidence must be rebuilt.

Perhaps I might bring to Ben Gummer’s attention the comments that have been made by my noble friend and the noble Lord and ask him to draw them to the attention of the GDC when he meets it in the near future. Clearly, he will wish to keep a very close eye on the performance of the GDC as we go forward. I do not think I can say much more today about that. I do not have the information with which to comprehensively address the issues that the noble Lord has raised. Is he content on that basis? If he would like to meet my honourable friend Ben Gummer, I can arrange for him to do that.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful. One of the problems is that this was scheduled very late and therefore I was able to look at the information only over the weekend. I suspect that I would have put a Motion down for a debate in the Chamber if I had had time to do that.

Secondly, I realise that this is quite a difficult situation. Clearly, the independence of the regulators of the health profession is very important and I have always been keen to protect it. The PSA has a crucial role and I think it does a great job. I pay tribute to the chairmanship of my noble friend Lady Pitkeathley, and Mr Harry Cayton, the chief executive. I think they have done a fantastic job, but it seems to me that there is a gap.

It is patently obvious when you look at it from the outside that the board should have read those reports, accepted its ultimate responsibility and stood down. I accept the invitation; I would be very glad to meet Mr Gummer. Of course, this will be debated tomorrow in the other place, and other Members may come back on that. This message clearly needs to go to the GDC council: that it is not good enough and the members should consider their position. I wonder whether it is right that the board carries on willy-nilly simply because the chief executive has stood down.

I am not someone who rushes to say that this, that or the other board should resign because something has gone wrong, but this has been a continuing problem. I accept that improvements have been made, but only a few weeks ago the PSA had to publish a report that continues to draw attention to what is, essentially, the culture of the organisation. Therefore, I very much hope that Ministers will take the appropriate action; that is all that they can do. Ultimately, I am surprised that the board of the GDC feels that it is able to carry on and I think there needs to be a change.

I am grateful to the Minister for the way that he has responded; clearly, he understands the issues that are being faced.

[Lord Prior of Brampton]

My Lords, perhaps we can leave it on the basis that I will organise for the noble Lord to meet Ben Gummer and perhaps ask Harry Cayton to come along, too, as he fundamentally authored the report, so that the noble Lord can express his concerns directly to them. On that basis, I beg to move.