GUIDANCE ON DRAFTING THE CHARGE

Transcription

1 GUIDANCE ON DRAFTING THE CHARGE Guidance for Drafting the Charge Version 1.1 Reference FTP/GUI/019 Department Fitness to Practise Author Adelita ThursbyPelham Approved By Jonathan Green Effective Date 01/11/2016 Review Date 17/06/2017 1

2 Contents 1. INTRODUCTION... 3 Purpose of this Guidance... 3 Definitions... 4 Summary of General Principles... 4 Relevant Legislation... 6 Test to be applied by the Practice Committee... 6 Evidence to support the charge STYLE GUIDE... 7 Principles... 7 Language... 7 Preamble... 8 Particulars... 8 Primary Sub Particulars Secondary Sub Particulars... 9 Punctuation Multiple Patients Identification of those involved in a case Ordering Allegations Dates Charging in the alternative GROUNDS OF IMPAIRED FITNESS TO PRACTISE Misconduct/Deficient Professional Performance The nature of the allegation Fair Sample Charging both misconduct and deficient professional performance or in the alternative TERMINOLOGY PARTICULARS OF CHARGE TO BE INCLUDED UNDER RULE CIRCUMSTANCES IN WHICH NEW ALLEGATIONS ARE TO BE JOINED UNDER RULE SELECTIVE CHARGING (SCOPING) ALLEGATION PHRAESEOLOGY APPENDIX

3 1. INTRODUCTION This guidance should be considered following referral of an allegation by an Investigating Committee ( the IC ) or Case Examiners to a Practice Committee under section 27A(4) of the Dentists Act 1984 (as amended) ( the Act ) 1. This guidance should be read in conjunction with the Fitness to Practise Guidance for drafting the Allegation. Purpose of this Guidance The purpose of this guidance is to try and ensure a consistent approach to drafting of the charge which is presented at a Practice Committee hearing. This guidance includes consideration of the following areas: 1.1 Determining the way in which the summary of the allegation drafted pursuant to Rule 4(2)(a)( Rule 4 ) of the General Dental Council (Fitness to Practise) Rules Order of Council 2006 ( the Rules ) is reflected in the notification of the charge (i.e. the Notice of Hearing ), under Rule 13(1)(e)( Rule 13 ). In this regard, the Fitness to Practise Guidance for drafting Allegations provides guidance in relation to drafting the allegation at the pre IC or Case Examiner stage, as set out in the section entitled Allegation Phraseology. At the pre IC or Case Examiner stage, it is preferable that the allegation is not highly particularised, but is set out as a summary of allegation (in accordance with Rule 4(2)(a)). Drafting the allegation in this way, means that if further matters are identified following the referral of an allegation by the IC or Case Examiners, such matters, provided they fall within the summary of allegation that has been alleged, may be included in the charge pursuant to rule the drafting of the charge under rule 13 and in particular, particularisation of the facts in support of the allegation (known as the particulars of allegation, but commonly referred to as the heads of charge ) which is to be considered by a Practice Committee in determining whether a Registrant s fitness to practise is impaired; 1.3 determining the circumstances in which a new allegation should be joined under rule 25. As mentioned above, given that any allegation that is referred to the IC or Case Examiners will not be highly particularised in the summary of allegation, it is anticipated that if a new matter is identified following referral to a Practice Committee, then ordinarily, it will be possible to include such a matter within the charge pursuant to rule 13 (provided it relates 1 References in this section to the relevant parts of the Dentists Act, relate to dentists. However, the equivalent legislation in respect of dental care practitioners equally applies, namely sections 36N, 36O and 36P 3

4 to the summary of allegation) without the necessity to seek to join it as a new allegation pursuant to rule 25. However, there will be circumstances when it will be appropriate to utilise rule 25; 1.4 the drafting of a new allegation which is proposed to be joined to the existing allegation under rule 25; Definitions For the purposes of this guidance: the allegation(s) is the allegation referred by an IC or Case Examiners to a Practice Committee (pursuant to section 27A(4)) that a registrant s fitness to practise is impaired by reason of the grounds set out in section 27(2); the summary of allegation is the facts which support the allegation (pursuant to rule 4)(2)); the charge is the grounds by reason of which, it is alleged that the respondents fitness to practise is impaired (pursuant to rule 13); the particulars of allegation commonly referred to as heads of charge, the particulars of allegation are the facts which are particularised in support of the allegation (pursuant to rule 13); Notice of Hearing contains the charge pursuant to rule 13. Summary of General Principles The Purpose of the charge is to enable the Registrant to understand what is being alleged, so as to allow him/her to respond. Further, the Practice Committee will refer to the charge and make its findings on the basis of the charge. In accordance with rule 13, the charge is the grounds by reason of which (e.g. by reason of misconduct or deficient professional performance), it is alleged that a registrant s fitness to practise is impaired. A charge is usually made up of different particulars of allegation which set out the facts in support of the allegation (by reason of which it is alleged that a Registrant s fitness to practise is 4

5 impaired) (Rule 13). However, the overarching ground(s) for impairment (e.g. misconduct), constitutes the charge 2, rather than the separate particulars of allegation. Further, the particulars of allegation represent the summary of allegation that has been referred by the IC or Case Examiners to a Practice Committee under 27A. Therefore the allegation that is referred by the IC or Case Examiners under section 27A (as a summary of allegation ), can be particularised as particulars of allegation under rule 13. In this regard, whilst the notification of charge, should reflect the allegation that has been referred by the IC or Case Examiners, it is not necessary for the particulars of allegation to replicate, word for word, the summary of allegation 3. In summary the particulars of allegation should: be based on the allegation referred to the Practice Committee by the IC or Case Examiners (as mentioned above, the FTP Guidance for drafting Allegations recommends that an allegation is drafted relatively broadly, so as to allow matters that are subsequently identified (but that which fall within the theme charged) being included in the charge pursuant to rule 13); provide sufficient information to enable the Registrant to know with reasonable clarity, the case they have to meet and allow the Practice Committee to make structured findings of fact on these issues, without the need to ask for any further and better particulars; i.e. the charge should state: o o o o what is alleged to have taken/not taken place; the alleged failing on the part of the Registrant; when (in so far as it is possible to identify this) it took/did not take place; in cases where it is alleged that a Registrant s fitness to practise is impaired by reason of misconduct, the level of misconduct being alleged (e.g. if there is a basis for saying that a Registrant has acted dishonestly, this should be stated in the charge). state the statutory ground of impairment; be supported by the evidence; should allege the conclusion that can be drawn from the evidence, rather than citing the evidence itself. 2 Reza v General Medical Council [1991] 2 AC 182 PC, at 197C: 3 In Gorlov v Institute of Chartered Accountants 2002 it was held that The complaint considered by the Disciplinary Tribunal must be the same as that authorised by the Investigation Committee to go before the former.in my judgment substantial identity is sufficient: literal identity is not required. 5

6 Relevant Legislation The relevant legislation is set out at Appendix 1. Test to be applied by the Practice Committee Under section 27B the test that a Practice Committee must determine is whether an allegation or allegations referred by an IC or Case Examiners (as reflected in the charge, pursuant to rule 13), results in a Registrant s fitness to practise being impaired. A Registrant s fitness to practise can be impaired by reason of one or more of the reasons in the Act, including: Misconduct; deficient professional performance adverse physical or mental health a conviction or caution a determination by another health or social care regulator in the UK or abroad; other matters at section 27(e) and (f) of the Act. Therefore, the charge should identify the statutory ground(s) 4 of impairment with reference to the specific facts in support of the charge (particulars and sub particulars of allegation). Evidence to support the charge There must be sufficient evidence to support each particular of allegation such that there is a real prospect of establishing impaired fitness to practise. If there is insufficient evidence to support any aspect of the summary of allegation that has been referred, then that aspect of the summary of allegation should not form part of the charge. It is only in circumstances where there is no real prospect of a finding of impaired fitness to practise in respect of the allegation that has been referred by the IC or Case Examiners (as opposed to the individual facts in support) that an application under rule 8E or rule 10 (for the IC) or Rule 6E (for the Case Examiners) should be considered (see the GDC s Guidance on Rule 8E/Rule 10 and Rule 6E). 4 See below in respect of cases where there is more than one ground of impairment. 6

7 2. STYLE GUIDE This section, which reflects the FTP Guidance for Drafting Allegations, sets out the way in which the charge, broadly speaking, should be structured. Principles the registrant should be referred to by their full name, with their registration number after in brackets it the title to the notice of hearing; state whether the registrant is a registered dentist or a dental care practitioner; if relevant, set out the full address of the Practice(s) where the allegation(s) is alleged to have arisen; patient or third party names should not be used; the registrant should be referred to as you ; patients and third parties should be referred to in the third person by using he or she (provided this does not risk revealing their identity, otherwise, use they or their ); the charge should read like a summary of the case (preferably in chronological order) and make sense to the reader (although see below when alleging the same event on multiple dates); dates should be written in full (e.g.12 January 2012); the charge should spell out the full title of any organisations or technical terms initially then use the acronym thereafter. For instance, Basic Periodontal Exam (BPE) initially and BPE subsequently; if alleging the same event on multiple dates, consideration should be given to drafting the particulars of allegation thematically by setting out the event followed by a list of the dates (in sub particulars) on which it is alleged to have occurred. Language use plain English; avoid unnecessary detail that does not add to the overall charge of impairment; focus on what the registrant is alleged to have done wrong or should have done, avoiding unnecessary narrative; avoid language that is emotive, ambiguous or open to interpretation. For example, use a non emotive term such as excessive when describing the force used to extract a tooth rather than using brutal ; if it is alleged that the registrant was aggressive, dismissive, rude, evasive quote what the registrant is alleged to have said verbatim; 7

8 however, when quoting what the Registrant is alleged to have said verbatim, include the phrase or words to that effect to allow for the possibility that witnesses may not have a clear recollection of the exact words used by the Registrant. Preamble This is an introductory sentence which sets the scene before the particulars and sub particulars are set out: That being a registered dentist/dental care practitioner. Particulars each particular should relate to a specific action or omission (or group of actions or omissions) on the part of the registrant (e.g. maintaining appropriate standards of record keeping); where possible the range of dates that covers the period of what is being alleged should be included (see below in respect of multiple patient cases); following the particular, there should be a series of statements of fact which if proved, will amount to the ground(s) of impaired fitness to practise. These are described as the sub particulars. Primary Sub Particulars issues should be broken down into their constituent parts in order to specify the individual elements; a primary sub particular will follow on from the head by providing supporting detail; if there is only one sub particular it should be included in the particular: 1. You failed to provide an adequate standard of care to Patient AA on 4 November 2012 including by not carrying out a full assessment of the patient s presenting dental condition. 8

9 Secondary Sub Particulars Secondary sub particulars can be used to provide specifics and when listing multiple occasions when something has happened (as mentioned below, the alternative is to provide an accompanying schedule which sets out the secondary sub particulars): 1. You failed to provide an adequate standard of care to Patient AA from 1 September 2012 to 13 December 2012 including by; a. not carrying out a full assessment of the patient s presenting dental condition on: i. 12 September 2012, ii. 4 November 2012, iii. 22 November b. providing a poor standard of crownwork to: i. UL6, ii. UL7, iii. UR6. If possible, a charge should generally not split further than secondary subparticulars. However in order to avoid this it may be necessary to duplicate the particular and insert the additional date: 1. You failed to provide an adequate standard of care to Patient AA on 12 September 2012 including by; a. not carrying out sufficient diagnostic assessments, including: i. evaluation of presenting symptoms ii. medical history iii. soft tissue checks iv. Basic Periodontal Examinations 2. You did not provide an adequate standard of care to Patient AA on 4 November 2012 including by; a. not carrying out sufficient diagnostic assessments, including: i. evaluation of presenting symptoms ii. medical history 9

10 iii. soft tissue checks iv. Basic Periodontal Examinations The alternative to splitting the charge into secondary or further subparticulars (as set out above), is to provide an accompanying schedule which sets out the specific dates and/or patients to which the charge relates (see the sub heading Multiple patients, below, for further details): 1. You failed to provide an adequate standard of care from 1 September 2012 to 13 December 2012 to the patients and/or on the dates referred to Schedule A including by; a. not carrying out sufficient diagnostic assessments, including: i. evaluation of presenting symptoms ii. medical history iii. soft tissue checks iv. Basic Periodontal Examinations Punctuation Particular start the particular of the allegation one tab in from the left margin; the particulars of allegation should be conventionally numbered followed with a full stop ( Etc.); the text in a particular should start in upper case; if the particular has no primary or secondary sub particulars following, it should end with a full stop; Primary sub particular if the particular is followed by a primary sub particular, it should end with a semi colon, the text in a secondary sub particular should always start three tabs in from the left margin. Secondary sub particular secondary sub particulars should be conventionally numbered with lower case Roman numerals followed by a full stop (i. ii. iii. etc.) and should always start in lower case unless the first word is a proper noun; a sub particular followed by another sub particular should be followed by a comma; the final secondary sub particular should always end with a full stop; sub particulars should be in multiples, so if there is only one, it should be set out as a primary sub particular only. 10

11 Multiple Patients when drafting particulars of allegation in respect of multiple patients, consideration should be given whether to draft the particulars of allegation either (i) patient by patient or (ii) thematically with reference to a schedule or (iii) a combination of both; particulars of allegation drafted patient by patient are likely to be the preferred choice, as that is the way in which experts often approach their report and is the way in which patient records are presented to a Practice Committee; however, there may be circumstances in which a charge drafted by themes with reference to a schedule of patients may be appropriate, but consideration should be given as to the way in which the charge will be presented to the Practice Committee and whether an additional schedule which sets out which particulars of allegation relate to which patient is also required; if the charge is set out patient by patient, a separate particular/sub particular per patient preferably should be used; if alleging dishonest behaviour (e.g. as a consequence of inappropriate claiming), this should preferably be alleged at the end of the summary of allegation, in respect of each patient. Identification of those involved in a case patients and third parties should not be named in allegations but should be referred to by a unique identifier; the unique identifier should be with reference to the alphabet (i.e. Patient A, B, C etc); if there are more than 26 patients, the patients should continue to be identified as follows: Patient AA, BB, CC and so on; where relevant, include information such as whether the patient/third party is a child/under 18 years/under a certain age, provided this will not lead to a breach of that person s identity; organisations can be referred to by the organisation s name, such as the NHS, Care Quality Commission (CQC), or the name of the dental practice; the charge should include a schedule so that parties and Practice Committee are aware of who each identifier refers to; unless it is likely to lead to breach of the patient s identity, the charge may be gender specific (e.g. he or she may be used), otherwise non gender specific words such as they, for example should be used. 11

12 Ordering Allegations Dates as mentioned above best practice is normally to set out the sub particulars of the allegation in chronological order, within each patient set, starting with the oldest incident and ending with the most recent; where it is alleged that there is a poor standard of care at a particular appointment, the charge should be sequenced the way in which the treatment would be expected to be carried out for example: examination, taking radiographs, reporting findings of radiographs, providing treatment, providing post treatment advice. wherever possible identify the relevant date(s) or range of dates on which the incident(s) are alleged to have taken place and include them at the start of the allegation; this should usually be recorded in the particular when setting out a range of dates and in the primary and secondary sub particulars when detailing specific instances; where there is a conflict in the evidence as to the date a patient was seen ( e.g. a patient may claim that they were seen on a particular date, but their records suggest that they were not seen until the following day), use phrases such as, on or around. Charging in the alternative where possible, charging in the alternative should be avoided as it gives rise to uncertainty about the nature of the charge; however, charging in the alternative may be appropriate when there are alternative factual scenarios and it is uncertain which scenario the Practice Committee will find proved. Such an approach fairly allows the Registrant to respond to the matters against him 5 ; for example in circumstances where a Registrant may have either (i) not treated a patient or (ii) treated the patient, but did not record this. 5 In Farag v GMC [2009] EWHC 2667 (Admin) it was held that the Committee s finding of dishonesty on the basis of an alternative basis to the basis advanced by the GMC was unfair. 12

13 3. GROUNDS OF IMPAIRED FITNESS TO PRACTISE This guidance considers drafting particulars of allegation where there is impaired fitness to practise on grounds of misconduct and/or deficient professional performance. The Fitness to Practise Guidance for Drafting Allegations, provides guidance in respect of the various other grounds of impaired fitness to practise and should be referred to when drafting allegations on other grounds (e.g. by reason of conviction). Misconduct/Deficient Professional Performance Factors to take into account when alleging misconduct/deficient professional performance: The nature of the allegation ordinarily, clinical failings may give rise to an allegation of deficient professional performance; therefore where clinical failings are identified, consideration should be given as to whether deficient professional performance, rather than misconduct should be alleged or whether both should be alleged (either separately in relation to certain facts or in the alternative in relation to the same facts (see below for further details)); in particular an allegation of deficient professional performance may be appropriate where there has been a record card audit of the practitioner s patient records when judging competence and deficient professional performance, the standard that is applicable is the post to which the registrant has been appointed, regardless of the sufficiency of their training 6. Fair Sample There is no legal definition of what comprises a fair sample. However: the sample must be sufficient to show whether the breaches of professional standards are repeated and persistent 7 ; demonstrate that there is a pattern of conduct underlying the allegation 8 ; 6 Holton v General Medical Council [2006] EWHC Krippendorf v GMC [2000] All ER 2041 and Sadler v GMC [2003] UKPC 59) 8 Vali v GOC [2011] EWHC

14 does not have to be perfect and a less than optimal sample might still generate worthwhile results 9 although as stated above, a single instance of negligent treatment, unless very serious, is unlikely to constitute deficient professional performance, there may be circumstances in which it does constitutes deficient professional performance; Therefore, the following should be taken into account in deciding whether a fair sample of the practitioners work has been obtained: the number of patient records that have been sampled? the size of the cohort from which the patient records have been selected? the way in which the sample of patients has been selected (e.g. randomly or targeted?) whether there is a pattern in respect of the clinical failings identified (i.e. are the clinical failings disparate or repeated within the sample?)? the period of time the sample relates to? Charging both misconduct and deficient professional performance or in the alternative If the evidence indicates that there may be an allegation of both misconduct and deficient professional performance, consideration should be given as to whether it is possible to specify which heads of charge relate to misconduct and which relate to deficient professional performance. However, if it is uncertain on the facts of the case as to whether a committee will be able to determine that there has been deficient professional performance or misconduct (e.g. if it is unclear as to which facts will be found proved), consideration should be given to alleging misconduct and deficient professional performance, in the alternative, in respect of the same facts (i.e. by reason of either misconduct or deficient professional performance). Whilst a committee should not made a finding of both misconduct and deficient professional performance in relation to the same facts, it can be appropriate, depending on the particular circumstances of a case, to allege both misconduct and deficient professional performance in the alternative, in respect of the same facts Simpson Goodchild v GMC [2014] EWHC See Vali (above) 14

15 4. TERMINOLOGY The terminology used in the particulars of allegation should seek to reflect as accurately as possible, exactly what it is alleged that the Registrant has done wrong. For instance depending of the facts of the case: Appropriate/Inappropriate consideration should be given as to whether an alternative to appropriate/inappropriate can be used (e.g. adequate/inadequate or sufficient/insufficient); Necessary as with appropriate/inappropriate, consider whether a less ambiguous alternative such as adequate can be used; Failed/did not the charge must make clear what the Registrant has done wrong/how he has departed from the standards; it is therefore appropriate to draft the particulars of allegation in terms of failures; alternatively, if the particulars of allegation are drafted in terms of you did not, the charge must make clear in wrap up charges what the registrant has done wrong. Below/Far below the expected standard particulars of allegation should not include a statement that the failing fell below/far below the expected standard as this relates to the ground of impairment Dishonesty similar factors as set out in the Fitness to Practise Guidance for drafting Allegations should be taken into account when deciding whether to include dishonesty in the charge, including the following: o whether the evidence demonstrates a pattern of behaviour or is an isolated incident; o whether there is an obvious reason/clear motive for the dishonesty or whether there is an alternative simple explanation; o whether the Registrant is likely to gain something from the dishonesty (this is particularly relevant where there is an allegation of inappropriate claiming ). dishonesty should be specifically charged; if dishonesty is charged, careful consideration should be given to whether it is necessary to charge misleading and deliberately misleading as well, or whether such a distinction is unnecessary. It is likely that if something is deliberately misleading, it will 15

16 also be dishonest and so ordinarily, it may not be necessary to include deliberately misleading, as well as dishonest in the particulars of allegation. Sexual motivation Sexual motivation should be specifically charged See Rajeshwar 16

17 5. PARTICULARS OF CHARGE TO BE INCLUDED UNDER RULE 13 As stated above, whilst the charge should be based on the allegation referred by the IC or Case Examiners, it is not necessary for it to replicate the particulars of allegation. It is not unusual after referral of an allegation by the IC or Case Examiners to a Practice Committee for information that was not specifically specified in the particulars of allegation to be identified (e.g. by an expert instructed by the Council). Factors to take into account when deciding what particulars ought to be included under rule 13 are as follows: whether the particulars of allegation arise out of the same facts/circumstances as the referred allegation; whether the particulars of allegation relate to the same issues/are of the same nature as identified in the original referral how broadly/narrowly drafted are the allegations referred by the IC or Case Examiners? e.g. is the word including used in the preamble to the particulars/ subparticulars of the summary of allegation (as mentioned above, as set in the Allegation phraseology section of the Fitness to Practise Guidance for drafting Allegations, the summary of allegation should, on the whole be drafted broadly by way of themes). Examples The referred allegation relates to a single patient clinical complaint including, on the basis of the patient s complaint, a failure to provide treatment options, whereas the records indicate that treatment options were discussed. Although dishonesty is not specified in the particulars of allegation and is distinct in nature from the clinical allegations, depending on the specific facts, dishonesty may arise out of the facts that have been referred and so may be included under rule 13, rather than having to be considered as a new allegation by the Case Examiners (NB please refer to the section on Dishonesty as to the circumstances in which it is appropriate to charge dishonesty. Eg. in this example, consideration should be given as to whether there is an alternative explanation to the alleged dishonesty, and whether it is appropriate to charge dishonesty at all, will depend on the specific facts); The referred allegation specifically cites certain teeth in the particulars of charge, but the expert identifies similar failures, but in respect of other teeth. Such matters can be included in the particulars of allegation under rule 13, provided the referred allegation includes a statement in the preamble to the particulars/sub particulars of allegation that the Registrant failed to provide an adequate standard of care, including ; The referred allegation relates to failures in relation to different clinical matters in respect of several patients. Although a failure to take adequate radiographs in respect of patient A is specified in the particulars of allegation, it is not specified in respect of 17

18 patient B. However, post IC/Case Examiner referral, it is identified that there is such a failure in respect of patient B. Such a failure can be included in the particulars of allegation under rule 13, provided the referred allegation includes word including in the preamble to the particulars/sub particulars of allegation. The referred allegation cites dishonesty as a consequence of fraudulent claiming, but post IC/Case Examiner referral, other examples are identified in respect of the patients identified in the particulars of allegation. Again, depending on how broadly the referred allegation is drafted, such matters could be included in the charge under rule 13; The referred allegation relates to a specified patient(s), but new patient complaints relating to the same issues are made following the IC/Case Examiner referral. Depending on how broadly the referred allegation is drafted, consideration should be given as to whether such new complaints can be included under rule 13, rather than being joined under rule 25 or referred as a new allegation by the Case Examiners. 18

19 6. CIRCUMSTANCES IN WHICH NEW ALLEGATIONS ARE TO BE JOINED UNDER RULE 25 This section relates to the circumstances in which a new allegation which is of a similar kind or is founded on the same alleged facts can be heard by the Practice Committee at the same time as the original allegation. If an allegation does not fall under the remit of the original IC or Case Examiner referral and so cannot be included in the particulars of allegation under rule 13, consideration should be given as to whether it is an allegation which can be joined under rule 25. However, seeking to join a new allegation under rule 25 can give rise to uncertainty because a Practice Committee may not agree to join the new allegation to the original referral. Factors to take into account when deciding whether to make an application to join a new allegation under rule 25 are as follows: has inclusion of the new matters under rule 13 been considered and ruled out? to what extent is the new information similar in nature to the referred allegation? is the new information founded on the same facts that arise out of the referred allegation? Examples the examples referred to above in respect of whether a matter can be included under rule 13, may also equally apply to whether such matters can be joined under rule 25 and whether a matter falls to be included under rule 13 or joined under rule 25 may depend on how broadly the referred allegation is drafted; an example that is unlikely to fall under rule 13, but which may fall under rule 25 is where dishonesty cannot be implied from the referred allegation but it is identified as arising from the same facts post IC/Case Examiner referral. 19

20 7. SELECTIVE CHARGING (SCOPING) where the referred allegation relates to multiple failings in respect of multiple patients, consideration should be given to whether or not it is necessary to include every failing in the particulars of allegation, bearing in mind the need for proportionality and manageability/timeliness in bringing a case before a Committee, whilst at the same time ensuring that a case is not under prosecuted; Scoping is likely to be particularly appropriate where there are multiple, similar clinical failings involving several patients; If the ground of impairment is misconduct, consideration should be given to including the most serious failings in the particulars of allegation; If the ground of impairment is deficient professional performance, consideration should be given to ensuring that the charge represents a fair sample of the Registrant s work, without being disproportionate in terms of the number of patients/particulars of allegation. 20

21 8. ALLEGATION PHRAESEOLOGY The section on Allegation Phraseology contained in the Fitness to Practise Guidance for drafting Allegations sets out guidance of the way in which an allegation should be particularised in the summary of allegation; As mentioned above, on the whole, the allegation referred to the IC or Case Examiners should be particularised broadly, in themes. However, particulars of allegation, included pursuant to rule 13 should be particularised to a greater degree so as to enable a Registrant to know exactly the charge that he/she has to face. 21

22 9. APPENDIX 1 Relevant Legislation The Dentists Act 1984 (as amended) The General Dental Council (Fitness to Practise) Rules Order of Council 2006 Dentists Section 27 [Allegations] (1) This section applies where an allegation is made to the Council against a registered dentist that his fitness to practise as a dentist is impaired. (2) A person s fitness to practise as a dentist shall be regarded as impaired for the purposes of this Act by reason only of (a) misconduct; (b) deficient professional performance; (c) adverse physical or mental health; (d) a conviction or caution in the United Kingdom for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; (e) the person having (i) accepted a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal), or (ii) agreed to pay a penalty under section 115A of the Social Security Administration Act 1992 (penalty as alternative to prosecution); (f) the person, in proceedings in Scotland for an offence, having been the subject of an order under section 246(2) or (3) of the Criminal Procedure (Scotland) Act 1995 discharging him absolutely; or (g) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession[, or by the Office of the Health Professions Adjudicator,] to the effect that the person s fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect; 22

23 [(h) the [Independent Safeguarding Authority] including the person in a barred list (within the meaning of the Safeguarding Vulnerable Groups Act 2006 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007); or (i) the Scottish Ministers including the person in the children s list or the adults list (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007)]. (3) It does not matter whether the allegation is based on a matter alleged to have occurred (a) outside the United Kingdom; or (b) at a time when the person was not registered in the register. (4) This section also applies in a case where (a) it comes to the attention of the Council that a registered dentist s fitness to practise as a dentist may be impaired on one or more of the grounds mentioned in subsection (2), but (b) no allegation to that effect has been made to the Council against that person, and in such a case this Act shall apply as if an allegation or allegations to the effect that the person s fitness to practise as a dentist is impaired on the ground or grounds in question had been made to the Council against that person. (5) The registrar (a) shall refer the allegation to the Investigating Committee; and (b) may, at any time before the Investigating Committee have begun to consider the allegation, refer the allegation to the Interim Orders Committee if he considers it appropriate. (6) The registrar shall investigate the allegation for the purpose of (a) determining whether it is an allegation to which this section applies, and (b) If he determines that it is, determining whether to refer the allegation to the Interim Orders Committee under subsection (5)(b). Under section 27A (1) (Investigating Committee): Where the registrar refers an allegation under section 27 to the Investigating Committee they shall investigate the allegation and determine whether the allegation ought to be considered by a Practice Committee Under section 27A(4) : Unless subsection (5) applies, if the Investigating Committee determine that the allegation ought to be considered by a Practice Committee, the Investigating Committee 23

24 (za) may agree with the person who is the subject of the allegation that the person will comply with such undertakings as the Investigating Committee consider appropriate; (c) If they do not agree undertakings under paragraph (za), shall refer the allegation (i) to the Professional Performance Committee, in the case of an allegation based on the ground mentioned in section 27(2)(b) (deficient professional performance), (ii) (iii) to the Health Committee, in the case of an allegation based in the ground mentioned in 27(2)(c)(adverse physical or mental health), or to the Professional Conduct Committee, in any other case; (d) Under section 27A(4A) Unless subsection (5) applies, the Investigating Committee may, if they consider it appropriate, refer the allegation to the Interim Orders Committee (subject to subsection (6B)). Under section 27A(5): This subsection applies in a case where two or more allegations under section 27 relating to the same person have been referred to the Investigating Committee and those allegations are (a) an allegation based on the ground mentioned in section 27(2)(b) and an allegation or allegations based on any other grounds mentioned in section 27(2); or (b) an allegation based on the ground mentioned in section 27(2)(c) and an allegation or allegations based on any other grounds mentioned in section 27(2). Under section 27A(6A) Where subsection (5) applies, the Investigating Committee may, if they consider it appropriate, refer the allegation to the Interim Orders Committee (subject to subsection (6B)). Under section 27A(6): Where subsection (5) applies, and the Investigating Committee determine that two or more of those allegations ought to be considered by a Practice Committee, the Investigating Committee (za) may agree with the person who is the subject of the allegations that the person will comply with such undertakings as the Investigating Committee consider appropriate; (a) if they do not agree undertakings under paragraph (za), shall refer those allegations to whichever one of the Practice Committees they consider most appropriate; 24

25 Under section 27A(6B) Subsections (4A) and (6A) do not apply if the Investigating Committee have determined that the allegation or allegations ought to be considered by a Practice Committee and (a) the Investigating Committee agree undertakings under subsection (4)(za) or (6)(za), or (b) (if they do not agree undertakings under that provision) the hearing before a Practice Committee has commenced or, where there is not to be a hearing before a Practice Committee, a Practice Committee have begun to consider written statements or representations. Under section 27B (Practice Committee): (1) Subject to subsection (4), a Practice Committee must investigate an allegation or allegations against a person referred to them by the Investigating Committee under section 27 A and determine whether that person s fitness to practise as a dentist is impaired. (2) In making a determination under subsection (1), the Practice Committee may take into account whether the person who is the subject of the allegation or allegations has complied with any relevant parts of the guidance issued under section 26B, but that question is not of itself determinative of whether a person s fitness to practise as a dentist is impaired. The General Dental Council (Fitness to Practise) Rules Order of Council 2006 ( the Rules ) Under rule 2 Allegation means an allegation that the fitness to practise of a registered dentist or registered dental care professional is impaired and includes an allegation treated as arising by virtue of section 27(4) or 36N(4) of the Act (allegations); Under rule 4: (1) Where the registrar determines that a complaint or information amounts to an allegation, he shall send a notification to the respondent and the maker of the allegation (if any) accordingly. (2) The notification sent under paragraph (1) shall (a) contain a summary of the allegation; Under Rule 6 (1) A determination by the Case Examiners that (a) an allegation ought not to be considered by a Practice Committee; or (b) an allegation ought to be considered by a Practice Committee, must be unanimous. (3) If the Case Examiners fail to agree as to a determination under paragraph (1), they must refer the al-legation 25

26 for consideration by the Investigating Committee under rule 7. (6) Where the Case Examiners determine that the allegation ought to be considered by a Practice Committee, the Case Examiners must either (a) refer the allegation (i) to the Professional Performance Committee, in the case of an allegation based on the ground mentioned in section 27(2)(b) or 36N(2)(b) of the Act (deficient professional performance), (ii) to the Health Committee, in the case of an allegation based on the ground mentioned in section 27(2)(c) or 36N(2)(c) of the Act (adverse physical or mental health), (iii) to the Professional Conduct Committee, in any other case, or (iv) where paragraph (9) applies, to whichever of the Practice Committees they consider most appropriate; or (b) in accordance with rule 6A, invite the respondent to comply with such undertakings as the Case Examiners consider appropriate: this is subject to paragraph (7). (9) This paragraph applies where the Case Examiners make a determination under paragraph (1)(b) in respect of two or more allegations relating to the same respondent and those allegations are any of the following (a) an allegation based on the ground mentioned in section 27(2)(b) of the Act and an allegation or al-legations based on any other ground mentioned in section 27(2) of the Act; (b) an allegation based on the ground mentioned in section 27(2)(c) of the Act and an allegation or al-legations based on any other ground mentioned in section 27(2) of the Act; (c) an allegation based on the ground mentioned in section 36N(2)(b) of the Act and an allegation or allegations based on any other ground mentioned in section 36N(2) of the Act; (d) an allegation based on the ground mentioned in section 36N(2)(c) of the Act and an allegation or allegations based on any other ground mentioned in section 36N(2) of the Act. Under rule 8(1): Upon consideration of an allegation under rule 7, the Investigating Committee must determine that (a) the allegation ought not to be considered by a Practice Committee; or (b) the allegation ought to be considered by a Practice Committee. Under rule 13 (1) (Notification of Hearing): The Registrar shall send to the respondent a notification of hearing, and that notification shall (e) contain a charge setting out the grounds by reason of which it is alleged that the respondent s fitness to practise as a dentist or as a member of a profession complementary to dentistry is impaired, and particularising the facts alleged against the respondent in support of the allegation; 26

27 Under rule 25 (joinder): (2) Where (a) an allegation against a respondent has been referred to a Practice Committee, (b) that allegation has not yet been heard, and (c) a new allegation against the respondent which is of a similar kind or is founded on the same alleged facts is received by the Council, The Practice Committee may consider the new allegation at the same time as the original allegation notwithstanding that the new allegation has not been included in the notification of hearing. Dental Care Professionals In respect of Dental Care Professionals, the relevant legislation (which corresponds to the legislation for dentists) can be found at the following sections of the Dentists Act 1984 (as amended): Section 36N (Allegations); Section 36O (The Investigating Committee); Section 36P (The Practice Committee). 27