Health Committee, 26 Oct 2004

Meeting date: Tuesday, October 26, 2004

Official Report 334KB pdf

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Proposed Dentists Act (Amendment) Order 2004

I welcome Ray Watkins, who is the chief dental officer, and Dr Hew Mathewson, who is the president of the General Dental Council. I will ask you each to speak for no more than two or three minutes in respect of the proposed Dentists act (amendment) order 2004. I ask you, in your comments, to flag up the specific issues that you think are important and relevant for the committee to think about in the longer term.

I start by referring the committee to its own background paper for this item.

Yes—that is the paper that was circulated by the committee. You may refer to whatever you like.

As paragraph 7 of your paper outlines, the proposed order is basically about the next stage of the modernisation of our procedures. I will take you through some of the bullet points in that paragraph.

The first one is important. It is about the

"reform of the GDC's fitness to practise powers".

At the moment, we have a definition of serious professional misconduct. That would change; the issue would simply be about whether or not a registrant was fit to practise. That would give us a much better range of powers of disposal with regard to imposing conditions and so on. There is a proposal in the order that, if someone is erased from the register, that should be for a minimum of five years. We do not think that that is constructive—I would be happy to expand on that later.

The next two bullet points under paragraph 7 are self-explanatory. The fourth bullet point is about co-operation among the four countries of the United Kingdom. We already co-operate in that way, but the proposed order formalises that. The fifth bullet point perhaps deserves a little explanation. Currently, only those businesses that were listed or registered in the 1950s can carry on the business of dentistry. There are about 20 of them. The proposal to remove certain restrictions on dental bodies corporate would allow anyone to set up a business to carry on the business of dentistry. We welcome that, but we believe that, if that happens, a majority of directors should be registrants of the General Dental Council. That would be in the interest of the protection of patients.

The next bullet point contains a small typographical error. It refers to

"complaints about NHS dental service",

but it should say "complaints about non-NHS dental services". That alters the meaning significantly. There is currently no mechanism for patients who receive private treatment to complain and we want to create one. We want to have a system that provides plans for that.

The second-last bullet point is key. We want to change the way in which we register existing dental hygienists and therapists so as to make their registration the same as that of dentists. At the same time, we want to register other members of dental teams who are not currently registered, including dental nurses and technicians. We further wish to create new categories of dental workers, such as orthodontic therapists. The last bullet point is self-explanatory.

The starting point is the Dentists Act 1984. There are some problems with the fact that we are dealing with a rather out-of-date act. Hew Mathewson has already highlighted many of the issues and I will not repeat the points that he has made.

Before the consultation on the proposed order, we tried, on behalf of ministers, to highlight the fact that there are different structures and organisations in Scotland, not least the Scottish Parliament. The education systems are different in Scotland, which could impact on some of the issues with which we are concerned. Dental services are emerging as having different structures; we have started to move away from structures that apply in other parts of the UK.

We have produced draft national standards for dental services in Scotland. Those standards will include a role for the Scottish Commission for the Regulation of Care in private dental services. That is one set of standards in Scotland and we are completing the consultation on that. I do not know whether members have seen the consultation document, but I have it here with me. It highlights from a patient's perspective the standards that they should receive. Those are joint NHS and non-NHS standards.

I will highlight some of the difficulties that we encounter in relation to NHS and non-NHS standards. They come down to some fairly straightforward things. When someone gets treatment at their dentist's, they might have eight of their fillings on the NHS and two of them privately. Deciding how to control that and to deal with complaints becomes complex if we use such divisions. Therefore, we have tried to create a co-operative framework in which we work closely with organisations throughout Scotland and with the General Dental Council. We co-operate on producing standards and regulatory frameworks. We seek a co-operative view rather than a competitive one.

I do not want to say much more other than that, through the order, the Executive's main aim is to find ways of strengthening the partnership between the GDC, all NHS organisations, the Scottish Parliament and the Scottish Executive.

I have an initial question and Mike Rumbles will probably want to come in after me. As I understand it, the care commission will soon assume responsibility for standards in private dental services in Scotland and part of that will probably include complaints investigation and inspections. Is that correct?

Yes.

How will that sit alongside what the GDC wants to do?

We will have to work together and we will do so. That is the point. It is a matter of us getting together. We create the regulations and then get all the bodies working together. There could be appropriate areas in which the care commission and others could work together—for example, complaints, which is a complex area.

Is there potential for confusion if two bodies deal with the same area?

We would work together to prevent that and to ensure that we all have clear remits. There is already confusion in the system because, as I said, most patients do not know what sort of services they have had. At the first contact with patients who have a complaint, we find that they tend not to be sure whether they had private or NHS treatment—for example, they often do not know whether a filling was done privately or through the NHS.

We need to develop among the organisations a clear system for patients so that they have one access point. If a complaint is not resolved as it goes up through the system, other organisations can then come into play. Designing the system is a matter of us sitting down with colleagues such as Hew Mathewson. That is what we are supposed to do. There is potential for confusion, but it should be resolved by appropriate discussions between the organisations that are involved.

Correct me if I am wrong, but seven of the consultation paper's eight proposals for the GDC—which are listed in the bullet points in paragraph 7 of our briefing paper—are about reserved, Westminster matters. The second-last bullet point in paragraph 7 refers to a proposal that is within our competence, which is the

"introduction of comparable regulation of PCDs"—

professions complementary to dentistry—

"in line with regulation of dentists and removal of restrictive lists"

for

"dental hygienists and dental therapists".

Is the point of the order to free up working practices within the dental profession and dental practices in Scotland?

We believe that that would be a consequence of the order. However, the point, first, is to regulate all members of a dental team with whom a patient comes into contact. Currently, when a patient goes to a dental practice, many of the people with whom they come into contact are not registered or have no quality standards from the education process. We want to regulate that situation. The consequence of ensuring that everyone is on the same register is that we will remove barriers in terms of prescriptive lists of what people can do. We intend to free that up and we hope that that will allow more flexible working.

Ray Watkins talked about people not knowing whether their treatment was private or NHS. Someone with a complaint about an NHS dental service must go through the NHS and, eventually, if it is a matter of professional misconduct or whatever, the complaint will go to the relevant professional organisation. Are you saying that the care commission would be the point of call for such complaints?

We have not taken a final view on that. When we first considered the issue, we were aware that the GDC was starting to look at the non-NHS side. However, the GDC has a role for the whole UK and there were gaps in that. At the time, no legislation was due in England on private dental care. Therefore, we advised ministers of our opinion that we should ensure that we have a clear system. We knew that the GDC was coming through with something, but we thought that we needed something in Scotland. Therefore, we have given the care commission a role in dealing with complaints. As the convener said, that could be confusing, but we did it to ensure that we had regulation coming out at the end. We need to sit down among ourselves and discuss it. However, if the order goes through, we will have the strength of regulation to ensure reasonable regulation of the private system and a clear complaints system.

It is 17 years since I first sat, as a Scottish practitioner, on a panel that was trying to devise a complaints system for private practice. We never managed it. The GDC took the view that, although it was not a natural thing for us to devise a complaints system, we wanted to do so. We looked around to see whether somebody else would take it on, but no one would. Therefore, we have done it. However, we are not hung up about running it. We have planned meetings with officials in Scotland to discuss how our complaints system would operate here and how it would interrelate with other systems.

Were there a satisfactory system in Scotland, we would not be territorial and would give up our system here. The only confusion for patients would be that the system in Scotland would be different from that in England, but that situation is hardly new. We have no great desire to run a complaints system, but we feel that there is a need that must be met and that the sooner that it is met, the better.

I recently had a meeting with the British Dental Association Scotland. My wife, by the way, used to sit on the GDC, so I understand where you are coming from on some aspects. However, I do not understand what happens if a dentist is reported to whatever body it happens to be and is found to be professionally negligent. You said earlier that you were not happy about there being a minimum suspension period of five years. I presume that there is no scale of charges and that someone would be found either guilty or not guilty, regardless of the alleged negligence. What body judges a dentist's professional ability to continue as a registered dentist? In addition, what variable powers do you want? What remedies do you seek? That would seem to be a day-to-day procedural issue that has nothing to do with the care commission.

An independent appointments panel undertook a national recruitment exercise to get a panel of 35 people that consists of 15 dentists, 15 lay people and 5 PCDs. They make up our fitness-to-practise panel and they are very much at arm's length from our council. After being trained, they were gradually introduced to the work with the existing panel and they have now taken over from it. Those people are independent of us, but they are answerable to us. There is continual assessment and appraisal of what they do.

Our sanctions for dentists range from doing nothing or expressing disapproval, to suspending them or striking them off the register. We want to be able to suspend them but insist that they must do A, B and C before they get back on the register. We could also give them conditions for continuing to practise—for example, insisting that they will not work alone or unsupervised, enter into certain types of work, or do cosmetic dentistry of a certain kind or implants. We also think that it may sometimes be necessary to erase someone from the register, because disapproval must be shown in a strong way.

Throughout society generally there is the idea that people should be rehabilitated. If someone were erased for five years, it would be difficult to get them back into the profession satisfactorily. Therefore, we think that there is a case for having a much shorter minimum period of erasure of, say, two years or whatever—certainly a shorter period than five years. We think that panels would be reluctant to use the erasure sanction if they felt that somebody could ultimately be rehabilitated. We cannot read the minds of independent panels, but our fear is that they would not erase some dentists when it would perhaps be better if they did so.

In simple terms, how many people get struck off in Scotland per year?

I would not say that Scotland has a particularly bad record in that area. I would guess that, on average, one or two Scots are struck off most years, but not every year.

So it makes sense to follow the regulatory routes of other professions—for example, the pharmaceutical profession or privy councillors—but you will not have a huge impact on the loss of dental professionals. Your approach will have a greater impact on performance.

One aspect is a continuing process of getting to grips with people before they become involved in fitness-to-practise proceedings—when they have not become that bad and they are simply poorly performing. We have a blueprint for a poorly performing dentist system so that we get to grips with health professionals in dentistry who are doing badly before they get into trouble. We think that we will make a difference with that. We also think that we will make a difference when people are not so bad that they are erased and they are simply allowed to carry on. They should carry on with remedial measures and we want to be able to impose such measures.

Will you achieve what you seek to do?

If we obtain the powers, they will work well. We already have a model. In health-related cases, when people have mental illness, addiction or other health problems, we have the power to set conditions, which works well. The council's health committee works in camera, so people are not aware of that, but setting conditions works well and is often the way forward.

I call Shona Robison.

My point has been covered.

I was astonished to read about

"a new requirement that dentists have indemnity insurance before registration."

Have I read that correctly? I would have thought that that was compulsory, as in medicine.

At the moment, having indemnity cover is an ethical obligation on all doctors and dentists. Since 1999, the Department of Health has had the legal power to impose that, but that has not happened. The suggestion is that we rather than the department will exercise the power. A minority of people do not have indemnity cover because they have stopped paying for it or whatever. Having such cover is an ethical requirement and the change would make it a statutory requirement.

So you would strike off a dentist who was not signed up.

We already do that, but the change would give us the power to have better scrutiny.

Do you have an up-to-date number? Is the figure small?

I am sorry; I do not have the number of people who do not have indemnity insurance. The problem is that the organisations that provide insurance indemnity regard their information as commercially sensitive, so they do not tell us how many people are involved. In broad terms, the vast majority of the profession have indemnity insurance, but I cannot give a precise number, although I would love to have one.

Does that mean that no independent way to check exists?

Not that I am aware of. The information can be checked only individually.

That scares me.

In effect, we want to check the information individually.

The situation is astonishing.

I do not understand it.

I suspect that everybody will check that tomorrow.

The fifth bullet point under paragraph 7 refers to the

"removal of certain restriction on dental bodies corporate".

I presume that that means that anybody will be able to establish a dental practice, but you said that a board must have a majority of registrants. Is that a simple majority or has a percentage been set? Will that requirement apply only on establishment or will it continue and be monitored closely, because it is a public safety concern?

The consultation paper proposes that anyone should be able to establish a dental practice or business that carries on dentistry and that is it. We think that not only on establishment, but always, a majority of directors should be registrants of our council, although they would not necessarily be dentists. That would mean that the majority understood patients' interests and that we could hold people to account if things were not done properly. That is important.

Is that a simple majority?

We envisage a simple majority.

I happen to be a pharmacist. The likes of Boots have a pharmacy superintendent who takes that responsibility and is up to his eyeballs with the Royal Pharmaceutical Society of Great Britain and everybody else if Boots does anything wrong. He certainly does not represent a majority of the Boots board or any sub-company that Boots might own to operate in dentistry. Are you trying to get away from that situation so that people have a contract with the NHS?

Boots Dentalcare, which will wind up shortly as members know, is a body corporate—Boots bought one. The majority of its directors are and must be dentists.

The parent company owns the shares.

The parent company is entirely different.

I understand the point.

It is the directors who are responsible for the operation who are important and that situation should continue.

A thought has just occurred to me. Are the grants and financial support from the Scottish Executive to dentists throughout Scotland accompanied by a checking mechanism to ensure compliance with the various controlled aspects that you have talked about, or is Scottish Executive finance just handed out in any case?

As president of the General Dental Council I cannot answer that question but, as an NHS practitioner in Edinburgh, I can give you an answer. We are subject to practice inspections—the same inspections take place throughout Scotland. Part of the inspection involves checking that each dentist in the practice—I cannot speak for community clinics—has a practising certificate from the council, an indemnity certificate or insurance from an appropriate organisation and satisfactory documentation for pressure vessels and X-ray machines, for example. The chief dental officer introduced strict and thorough monitoring in Scotland some years ago—rather piecemeal monitoring was already in place, but the system is now very substantial.

The ad hoc practice inspection that Hew Mathewson described is part of our progress during the past five or six years. The performance assessment framework for health boards includes a requirement to inspect all dental practices in their areas in a three-year period. Practice inspections have been brought up to a standard—we are considering raising the standard—and we check indemnity, pressure-vessel insurance and so on. We are not over-confident, but we have introduced reasonable standards and we are in the middle of reviewing them to ascertain whether they can be raised. The process exists and I reassure members that 100 per cent of practitioners who work in Scotland have had to show their indemnity insurance and other matters during practice inspections.

There is sometimes an issue—I am just being honest—because the fact that we have a three-year inspection system means that people can fall through the system. There are always aspects that need to be tidied up and secured and sieves through which people can fall. Unfortunately, each time we develop a sieve, someone thinks of a different way to get through it.

Can you reassure us that the Scottish Executive gives no grant money to practices that have not undergone that kind of check? The Executive has handed out significant moneys to the dentistry profession during the past few years.

A dentist must be in practice to have a grant; they cannot start a practice without having all that stuff in place. They are then subject to on-going inspections. There are even tougher inspections in relation to matters such as vocational training practices—a lot of inspection takes place.

At any time, an indemnity organisation might exclude someone from its membership, for obvious reasons. It would be incumbent on such a person to find insurance at Lloyd's or approach another organisation and perhaps pay a loaded premium, but despite receiving notice, the individual might not do that for a week or a fortnight, or they might not do it at all. They might be ill and simply neglect to open all their mail. The matter is rarely simple and often complicated. Someone who is ill might get into trouble—that is inevitably a difficult situation.

We ensure that anyone who receives a grant complies with certain reasonable standards. One grant stipulates that they must have passed the practice inspection scheme before receiving the money, but many grants are linked to such standards.

I thank the witnesses for attending the meeting. The consultation on the order is open until 30 October, so the committee must decide whether it wants to write a letter—I think that that is all that we can do at this stage. It seems to me that the only issue that arises out of the evidence that we heard is the striking-off period.

Perhaps we should also flag up the issue to do with directors, which is important.

Do you mean that you agree with the evidence that we heard that a majority of directors should be registrants?

That makes sense.

Does anyone want to comment on the striking-off issue?

It is very practical.

What do you mean? It is proposed that the period of erasure from the register should be five years, but the witnesses suggested a slightly different approach.

I am suggesting that we support the view that we heard in evidence.

Do members have a view on that?

I have a question about the process. Only one of the bullet points is for us in a legislative sense—which is not to say that we cannot comment on the others. What is the process?

We are talking about a consultation that is being administered by the Department of Health south of the border in concert with the Scottish Executive. It is a UK-wide consultation.

If we are going to change the law and it is our responsibility, will a Sewel motion come before the Parliament?

No. An order will come before us, because some of this relates purely to devolved matters—some is reserved and some is devolved.

It will come to us.

Yes. It will come to the Scottish Parliament. The point that I made at the beginning was that when the order comes to us it will not be amendable. At that point, there will not be an opportunity to have any input about what is said. This is an opportunity for us to have formal input in the consultation process if we wish. Do you have a view on that?

I would like to support the specific bullet point about the regulation of professions allied to dental practice, because that is fundamental and will allow us to do many different things.

What about the striking-off issue? I know that it is difficult, because we do not have much time to go into it in detail.

I agree with the witnesses. If there is any hope of retaining an expensively acquired skill that is required in the community, we want to be able to do so.

We will draft a letter and circulate it. If people feel strongly about any bit of it, they can comment. We will get it faxed off by 30 October.

My only problem with our commenting on that is that we have not heard the other side of the story.

I appreciate that. The difficulty is that the consultation process was discovered late in the day. I am concerned that too often we discover things after the process has been gone through. I was concerned that in this case we would not have any opportunity to have any input once the order came before the Parliament. We will circulate the letter as soon as possible.