The General Dental Council (GDC) has settled a claim paying damages and consenting to a declaration sealed by the High Court that it acted unlawfully in undertaking an under-guise operation against one of its dental registrants.
November 2019 saw national press coverage and widespread debate surrounding the ethical implications of the GDC engaging the services of undercover investigators against dental professionals.
This arose following the publicity surrounding a fitness to practise investigation into “Mr A”, an independently practising Clinical Dental Technician, who, in November 2016, was the subject of an under-guise investigation by the GDC. The investigators presented an entirely contrived scenario involving a fictitious elderly relative designed to invoke an emotional response and entrap a registrant to do something against their better judgment on compassionate grounds. The initial complaint related to whether Mr A was working without being registered with the GDC, not in any way relating to his scope of practice.
An abuse of process
The GDC fervently pursued the registrant through its fitness to practise procedures but a Preliminary Meeting of the GDC’s Professional Conduct Committee granted a stay of proceedings on the grounds of abuse of process, finding that “there was no proper basis for reasonable suspicion of a commission of a regulatory breach which warranted the use of an under-guise investigation” and this resulted in an entirely inappropriate invasion of Mr A’s professional workplace, where “the scenario presented by the investigators to [Mr A] went beyond providing him with an unexceptional opportunity and amounted to inciting him to indicate that he may be prepared to act outside his scope of practice”.
A detailed analysis of the case can be found here: https://www.blmlaw.com/news/the-dark-arts-of-the-general-dental-council
BLM, instructed by Dental Protection and Mr A, commenced pre-action litigation against the GDC under data protection legislation and the Human Rights Act 1998 arising from the distress suffered by Mr A as a result of the GDC failing to comply with its duty as “data controllers” to ensure that personal data is not unlawfully processed (the investigation material, including sensitive personal data and special category data consisting of information as to the alleged commission of a regulatory offence, had been unlawfully obtained and then unlawfully processed and disseminated at each stage of the GDC investigation) and in violation of his rights under Article 8 of the European Convention on Human Rights (an unlawful invasion of Mr A’s privacy in relation to his data and trespass into his home and place of work).
The GDC settled the case paying damages to Mr A as well as a declaration sealed by the High Court stating, “It is declared that the General Dental Council acted unlawfully in undertaking an under-guise operation without reasonable justification, in breach of [Mr A]’s Article 8 right under the European Convention on Human Rights, and the Data Protection Act 1998 and Data Protection Act 2018”. The GDC also agreed to pay in full the legal costs incurred by Dental Protection.
Hope for registrants
It is difficult to overstate the significance of this case. Throughout the life of this investigation, the GDC maintained that it was lawful to use under-guise investigators in respect of Mr A and was entitled to refer the matter first to the Case Examiners and then to the Professional Conduct Committee, despite the repeated objections raised. This unwavering approach served to prolong the duration of the investigation and the continued processing of Mr A’s data which the GDC has since conceded had no lawful justification.
This case offers some hope to those registrants who have been the subject of an unfair investigation by the GDC, or indeed any healthcare regulator, wrongly brought on improper procedural grounds or without proper justification. The opportunity to challenge a regulator and seek damages for inappropriately commencing an investigation has long been discussed but, to our knowledge, has never before been achieved.
Although each case is fact specific and may not raise similar issues to those in Mr A’s case, the ever increasing public focus on whether data has been obtained and lawfully processed is likely to be a common feature in any case where a regulatory investigation has commenced inappropriately. Serious consideration must now be given in the context of data protection legislation whenever a regulator has commenced an investigation bearing no resemblance to the initial complaint.
GDC blogs on under-guise investigations
Further to the media coverage surrounding Mr A’s case, the GDC published a blog on its website responding to the growing concern surrounding its use of under-guise investigators. The GDC confirmed this was an active practice stating, “we do so only when there is a potential risk to patients and only when there is no other way of investigating a specific allegation”. As has been demonstrated by Mr A’s case where the GDC entirely reformulated the initial referral to include a scope of practice concern that had otherwise not been raised, the GDC essentially invented a case against a registrant. There was no potential risk to patients and an under-guise investigation was not the option of last resort. The GDC’s assertion that, “we consider very carefully whether an undercover visit may be the best way forward” is hardly reassuring and perhaps of greater concern is the comment that the purpose of the visits is “not to encourage or provoke registrants – or anybody else – to do things which they would not otherwise do”, as this is precisely what took place in respect of Mr A.
In the context of the duty of candour and the GDC’s own Indicative Sanction Guidance highlighting the importance of showing remorse and insight, it is perhaps surprising that the GDC has, at the time of writing, not provided Mr A with an apology especially in light of the concession that it acted unlawfully. The GDC’s blog raises a separate concern in respect of its continued justification for using under-guise investigators, despite calls from the public, dental professionals and representative bodies that the GDC, funded entirely by dental registrants, should not be undertaking such clandestine practices. Although this commentary does not seek to resolve that debate, the case of Mr A demonstrates that the GDC must be far more mindful of the limits of its investigatory powers and early triaging decisions. Despite these concerns and indeed the warning of Mr A’s case, it appears the GDC has no intention of withdrawing their use of undercover investigators.
FOI request reveals use of under-guise investigators
Consequently, BLM enquired with all the other UK healthcare regulators under the Freedom of Information Act to ascertain whether undercover investigations are widespread and at what spend. The General Medical Council, the Health and Care Professions Council, the Nursing and Midwifery Council, the General Osteopathic Council, Social Work England and the General Pharmaceutical Council all confirmed that they had not instructed under-guise investigators.
Interestingly, Social Work England stated they had no legal powers under the Regulation of Investigator Powers Act 2000 (RIPA) to conduct covert investigations. The General Pharmaceutical Council confirmed they had only recently been given powers to use directed surveillance under RIPA following an update to their legal framework in 2018 but had not yet used those powers as they were “establishing a robust governance framework, internal systems and training for our staff around potential future use”, suggesting that this was an intended investigation tool for the future but distinguished this from “covert human intelligence sources” (under-guise investigators) which they state they have no powers to use.
Of those regulators we contacted, the General Chiropractic Council confirmed its use of under-guise investigators, reporting 5 cases in 2017, 4 in 2018, and 5 in 2019, amounting to a total spend of £30,142, which many chiropractors may find alarming. The General Optical Council reported the use of investigators as “very rare” citing two instances; in 2017 where an external investigator was instructed to telephone an online company to establish whether a registrant was involved in allegedly dispensing lenses without a valid prescription (no fitness to practise proceedings subsequently arose from this) and in 2019 where external lawyers were authorised (but not subsequently used) to instruct an investigator, if required, to identify the correct registrant in an investigation.
It therefore appears that the GDC, the General Chiropractic Council and the General Optical Council are the only healthcare regulators to consider the instruction of under-guise investigators to be an appropriate use of registration fees. The very fact that the other healthcare regulators have been quick to distance themselves from this practice is startling and may perhaps prompt further debate about whether it is ever appropriate for a regulator to invade a registrant’s home or place of work under false pretences. As we have discovered from Mr A, the line between observing and enticing an illicit act is very fine and should, at the very least, be cause for concern to the Professional Standards Authority tasked with overseeing the performance of UK healthcare regulators.
Lee Biddle, Associate, BLM
BLM would like to thank Susie Sanderson of Dental Protection and Jeremy Hyam QC of 1 Crown Office Row Chambers.