New GDC guidance on factors to be taken into account – a step in the right direction?

18 Jan 2021

Following the joint statement published by regulators at the start of the pandemic, on 14 January 2021, the GDC published supplementary advice to decision makers on the factors to be taken into account when considering complaints arising during the pandemic.

The advice, which is to be welcomed, sets out the various contextual matters to be taken into account by decision makers which include environmental issues and resource, guidelines and protocols.

Commencing the advice, the GDC confirm their previously made commitment to the dental profession that in the context of the pandemic, well-grounded professional judgement would not be penalised.

The advice, which is to be considered alongside the GDC’s existing guidance for decision makers, confirms that context is to be considered at the Case Examiner stage, namely at the conclusion of an initial investigation. It is helpful that a non-exhaustive list of factors to take into account is provided, and it will certainly be interesting to see how much investigation will be undertaken into these.

The list as it currently stands includes;

  • Availability of and access to PPE, including issues with fit testing

  • Inability to carry out treatment due to lack of PPE/appropriate PPE

  • Discomfort from wearing PPE for extended periods of time and the impact of PPE on communication

  • Pressures associated with managing new guidance and protocols and uncertainty in identifying which form of guidance was most appropriate

  • Services unavailable or closed because of the pandemic

  • Staff shortages due to infection, concern about the risk of infection or self isolation

  • Reduction in service capacity due to infection prevention and control measures

  • Restrictions on treatment (e.g. aerosol generating procedures)

  • Challenges presented by remote consulting

  • Inability to refer to other services

  • Delay in treatment due to the backlog caused by the pandemic

Other factors that should be taken into account are work pressures from employers or practice management, working outside of normal routines or in unfamiliar roles and the personal circumstances of the registrant which are said to include “distress or emotional trauma caused by the pandemic."

Whilst these are all matters that ought to be investigated and considered by those managing an investigation, some responsibility falls to the registrant to highlight particular factors relevant to their situation. Although termed advice to decision  makers the document provides important pointers to registrants as to the  factors that should be dealt with in any letter of response at Case Examiner stage.

It is said that registrants should be able to demonstrate how they have sought to;

  • provide the best and safest care that they could, in line with guidance and the best available evidence at the time

  • communicated effectively and worked co-operatively with colleagues to keep patients safe

  • identified and applied reasonable means to address any issues and concerns

  • kept records of the decisions made and actions taken

  • informed patients of all treatment options that were available

This reinforces the importance of good record keeping, and highlights the need for a registrant to ensure that any restrictions on what would be otherwise normal practice are clearly explained to the patient.

Whilst the initial joint statement provided some reassurance that context would be considered, when dealing with complaints received during the pandemic, the GDC’s publication of supplementary guidance takes a step in the right direction in clarifying factors of particular relevance. It remains to be seen whether the other healthcare regulators will take similar action.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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