The Dark Arts of the GDC: Covert investigations and entrapment in healthcare regulation

04 Nov 2019

One would not traditionally associate covert or under-guise investigations with healthcare regulators but recent fitness to practise cases have demonstrated that this has become far more prevalent.

The General Dental Council (GDC) has engaged in a series of covert investigations against a number of dental professionals. In one sense, this might be considered justified if the person involved was committing a criminal offence by providing services whilst not being registered. However, in a recent case, the GDC has instructed undercover agents to present a registrant with a fictitious scenario involving an elderly relative to lure them to act outside of their scope of practice by committing acts prohibited by the GDC. This is all without any proper justification or legal basis.

The precise number of under-guise investigations undertaken by the GDC has not yet been established but a Freedom of Information Act request revealed that the GDC has instructed at least one private investigation business to undertake covert investigations in 2017, spending a minimum of £15,416.99 that year. This is a sizable sum and it seems highly unlikely that this practice is limited to only one year or to just one registrant.

The case of Mr A highlights a seismic but clandestine shift in the nature of investigations being taken by the GDC’s fitness to practise team against its own registrants.

GDC v Mr A

On 12 September 2016, the GDC received an anonymous complaint against Mr A, an independently practising Clinical Dental Technician, suggesting he may be working without registration. Mr A’s laboratory was in a bespoke facility at his home.

The GDC reviewed Mr A’s website which referred to providing a range of denture services, without express reference to the need to see a dentist for some of the items listed (partial dentures being the main concern)[1] [2].

In November 2016, the GDC instructed Invicta Investigation to carry out an under-guise investigation. The letter of instruction shows that the GDC caseworker substantially reformulated the complaint without any objective justification or evidence into a complaint that “we have information that [Mr A] may be working outside of his scope of practice… by providing partial dentures without a prescription from a dentist, which is out of scope.” The GDC also confirmed it did not have consent from the complainant to investigate the complaint. Two private investigators subsequently arranged an appointment with Mr A to discuss the provision of a new set of partial dentures for “Evelyn” (a fictitious elderly relative) who was said to be too ill to attend due to a chest infection and had not attended a dentist in many years. The investigators explained that Evelyn had a poorly fitting top partial denture causing embarrassment but she would not see a dentist. The investigators stated that Mr A confirmed he would be willing to overlook the need to see a dentist and make the denture himself but these reported after-the-event entries from the investigator’s notebooks (which were not verbatim transcriptions) were strenuously denied by Mr A. This amounted to the totality of the GDC’s evidence.

The GDC convened an Interim Orders Committee (IOC) hearing in February 2017 seeking an order of suspension due to Mr A’s alleged misleading and dishonest conduct. BLM opposed the application, stating that there was no factual nexus between the initial complaint and the investigation commissioned by the GDC and the evidence obtained by the undercover investigators should be deemed inadmissible. The IOC received robust legal advice and found that the evidence from the undercover investigation was fundamentally flawed and unfair from the outset. The IOC stated that a “good faith approach to the investigation” would have required that Mr A’s registration be looked into and “where the GDC instructs investigators to investigate such matters, as a matter of fairness, there must be a factual nexus between the mischief complained of and the terms of reference for any subsequent investigation.”

The GDC referred the matter to the Case Examiners in March 2017. BLM challenged the referral seeking that the investigation be stayed as an abuse of process as the case against Mr A consisted solely of evidence created by the GDC using under-guise investigators to entrap him, wholly divorced from the facts of any actual complaint. However, the GDC reaffirmed it was entitled to refer the matter to the Case Examiners, that it was lawful to use under-guise investigators and that the Case Examiners were not bound by the determination of the IOC. Similar submissions were made to the Case Examiners but Mr A’s case was referred to a Practice Committee.

BLM (instructing Jeremy Hyam QC) requested an immediate Preliminary Meeting of the Professional Conduct Committee to determine whether the case should be stayed on grounds of an abuse of process or, if unsuccessful, the admissibility of the under-guise evidence (due to a wrongful and unjustified interference and trespass into Mr A’s “home” as protected by Article 8 of the European Convention on Human Rights, resulting in evidence being unlawfully obtained).

The GDC’s skeleton argument robustly defended the decision to instruct the under-guise investigators, stating that it was “reasonable” on the basis of Mr A’s website screenshots. On the day of the hearing, the GDC disclosed additional triaging information (information that BLM had previously sought but the GDC had refused to disclose) in an attempt to justify the under-guise investigation. This included previously redacted complaint material, internal triaging correspondence and screenshots from Mr A’s website.

The Preliminary Meeting was adjourned and relisted for April 2019. One working day prior to the relisted hearing, the GDC served its updated skeleton argument which was largely the same as the previous version except that the GDC now conceded that there was no objective justification for the investigation into Mr A based on the website information. However, the application to stay proceedings on grounds of abuse was not conceded. 

The resumed Preliminary Meeting heard that the GDC should never have brought the proceedings against Mr A, due to the flawed triaging decision to pursue a scope of practice investigation and the numerous opportunities for the GDC to review and revise its approach. Reference was made to the case of Saluja[3] which held that a regulator had the power to stay or exclude evidence in limited circumstances, where to allow the case to proceed or to allow certain evidence to be admitted would be an affront to justice. There were also lengthy submissions on the application of Looseley[4] but the Committee did not consider this a material factor when considering the application to stay proceedings.

The Committee granted a stay of proceedings on the grounds of abuse of process, acknowledging this is an exceptional remedy and will only rarely be used. They found 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.” They further stated that to have allowed the proceedings to continue in such circumstances, “would be an affront to the Committee’s sense of justice and to the integrity of the regulatory process” and that “it would be manifestly unfair to [Mr A] to allow the GDC’s proceedings against him to continue.”

Due to the particular set of circumstances and the GDC’s late concession after three years of investigation, Mr A sought an order against the GDC to recover the entirety of the sizeable legal costs incurred by Dental Protection in defending the case. The GDC conceded the application. In its decision, the Committee “took account of the need to encourage public authorities to stand by honest, reasonable and apparently sound decisions made in the public interest.” The Committee found that the proceedings “were brought on the basis of an investigation which had no objective justification and should not have been brought… In these circumstances, the Committee is satisfied that it is appropriate to award costs in this case and that the sum should be paid in full”, a sum which was in excess of £38,000.

Comment

The case of Mr A confirms that there was no reasonable cause for a breach of scope of practice investigation, thus equating to a misuse of regulatory powers which should provide all regulators with a stark warning.

The actions of the under-guise investigators are classical acts of an agent provocateur, as per Looseley. The investigators presented an entirely contrived scenario where “Evelyn” was in very difficult circumstances where she would not go to a dentist, intended to invoke an emotional response. This is clearly not an ordinary opportunity for wrongdoing but designed to lure a reluctant registrant to do something against their better judgment on compassionate grounds.

BLM has attempted to ascertain the precise number and spend on under-guise investigations and what category of the dental register has been most targeted but the GDC has so far declined to share this information. We do know that the GDC has spent a sizeable sum (of its registrants’ fees) on undercover investigations and, upon review of the triaging correspondence in this case, it is clear that there has been a significant lack of oversight, analytical thinking or impact assessment before deciding whether to embark upon this approach, with little or no consideration to whether such action is justified or proportionate.

Throughout Mr A’s case, the GDC consistently asserted that under-guise investigations are essential in order to carry out its statutory function which suggests that this practice will continue. This case highlights that there is a lack of any clear governing set of rules or principles for regulators to adhere to if under-guise investigations are being considered nor is there are any internal guidance or monitoring to scrutinise this invasive conduct. Unfortunately, the GDC is reluctant to share all of their triaging correspondence from the outset which makes the task of demonstrating the investigation was unjustified that much more difficult.

Whilst the GDC’s Fitness to Practise Rules empowers a Practice Committee to make an order for costs if appropriate, this is a seldom used provision. Costs against the GDC are only awarded in the most serious of cases that demonstrate a real concern regarding the GDC’s behaviour or conduct. In this case, the fact that the GDC conceded the application for costs speaks volumes.

There is nothing to suggest that these under-guise investigations will stop and this case demonstrates that the GDC is prepared to target its own registrants, with inadequate justification, and with little desire to show any reflection into their activities. The GDC places great weight on registrants under investigation developing insight into their behaviour and so the inescapable irony of the GDC showing little or no insight themselves until the last possible moment in this case is disappointing.

Lee Biddle, Associate, BLM
lee.biddle@blmlaw.com

BLM would like to thank Brian Westbury of Dental Protection, Jeremy Hyam QC of 1 Crown Office Row Chambers (instructed at the Preliminary Meeting) and Betsan Criddle of Old Square Chambers (instructed at the early advisory stage).

 

[1] The GDC’s Scope of Practice document effective from 30 September 2013, states that CDTs are permitted to prescribe and provide complete dentures direct to patients but the provision and fit of other dental devices (including a partial denture) must be on prescription from a dentist.

[2] This is not by itself unusual when reviewing other CDT related websites

[3] CRHCP v GMC (1) and Saluja (2) [2006] EWHC 2784

[4] R v Looseley; AG’s Ref (No.3 of 2000) [2001] 1 WLR 2060 ­– the relevant principles being (1) that for an undercover operation (or the fruits of the same) to be relied upon requires the state agent to be acting on the basis of reasonable suspicion or in the course of a bona fide inquiry, a distinction from random virtue testing, and (2) whether the investigators did no more than present the defendant with an unexceptional opportunity to commit an offence.

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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 customers of BLM. Specialist legal advice should always be sought in any particular case.

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