At the end of last year the BDA took the enormous step of challenging the GDC’s ARF increase consultation through a judicial review.
Failure
The ruling that the consultation was unlawful could be seen as something of a hollow victory for the BDA as the fee
increase stood. Given the failure of its main aim I asked if the judicial review process could be seen as a waste of
time and (the GDC’s) money.
PW: “Many members told us (and we agree with them) that this was always about much more than money. We were faced with an autocratic regulator that failed to obey its own policy on transparency of information.
The BDA’s arguments managed to persuade a judge that the GDC had not merely acted unfairly in conducting this consultation but that the unfairness was so extreme as to be unlawful. Any lawyer will tell you that that is a very high bar to cross. The case against the GDC was so serious as to prove that it did break the law.
It will be for others to judge whether the demonstration that the regulator (in which the public and the profession should be able to have confidence) has broken the law is a waste of time and money. My own view is that this is fundamental to credibility and relationships. How can a regulator be respected when it does not uphold the standards that it expects of those whom it regulates?”
Misleading
So though the BDA did not prevent the fee increase Peter still feels it was important to go through with the JR and was positive that it did achieve something by the ruling. The GDC also came away from the court with a positive outlook, though the BDA was unimpressed with a press release the regulator send out immediately after the ruling was made. In an open letter the BDA’s Peter Ward criticised the GDC’s statement for being misleading in its selective use of the judge’s comments.
In the BDA’s press release following the JR decision, Mick Armstrong described the fee increase as “supersized” in spite of the fact the judge stated that the increase was “not profound”. Does this mean the BDA disagreed with the judgment on the fee size?
PW: “While dentists would not accept this view, Mr Justice Cranston’s comments were based upon case law in relation to a duty to consult. He concluded that the impact of the ARF rise was ‘not profound’ when compared to cited cases in which the impact was that companies would be forced to close down or where substantially disadvantaged groups would suffer significant financial detriments.
The judge preferred the parallel with an additional cost burden on retired doctors being asked to pay around £300. In that case, the impact had been declared to be ‘not profound’.”
Acceptable
So was it or not?
In mid-August, when the anti-increase campaign was getting into its stride, Judith Husband, chair of education, ethics and the dental team committee, wrote: “The threat is that, if this outrageous fee hike were to go ahead (and we are doing everything we can to ensure that it doesn’t), dentists might abandon ship in their droves.” Was this just hyperbole or has the increased fee had an impact on the number of dentists registering with the GDC?
PW: “We have certainly heard from a number of part-time colleagues where the size of the increase will have a substantial impact upon their decision whether to continue to work. The bottom line is that this is not a discretionary purchase for anyone who wants to practise dentistry.”
Principle
The BDA was critical of what it described as “pre-determination” on the subject of the ARF (a BDA press release quoted The Dentist’s interview with Evlynne Gilvarry, the GDC’s chief executive, last September where she spoke of the need for an increase to avoid “a very serious financial situation”). However, given the increase in complaints and a number of years without an increase, was an increase of some form not inevitable and to be expected?
PW: “The problem was that no proper evidence for any increase was provided; we still don’t know the background to the conversion rates from complaints to projected fitness-to-practise cases used in the consultation. It is probably reasonable to assume that costs in general go up over the years, and it is also generally known that complaints to all regulators have increased. However, most of the other regulators have been able to keep to
their current ARF fees in recent years despite rising complaints.
Nevertheless, when we surveyed our members during the summer on their opinion of the proposals, the results showed that a rise in line with inflation would have been acceptable to many. So you will see that dentists are not naïve or unreasonable. Had a reasonable rise been proposed (as is described in the Government’s own Command Paper) this whole unhappy episode could have been avoided.”
Fees
Throughout the consultation process the BDA spoke of fairness. The GDC’s stated principle of linking fees to the cost of fitness to practise cases is one that Peter described as “not unreasonable”. This is perhaps unsurprising given it was the justification he used when announcing the increase in BDA fees last year – one that was well above inflation but deemed necessary for the viability of the membership offering and the BDA as a whole. Were there any parallels between the BDA’s recent financial troubles and the requirement to reorganise itself financially, and the GDC’s need for money?
PW: “Yes, the BDA had to make financial adjustments within the last year. And, yes those adjustments have put the BDA on a strong course. What is really significant here though is the difference in the circumstances of rising
fees.
The BDA exists for, and because of, its members and is entirely owned by them. When we set our subscription, dentists exercise a discretion whether or not to join and benefit from our support and services – it is their choice.
With the GDC it’s different – if you don’t pay, you can’t work. It is arguable then that the GDC has an even greater responsibility to make itself accountable – and it hasn’t done that.”
Confidence
One of the main themes in the discussion regarding the consultation was the profession’s desire not to fund regulatory incompetence. I was interested to hear whether the BDA feared the failure to prevent the fee increase having an impact on the perception of the association, and faith in its ability to fight for the profession.
PW: “The feedback that the BDA has received from dentists throughout this process has been overwhelmingly positive and if anything the BDA’s reputation for standing up for dentists has been enhanced. We believed strongly that the GDC’s consultation was flawed, and that the GDC had acted illegally – and we were successful in those aims, however, we were disappointed that the judge was reluctant to overturn the fee increase due to the GDC’s pleas of ‘administrative chaos’. People shouldn’t underestimate the significance of this case. In avoiding the refund of the fee rise, the GDC had to make some pretty shattering admissions… These admissions do little to instil confidence that the profession is being regulated by a trustworthy or competent body. The longer term interest of the profession is that these internal failings are addressed.
Our fight will continue on this basis in whichever forum is necessary. For example, the BDA has written to the chair of the Commons Health Select Committee, Dr Sarah Wollaston MP, to make the case for an inquiry into the General Dental Council.”
Regret
When looking back over the past 12 months, is there anything the BDA could have done differently?
PW: “I genuinely don’t think we had any choice but to take on this case. We did our level best to persuade the GDC of the error of its ways. The fact of that error has now been proven in a court of law. Right up until the eve of its decision we tried to make the GDC change its mind. It should have done that and a high court judge has told it so.
The relationship between the regulator and the profession is fundamental to good regulation. Our members told us very loudly that they felt the regulator was letting them down and that the hike in the ARF was a step too far. On their behalf we sought to challenge it and we would do so again.”
Relationships
The GDC has been heavily criticised during the last 12 months, (from the PSA, the BDA and the profession), and has itself admitted that it needs to improve. How important is it that the relationship between the regulator and the profession is strong, and how will the BDA go about strengthening relations?
PW: “You are absolutely right about the importance of the relationship and the BDA would dearly like to have a strong relationship with the regulator.
If you look into the history here we have always worked closely with the GDC; we favour the principle of dentally specific regulation and we have always tried to support proportionate and responsible moves in this area.
Recently, the GDC seems to have become very autocratic and selfrighteous. It has put forward positions that we have found impossible to support and has adopted a very confrontational style. Until that changes there is little we can do to reengage.”