HEARING HEARD IN PUBLIC

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1 HEARING HEARD IN PUBLIC HOLLIDAY, Andrew Registration No: PROFESSIONAL CONDUCT COMMITTEE OCTOBER 2016 FEBRUARY 2018 Most recent outcome: Conditions revoked and suspension imposed for 6 months (with a review) * * See page 25 for the latest determination. Andrew HOLLIDAY, a dentist, BDS Brist 2003, was summoned to appear before the Professional Conduct Committee on Monday 3 October 2016 for an inquiry into the following charge: Charge (as amended on 4 October 2016) That, being a registered dentist: 1. Between July 2009 and 1 January 2015, and between 22 January 2015 and July 2015, you were in general dental practice at [Text Redacted]. 2. You provided care and treatment to the patients identified in Schedule A 1. Patient 1 3. Between 15 February 2012 and 18 June 2014 you failed to provide an adequate standard of care and record keeping in respect of Patient 1 in that: (b) (c) (d) (e) (f) Patient 2 you failed to adequately assess caries risk; you failed to record oral hygiene status; you failed to take sufficient bitewing radiographs; you failed to adequately diagnose or adequately treat caries at UR5; you failed to adequately record the provision of caries prevention advice; you failed to provide fluoride therapy. 4. Between 19 January 2011 and 6 June 2014 you failed to provide an adequate standard of care and record keeping in respect of Patient 2 in that: you failed to adequately record: (i) the provision of caries prevention advice; (ii) the provision of periodontal prevention advice; 1 Please note that the schedule is a private document and cannot be disclosed HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -1/28-

2 (b) (c) (d) you failed to provide appropriate investigation and treatment following BPE scores of 3 on: (i) 19 January 2011; (ii) 18 April 2012; [withdrawn by the GDC]; you failed to report on radiographs dated: (i) 19 January 2011; (ii) 17 June 2013; (e) you provided a substandard crown at UL1 on 9 September 2013; (f) Patient 3 you failed to adequately monitor the crown at UL1 and identify poor margins on or before 6 June 2014; (g) you failed to adequately diagnose or adequately treat caries at LL6 before 6 June You failed to provide an adequate standard of care and record keeping in respect of Patient 3 in that between 19 April 2011 and 14 July 2014: (b) (c) you failed, on more than one occasion each, to adequately record: (i) soft-tissue examinations; (ii) extra-oral examinations; you failed to adequately record the provision of caries prevention advice before and including on 2 April 2012; you failed to take bitewing radiographs; (d) you failed to provide fluoride therapy before 20 October 2013; (e) Patient 5 you failed to adequately treat caries, on or before 14 July 2014, at: (i) (ii) UR6; UL6. 6. You failed to provide an adequate standard of care and record keeping in respect of Patient 5 in that between 8 April 2010 and 12 February 2014: you failed to adequately report on radiographs dated: (i) 12 November 2010; (ii) (iii) 30 May 2012 which shows, amongst other things, generalised bone loss in all areas; 26 June 2012 which shows, amongst other things, a probable root perforation at UR5; HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -2/28-

3 (b) (c) (d) Patient 6 (iv) 16 November 2012, which shows, amongst others things, a probable root perforation at UR5; you provided a substandard restoration at UR5 on 26 June 2012 in that there was a post perforation; you failed to provide appropriate investigation and/or treatment following BPE scores of 3 on: (i) 30 August 2012; (ii) 22 February 2013; (iii) 12 February 2014; you failed to adequately record a diagnosis and/or the provision of treatment options on: (i) (ii) (iii) (iv) 23 November 2012 in respect of swelling around the UR5-6 region; 22 February 2013 in respect of the still weeping UR3-5; 4 June 2013 in respect of UR3-5; 28 August 2013 in respect of UR You failed to provide an adequate standard of care and record keeping in respect of Patient 6 in that between 30 June 2010 and 28 February 2014: (b) [withdrawn by the GDC]; you failed to report on a radiograph dated 21 September 2010 which shows, amongst other things, periapical pathology at UR6; (c) you failed to adequately diagnose or adequately treat caries, between 21 September 2010 and 1 March 2011, at UR6; (d) you failed to adequately treat periapical pathology, between 21 September 2010 and 1 March 2011, at UR6; (e) you failed to adequately investigate the cause of the failing crown, between 1 February 2013 and 23 January 2014, at LR7; (f) Patient 7 [withdrawn by the GDC]. 8. You failed to provide an adequate standard of care and record keeping in respect of Patient 7 in that between 29 March 2010 and 6 March 2014: you failed to provide appropriate investigation and/or treatment following BPE scores of 3 on: (i) 27 September 2010; (ii) 21 September 2011; (iii) 22 March 2012; (iv) 26 September 2012; HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -3/28-

4 (v) 3 September 2013; (b) you failed to adequately or accurately report on a radiograph dated 21 September 2011; (c) (d) Patient 8 you failed to provide appropriate treatment, following your diagnosis of a fistula adjacent to UR5 on 27 September 2010, on: (i) 27 September 2010; (ii) 2 March 2011; (iii) 21 September 2011; you failed to adequately diagnose or adequately treat periodontal disease. 9. You failed to provide an adequate standard of care and record keeping in respect of Patient 8 in that between 19 July 2010 and 19 May 2014: (b) Patient 10 you inappropriately treated periapical pathology at UL5 on 8 June 2011 by filling the tooth rather than root filling or extracting; you failed to adequately diagnose or adequately treat the periapical pathology at UL5 on: (i) 8 March 2013; (ii) 8 May 2013; (iii) 15 November You failed to provide an adequate standard of care and record keeping in respect of Patient 10 in that between 6 July 2009 and 24 June 2013: you failed to take bitewing radiographs; (b) you failed to adequately diagnose or adequately treat caries, on or before 24 June 2013, at: (c) (d) Patient 11 (i) (ii) UR6; UL6; you failed to adequately record, on more than one occasion, in respect of each: (i) intra-oral examinations; (ii) extra-oral examinations; you failed to provide or adequately record the provision of caries prevention advice before 7 June You failed to provide an adequate standard of care and record keeping in respect of Patient 11 in that between 12 January 2011 and 19 September 2014: you failed to take bitewing radiographs on: HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -4/28-

5 (b) (i) 12 January 2011; (ii) 28 July 2011; (iii) 16 February 2012; you failed to adequately record extra oral and/or intra oral examinations on: (i) 12 January 2011; (ii) 28 July 2011; (c) you failed to provide scaling following BPE scores of 2 on 14 February 2013; (d) (e) (f) Patient 12 you failed to provide or failed to adequately record the provision of treatment options including risks and benefits for the fractured upper incisors on 14 February 2013; you failed to provide or adequately record the provision of caries prevention advice on: (i) 12 January 2011; (ii) 28 July 2011; (iii) 16 February 2012; (iv) 21 August 2013; you failed to adequately or accurately report on a radiograph dated 22 October 2012 which shows, amongst other things, caries at: (i) LL6; (ii) LR6; (g) you failed to adequately diagnose or adequately treat caries at LL6 before 19 September You failed to provide an adequate standard of care and record keeping in respect of Patient 12 in that between 30 September 2010 and 14 July 2014: you failed to adequately report on radiographs dated: (i) (ii) (iii) 4 August 2011 which shows, amongst other things, periapical pathology at UL2; 20 January 2012, which shows, amongst other things, periapical pathology at LR6; 14 February 2013, which shows, amongst other things periapical pathology at UL2 and a poorly condensed root filling; (iv) 5 December 2013; (b) you failed to accurately record BPE scores on 20 January 2012; (c) you provided a substandard root filling at UL2 on 19 October 2012 and 8 November 2012; HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -5/28-

6 (d) Patient 14 you failed to adequately record a diagnosis in respect of UL7 on multiple occasions between 14 October 2013 and 14 July 2014; (e) you failed to adequately record the provision of treatment options for UL7 on 16 October You failed to provide an adequate standard of care and record keeping in respect of Patient 14 in that on 23 December 2013: (b) (c) (d) Patient 16 you failed to adequately record your clinical examinations; you failed to take bitewing radiographs; you failed to investigate presenting symptoms; you failed to provide or adequately record the provision of caries prevention advice. 14. You failed to provide an adequate standard of care and record keeping in respect of Patient 16 in that between 2 October 2013 and 22 August 2014: Patient 17 you failed to provide appropriate investigation following BPE scores of 3 on 7 October 2013; (b) you failed to adequately or accurately report on a radiograph dated 8 April 2014 which shows, amongst other things, gross caries at LR6; (c) you failed to adequately diagnose or adequately treat the UL6 on or before 22 August You failed to provide an adequate standard of care and record keeping in respect of Patient 17 in that between 23 February 2010 and about 3 October 2014: (b) (c) Patient 18 you failed to adequately report on radiographs dated: (i) (ii) [withdrawn by the GDC]; 30 April 2013 which shows, amongst other things, a substandard root filling at LL6; [withdrawn by the GDC]; you failed to appropriately plan to treat periapical pathology at LL6 on 31 July 2012; (d) you provided a substandard root filling to LL6 on 30 April You failed to provide an adequate standard of care and record keeping in respect of Patient 18 in that between 10 May 2010 and 28 October 2013: you failed, on more than one occasion each, to adequately record: (i) soft-tissue examinations; HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -6/28-

7 (b) Patient 19 (ii) the provision of caries prevention advice; you failed to take bitewing radiographs; (c) you failed to adequately diagnose or adequately treat caries at UL4 before 30 May You failed to provide an adequate standard of care and record keeping in respect of Patient 19 in that between 6 March 2013 and 27 March 2014: you failed to adequately record the examination on 6 March 2013; (b) you failed to take bitewing radiographs on 6 March 2013; (c) Patient 20 you failed to provide appropriate investigation and/or treatment following BPE scores of 3 on: (i) 18 September 2013; (ii) 27 March You failed to provide an adequate standard of care and record keeping in respect of Patient 20 in that between 3 April 2014 and 16 July 2014: (b) you failed to adequately diagnose or adequately treat caries, on 3 April 2014, at: (i) (ii) (iii) UL7; LL6; UR5; you failed to maintain adequate records of your care and treatment. Illegal Practice & False Advertising 19. [Removed following a successful application of no case to answer]. 20. Between July 2014 and July 2015 you advertised yourself on the Practice website as holding the qualification of Diploma of Dental Implants when you did not hold the qualification. 21. [Removed following a successful application of no case to answer] (b) (c) [Removed following a successful application of no case to answer]; [Removed following a successful application of no case to answer]; [Removed following a successful application of no case to answer]. 22. Your conduct as set out above at 20 was: (b) (c) inappropriate; misleading; dishonest. And that in relation to the facts alleged your fitness to practise is impaired by reason of misconduct and/or deficient professional performance. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -7/28-

8 On 5 October 2016 Mr Thomas (Counsel for Mr Holliday) made a submission under Rule 19(3) on behalf of Mr Holliday. The Chairman made the following response: Mr Holliday, At the conclusion of the GDC s evidence, Mr Thomas, on your behalf, made a submission pursuant to paragraph 19(3) of The General Dental Council (Fitness to Practise) Rules 2006 that there is no case to answer in respect of heads of charge 19 and 21, which read as follows: 19 On a day or days between 2 January 2015 and 21 January 2015 you practised as a dentist when you were not registered with the General Dental Council. 21. Your conduct as set out above at 19 was: (b) (c) inappropriate; misleading; dishonest. Mr Thomas submitted that the GDC s case was founded upon the evidence of two GDC staff members who had stated that, following your failure to pay the Annual Retention Fee ( ARF ) which had been due for payment by 31 December 2014, your registration lapsed. Their evidence was that a due diligence procedure is undertaken when a registrant fails to pay the ARF. This involves, amongst other things, checking that there are no ongoing fitness to practise reasons for not removing their name from the register. Their evidence was that, following the due diligence process, you were then administratively removed from the register on 7 January He submitted that the only evidence before the Committee to support the allegation that you practised whilst not registered appeared to be from two of your former colleagues. This evidence pointed to your practising on one identifiable date, being 3 January 2015 only. Mr Thomas provided a copy of The General Dental Council (Dentists) (Fees) Regulations 2014 ( the Regulations ) and a copy of section 14 of The Dentists Act The Regulations state at regulation 4(1)(b) that, failure to pay that fee may result in that person s name being erased from the register, And states at regulation 6 that, Where a person fails to pay by the renewal date, the fee prescribed under regulation 2(1)(c), the registrar may erase that person s name from the register, provided the notice and warning have been sent in accordance with regulation 4. Mr Thomas submitted that there are no formal regulations covering this process other than the Regulations above. He said that the Regulations make no reference to any lapse of registration on non-payment of the ARF. A dentist therefore remains on the register until such time as they no longer appear on it. You were still on the register on 3 January 2015, your registration having not been removed until 7 January 2015 and the GDC appeared to have exercised its discretion not to remove you until that date. He summarised, and stated that the correct position is that a registrant at any given time, is either on or off the register. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -8/28-

9 Ms Barnfather opposed the application. She said that the evidence of the GDC staff supported a common sense interpretation of the Regulations, namely that, wherever a registrant has omitted to pay the requisite ARF before the end of the time and date when payment is due, then that person is no longer registered, because the registration will have lapsed. Whether a registration continues to appear on the online register, she stated, is simply a matter of the administrative process catching up with the actual registered status. She submitted that the Committee should reject the application, on the basis that there is a case to answer given the evidence before the Committee. The Legal Adviser set out the principles set out in R v Galbraith [1981] 1 WLR 1039 and in R v Shippey [1988] CLR 767. The Committee accepted the advice of the Legal Adviser and has applied these principles in reaching its decision. The Committee noted that the only document before it, in support of the timeline advanced by the GDC staff members in their evidence, was an internal electronic document containing columns relating to the dates of first and last registration of the registrant, plus a column headed Registered to Date. That column shows 07/01/2015 and the reason for removal as non payment. This, in the Committee s view, does not support the wording of head of charge 19, in that you were not removed from the register until 7 January The Committee noted that most of the reminder letters which were sent to you in advance of the ARF deadline on 31 December 2014, appeared to contain standard wording that your current period of registration would expire on 31 December 2014 and that non-payment may result in your removal from the register. The inclusion of the word may in those letters, reflects the GDC s discretion, clearly identifiable in the Regulations, to decide whether or not your registration will in fact be removed. In your particular case, your name appeared to continue to be included on the register of dentists, despite the GDC s reminders, until 7 January The Committee had no evidence that, under the Regulations, a person s registration would automatically lapse on non-payment of the ARF. Nor was there any evidence before it to support any distinction between being registered (as stated in the wording of the charge) and appearing on the register. It concluded these appear to be one and the same for all intents and purposes, particularly given that the register is a public account of who is and is not entitled to practise as a dentist. In conclusion, the Committee has determined that it would not be possible, taking the GDC evidence at its highest, for it to find head of charge 19 proved. Further, given that heads of charge 21 to 21(c) inclusively are wholly contingent upon 19 being found proved, these allegations cannot continue to stand. Accordingly, the Committee grants the application of no case to answer. On 10 October 2016 the Chairman made the following statement regarding the finding of facts: Mr Holliday, The Committee has received submissions from Ms Barnfather on behalf of the GDC and those made by Mr Thomas on your behalf. The Committee has carefully considered all the documents and evidence before it. It has accepted the advice of the Legal Adviser. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -9/28-

10 Amendment to the Charge Prior to the hearing commencing, Ms Barnfather applied to amend the charge. The proposed amendments affected heads of charge 4(g), 6(ii), 8(b), 14, including the deletion of 4(c), 7, 7(f), 15(i) and 15(b). Mr Thomas said that he did not object to the application to amend. The Committee considered that the amendments proposed did not adversely prejudice your case or the GDC s and, therefore, would cause no unfairness or injustice to either party. The application to amend was therefore granted and the charge amended. Admissions At the outset of the hearing, Mr Thomas, on your behalf, made admissions to a number of the heads of charge. Some of these were partial admissions, in that the admission related to a discrete aspect of the charge in question. The Committee has set out below, together with its findings of fact, which heads of charge were admitted, including those which were partial admissions. In fairness to you, the Committee deferred making any findings of fact in respect of the admitted heads of charge until its substantive findings could be made after receiving all of the relevant evidence. Background The Committee was informed that you qualified as a dentist in 2003 and practised in the Royal Army Dental Corps between 2003 and On or around July 2009, you began practising at [Text Redacted] where, in 2012, you became the Practice owner and principal. The GDC began an investigation into your practice after complaints were received from two of your former dental colleagues and two patients (called Patients 1 and 2 in these proceedings). That investigation resulted in the charge before this Committee. No Case To Answer On day three of the hearing, Mr Thomas applied successfully for a finding of no case to answer in respect of heads of charge 19 and 21 to 21(c) inclusively. Evidence The Committee received written statements and accompanying exhibits from the following witnesses of fact: Witness 1 (a complainant and father of Patient 1); Patient 2 (a complainant); CG (a dental colleague and complainant); AI (a dental colleague and complainant); Witness 2 (Programme Coordinator at University of Bristol Dental Hospital); Witness 3 (Programme Director at University of Bristol Dental Hospital); and, two GDC staff members. Some of the documentary evidence contained within the bundle was agreed prior to the hearing and, therefore, Patients 1 and 2, CG, AI and Witness 3 were not required to attend HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -10/28-

11 to provide oral evidence. The Committee received oral evidence from Witness 2 and a GDC member of staff, namely the Registration Operations Manager. The Committee received expert opinion evidence from the following: Annabelle Jane Ford, an experienced general dental practitioner (instructed by the GDC); and Gordon Russell Boyle, an experienced general dental practitioner (instructed by your legal representatives). The Committee was of the view that both experts provided reliable, impartial evidence and explained their reasoning appropriately when they provided oral evidence. The Committee carefully weighed and assessed your evidence, both documentary and oral. It took account of your previous good character as a positive factor when assessing your credibility. It was clear that some parts of your recollection had been affected by the passage of time. On the whole, the Committee concluded that you did your best to answer questions, although your evidence was hindered to a significant extent by a lack of clear and comprehensive recollection. Overall, the Committee found your evidence to be credible. Findings of fact The Committee s findings in relation to each head of charge are set out below. 1. Admitted and proved. 2. Admitted and proved. 3. a) Admitted and proved. 3. b) Admitted and proved. 3. c) Admitted and proved. 3. d) Admitted and proved. 3. e) Admitted and proved. 3. f) Admitted and proved. 4. a) i) Admitted and proved. 4. a) ii) Admitted and proved. 4. b) i) Admitted and proved. 4. b) ii) Admitted and proved in respect of the alleged failure to provide appropriate investigation following Basic Periodontal Examination ( BPE ) scores of 3 for Patient 2. Not proved in respect of the alleged failure to provide appropriate treatment. The Committee noted that, having identified BPE scores of 3, you referred Patient 2 to a hygienist for a scale and polish. Although there was no evidence before the Committee that a full six-point pocketing charting was performed, referring to the hygienist was an appropriate course of treatment. The clinical notes of the following appointment showed an improvement in the patient s BPE scores. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -11/28-

12 4. d) i) Admitted and proved. 4. d) ii) Admitted and proved. 4. e) Admitted and proved. 4. f) Admitted and proved. 4. g) Admitted and proved, as amended. 5. a) i) Admitted and proved. 5. a) ii) Admitted and proved. 5. b) Admitted and proved. 5. c) Admitted and proved. 5. d) Admitted and proved. 5. e) i) Admitted and proved. 5. e) ii) Admitted and proved. 6. a) i) Admitted and proved. 6. a) ii) Admitted and proved, as amended. 6. a) iii) Admitted and proved. 6. a) iv) Admitted and proved. 6. b) Admitted and proved. 6. c) i) Admitted and proved. 6. c) ii) Admitted and proved. 6. c) iii) Admitted and proved. 6. d) i) Admitted and proved. 6. d) ii) Admitted and found not proved. The Committee examined the clinical records for Patient 5 and noted the observation that the patient s UR3-5 teeth were still weeping was recorded on 22 March 2013, one month after the date in the head of charge, which was 22 February d) iii) Admitted and proved. 6. d) iv) Admitted and proved. The Committee examined the relevant documents and noted that the clinical record showed one treatment option being provided during the appointment on 28 August In its view, however, this did not amount to an adequate recording of the provision of treatment options. 7. b) Admitted and proved. 7. c) Admitted and proved. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -12/28-

13 7. d) Admitted and proved. 7. e) Admitted and proved. 8. a) i) Admitted and proved in respect of the alleged failure to provide appropriate investigation following BPE scores of 3 for Patient 7. Not proved in respect of the alleged failure to provide appropriate treatment. The Committee noted that, following the BPE scores of 3, Patient 7 was referred to the hygienist where a scale and polish was provided. Although there was no evidence before the Committee that a full six-point pocketing charting was performed, referring to the hygienist was an appropriate course of treatment. The clinical notes of the following appointment showed an improvement in the patient s BPE scores. 8. a) ii) Admitted and proved. 8. a) iii) Admitted and proved. 8. a) iv) Admitted and proved. 8. a) v) Admitted and proved. 8. b) Admitted and proved, as amended. 8. c) i) Admitted and proved. 8. c) ii) Admitted and proved. 8. c) iii) Admitted and proved. 8. d) Admitted and proved. 9. a) Admitted and proved. 9. b) i) Admitted and proved. 9. b) ii) Admitted and proved. 9. b) iii) Admitted and proved. 10. a) Admitted and proved. 10. b) i) Admitted and proved. 10. b) ii) Admitted and proved. 10. c) i) Admitted and proved. 10. c) ii) Admitted and proved. 10. d) Admitted and proved in respect of the alleged failure to adequately record the provision of caries prevention advice to Patient 10 before 7 June Not proved in respect of the alleged failure to provide caries prevention advice. The GDC relied on hearsay evidence from CG and AI, to the effect that patients had informed them that caries prevention advice had not been provided. This hearsay evidence was unspecific and did not relate to individual patients and appointments. Your oral evidence was that the advice would have been given as a matter of standard practice, and this, in HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -13/28-

14 the Committee s view, was supported by your clinical records, which alluded to advice given about tooth-brushing. The Committee reminded itself of the burden of proof and concluded that it was not satisfied that the GDC had proved its case, on the balance of probabilities. 11. a) i) Admitted and proved. 11. a) ii) Admitted and proved. 11. a) iii) Admitted and proved. 11. b) i) Admitted and proved. 11. b) ii) Admitted and proved. 11. c) Admitted and found not proved. The Committee noted that Ms Ford s report dated 12 May 2016 did not establish that you were under a duty to provide scaling in response to the BPE scores of 2. Mr Boyle, in his report 9 September 2016, mentioned the lack of a clinical record to support the provision of scaling; he did not mention any failure to provide it. The Committee concluded that the GDC had not provided sufficient evidence of a duty upon which to find that there had been a failure of that duty. 11. d) Proved in respect of the alleged failure to adequately record the provision of treatment options including risks and benefits for the fractured upper incisors to Patient 11 on 14 February The Committee examined the record for this appointment and concluded that it was inadequate, in that it was unreasonably sparse. 11. e) i) 11. e) ii) 11. e) iii) 11. e) iv) Not proved in respect of the alleged failure to provide treatment options. The Committee accepted your oral evidence that it would have been your standard practice to discuss the treatment options, including risks and benefits, particularly in circumstances where a patient had presented with a minor fracture. The notes referred to the teeth being chipped and one option with a chipped tooth is to provide no treatment. Admitted and proved in respect of the alleged failure to adequately record the provision of caries prevention advice to Patient 11 on the four dates specified in the charge. Not proved in respect of the alleged failure to provide caries prevention advice on the dates in these heads of charge. As under 10(d) above, the GDC relied on hearsay evidence from CG and AI, to the effect that unspecified patients had informed them that the caries prevention advice had not been provided. This hearsay evidence was unspecific and did not relate to individual patients and appointments. The Committee preferred your oral evidence that the advice would have been given as a matter of standard practice. The Committee reminded itself of the burden of proof and concluded that it was not satisfied that the GDC had proved its case, on the balance of probabilities. 11. f) i) Admitted and proved. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -14/28-

15 11. f) ii) Admitted and proved. 11. g) Admitted and proved. 12. a) i) Not proved. Both experts and you accepted that the radiograph taken on 4 August 2011 showed a dark shadow adjacent to the apex of the root of Patient 12 s UL2 tooth. The Committee examined the original film (non-digital) radiograph, together with a second image taken on 10 October 2012 showing that the shadow had gone away. The GDC relied on Ms Ford s evidence that she interpreted the shadow as periapical pathology, which, she conceded in her oral evidence, suggested that the tooth itself was either dead or dying. Mr Boyle disagreed, and the Committee preferred his opinion over Ms Ford s. It accepted his explanation, that the shadow could have been an artefact rather than periapical pathology. The fact that it had gone away by the time that a second radiograph was taken supported that view. 12. a) ii) Admitted and proved. 12. a) iii) Admitted and proved. 12. a) iv) Admitted and proved. 12. b) Admitted and proved. 12. c) Admitted and proved. 12. d) Admitted and proved. 12. e) Admitted and proved. 13. a) Admitted and proved. 13. b) Admitted and proved. 13. c) Admitted and found not proved. The Committee inspected the clinical note of Patient 14 s appointment on 23 December 2013, which showed that some form of investigation had taken place concerning the cause of the patient s sensitivity. This led to a suggested aetiology, namely clenching. The joint experts report dated 4 October 2016 focussed primarily on the record-keeping aspect and did not comment upon the adequacy of any investigation. The GDC did not provide sufficient evidence to persuade the Committee that, on the balance of probabilities, you had failed to investigate the patient s presenting symptoms, in the light of the content of the clinical record. 13. d) Admitted and proved in respect of the alleged failure to adequately record the provision of caries prevention advice to Patient 14 on the date specified in the charge. Not proved in respect of the alleged failure to provide caries prevention advice on the date in this heads of charge. As under 10(d) above, the GDC HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -15/28-

16 relied on hearsay evidence from CG and AI, to the effect that patients had informed them that the caries prevention advice had not been provided. This hearsay evidence was unspecific and did not relate to individual patients and appointments. The Committee preferred your oral evidence that the advice would have been given as a matter of your standard practice. The Committee reminded itself of the burden of proof and concluded that it was not satisfied that the GDC had proved its case, on the balance of probabilities. 14. a) Admitted as amended and found not proved. The Committee examined the clinical records for Patient 16 and noted that on the date in the charge, 7 October 2013, the patient attended for an appointment with a hygienist. BPE scores of 3 were not recorded on this date, although the records show that they had been recorded at the appointment with you on 2 October 2013, prior to the referral to the hygienist. 14. b) Admitted and proved. 14. c) Admitted and proved. 15. a) ii) Admitted and proved. 15. c) Admitted and proved. 15. d) Admitted and proved. 16. a) i) Admitted and proved. 16. a) ii) Admitted and proved. 16. b) Admitted and proved. 16. c) Admitted and proved. 17. a) Admitted and proved. 17. b) Admitted and proved. 17. c) i) Admitted and proved. 17. c) ii) Admitted and proved. 18. a) i) Admitted and proved. 18. a) ii) Admitted and proved. 18. a) iii) Admitted and found not proved. Ms Ford, in her report dated 12 May 2016, states that when bitewing radiographs were taken on 16 July 2014, these showed deep caries in Patient 20 s UR5, UL7 and LL6 teeth. She stated that these ought to have been visible on 3 April 2014 both radiographically and clinically in respect of UL7 and LL6. Ms Ford did not, however, state that the caries in the UR5 tooth ought to have been visible. Mr Boyle s evidence did not add to this. Accordingly, the GDC did not persuade the Committee that this had constituted a failing at the appointment of 3 April HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -16/28-

17 18. b) Admitted and proved. 20. Admitted and proved. You admitted that the phrase DipDentImp was displayed on your website between July 2014 and July 2015, and that this constituted you advertising yourself as holding the qualification of Diploma in Dental Implantology. 22. a) Admitted and proved. You admitted that the facts found proved in 20 above were inappropriate in that you did not in fact hold the qualification identified. 22. b) Admitted as to fact but not culpability, and found proved. 22. c) Not proved. Whilst being cross examined by Ms Barnfather and questioned by the Committee, you conceded that your conduct in head of charge 20 above was misleading. This was found proved as, by representing that you held the qualification of Diploma in Dental Implantology when in fact you did not, you gave the wrong impression. This would have led anyone viewing your website to believe something that was not true. The Committee reminded itself that, when deciding whether you acted dishonestly, as charged, it should first ask itself whether what you did would be considered dishonest by the standards of reasonable and honest people. It was for the Committee to decide what these standards are. The Committee accepted the evidence before it that you enrolled and commenced study on the four-year Master of Science in Dental Implantology (MSc) course at Bristol University, in You attended only years one and two of this course. The Committee has clear evidence that you did not hold the qualification of Diploma in Dental Implantology when you initially advertised this on your Practice website. As you did not hold this qualification, the Committee was in no doubt that reasonable and honest people would consider your actions in advertising that you held the Diploma, on your website between July 2014 and July 2015, to be dishonest. You had engaged an I.T. professional to set-up a Practice website. You provided the post-nominals, that is, the qualifications of each practitioner in the Practice. You included the words DipDentImp as part of your postnominals. The website was completed in or around April 2014, at which time, the Committee accepts, you believed that you were entitled to claim the qualification of Diploma in Dental Implantology. You subsequently became aware that you were not so entitled, and you accepted that you knew this, by July The Committee then went on to consider whether you must have realised that what you were doing would be considered dishonest by the standards of reasonable and honest people. It reminded itself you do not have to disprove that your conduct was dishonest. The burden of proof rests on the GDC. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -17/28-

18 The Committee considered your evidence, that you had not intended to be dishonest by advertising this qualification, between the dates charged, remained consistent under robust cross examination. During this hearing, you openly accepted a wide range of practice failings. Despite these many frank and early admissions, you vehemently denied any dishonest intentions and became visibly distressed about the allegation that you were dishonest, when cross-examined. In assessing your evidence, the Committee reminded itself of your previous good character. The Committee considered its finding that you conducted your day-to-day practice with an approach which was disorganised and chaotic. This manifested in the many clinical failings which were admitted and found proved. You conceded in your oral evidence that you were firefighting in an attempt to manage overwhelming clinical demands and that important and fundamental aspects of safe dental practice were omitted or performed inadequately. The Committee noted that the disorganisation, in which you worked, impacted on you to such an extent that, in spite of multiple reminders, you omitted to pay your GDC Annual Retention Fee on time. This resulted in your removal, albeit temporarily, from the dentists register. The Committee heard that the Practice had a large patient caseload and that you opened a second practice in Your conduct of your affairs during this period was also significantly affected by receiving a diagnosis of a serious health condition, details of which the Committee were informed of during private session. The Committee concluded that you were aware that you did not hold the qualification of Diploma in Dental Implantology and, although it remained advertised on your Practice website, the Committee accepts that you did not link this awareness and the website, both as a result of your manifest disorganisation and subsequent health issues. You informed the Committee that your website was not at the forefront of your mind during this time. The Committee accepts as innocent your explanation that it did not occur to you to have changes made to the website, and to remove the information about the Diploma from your website, until this was brought to your attention. It decided, on the balance of probabilities, that in your particular circumstances, it did not even occur to you that the qualification remained advertised on the website and needed to be removed. The Committee accepts that it was not your intention to deceive. Accordingly, the Committee concluded that the GDC had not discharged its burden of proof in that there was insufficient evidence that you knew, at the material time, that your conduct, as described in head of charge 20, would be considered dishonest. The Committee will now invite submissions on the matter of whether the facts found proved amount to misconduct and / or deficient professional performance in relation to current impairment of your fitness to practise as a dentist. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -18/28-

19 On 12 October 2016 the Chairman announced the determination as follows: Mr Holliday, The Committee has considered the submissions from Ms Barnfather on behalf of the General Dental Council ( GDC ) and from Mr Thomas on your behalf. It has accepted the advice of the Legal Adviser. Misconduct The Committee next considered whether the facts found proved amount to misconduct. Ms Barnfather referred the Committee to the following paragraphs of the Standards for Dental Professionals dated May 2005, which established ethical standards for the dental profession during part of the material time in the charge. 1.1 Put patients interests before your own or those of any colleague, organisation or business. 1.3 Work within your knowledge, professional competence and physical abilities. Refer patients for a second opinion and for further advice when it is necessary, or if the patient asks. Refer patients for further treatment when it is necessary to do so. 1.4 Make and keep accurate and complete patient records, including a medical history, at the time you treat them. Make sure that patients have easy access to their records. 5.1 Recognise that your qualification for registration was the first stage in your professional education. Develop and update your knowledge and skills throughout your working life. 5.2 Continuously review your knowledge, skills and professional performance. Reflect on them, and identify and understand your limits as well as your strengths. 5.3 Find out about current best practice in the fields in which you work. Provide a good standard of care based on available up-to-date evidence and reliable guidance. 5.4 Find out about laws and regulations which affect your work, premises, equipment and business, and follow them. From Standards for the Dental Team, in force from 30 September 2013, Ms Barnfather referred the Committee to the following standards You must make and keep complete and accurate patient records, including an up-to-date medical history, each time that you treat patients. Radiographs, consent forms, photographs, models, audio or visual recordings of consultations, laboratory prescriptions, statements of conformity and referral letters all form part of patients records where they are available You should record as much detail as possible about the discussions you have with your patients, including evidence that valid consent has been obtained. You should also include details of any particular patient s treatment needs where appropriate. HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -19/28-

20 4.1.4 You must ensure that all documentation that records your work, including patient records, is clear, legible, accurate, and can be readily understood by others. You must also record the name or initials of the treating clinician You must find out about current evidence and best practice which affect your work, premises, equipment and business and follow them If you deviate from established practice and guidance, you should record the reasons why and be able to justify your decision. 9.1 Ensure that your conduct, both at work and in your personal life, justifies patients trust in you and the public s trust in the dental profession. 9.2 Protect patients and colleagues from risks posed by your health, conduct or performance. The facts found proved constitute failings across a wide range of fundamental aspects of dental practice including, performing examinations and clinical investigations; diagnosing; treatment planning; treatment execution; radiography; and record keeping. The opinion evidence from Ms Ford and Mr Boyle and the evidence relating to Patients 1 and 2, demonstrate that your failings caused actual harm to a number of patients, and exposed many others to a significant risk of harm. The Committee accepted the evidence given by the expert called on your behalf, that aspects of your dental care amounted to supervised neglect. Your conduct spanned a substantial period of time, from 2009 to Its gravity was aggravated by your being aware of the poor standards in your clinical practice at the time, as you accepted in your oral evidence. Your failure to record key information in patients clinical notes (such as justification for and reports on radiographs, diagnoses, and treatment planned and provided) was serious as it gave you no means by which you, or a subsequent treating dentist, could build a reliable picture of past treatment. Your decision to place information on your website before you had verified its accuracy, and to absent-mindedly fail to remove it after you became aware that it was inaccurate, demonstrated a worrying disregard for your professional duties as a registered dentist. The Committee takes a serious view of this aspect of your conduct as you misleadingly advertised yourself to potential patients as holding a prestigious qualification, a Diploma in Dental Implantology, when you held no such qualification. The Committee was in no doubt that the facts found proved are serious, arose from multiple acts and omissions and would be regarded as deplorable by fellow dental professionals. Your patients trusted you to provide a competent standard of care and treatment and you failed to do so over a protracted period of time. The evidence before the Committee, relating to a sample of some 16 patients, demonstrated that your conduct fell far below the standard to be expected from a reasonably competent dentist in general practice. The Committee considered that your actions represented a disregard of your professional duty to act in your patients best interests and to protect their safety. The Committee concluded your actions, as described in the facts found proved, do amount to misconduct. Impairment The Committee considered whether your fitness to practise is currently impaired by reason of your misconduct. In accordance with the submissions and the Legal Adviser s advice, it had regard to the legal tests established in the cases of Cohen v General Medical Council HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -20/28-

21 [2008] EWHC 581 (Admin) and CHRE v NMC and Grant [2011] EWHC 927 (Admin). It also took into account the guidance set out by Dame Janet Smith in the 5th Report to the Shipman Inquiry. Firstly, the Committee considered whether the misconduct was remediable. Most aspects of your misconduct concerned failings in the most fundamental aspects of dental practice. In respect of the misleading and inappropriate information on your Practice website, the Committee was of the view that this behaviour was symptomatic of the chaotic and disorganised culture which you allowed to develop within your practice at the time. As a general principle, the Committee was of the view that deficiencies in a dentist s clinical and working practices are, by their nature, remediable. The Committee next considered whether you have remedied your deficiencies and whether there is a risk of repetition. At the time of your misconduct, the Committee found you demonstrated a clear attitudinal flaw in your approach to maintaining professional standards, in that you recognised that you were working under extreme pressure and did not take any adequate steps to address the situation. As a direct result, you failed to maintain an appropriate standard of dental practice. This placed patients at unwarranted risk of harm and breached fundamental tenets of the dental profession. The Committee was informed that, in August 2015, a panel of the GDC s Interim Orders Committee imposed conditions of practice upon your registration which remain ongoing today. Those conditions provided you with a framework within which you have undertaken a number of remedial steps, largely targeting the areas of concern as identified in the charge. These include a Personal Development Plan ( PDP ) established and maintained in conjunction with the Associate Postgraduate Dean for Health Education South West (Bristol Dental Hospital), targeting the areas of diagnosis, record-keeping, radiography, BPE, treatment planning, valid informed consent and root-canal treatments. Your PDP identified online learning, publications read and courses attended. Your performance was measured using reflective writing, clinical audits of the targeted areas, peer review and discussion. Evidence of these was provided to the Committee. You carried out audits of a number of aspects of your dental practice. The second cycle of these audits indicated that 100% of targets were achieved in many areas. The Committee was not satisfied that your relatively recently established remediation programme, whilst commendable, was sufficient to amount to full remediation or to provide assurance that improved standards had become fully embedded in your practice. The Committee considered the level of your insight into your deficiencies, taking into account your witness evidence both oral and documentary, your general engagement with the regulatory process, and your written reflections in your remediation bundle. You have made early and wide-ranging admissions and shown a willingness to undertake remedial steps. However, none of these demonstrate a satisfactory understanding of the adverse impact your misconduct must have had upon the patients concerned and upon public confidence in the dental profession. Fundamental tenets such as safe patient care and the maintenance of patients trust in practitioners should underpin every aspect of your conduct as a dentist. The Committee considered that a proper appreciation of this important aspect was missing from your insight into your failings. The Committee was also concerned that, in her report of 5 April 2016, your workplace supervisor noted a complaint about your practice, made by a colleague within your dental HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -21/28-

22 team. The Committee has no information as to the status of this complaint, but noted that it appeared to mirror some aspects of the failings identified in this hearing. A finding of current impairment is consistent with the Committee s need to declare and uphold standards of conduct and behaviour within the dental profession. Your misconduct is of a kind which seriously damages public confidence in the dental profession, and a finding of impairment will help to restore that confidence. Further, without such a finding, public confidence in the regulatory process would be undermined. The Committee concluded that, whilst you have shown some insight by frankly acknowledging the majority of the allegations, your insight is currently evolving and you have yet to fully remedy your clinical failings and embed changes into your clinical practice. Accordingly, there remains a risk of repetition of your misconduct. The Committee determined that, for the protection of the public, and in the public interest, your fitness to practise is currently impaired by reason of your misconduct. Sanction The Committee next considered what sanction, if any, would be proportionate in the circumstances. The purpose of a sanction is not to be punitive, although this may be its consequential effect. Any sanction should be no more severe than necessary to protect the public interest. In reaching its decision, the Committee carefully considered the GDC publication Guidance for the Professional Conduct Committee including Indicative Sanctions Guidance, dated 1 October The Committee first considered whether the case should be concluded with no further action. It decided that this would not protect the public interest nor maintain public confidence in the profession, in light of the risk of repetition already identified. Similarly, were the Committee to issue a reprimand, this would permit you to return immediately to unrestricted practice and continue to treat patients without having demonstrated complete insight and without your misconduct being fully remedied. In light of this, a reprimand would not ensure patient safety and is therefore not appropriate or proportionate. The Committee next considered imposing conditions of practice upon your registration. Both Ms Barnfather, on behalf of the GDC, and Mr Thomas on your behalf invited the Committee to impose conditions. They did not, however, agree on the scope, content and duration of the conditions. The Committee noted that you have complied with the interim conditions placed upon your practice. The Committee concluded that workable, practicable and measurable conditions can be formulated to properly mitigate the ongoing risks to patients. Before deciding on conditions, the Committee considered whether to suspend your registration for a prescribed period of time. It noted that this could be in the public interest given the seriousness of your misconduct and the actual harm caused to patients. However, it concluded that a suspension order would be a disproportionate sanction in this case, since conditions could be sufficient to protect the public. In light of the above, the Committee determined that conditions of practice would be appropriate and proportionate to protect the public and address the public interest in your case. The Committee next considered the duration of conditions, and determined that a period of 18 months, with a review prior to its expiry, would be proportionate to enable you to further HOLLIDAY, A Professional Conduct Committee - October February 2018 Page -22/28-

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