chevron_left

Legal support when facing a regulatory investigation

23/09/2022
thumb image

By Laura Smith

Laura Smith, a lawyer with Clyde and Co, one of the panel of law firms supporting BDA Indemnity, describes the important role of firms like hers when dentists under investigation look to their professional indemnity for assistance.

Let’s be clear, no one wants to deal with a regulatory investigation, be it before the General Dental Council or NHS England. These processes are time consuming and stressful and generate an additional burden on top of the pressures of daily practice. Many professionals, however, will face a regulatory investigation or complaint at some point during their career and so it is good to know what to do in those circumstances and what support is available.

As daunting as an investigation of this sort may seem, it is worth remembering that most regulatory matters are concluded at an early stage, either due to a decision at the triage stage that the case does not raise sufficiently serious concerns or after a formal response has been provided.

Whatever issues your case might involve, you do not have to face the process alone. It is really important to be assisted by your indemnity provider and a lawyer who has in-depth knowledge and experience of dental regulation. The indemnity provider will select a suitable lawyer from one of their panel of specialist law firms.

So, how can a lawyer help you through the process and what practical steps can you take to get the most out of your legal representation?

Legal support we can provide

Providing you with advice

Your lawyer will be able to guide you through what is a technically complex legal process. Your lawyer will know how the regulators operate and can explain next steps and how long the process may take. They will identify the core issues in the case and will talk to you about the strategies that you can deploy to achieve the best possible outcome.

Liaising with the regulator on your behalf

Your lawyer will manage all correspondence with the GDC or NHS England on your behalf and will advise you how best to respond.

Taking your instructions

Your lawyer will meet with you to discuss the case in detail. Part of this process will involve establishing what you remember about the patient and how you wish to respond to any allegations. They will identify information that is relevant to the allegations and any detail that it is likely to be helpful to include within your response.

Seeking evidence on your behalf

Your lawyer will also help to identify other sources of potentially relevant evidence to assist your defence. There may be other witnesses who can comment on what happened or other documents that may support your case. They can obtain that evidence on your behalf.

Obtaining expert evidence

If necessary, your lawyer will also advise you regarding a suitable expert witness to provide an opinion in relation to any clinical allegations. They will be able to recommend an appropriate expert and will advise you as to how that expert’s opinion impacts upon your case.

Setting out your position in writing

Your lawyer will prepare your formal response to the regulator. This may be a response to the initial allegations or in the form of a witness statement detailing your factual account. In either case, your representative will check that the response addresses the issues in the case, reflects your position and says what you want to say.

Keeping the regulator in check

Your lawyer will have an in-depth knowledge of the rules that the regulators must follow and will advise you as to whether proper process is being followed. We will communicate with the regulators and challenge procedural failings, where appropriate.

Preparing your case for a hearing and instructing a barrister to represent you

Hearings are reserved for more serious cases and ones where there is a factual dispute that can only be resolved by way of a committee hearing live evidence. Detailed preparation will take place before any hearing and you will be represented by an experienced barrister who specialises in healthcare regulatory matters. Your barrister will advise you about evidential matters, cross examine witnesses and make legal submissions to the committee on your behalf. They will also advise you as to the likely outcome of your hearing and, if relevant, regarding any rights and prospects of appeal.

Your lawyer can also advise on the wider implications of any regulatory investigation.

In summary, your representative will prepare you for the investigation, take your instructions regarding what happened and advise you about the best strategy to adopt and any risks. We will be realistic and provide you with straightforward, honest advice.

How you can help the efforts of your legal team

There are many ways in which you can get the most out of your legal representation

Make contact with your indemnity provider as early as possible

In this way, you will benefit from the support of a dento-legal advisor and the best legal assistance straightaway. You will also have peace of mind that the matter is now in good hands.

Only communicate with the dental regulator through your representatives

Seek advice before entering into any direct communications with the dental regulator, once you have legal representation.

Keep your contact details up to date and check your emails and spam folder

The GDC will use the email address that you have provided as your registered contact details and it is important that this is up to date. You should also check your emails (including your spam folder) so that you do not miss any correspondence from either the regulator or your representative.

Provide all relevant information so that your team are fully informed from the outset

It is important to try and send all relevant information to your lawyer so that they can advise you from a fully informed position. They will help you to identify any additional information required.

Provide clear instructions about what you remember

Your lawyer will need to establish what you remember about certain events. It is hard to recall events that happened a long time ago, especially when you see so many patients. Try to be clear about whether you are working on the basis of your usual practice or what you remember.

Remember that you can discuss a patient’s care with your legal team but otherwise you must continue to maintain patient confidentiality. This means that you cannot share patient records with those outside of your legal team.

Be clear about the role of your legal team

Whilst your legal team are instructed to advise you as to strategy, they work on the basis of your instructions so it is up to you to make decisions about your case. There will be documents that your lawyer needs you to prepare and meetings that you will need to attend. It is important that you ask them questions and raise all issues that you consider may be relevant.

Check any documents prepared on your behalf very carefully

If a written response is prepared on your behalf, you must make sure that everything within that response is factually accurate. Although the document will be submitted by your lawyer, it is your response and if you later change your position or your response is shown to be inaccurate, this could be detrimental to your case.

Engage in reflection and remediation

Even where you do not consider that you have done anything wrong, it is likely to be helpful to show that you have reflected on the issues raised and have taken steps to prevent any repetition. This could involve making practical changes to your practice, carrying out audits, reviewing guidelines, attending courses and / or reflecting with colleagues. You should provide all evidence of remediation to the legal team who will advise as to the appropriate time to deploy this.

Adopt a team approach with your legal representatives Your legal team are seeking to achieve the best possible outcome for you and can only do so with your input and engagement. It is important for there to be a positive relationship of trust between you and your legal team, as you would hope to have with a patient.

Conclusion

There can be no doubt that regulatory matters are stressful and unwelcome but you can and should be appropriately supported throughout. If you adopt a team approach and communicate effectively with the indemnity provider and the legal team they have chosen, the process will be less traumatic and you will be able to achieve the best possible result

Author information Authors and Affiliations

Clyde & Co LLP, London, UK Laura Smith

Corresponding author

Correspondence to Laura Smith

23/09/2022

SPONSORED: Generational Wealth – Don’t let Inheritance Tax be

by Tim Collyer - Chartered Financial Planner, Montgomery
Read more

Advertise your specialist dental skills for free

If you offer specialist dental services in your
Read more

List your products and services for free

From today you can advertise on our site
Read more

Share Article in:

loder image