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Session 2005 - 06
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Standing Committee Debates

First Standing Committee on Delegated Legislation

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First Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


Mr. Eric Illsley

Amess, Mr. David (Southend, West) (Con)
†Austin, Mr. Ian (Dudley, North) (Lab)
†Banks, Gordon (Ochil and South Perthshire) (Lab)
†Berry, Roger (Kingswood) (Lab)
Burstow, Mr. Paul (Sutton and Cheam) (LD)
†Cooper, Rosie (West Lancashire) (Lab)
†Drew, Mr. David (Stroud) (Lab/Co-op)
†Horwood, Mr. Martin (Cheltenham) (LD)
†Merron, Gillian (Lord Commissioner of Her Majesty’s Treasury)
†Milton, Anne (Guildford) (Con)
†Murrison, Dr. Andrew (Westbury) (Con)
†Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
†Penning, Mike (Hemel Hempstead) (Con)
Randall, Mr. John (Uxbridge) (Con)
†Winterton, Ms Rosie (Minister of State, Department of Health)
†Wright, Mr. Iain (Hartlepool) (Lab)
Geoffrey Farrar, Committee Clerk

† attended the Committee

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Monday 11 July 2005

[Mr. Eric Illsley in the Chair]

Draft Dentists Act 1984 (Amendment) Order 2005

4.30 pm

The Minister of State, Department of Health (Ms Rosie Winterton): I beg to move,

    That the Committee has considered the draft Dentists Act 1984 (Amendment) Order 2005.

The order is about patients, who are at the heart of the changes we are making to the regulation of dentists and of other health professionals. The order will improve the way the General Dental Council protects patients, and it increases choice. It will set standards for the profession by taking action when dentists or dental care professionals fall below those standards; by regulating the whole dental team; by removing some restrictions on dental bodies corporate; by introducing a non-NHS complaints system; and by introducing compulsory indemnity cover for dentists and for professions complementary to dentistry.

I am pleased to tell the Committee that the British Dental Association, NHS bodies, the Patients Association and the Royal College of Surgeons of Edinburgh have all expressed support for the order.

The order is part of the Government’s programme of modernising the regulation of health professions. It updates the legal framework for dentists—a change based on that made for doctors, nurses and other health professionals—and follows our earlier work with dentists. We are making regulation both more responsive to patients’ needs and better at protecting them.

In the wake of Shipman and events such as the Bristol children’s heart surgery cases, some argued that we should end the current system of professional regulation, but we believe that that would be wrong. Instead, we are strengthening regulation in the public interest, and regulatory bodies have risen to the challenge. The GDC has played a full part in bringing about change, and it has worked with the Government and with representatives of the dental professions, dentists and dental auxiliaries to develop the proposals.

It is in the nature of amending orders that they can be hard to follow, but the version of the Dentists Act 1984 as amended, copies of which have been given to Committee members, helpfully summarises the main changes made by the order.

The first significant change that we encounter when reading the order, after provisions on governance, registration and committees, concerns indemnity cover. Article 16 makes such cover a legal requirement. That is clearly an important step forward. At present, regulators such as the GDC tell professionals that they
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need to be adequately insured in case damages have to be paid, but it may not be discovered until after the event that someone has failed to insure, and as a result patients cannot be compensated. I know that that is a worry for many hon. Members, particularly those whose constituents have suffered poor dental work but who have had no recourse to compensation.

Another large section of the order deals with fitness to practise. It represents a major updating of how the GDC deals with allegations that a dentist’s fitness to practise is impaired. The same legal approach that applies to doctors and nurses should also apply to dentists, and that will be the case when all the legislative changes are complete.

At present, the GDC does not have the powers it needs to deal with such issues. For example, it can deal with misconduct or health problems, but it has difficulty dealing with poor professional performance. The order will change that. Currently, if the GDC finds that a dentist’s fitness to practise is impaired, it has limited options: it can strike the dentist off, suspend their registration or do nothing. The order will give the GDC a new option of imposing conditions on a dentist’s registration for a certain period, requiring the dentist to seek extra training, to be chaperoned when carrying out treatment or to do anything else that the GDC considers suitable to make the dentist’s practice safe for patients.

The next major change is in articles 29 to 33, which bring professions complementary to dentistry into regulation. Two groups of dental auxiliaries—dental therapists and dental hygienists—are currently registered under enrolled rather than regulated status, and the order will put the regulation of those two groups on a comparable footing with that of dentists. It will also allow the GDC, with Government approval, to bring into regulation groups such as dental nurses, dental technicians, clinical dental technicians and orthodontic therapists.

Importantly, the regulation of PCDs will allow care to be redesigned around patient need by allocating different roles to staff and freeing dentists to focus on more complex tasks. PCDs will, of course, be subject to rigorous standards of training, conduct, health and performance, and those standards are set out in part 4.

The final significant change introduced by the order is in articles 38 and 39, which remove nearly all the restrictions on dental bodies corporate. Those restrictions limit the number of corporate bodies that may engage in the business of dentistry. The restrictions will now be limited to the need for corporate bodies to have a majority of registrants on their board of directors. That change will open up the potential for more companies to provide care, thereby increasing competition and patient choice. Those changes deliver on undertakings that the Government gave in response to a report by the Office of Fair Trading, which highlighted a number of difficulties.

These are significant reforms, which build on the modernisation and extra investment that we have already put into dentistry, and they will make a real
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difference to the practising of dentistry and, most importantly, to patients. I commend the order to the Committee.

4.39 pm

Dr. Andrew Murrison (Westbury) (Con): I thank the Minister for her elegant exposition of the measure. There is no great controversy about it, but as she rightly said, it contains some important proposals. It is therefore a pity that the Liberal Democrats could not be bothered to turn up—[Hon. Members: “Behind you!”] My apologies to the hon. Member for Cheltenham (Mr. Horwood), who is sitting behind me. It is a great pleasure to see him, and I hope he makes a contribution. Perhaps we will have a Liberal Democrat contributor on the Front Bench at some point.

I have one or two points to raise briefly with the Minister. I am concerned about the proposals for erasure for a minimum of five years, and several respondents to the consultation expressed that concern. It seems a little illogical to handcuff the regulator in that way and not provide him or her with the wherewithal to erase for fewer than five years.

The Minister will undoubtedly say that a remedy exists in the form of suspension or restrictions being imposed on practice. I suspect that she will also say that the order brings dentists in line with other health care professionals. Although I can appreciate the desire for uniformity, we must understand that dentistry is unique. All health care professions are unique, but dentistry, above all others, relies on manual dexterity—it is a “doing”, hands-on profession. Surgeons of course operate in a similar way, but the scope for practice outwith straight surgery for a surgeon who returns to the register five years after having been erased is rather greater than for a dentist. Imposing a minimum period of five years means saying, “We’re going to erase you for life.” That is the consequence of the order, and I submit to the Minister that if that is our intention, we should say so.

My other principal concern is to do with the notification—the so-called alert letters—that will be sent to third parties such as employers at the first available opportunity once a complaint has been received. Unfortunately, we live in an age in which vexatious, malicious and what we might call trivial complaints are on the up. I am afraid that such letters will tar many dentists with as yet unproven spurious or trivial allegations, which is a cause for concern. Our No. 1 priority must of course be protecting the public. However, we must also be fair to the practitioners and understand that the quality of dental care is ultimately dependent on the welfare of those who practise it. If we cause real grief for dentists in that way, we will do nobody any favours.

I suggest to the Minister that the alert letter should be sent after the investigation committee has referred the matter to the fitness to practise committee. She might say that that will create a delay in sending an alert letter, but the remedy for that is surely for the GDC to process the complaints more quickly, rather than having a letter sent immediately a complaint is
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received. The proposal has caused understandable concern in the dental profession, so perhaps she will reconsider.

I turn to what are inelegantly referred to as dental bodies corporate, which are an innovation stemming from the 1984 Act. There were far fewer dental bodies corporate in 1984, but owing to the changes the Government have made—and, I suppose, those from before 1997—such bodies have become an increasingly fixed part of the provision of dentistry in this country. It is therefore wholly appropriate that the order should address them. However, a concern has been expressed that a robust mechanism to regulate dental bodies corporate will still be lacking. It is perhaps a bit late in the day to amend the order substantially, but I would like to register the fact that we are a little worried that the order will not ensure the robust regulation of dental bodies that we and others want. We should leave the door open to further change.

There is nothing in the order about issuing guidance to dental bodies corporate, which appears to be something of a failing. We understand that the GDC will be able to investigate dental bodies corporate, but only if registrants have been erased, and not if they have simply been suspended, or if conditions have been imposed on their practice. That appears to be somewhat inflexible, and it would be interesting to hear why the Minister feels it necessary to restrict that investigation to cases involving an erasure.

The Minister mentioned that there must be a majority of professionals—not just dentists, admittedly, but people who are registered—on the boards of dental bodies corporate. I am interested in her rationale for that. I think she said that that will give increased flexibility, and perhaps increase the number of providers, or dental bodies corporate that provide services. I do not quite follow that logic, so perhaps she will clarify her meaning. It seems to me that this is a restrictive practice. Has a regulatory impact assessment been made of that stipulation? I find it difficult to understand why it should be in the order.

My final point is about indemnity. I know that the Minister will have been grappling with the various forms of indemnity that are available to health care professionals. Broadly speaking, there are two: straight insurance products and mutuality. Both have advantages and disadvantages. In particular, insurance usually requires run-on cover of some sort, which can often be neglected. If it is neglected, holes open up in the cover, which can be damaging for patients and practitioners. Mutuality, of course, is purely discretionary, so it is possible, although unlikely, that the mutual concern will decline cover for those who subscribe to it.

Both approaches have good and bad points, but it would be interesting to explore with the Minister why she feels that the GDC should be able to determine which products are acceptable and which are not.

4.47 pm

Mr. David Drew (Stroud) (Lab/Co-op): It is a pleasure to serve under your chairmanship again, Mr. Illsley. Normally I dread statutory instrument
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Committees because they are pretty dull, uninteresting and unimportant, but this one is important. Perhaps I think that because, as my hon. Friend the Minister knows, I have recently taken a profound interest in dentistry.

I have one question, but I support the remarks of the hon. Member for Westbury (Dr. Murrison) on clarifying matters to avoid bias against mutual solutions—something that seems to have worked relatively well in the context in question. I do not see why there should be encouragement to look for commercial insurance orders as the way forward on providing indemnity.

My main question follows a conversation that I had with a friend, who left NHS dentistry some time ago—not to go private, but to leave dentistry completely, because she was so appalled at the way her colleagues were going, like Gadarene swine, towards private practice as the only means by which they could practise dentistry.

My friend shocked me by saying that such a decision brought the benefits of going private—a better return, in the main—while involving no real inspection in relation to patient come-back if the quality or price of the treatment were seen not to be fair. What is the mechanism of complaint for patients under the order? Does the process include the opportunity to complain about not only the quality of a private dentist’s work, but treatment charges that patients consider excessive?

Accusations against my friends who remain in NHS practice might relate not so much to the quality of the work itself, but to the question whether the price charged for work of that quality is excessive. I am interested in finding out what additional protections the patient will have as a result of the order.

4.50 pm

Ms Winterton: I thank my hon. Friend the Member for Stroud (Mr. Drew) for that contribution. He has worked hard with local dentists and his local primary care trust to help them to overcome some difficulties in his area, and they are putting together plans to improve local dentistry and his constituents’ access to it.

My hon. Friend raises an extremely important point about the complaints mechanism and charging, and I made an announcement last week on charges for NHS treatment. One issue that came out strongly from the OFT report is the fact that patients are very confused about what they are paying for, and particularly about whether the treatment is private or on the NHS. Hon. Members in this Room will have had constituents coming to them, saying that they have paid £500, £1,000 or £1,500 for NHS treatment. On many such occasions, I have told constituents, “No, you haven’t. The maximum you can pay under the NHS is £384. You need to go back to your dentist to ask what you’ve paid for privately, what you’ve paid for under the NHS and whether you had to have the private treatment done.”

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The Government have made it clear that we need to make a distinction. In last week’s announcement on patient charges—the issue is out for consultation—we suggested simplifying the 400 different NHS charges by introducing three bands. People should be made aware of the treatment that they can get in those bands, and there will be only three charges that they can pay in the NHS. If they are paying more, they will know that the work is being done privately.

We have also made it clear that the different charges should be properly displayed and that what patients are paying for should be clearly explained to them before they start treatment. If they want private treatment, they will have to decide whether they are paying the right price for it.

Obviously, dentists can charge what they want for private treatment, and we cannot tell them what to charge, although we can say what is NHS treatment. Until now, however, it has been difficult to ensure that patients can make a complaint about the private treatment. Under two orders that we are processing, people will be able to make complaints about charging under the NHS or about NHS treatment, and some of those issues can be dealt with through the primary care trust. However, if the complaint is about fitness to practise, or if the patient feels that the dentist has not properly explained the treatment and the prices, that can be done through the GDC.

Another issue rectified in the order is erasure, which was mentioned by my hon. Friend the Member for Stroud and the hon. Member for Westbury. We have not had the penalties, other than very draconian ones, to deal with some complaints that can now be dealt with under the proposed changes before us. One thing, among others, that the GDC will be able to do as a result of the order is introduce a non-NHS complaints system. That will deal with some fitness-to-practise issues. Complaints about prices charged come under the question whether there was proper discussion with the patient beforehand. As I have said, we cannot tell dentists what they may or may not charge for private treatment.

The issue of erasure was raised in the other place as well as here today, and it is important to patient safety. An erasure will be used only in the most serious circumstances. As I have said, the order will give the GDC a range of penalties short of erasure to deal with less serious cases. Consistency across the professions is important. I take on board the point made by the hon. Member for Westbury, but we think it vital to establish the same system for doctors, nurses, opticians and all professionals who are regulated by the Health Professions Council. However, because this penalty is so severe, it will be used only in the most serious cases, such as serious damage to a patient or a series of similar failures.

The order will give the GDC a wide range of powers short of erasure to deal with less serious cases. They include suspension and conditional registration. We believe that the other alternatives open to the GDC are sufficient to allow that flexibility while keeping the arrangements for dentistry in line with those for other health professionals.

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The hon. Member for Westbury raised the question of the alert letter. It is important for patient protection that those who employ or contract with dentists should be alerted as soon as possible when the GDC investigates an allegation. The matter will be referred to the investigating committee only once the GDC has weeded out any complaints that are outside the definition of impaired fitness to practise in the Act. That is a tried and tested approach, and we consider it represents an appropriate balance between a dentist’s privacy and the need to protect members of the public. Similar provisions already cover other professionals, including doctors and nurses.

This afternoon, I was discussing with officials why 27 dental bodies corporate are specified in the Act, but no one could come up with the reason for it being decided in the 1920s that there should be 27. As to why I said that there will be an increase in competition and patient choice, in view of the number of bodies that can be set up at the moment—some have been successful at building up high-quality practices in various areas, including some working in the NHS—we want more bodies that can provide these services. I am anxious to increase access to NHS provision, and there has been success in doing that.

The order sets out clearly the information that a dental body corporate must provide prior to carrying out the business of dentistry. Corporate bodies will not be regulated in exactly the same way as individual dentists, but that is because the individual dentist or PCD is being regulated. However, the body corporate is subject to penalties if its registrant directors are erased or if it fails to have a majority of registrants on the board of directors. The impaired fitness to practise is by an individual, not the body corporate. Obviously,
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that covers those cases that do harm to individual patients. That is why I am confident that the provisions provide adequate protection for the patient.

On compulsory insurance cover and whether that will force dentists to abandon mutual indemnity insurance, the Government will not dictate the type of cover needed to satisfy the requirement for indemnity. Either insurance or membership of a mutual protection scheme such as the Medical Protection Society will satisfy the requirement. It will be for the regulator to set out in rules what cover is adequate and appropriate.

Dr. Murrison: Will dentists working for the NHS be required under the order to have their own indemnity or will they continue to be vicariously covered by the NHS?

Ms Winterton: Dentists who work for the NHS will in some instances be covered by the individual practice—that now extends to dental nurses and so on. In other cases, there will be general cover from the NHS. Where cover applies to the dentists who own the practice and where it is provided overall by the NHS to the whole practice, that will be sufficient. We are dictating that provision for compulsory indemnity cover be included in the legislation, but we are not insisting that it be one type of cover or another.

It has been a great pleasure serving under your chairmanship, Mr. Illsley, and I hope that my reassurances mean that the Committee will pass the order.

Question put and agreed to.


    That the Committee has considered the draft Dentists Act 1984 (Amendment) Order 2005.

Committee rose at three minutes past Five o’clock.


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