Dental regulator pays damages after unlawful undercover operation
A ficticious scenario created by investigators breached human rights and data protection law
The General Dental Council (GDC) has paid an undisclosed sum of damages to a clinical dental technician after it admitted acting “unlawfully in undertaking an under-guise operation without reasonable justification.”
An anonymous complaint had been made to the GDC alleging that the technician may be working without registration from his home.
As a result, the GDC instructed two private investigators to create a fictitious scenario, posing as relatives of ‘Evelyn’, an elderly relative who needed dentures but was too ill to attend in person.
Dental Protection (a trading name of The Medical Protection Society Limited (MPS)) is a members’ protection organisation for doctors, dentists and healthcare professionals. It instructed Lee Biddle, an associate at BLM, to seek an order against the GDC to recover legal costs, which the GDC conceded in August 2020.
The GDC accepted that it acted unlawfully by undertaking an ‘under-guise operation’ without reasonable justification, in breach of the clinical dental technician’s rights under article 8 of the European Convention on Human Rights and data protection legislation.
The GDC Interim Orders Committee found that any evidence obtained from the investigation was flawed and unfair. The GDC Fitness to Practise Committee ceased any further action on the grounds of an abuse of process.
Dental Director at Dental Protection, Raj Rattan, said that the circumstances of the investigation had been “harrowing” for its member: “The GDC targeting its own registrants without a sufficiently justified cause is extremely concerning for dentists.
“The use of an entirely contrived scenario about a sick pensioner in very difficult circumstances was designed to trigger an emotional response and lure a registrant into acting outside of their scope. This is hardly an ordinary opportunity for wrongdoing, and it is unfair and invasive.”
Rattan said that, throughout the case, the GDC had “asserted that under-guise investigations are essential to carry out its statutory function.”
Biddle commented that it was difficult to overstate the significance of the case, adding: "Throughout the life of this investigation, the GDC maintained that it was lawful to use under-guise investigators in respect of Mr A and was entitled to refer the matter first to the case examiners and then to the professional conduct committee, despite the repeated objections raised.
"This unwavering approach served to prolong the duration of the investigation and the continued processing of Mr A’s data which the GDC has since conceded had no lawful justification. This case offers some hope to those registrants who have been the subject of an unfair investigation by the GDC, or indeed any healthcare regulator, wrongly brought on improper procedural grounds or without proper justification.
"The opportunity to challenge a regulator and seek damages for inappropriately commencing an investigation has long been discussed but, to our knowledge, has never before been achieved."