A DDU member was concerned about their role as a witness in a GDC fitness to practise hearing.
'I have been treating a patient for about five years now, and sometime last year she told me that she had complained to the GDC about her former dentist. Since then, the GDC's solicitor has interviewed me and taken a witness statement, which I eventually signed after several changes were made at my request.
I sought advice from you at the time about the witness statement, and I have now been called to give evidence at a forthcoming public GDC fitness to practise hearing into this practitioner's conduct.'
The legal position
In having treated the patient after the dentist who is the subject of the GDC's investigation, you are what is termed 'a witness to fact'. This means you are in possession of facts which are, or may be, relevant to the GDC's investigation into the conduct of the patient's former dentist.
This contrasts with an expert witness, who should never have treated the patient, and who is instructed by the GDC or by the respondent dentist's defence organisation to provide independent advice on the standard of care provided by the respondent dentist. You can become an expert witness by invitation and by choice, and there is no obligation to accept the instructions, but if you do you are obliged to act through to the conclusion of the case.
As a witness to fact you are essentially obliged to co-operate with the GDC, as you have done to date, and to give evidence at the hearing. The GDC's Standards for the Dental Team requires all registrants to cooperate with any relevant formal or informal inquiry and give full and truthful information.
If you refused to attend the hearing, the GDC has powers to compel your attendance by obtaining a subpoena. A refusal to cooperate with the GDC and its solicitors could result in both GDC disciplinary action and legal action against you.
The GDC or its solicitors will tell you the time and place of the hearing - currently all such hearings take place in London at various venues. They will also inform you that they will meet your reasonable travelling and subsistence expenses, but they will not meet your loss of earnings or pay any fee for attending the hearing.
You will be asked to give evidence under oath or solemn declaration. It's expected that your evidence will be in line with your witness statement, but you will not be able to refer to this when giving evidence. You can however refer to your clinical records and you should take the originals of these with you unless the GDC already has them, or good copies. It is usual for both the GDC and the respondent practitioner to be represented by barristers.
Except for expert witnesses, no witness should enter the hearing room until called to give their evidence, but they may sit in the public gallery after giving evidence. Present in the hearing room will be the respondent dentist and their legal team, the GDC's legal team, any experts instructed on behalf of the GDC or the respondent dentist, the members of the fitness to practise panel, GDC administrative staff, and potentially members of the public.
How to conduct yourself when giving evidence is summarised in the phrase, 'Dress Up, Speak Up and Shut Up', and the following points should help if you're ever called as a witness.
- Turn up at the hearing in plenty of time, dressed appropriately as a professional person.
- Address your replies to the fitness to practise panel chairperson rather than to the barrister asking you the question.
- Speak loudly enough to be heard clearly by everybody in the room, otherwise you will be asked to repeat your answer, which can be unsettling.
- You should answer only the question put to you, as succinctly as you can, and don't volunteer anything beyond the question asked, in an attempt to be helpful. If more information is required, you will be asked extra questions to get that information.
- If you don't understand a question or you do not know the answer, simply say so.
- As a witness to fact you should not be asked to given an opinion on whether the care provided by the respondent dentist fell seriously short of an acceptable standard. That is matter for the experts called by the GDC and the respondent dentist's defence organisation.
You can read our full guide to courts and reports on our website, and our dento-legal team of expert advisers are on call if you ever need support with being a witness to fact. If you need to, contact us here.
Senior dento-legal adviser
Rupert Hoppenbrouwers (BDS LDSRCS) was head of the DDU until his retirement at the end of 2015. He is a former general dental practitioner and was director of the School of Dental Hygiene at University College Hospital, London, from 1980 to 1986. He has lectured and written widely on risk management and dento-legal matters, has previously chaired the UK Dental Law and Ethics Forum, and has a particular interest in complex ethical and legal issues affecting dental members.
See more by Rupert Hoppenbrouwers