HEARING HEARD IN PUBLIC GENERAL DENTAL COUNCIL PROFESSIONAL CONDUCT COMMITTEE FEBRUARY 2013 SHANKS, Thomas Alan Registration No: 54323 Thomas Alan SHANKS, registered as of Meadowhead, Moor Road, Strathblane, Glasgow, Stirlingshire, G63 9EY, BDS Glasg 1980, was summoned to appear before the Professional Conduct Committee on 4 February 2013, for inquiry into the following charge: That, being a registered dentist, 1. From 2000 to 2008 you were practising in general dentistry at T Alan Shanks & Associates at Shettleston Road, Glasgow and Main Street, Bailleston and were contracted to provide treatment in accordance with the terms of your contract with the NHS Greater Glasgow and Clyde Health Board. 2. Between 2000 and 2008 as set out in Schedule 1 ( the Schedule ) claims were made in your name for the provision of, (a) (b) (c) (d) tissue conditioner, special trays, identification ( ID ) markers domiciliary visits. 3. The claims set out in the Schedule were inappropriate in that: (a) (b) (c) (d) the claims for tissue conditioner were made, (i) (ii) when tissue conditioner had not been provided, when tissue conditioner had been provided other than in the period before the commencement of the construction of new dentures, the claims for special trays were made when special trays had not been provided, the claims for ID tags were made following the provision of ID tags when their provision was not justified, the claims for domiciliary visits were made in respect of six domiciliary circuits when less than six visits had been provided. 4. Your conduct in respect of all, or the majority, of the claims made between 2000 and June 2004 in the Schedule was dishonest in that: (a) you knew that claims for tissue conditioner were being made, (i) when you had not provided tissue conditioner, SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -1/8-
(b) (c) (d) (ii) when you had provided tissue conditioner other than in the period before the commencement of the construction of new dentures for the purpose of maximizing your claims, you knew that claims for special trays were being made when you had not provided special trays, you provided ID tags when their provision was not justified for the purpose of maximizing your claims, you knew claims for domiciliary visits were being made in respect of six domiciliary circuits when less than six visits had been provided. 5. Your conduct in respect of all, or the majority, of the respective claims made between July 2004 and June 2008 in the Schedule was dishonest in that: (a) (b) (c) (d) you knew that claims for tissue conditioner were being made, (i) (ii) when you had not provided tissue conditioner, when you had provided tissue conditioner other than in the period before the commencement of the construction of new dentures for the purpose of maximizing your claims, you knew that claims for special trays were being made when you had not provided special trays, you provided ID tags when their provision was not justified for the purpose of maximizing your claims, you knew claims for domiciliary visits were being made in respect of six domiciliary circuits when less than six visits had been provided. And that in relation to the facts alleged your fitness to practise as a dentist is impaired by reason of your misconduct. On 8 February 2013 the Chairman made the following statement regarding the finding of facts: Mr Shanks The Committee has taken into account all the evidence presented to it. It has accepted the advice of the Legal Adviser. In accordance with that advice it has considered each head of charge separately. It has taken into account your good character. Conscious of the seriousness of the charges and their potential consequences, it has approached its determination with an appropriately heightened degree of care. I will now announce the Committee s findings in relation to each head of charge: 1. 2.(a) 2.(b) 2.(c) 2.(d) 3.(a)(i) This claim was in respect of the application of tissue conditioner, a clinical SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -2/8-
3.(a)(ii) 3.(b) 3.(c) 3.(d) procedure which involved nursing staff mixing the conditioner prior to application. The Committee finds that if this procedure had been undertaken it is likely that it would have been recorded in the clinical notes by members of your staff, as it had been in other instances. In the light of the recurrent absence of reference to tissue conditioner in the patient notes, the Committee is satisfied that it was not provided to the relevant patients on the occasions alleged. The Committee rejects your evidence that, because you claimed for it, you must have provided it. In order to justify a claim under the Statement of Dental Remuneration (SDR) for ID tags (patient identification markers), the dentist must be satisfied pursuant to the Terms of Service that the provision of tags is necessary to secure and maintain oral health. In respect of many patients, the provision of ID tags can clearly be justified. There were patients in your practice for whom such ID tags could be considered necessary and appropriate. However, it was your practice to claim for the provision of such tags and to provide them as a matter of course, without assessing the individual patient s actual need for the tags. The Committee considers that the rules are clear and that claims for universal provision of tags are inappropriate. In respect of a number of patients, you claimed for six domiciliary visits when fewer than six visits had been recorded in the notes. In respect of four of those patients, your notes recorded only four clinical procedures where visits would be required. The Council relies on the routine absence of any record of a fifth or sixth visit in the patient notes. Your evidence was that the notes were wrong, and your nursing staff had overlooked recording the visits on which dentures were eased. The Committee considers it improbable that the nursing staff would have omitted any such visits from the record. The Committee notes that on one occasion one patient was reported as having an ulcer which you said had required referral to a hospital specialist. If you had attended on this patient on the occasions which you claim to have done, it is surprising that there is no reference to such an apparently serious matter. The Committee notes that in respect of some patients (Patients 1 and 10) there were occasions where the staff did note visits for easing the dentures, but on these occasions claims were made for an extra domiciliary visit. Despite making a claim for six circuits in respect of each patient, on occasions, some of which are revealed by these notes, you attended on a number of patients on each circuit. You were unable to explain to the Committee how your claims were adjusted to account for the fact that in those circumstances only one circuit should be claimed, not one for each SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -3/8-
patient. 4.(a)(i) and (ii) 4.(b) The clear intent and purpose of the SDR was to provide compensation and payment to a dentist for the purpose of the extra appointment and cost associated with the application of tissue conditioner prior to the construction of the denture, and in order to obtain the best impression of a healthy alveolus. You confirmed that this is how you were trained. Your evidence was that you had changed your clinical practice so that you apply the tissue conditioner at the try-in stage because you found the process prescribed by the SDR unsatisfactory due to degradation of the material. The Committee does not accept this explanation for the claim. The appropriate clinical solution would be to use tissue conditioner prior to construction of the dentures and if degradation proved to be a problem, to apply it for a second time as allowed for in the SDR. The Committee concluded that your departure from normal clinical practice was to avoid an additional appointment before commencing the denture procedure. You knew that your claims for tissue conditioner in these circumstances and in circumstances where no tissue conditioner had been provided were not appropriate and were wrong. They were dishonest. The Committee is satisfied that you were seeking to maximise your claims improperly and in the knowledge that it was improper to make the claim. You accepted that you claimed reimbursements for special trays in circumstances where no such trays had been used. Further, you accepted that in the period from 2000 until June 2004 you signed forms known as GP17 claim forms, in which you declared that the information you had given on the form was correct and complete. This declaration was set out under a heading dentist s declaration and provided in terms: I declare that the information I have given on this form is correct and complete and I understand if it is not action may be taken against me. I claim payment of fees to me for work carried out in accordance with NHS (General Dental Services)(Scotland) Regulations. In this period the GP17 forms were provided in printed and written form to the appropriate authority. The claim forms contained claims for special trays. You also signed the forms seeking Prior Approval providing certification that you had examined the patient and that you considered that the treatment in Part 3 of the form was necessary. When full dentures were required, Part 3 included claims for special trays. Your evidence was that you regarded your involvement in the provision of claim forms as merely a signing exercise which you did not overthink. You said that you were unaware that claims for special trays were being made over this period. You said you did not look at the items being claimed for on the claim form. You accepted that the purpose of the declaration on the GP17 claim form SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -4/8-
was to ensure that the form had been checked and was accurate. In your evidence to this Committee you said at no stage did you do so. However when you were interviewed under caution by NHS Counter Fraud Services in May 2009 you read out a pre-prepared statement in which you claimed to have personally checked the accuracy of the GP17 forms at the end of a course of treatment. Further, in the course of questioning you stated that: We check that what we ve done is what we said we ve done. That is my kind of key thing. Asked at what stage you carry out the check, you said: At the very end of treatment we check what we said we ve done, we ve done Towards the end of the interview you said you had not instructed nursing staff to claim for special trays. You blamed your senior nurse for the erroneous claims, indicating that you had carried out an investigation into what had happened and that you had told the nurse to hold her hands up to what had happened. In your evidence at this hearing you have described your senior nurse as fastidious, disciplined and honest. The Committee finds that she is an honest and a reliable witness. There was no proper basis for the allegations you made against her in your interview. The Committee accepts the evidence of your senior nurse that the claims for special trays were made because she and other members of staff were told by you to make them. Further, it accepts her account that on one occasion she had specified the need for special trays on a lab slip, which were then returned with the work and you specifically instructed her not enter special trays on the lab slip in future. The Committee considers it highly improbable that nursing staff would, over a period of eight years, have made claims on your behalf for special trays, in circumstances where no such trays were provided or used, without your encouragement or instruction. You said that in or about 2000 you had decided not to use special trays. The Committee considered carefully the reasons that you gave for that, but was not satisfied that your explanation made clinical sense. If used correctly, the problems you said you encountered with the bite registration would not have occurred. The Committee considers it is more likely that you stopped using special trays as a cost saving device, to finish the work in fewer visits whilst still receiving the same remuneration. Prior to your interview with Counter Fraud Services in May 2009, you initiated a conversation with your senior dental nurse regarding the claims for special trays. You asked her why special trays were being claimed. She told you that she was trained to claim for special trays. The Committee rejects your case that this conversation undermines the evidence of the senior nurse as to the instructions that were given by you. The dental staff were trained to write on the GP17 form only those items that you specified. SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -5/8-
4.(c) 4.(d) The Committee is satisfied that you knew that claims were being made for special trays when no special trays were being used. The Committee rejects your evidence that you never looked at the GP17 forms that you were signing to see what you were claiming. You knew perfectly well the purpose of the declaration, which was to ensure that you, the dentist, had checked the form. Further, your practice received schedules with an adjustment sheet attached, which will have shown to you instances of adjusted claims which contained special trays. The Committee prefers the evidence of your senior nurse that this documentation was provided to you and your wife, rather than disposed of by members of your staff without you having an opportunity to consider it. The Committee does not accept, as you have claimed, that you were disinterested in the finances of your practice and the sources of remuneration. You were aware of the terms of the SDR. When signing for prior approval you were conscious of the sums that were being claimed and the items that were being claimed for. It is highly improbable that, when signing prior approval forms you were unaware of the items, such as special trays, which on occasion took the claim over the prior approval specified limit. The Committee considered carefully your evidence generally. It finds you to be inconsistent and evasive in your evidence, and finds you to be an untruthful witness. In all the circumstances, the Committee is satisfied that you made these claims, knowing that you were not entitled to make them and that you did so dishonestly. The Committee is satisfied that you knew that the provision of ID Tags universally was contrary to the SDR. Any potential benefit for forensic identification, or for patients in a care setting, could not justify disregarding the terms of the rules. The Committee is satisfied, in any event, that you made these claims to maximise your remuneration. You did so dishonestly, knowing that you were not entitled to do so. The Committee is satisfied that you knew that you claimed for six domiciliary circuits for the provision of each set of dentures, but that you were not completing those six visits and you did not intend to do so when the claims were being made. Your claims were submitted often after only three visits. The Committee considers that you routinely carried out four visits and rejects your evidence that you would routinely carry out two further visits for easing the dentures which were not recorded. Whilst easings may be carried out after the fitting of a denture, it does not necessarily follow that there will be an easing appointment, still less two of them. The Committee is satisfied that these claims were made in the knowledge that you were not entitled to claim for visits you had not made and were SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -6/8-
5.(a)(i) 5.(a)(ii) 5.(b) 5.(c) 5.(d) dishonest. We move to Stage Two. From July 2004 the system changed so that the information which had been entered on to a GP17 was transferred by nursing staff to an electronic claim form and submitted electronically without a declaration in the forms contained in the pre July 2004 forms. Although your system had changed, your practice did not. You continued to submit prior approval forms making claims to which you were not entitled and you continued to instruct your staff to make these inappropriate claims on your behalf. The Committee is satisfied that you continued to make the claims dishonestly. On 11 February 2013 the Chairman announced the determination as follows: Mr Shanks, The Committee has heard the submissions of Mr Haycroft on your behalf, and Ms Barnfather on behalf of the General Dental Council (GDC). The Committee has accepted the advice of the Legal Adviser. The Committee has considered carefully the detailed testimonials that have been submitted on your behalf. These come from patients and professionals and speak highly of your abilities, the standard of your treatment and your professional conduct generally. There were also testimonials from individuals within your community where you are held in high regard. You have been of good character with no previous disciplinary matters or findings against you. The Committee has also heard of the substantial improvements in your practice and in the processing of claims. It has borne all these matters in mind. Between 2000 and 2008 you made inappropriate claims for the provision of tissue conditioner, special trays, identification markers, and domiciliary visits. You made these claims for significant financial benefit and you did so dishonestly. The claims were made substantially, but not exclusively, in respect of patients who were exempted from making a payment in accordance with the relevant rules. These were not one-off claims. The dishonesty was repeated on a regular basis over a lengthy period of time. The Committee had regard to the GDC publications Maintaining Standards and Standards for Dental Professionals which are previous and current ethical guidance for the dental profession. It determined that the facts found proved constituted breaches of your duty to put patients best interests first and to be trustworthy. The Committee determined that the facts found proved amounted to misconduct and it is satisfied, applying the guidance in the decision of CHRE v NMC (Grant) [2011] EWHC 927 (Admin), that your fitness to practise is currently impaired. SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -7/8-
The Committee considered the sanctions available to it in ascending order of severity. It is not this Committee s function to punish you in relation to your behaviour, but to protect the public, maintain proper standards and uphold confidence in the profession. On your behalf it was conceded that any sanction less than suspension would be unlikely to be sufficient. The Committee considered that to take no further action or to impose a reprimand would be inadequate. It next considered conditions but concluded that no conditions could be workable, practicable or measurable. Nor would conditions be sufficient to meet the seriousness of the matters which had been found proved. The Committee considered carefully whether or not it would be adequate to meet its concerns that you be suspended for the period provided by the rules. In doing so, the Committee had regard to the GDC publication, Guidance for the Professional Conduct Committee of November 2009. The system for making claims against the NHS depends and has depended substantially on the probity of the dentists who stand to benefit from the payments made. Your abuse of the system is a very serious matter. It is fundamental that the public and patients are able to trust dentists. The Committee was not satisfied that you have demonstrated insight into the serious nature of your behaviour. Your dishonesty is highly damaging to your fitness to practise and to public confidence in the dental profession. The Committee determined that suspension would be inadequate to meet the public interest, including the need to uphold proper professional standards, and public confidence in the dental profession. The Committee concluded that the only adequate appropriate and proportionate outcome was that of erasure. In the light of the seriousness of the charge found proved and its concerns as to the lack of insight on the part of Mr Shanks, the Committee considers that it is necessary in the public interest and for the protection of the public to impose an order for immediate suspension of Mr Shanks s registration. The effect of this order is that the registration of Thomas Alan Shanks is subject to immediate suspension forthwith. If he does not exercise his right of appeal, the order for erasure will come into effect in 28 days. Should he exercise his right of appeal this immediate order for suspension will remain in place until the final resolution of that appeal. SHANKS, Thomas Alan Professional Conduct Committee February 2013 Page -8/8-