In the third of her series of articles for GDPUK, Hewi Ma of Brabners Solicitors discusses employing overseas workers.

In the second of her series of articles for GDPUK, Hewi Ma of Brabners Solicitors discusses common legal pitfalls in the business of Dentistry.

Our society has become more litigious over the years; patients are quick to complain to see if they can get a ‘quick buck’ and dentists fear such complaints being escalated to the GDC.

Litigation can be a costly game. For example, it has come to light that the legal costs for the recent 9 day fitness to practice hearing against D’Mello was an average of £10,437 per day. Given the allegations were undefended by Mr D’Mello, who chose not to attend the hearing, this has left many dentists questioning the use of their registration fees and asking why the costs were so high. [ see GDPUK news report].

If a dentist is faced with either a patient complaint or an investigation by the GDC, the traditional course of action has always been to approach their defence union; you pay subscriptions and therefore expect to be represented. However, is the defence union the best and only option to fund a case? What are the advantages/disadvantages with the various funding options?

When deciding whether or not to pursue or defend a claim, determining how you will fund the case will be one of the biggest factors to take into account. Knowing what options are available will make you better informed and can help you with this difficult decision. Here we consider those options and the pros and cons of each. 

Pay Privately. You may choose to pay privately for the legal costs. However, this is often the most expensive way to fund a claim, as it is likely you will be paying the solicitor on an hourly rate basis for all work done to prepare the case, unless you are able to negotiate a fixed fee agreement. The benefit of this is that you can pick an expert in the field and someone you can trust to do the best for your case. The old adage that you get what you pay for is particularly true here. The down side is that due to the very nature of litigation it can be hard to say from the outset the likely fees, as this can change depending on how the case progresses. A solicitor should however be able to give you a ball park figure and may agree to cap costs for you based on this or in respect of various stages to help you manage funds.

If the claim is in the civil courts, you may be able to recover some of your legal costs if you succeed. However, if you lose you could be liable for the other side’s legal costs. Unfortunately, in relation to fitness to practice hearings, you cannot recover your legal costs. Similarly, in the Employment Tribunal you can only recover costs in very limited circumstances and as such it is rare that costs are recovered.

‘No win, no fee’. These agreements are more normally found when one is pursuing a claim rather than defending it. The benefit to you is that there are no solicitor’s costs unless you win; this usually means a solicitor will be confident in the prospects of success of the claim, as otherwise they could do a considerable amount of work for no money. The down side is that as a result of you not paying up front, the solicitor will take a success fee from your compensation if you win.  Also check the terms of any agreement before signing, as there may be hidden costs if you lose or in other situations, which may mean you do have to pay some costs even if you do not recover any monies.

Legal Expenses Insurance Policy. Such policies are normally attached to other insurance policies such as employer’s liability or home contents insurance. The downside to legal expenses insurance is that you often have to meet certain criteria before funding is agreed. They also normally only apply once a dispute has arisen, and do not provide legal assistance to help you resolve a matter before getting to this stage.  The benefit is if funding is approved for your claim your legal costs and disbursements are covered, and often that of the other party’s should the case not succeed. There are different types of legal expenses insurance and it is often worth shopping around to find one that suits you; for example some will cover your legal costs no matter what and some will cover any compensation payable if you lose. Obviously such policies are likely to attract a higher premium. Remember, if you have legal expenses insurance, you have the freedom to choose your own solicitor and do not have to use the panel solicitors instructed by your insurance company.

Defence Union. If you are part of a defence union you will have access to a number of services including legal representation. However, the defence union are not obliged to follow your instructions, and can decide, due to commercial reasons, to settle a claim that you do not what to settle. This can leave you with a sense of injustice and frustration. Another consideration when choosing a defence union over standard indemnity insurance is that you will have no freedom of choice when it comes to choosing the solicitor or barrister that you want. Non-discretionary insurance policies are legally obliged to give freedom of choice in this regard.

After the Event Insurance. As the name suggests this is insurance you purchase after the dispute has arisen. It will normally cover your disbursements and the other side’s disbursements and legal costs should your claim fail. The policy therefore does not provide cover for your legal costs, which you will still need to fund. However, if your claim is in the civil costs and you succeed then you will recover some of your legal costs and disbursements from the losing party.

Do it yourself. There is always the option of representing yourself in proceedings. The benefit is you have complete control over your case and you do not have any legal costs. Beware; if the claim is in the civil courts and you lose you could have to pay the winning party’s legal costs. If you do represent yourself, remember to take a step back from the case; it is all too easy to get caught up in proving every wrong or to throw every allegation into the mix, which can often detract from the strengths in the case. You can consider instructing a solicitor to give you an initial advice so you know what direction to head in. You can also seek advice from a solicitor on an ad hoc basis to help you at various stages which can help keep the cost of litigation down.

How you fund a claim will depend on the type of claim being pursued. A solicitor has a duty to provide you with advice on your funding options, not just their fees, so you can ask them to explain the options available to you. Also make sure you understand any potential costs consequences of losing a claim, as you may want to seek insurance to cover such costs.

Laura Pearce, Senior Solicitor

In this blog we look at two recent cases, one before the Fitness to Practice Committee of the GDC and one before the Health, Education and Social Care first tier Tribunal (‘HESC Tribunal’), and consider what lessons dental practitioners can learn from them.

Darfoor –Fitness to Practice Hearing  

Dr Darfoor, a dentist, was before the Professional Conduct Committee (PCC) on 18^th January 2016. The allegations against him concerned the treatment of three patients during the period 2011 to 2014. The charges against Dr Darfoor ran over three pages of the judgment and included allegations of failing to adequately explain and/or record explaining to the patients the treatment they were to receive and thus failing to obtain consent.

The most serious allegation against Dr Darfoor was an allegation that he had failed to obtain consent and was dishonest in his failure to do so. It is this allegation we are going to focus on in this article.  

Dr Darfoor was carrying out treatment on Patient C for composite restorations and bone grafting. Dr Darfoor informed Patient C that the bone would be “synthetic”. In fact the bone was xenograft, which as you all know is bovine derived. Dr Darfoor had made the same assertion to Patient B, however, what made this allegation against Patient C more serious was the dishonesty element. Patient C had informed Dr Darfoor on a couple of occasions that he was a vegetarian and would not want animal products to be used on him.

Dr Darfoor denied knowing Patient C was a vegetarian but the Fitness to Practice Committee found that he did know this but went ahead with the procedure using xenograft in any event. The allegation of dishonestly failing to obtain consent was therefore found to be proven.

On 22^nd April 2016 the Fitness to Practice Committee was reconvened to consider if Dr Darfoor’s fitness to practice was impaired as a result of his dishonesty. Dr Darfoor had previously been before the GDC before in relation to allegations of failing to obtain consent and this factor was taken into account. The Fitness to Practice Committee determined that Dr Darfoor’s fitness to practice was impaired and he was suspended for 12 months.

Every dentist knows the importance of obtaining consent from a patient. In Issue 5 of our Dental Bulletin we set out the legal issues surrounding consent.  Essentially, in order for consent to be valid it must be given voluntarily and freely, by an informed person and by a person who has capacity to give consent. In the recent case of Montgomery the court put a greater burden on dentists when obtaining consent in that it held a medical professional will need to look at what a reasonable person in the patient’s position would consider was a material risk and this places a duty on the medical professional to advise on that material risk. Therefore if the dentist has knowledge of a patient’s wishes or beliefs he must take this into account when providing information as to the procedure that is being undertaken.

Dr Darfoor had also failed to provide Patient C with other information about his treatment. However, it was the knowledge of Patient C’s vegetarianism and his failure to inform the patient he was using animal material that made his actions dishonest.

This case highlights the importance of ensuring you have an open and frank discussion with patients about the treatment you are providing. Make sure you listen to any concerns or queries raised by the patient, as this could affect the information you provide to them. Dr Darfoor also failed to keep adequate notes. Therefore, if a patient does raise an issue, make sure this is in your notes along with any advice you have provided in response and the patient’s final decision. 

If you would like to read the judgment in full you can find it here.

Mr Corney and Mrs Webb v CQC

This is an interesting case, in which the CQC’s decision to cancel registration was challenged at the HESC Tribunal. It highlights that the CQC’s decision is not final and can be reviewed by an independent body.

However, we would not recommend following the path of Mr Corney and Mrs Webb when deciding if you should challenge the findings of an inspection report.

The couple purchased a care home in 1994 and described their philosophy of care as being based on the ‘European Style’, which they say meant living in the home with the residents and caring for them as if they were their relatives.

The home registered with the CQC in October 2010. Between January 2013 and April 2015 there were six inspections carried out. Each recorded a finding of ‘inadequate.’ In fact on the last visit by the CQC the couple and staff refused to speak to the inspector or show him any documentation; his visit lasted 17 minutes! If only all inspections were that quick. In August 2015 the CQC issued a notice of proposal to cancel registration.

In addition to the action taken by the CQC, in November 2013 Dorset County Council ceased to commission the care home due to safeguarding concerns they had with the home.

Mr Corney gave evidence on behalf of the couple. He was adamant that the findings of the CQC were wrong but produced no additional or expert evidence to support his case. He maintained throughout that the CQC and the local council were working together to shut his business down. The couple failed to make any changes to their practices or procedures despite having clear recommendations from the CQC.

The HESC Tribunal found that the couple were unwilling to change and to keep up to date with current standards and regulation. They went so far as to say ‘Mr Corney also has an unmoveable conviction that he is right.’ The cancellation of registration was therefore upheld. The full judgment can be found here.

We consider this is a rare case; most providers when issued with an inadequate report will do all they can to improve standards. Not wait for a further five inspections to take place. However, what it does highlight is that if you can challenge the CQC’s findings, with say additional or expert evidence, you can pursue the matter via the HESC Tribunal.

It also shows the importance of accepting where errors may have been made and looking to improve on standards or change procedures. Mr Corney clearly did not like change and we consider this factor and his failure to work with the CQC played a part in the removal of the couple’s registration.

We would comment that with the new regime for inspection that came into force last year for dentists, there is less of a focus on a ‘tick box’ exercise.  Inspectors have five key questions to consider and should be taking into account all relevant factors when assessing if the regulations have been met. 

Image credit -Tori Rector under CC licence - 

Spring is finally here, but with it comes the first wave of new UK legislation for 2016.

So what key changes do you and your practice need to be aware of?

National Living Wage. From 1^st April 2016 any worker who is 25 years old or above will be entitled to the National Living Wage, which is initially set at £7.20 per hour. The National Minimum Wage will continue to apply to workers under the age of 25. In addition, the penalty for employers who fail to pay the minimum amounts to workers has doubled from 100% of the underpayment to 200%. This, along with the introduction of Pension Auto Enrolment (which for many practices is due to take effect this year), will mean further increases in the cost of running your business. There is therefore little comfort in the 1% pay rise announced by the DDRB (for more on this see below).

Apprenticeships. As part of the Government’s drive to create more apprenticeships for young people, they have abolished the requirement on employers to pay NIC for apprentices under 25. This comes into effect from 6^th April 2016. In addition, although not yet in force, the Government wants to ban organisations from using the term ‘apprenticeship’ unless it is a statutory apprenticeship. In order to be a statutory apprenticeship, there are certain legal requirements that must be met.

Zero Hour Contracts. It is unlikely that these contracts are common within in the dental community. However, if you do employ staff on a zero hours contract, for example bank nurses, if those contracts contain an exclusivity clause, stating the employee can only work for you, the employee can now seek redress against unfair dismissal and detrimental treatment following a breach of such a clause. 

Hazadous Waste. From 1st April 2016 dentists in England, who produce or store waste of 500kg or more per year, will no longer have to register with the Environment Agency. Dentists in Wales still need to register with Natural Resources Wales. This will mean slighlty less adminsitrative paperwork for dentists in England. 

Immigration. From April 2016 tier 2 skilled workers from outside the EU who have been in the UK for 5 years or more must be earning £35,000 or above to remain in the UK. This will not affect workers on the Shortage Occupation List, such as nurses, but could affect teachers and IT workers. 

Pension. From April 2016 there will be a new flat rate pension; as opposed to the lower basic rate pension and secondary and additional payments.