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GDPR for Dentists: A Year On.

46740628114_50802077af_z-1 GDPR: One year on.

25th May 2018 is a date etched in the memories of all dentists and practice managers; the date when the General Data Protection Regulations, and the Data Protection Act 2018, came into force. A little like the millennium bug, the furore surrounding this data protection revolution was immense. Was this just another layer of regulation for an already over regulated profession, or a fundamental change in the way that we treat personal data?

12 months on we look at the effect of the regulations and whether dental practices have got to grips with the changes and how the Information Commissioner’s office has been dealing with data breaches. 

The General Data Protection Act, a brief history.

The GDPR and the Data Protection Act 2018 came into force on the 25th May 2018. The regulations were intended to provide Europe wide rules to protect individuals with regard to the processing of their personal data, and to regulate the movement of European citizen’s personal data across the world.  The regulations included:

  • · Enhanced rights of individuals
  • · Increased transparency
  • · More accountability when record keeping
  • · Changes to the legal basis upon which data can be processed
  • · Introduced the new role of the Data Protection Officer
  • · Significantly increased the sanctions in the event of a breach.

In practical terms the changes saw dental practices having to thoroughly overhaul the way in which they managed their patients’ data, adopting a much cohesive and considered approach to handling the personal data of their patients.

But has GDPR made a practical difference?

What do the statistics tell us?

The ICO data shows that between January 2014 and December 2016 Healthcare Organisations accounted for 43% of all reported data breaches to the ICO. In 2017 there were 2877 reported breaches, 1062 were from healthcare, 37%. The main types of breaches related to loss or theft of paperwork and data being sent to the wrong person by email or letter.

For the first “Post-GDPR” quarter, April to July 2018, healthcare data breaches accounted for 677 of 3146 reported breaches; just 21.5%. In the second quarter, August 2018 to November 2018 healthcare breaches accounted for 619 of 4056 reported breaches; just 15%.  However, whilst the percentages may be going down, the overall number of breaches complained of has gone up significantly for all areas, including healthcare.

Does this mean that all the changes implemented by dental practices have been a failure?  No, one reason for the significant increase in reported breaches is the general public’s greater understanding of their data protection rights. The message that your data is owned by you as an individual, and therefore should be controlled by you, is finally getting through. People are much more alive to the dangers of sharing their data freely, and know their rights. The ICO is now in the public lexicon and people know how to complain.

What the statistics do show is that there is still a great deal of room for improvement in our data processing systems and the training that we provide to team members.

What have the ICO been doing over the last year?

The short answer is, working very hard. The regulators have had to deal with the biggest changes to data protection laws in a generation, and are now coping with a significantly higher number of complaints. But along the way they have managed to catch a few of the major offenders.

In October 2018 the ICO issued the maximum fine possible (under the old regime) to Facebook for failing to protect its users’ personal information. The investigation found that between 2007 and 2014 Facebook processed the personal information of its users unfairly, by allowing application developers access to their information without sufficiently clear and informed consent, and allowing access even if users had not downloaded the app, but were simply ‘friends’ with people who had. Facebook failed to check the way in which app developers were using its platform. One developer harvested the data of over 87 million people worldwide.

In November 2018 the ICO fined Uber £385,000, again under the old regime, for data breaches that occurred between October and November 2016. A series of data security flaws allowed the personal data of around 2.7 million UK Uber customers to be accessed and downloaded by hackers. The records of almost 82,000 drivers were also stolen. Uber made matters much worse by failing to tell their customers or their drivers about the breach for over a year.

Whilst these fines may have had little impact on either of these multi-national companies, under the new regime the ICO can impose fines of €20 million or 4% of the company’s global turnover, whichever is higher. To put this into perspective, Facebook’s annual revenue for 2018 is reported as being $55.8 billion.

And whilst the ICO has not yet concluded any large scale investigations under the new regime, in January 2019 the French equivalent, the CNIL, fined Google €50 million for its lack of transparency and information regarding the processes it uses when processing data and the failure to provide data retention information. Furthermore, Google had not obtained valid consent, as users were not sufficiently informed, nor was the consent obtained specific or unambiguous. Google had continued to use pre-ticked boxes in certain circumstances, which drew particular criticism.

The Future

In reality, the 25th May 2018 was the start not the end of GDPR preparation. Practices must ensure that they are fully compliant and can evidence compliance in the event of a breach. Records of processing activity, privacy policies and notices must be reviewed and updated where appropriate. Staff must continue to be alive to the risk of breaches. Systems must be put in place to ensure that the risk of data breaches is reduced.

GDPR Training

On 24th July 2019 JFH Law will be holding a one day seminar on GDPR for dentists. This course will look at GDPR a year on, setting out any updates since implementation and providing practical tips to ensure your practice is compliant with data protection laws. To register your interest please email This email address is being protected from spambots. You need JavaScript enabled to view it..

Julia Furley, Barrister

Image credit - Linda Hudson under CC licence - not modified.

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JUN
05
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Dealing with complaints - a barrister's view

Justice_b Dealing with dental complaints

Although dentists may feel under attack a lot of the time, the risk of litigation is actually (relatively) low. Complaints can often be dealt with through excellent communication skills and a willingness to listen and respond sensitively to the concerns raised by the patient. Unfortunately, it is not always possible to resolve disputes or complaints by patients internally. This can be the result of a number of factors, from the dental practice’s internal complaints procedure, lack of staff training to patient demographic. If all reasonable attempts to resolve the complaint internally have been exhausted, then dentists should be signposting other, objective complaints handling services. This not only assists the parties in moving forward from sometimes intransigent positions, it avoids patients turning immediately to lawyer for advice on resolution.

Complaints about NHS treatment

Every NHS practice must have a copy of the NHS complaints policy and must provide it to a patient if a complaint has been made regarding NHS treatment provided. Patients should also be advised that help is available to them via the NHS Complaints Advocacy Service. Bear in mind, patients are not obliged to complain directly to a practice first, the patient can go straight to the NHS; although following the internal complaints procedure should be strongly encouraged, and patients should always be provided with access to a clear and comprehensive internal complaints procedure. A complaint to the NHS will be made directly to NHS England and must include the patient’s contact details, a clear description of what is being complained about, the name of the service being complained about and all relevant correspondence. The patient will be asked to give their consent to the practice being contacted regarding the complaint.

Complaints must be made within 12 months of the date on which the subject matter of the complaint occurred, or 12 months after the date that the subject matter of the complaint came to the notice of the complainant. Complaints are acknowledged within 3 days of receipt. However, the NHS has a 40 working day target to investigate (this can be extended where appropriate). Investigation A case officer will be appointed and will obtain the relevant information about the case and make sure that it is accurately recorded. The process of the investigation itself is reasonably flexible, and the case officer will take necessary steps to properly investigate the complaint. They will prepare an investigatory report and thereafter send a formal response to the patient. During the investigation the practice may wish to consider both mediation and obtaining a second opinion if appropriate. The response will contain: An explanation as to how the complaint has been considered. Conclusions and an apology if appropriate. An explanation as to why the decision has been reached. Whether the complaint is upheld (in part or in full). What remedial actions are being recommended. Confirmation from the dental practice that action has or will be taken. A response regarding “lessons learnt” if appropriate. Contact details of the ombudsman. If the patient remains dissatisfied with the way in which the complaint has been dealt with, then they can ask the Parliamentary and Health Service Ombudsman to review the case. The dentist should cooperate fully throughout this procedure; however unmeritorious a complaint may be. The case officer can decide to report matters to the GDC if they feel it necessary to do so. Keeping an open and positive approach to the investigation will limit the risk of further complaints being made.

Dental Complaints Service

The dental complaints service (DCS) is intended to provide a similar complaints service as that provided by NHS England. The GDC funds the service, its staff members are employed by them and it is accountable to the GDC Council. However, investigations are run independently of the GDC. That being said if the DCS do become aware of any issues regarding a practitioners behaviour or competency, then they will (like the NHS) refer the matter to the GDC fitness to practice team.

Again, complaints must be made within 12 months of treatment taking place or 12 months of the patient becoming aware of the issue. Initially patients are referred back to the practice to attempt to resolve matters internally. If this is not possible, then a complaints officer will be appointed and work with both sides to try and reach a resolution. If a resolution is not possible, then the matter is referred to the DCS panel; the final stage of the complaints process. The panel consists of two lay members and a dental professional. Both the patient and the dentist will be invited to attend a meeting. The parties will have an opportunity to put their side of the complaint, and to work towards reaching an amicable resolution. If no agreement is reached, then the panel will make a recommendation.

Feedback from users of the DCS is generally good. The last annual review of the service was in 2014, but this showed of the 1068 cases considered, 95% of patients who provided feedback were satisfied with the recommendations offered, compared with 64% of dentists. Whilst this may reflect a tendency by the organisation to prefer the accounts of patients, it may also reflect a willingness of dental professionals to refund dental fees as a business decision, as opposed to admission of liability, once the DCS gets involved.

This type of resolution, whilst frustrating, can be a much quicker and cheaper option than defending a clinical negligence claim.

If you have are concerned about an ongoing patient complaint contact our lawyers on This email address is being protected from spambots. You need JavaScript enabled to view it.

Julia Furley, Barrister

"Justice"by mag3737 is licensed under CC BY-NC-SA 2.0

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Self-employed status of dentists; is the gig finally up for associates?

HMRC has written to dental associates HMRC has written to dental associates

On the 20th April 2017 HMRC updated their ‘Internal Status Manual’ regarding the employment status of dentists. This made clear that where dentists are practicing as associates in premises owned and run by another dentist and are subject to a BDA or DPA approved associate contract, and the terms are followed, then the associates income will be assessed under ‘trading income rules’ and not as an employed income. In short, associates are self-employed and as such will be liable for Class 2/4 National Insurance, not Class 1 National Insurance. Despite changes bought into effect by the NHS General Dental Services Contract, which changed the way that dentists were paid, allowing for less fluctuation in income, HMRC were of the view that as long as associates continued to pay their share of laboratory fees and follow the terms of their associate agreements, then they will remain self-employed.

So what has changed?

Over the last 6 months there have been a number of landmark legal cases before the UK courts. Laura Pearce of JFH Law wrote in June last year that the tide was turning for dental associates following the Court of Appeal decisions in the cases of Pimlico Plumbers and City Sprint, which were hot on the heels of the earlier decision in the Uber in October 2016.

These cases all revolve around the ‘gig’ economy, where companies have traditionally relied upon casual or flexible labourers, who get paid for the work they do, rather than a weekly or monthly agreed salary. These people are often categorised as independent contractors, but the legally reality can be very different.

The Court of Appeal has ruled that despite the fact that the individual’s contracts defined them as self-employed, and certainly in the case of the Pimlico Plumber, they had benefitted financially from the arrangement for many years, they were in fact ‘workers’ not ‘self-employed contractors’. This means that they are entitled to the national living wage, holiday pay and statutory sick pay and the right to pension auto enrolment.

One of the key definers for whether an individual is a worker or self-employed is whether they have an unfettered right to send a substitute. If a dental associate is obliged to undertake the work personally, and can only send a substitute in the event that they are unavailable (for example when they are unwell or on maternity leave), or the right to send a substitute is dependent upon the consent of the practice owner, then it is highly likely that they will be defined as a worker by the employment tribunals. Pimlico Plumbers have appealed the judgement to the Supreme Court and judgement is currently reserved.

However, could an associate dentist go further and argue that they are an employee; thus obtaining all of the benefits of employment, including the right not to be unfairly dismissed? As no associate dentist has yet challenged the status quo within the Employment Tribunal it is not possible to answer this categorically. It will depend on the nature of the working relationship, the mutuality of the obligation between the parties; i.e. is the dentists obliged to offer work to the associate? Is the work done within fixed hours at a price fixed by the Principal? Finally, is the associate obliged to undertake that work themselves? If the answer is yes to all of these questions, the dentist could well be an employee.

What does this mean for tax purposes?

To date, if an individual is defined as a worker by the Employment Tribunal, that has not automatically affected their status as ‘self-employed’ for the purposes of paying their taxes. Indeed there have even been circumstances where the Tribunal has determined that an individual is employed for employment law circumstances, but self-employed for tax purposes. As such a ‘worker’ and an ‘employee’ can be exempt from PAYE and pay Class 2/4 NI contributions.

In 2017, HMRC had clearly taken the view that regardless of the personal nature of the services offered by dentists, they were content to allow them to continue as self-employed. However, the indications are that this is likely to change in the not too distant future. There is little benefit to HMRC under the current arrangement, and they are likely to see a change in associate dentist’s status as an opportunity to increase NI contribution and tax revenues. Furthermore, with the Government’s current focus on shifting responsibility of pension provision away from the state onto third party employers, it is likely that the writing is now on the wall for many associates self-employed status.

This has major implications for practice owners. Whilst any change in status for the purposes of HMRC is unlikely to be retrospective, bearing in mind their current guidance, this may open the floodgates for claims from associates against their principals before the Employment Tribunal. With the tax benefits of self-employed status gone, associates may think it’s worth arguing that they have been workers or employees for years. They can then claim back unpaid holiday since the commencement of their employment and demand enrolment in workplace pension schemes.

If you are concerned about your employment status or want to discuss the content of this dental bulletin contact Julia on This email address is being protected from spambots. You need JavaScript enabled to view it. or call us on 0207 388 1658.

Julia Furley, Barrister and Partner

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Can a practice principal really be liable for an associate dentist's criminal behaviour?

Can a practice principal really be liable for an associate dentist's criminal behaviour?

The question posed to the court was whether an employer can be vicariously liable for sexual assaults perpetrated by an independent doctor?

Between 1968 and 1984 Dr Bates was engaged by Barclays Bank to carry out medical examinations on potential and existing employees of the bank. Barclays at that time were undergoing a positive drive to recruit women into the bank and as a result a number of the individuals assessed by Dr Bates were women, some as young as 16.

Accusations against Dr Bates

The employees would go to Dr Bates’ home, where he had created a purpose-built treatment room. He would see the patients on their own with no chaperone present. They were required to undress to their underwear. The allegations against him included inappropriate breast examinations and digital vaginal or anal contact. Following the examination, Dr Bates would send a pro-forma document setting out the details of the examination to the bank. If the report was satisfactory the individual would be offered employment.

Dr Bates died in 2009, however in 2013 a police investigation was carried out which concluded that had he been alive, there would have been sufficient evidence against him to warrant a criminal prosecution.

Barclays’ vicarious liability

In 2016, 126 claimants sought damages against Barclays Bank in relation to the sexual assaults they had suffered. They claimed that the bank utilised the services of Dr Bates in the role of medical examiner in order to satisfy themselves that the person was fit to work for the bank and to confirm that they would be suitable for the life assurance policies in place.

In July 2017, the Hon Mrs Justice Davies ruled that, yes, the bank was vicariously liable for the actions of its self-employed contractor. The reasons she gave were as follows:

A two-stage test must be considered to determine whether or not a vicarious liability exists:

  1. Is the relevant relationship one of employment or “akin to employment”?
  2. If so, was the tort sufficiently closely connected with that employment or quasi employment?

When is a relationship “akin to employment”?

When the following criteria are satisfied:

– The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

– The tort (act) will have been committed as a result of activity being taken by the employee on behalf of the employer;

– The employee’s activity is likely to be part of the business activity of the employer;

– The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

– The employee will, to a greater or lesser degree, have been under the control of the employer.

 

The bank argued that Dr Bates was an independent contractor, and that he bore personal liability for the acts. Had the claim been made much earlier his personal estate would have been able to settle the claims.

 

However, to determine whether the relationship was “akin to employment” the judge applied the five criteria set out above:

– The judge concluded that whilst Dr Bates would have had indemnity insurance, that insurance would not have covered him for cases of sexual assault; his estate was distributed many years earlier.

– Employment was conditional upon the bank being satisfied on the basis of the medical examinations that the applicant was medically suitable for service. Dr Bates was the chosen doctor of the bank and he used their stationery.

– The purpose of the examination was to enable the bank to be satisfied that a potential member of staff would, health wise, be an effective member of the workforce. This was an intrinsic part of the business activity of the bank.

– The bank directed the employee where to go and gave no freedom of choice. They directed the doctor to undergo an examination, including a chest measurement! Many of the claimants, who were as young as 15 and 16 saw the doctor alone in his room and were asked to remove their clothing. The judge concluded that the bank created the risk of the tort (sexual assault) taking place.

– The fact that Dr Bates organised his own diary and carried out other medical activities did not negate the argument that he was under the control of the bank at the relevant time. The fact that the assessment took place at his home rather than the bank made no difference to this conclusion.

 

Tort closely connected with the employment

When considering stage 2, she concluded that the sexual assaults occurred during the course of a medical examination which the bank required the applicants to undertake for the purposes of securing employment. Dr Bates was trusted to do the work and placed him in a position to deal with the employees. This gave him the opportunity to abuse his position. The abuse was inextricably interwoven with the carrying out of his duties.

Would a practice principal be vicariously liable for the tortious acts of their Associates?

In short, the answer is yes. Whilst many associate dentists prefer to maintain their self-employed status for tax purposes (the Tooth Counsel has blogged on worker v self employed status on a number of occasions) the relationship that they have with the practice is almost entirely “akin to employment”. It is now common practice for associate dentists to appear to members of the public to be an integral part of their dental practice, bookings are made and diaries organised by the practice, patients and referring dentists are introduced to the associate via the practice, uniforms are often worn and the practice systems and stationery utilised. If an associate dentist commits an actionable tort against a patient or other member of staff whilst engaged by the practice, then the practice itself would be liable.

Whilst the principal of the “independent contractor defence” remains intact, this judgement sees the court extending the scope of vicarious liability significantly. Whilst the facts of the above case are extremely unlikely to arise in today’s society, particularly in a dental setting where nurses are present at all times when a dentist is seeing a patient, it is a valuable lesson to reinforce the view that the employers should not be complacent about the potential for poor behaviour by their independent contractors and the liability that may follow.

If you have any questions about this blog, or require advice and assistance in relation to your liabilities within the work place please feel free to email Julia Furley on This email address is being protected from spambots. You need JavaScript enabled to view it., or call us on 020 7388 1658.

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Recent comment in this post
Stephen Henderson

Unusual circumstances

Great summary of a curious case. The claimants came after the bank because it has deep pockets and the doctor is dead and his affa... Read More
Tuesday, 03 October 2017 07:22
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JUN
01
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Promises, promises; can anyone really save the NHS?

With days to go before the UK once again goes to the polls and a large number of voters still undecided on how to cast their vote, there is still a huge amount to play for in the General Election 2017. The handling of the NHS is critical to any party’s success, so we have scrutinised the Conservative, Labour and Liberal Democrat’s offerings in the lead up to June 8th. If you don’t have the time or energy to trawl through hundreds of pages of manifesto pledges, read below for a helpful summary of NHS commitments.

The Commitments

 

The Conservative Party

 

1.       A commitment to the founding principles of the NHS; a service that meets the needs of everyone, based on clinical need not ability to pay and care should be free at the point of use.

2.       Spending will be increased by £8 billion in real terms over the next 5 years.

3.       Create a “truly seven-day healthcare service”, with GP weekend and evening appointments for all by 2019. Hospital consultants will be supervising patients every day, with weekend access to key diagnostic tests.

4.       Current 95% A&E target and 18 week elective care standard will be maintained.

5.       Prioritise during the EU negotiations that the 140,000 staff from EU countries “can carry on making their vital contribution to our health care system”, whilst continuing to invest in training medical students. Will encourage and develop new roles and create a diverse set of potential career paths for the NHS workforce.

6.       The most ambitious investment in building and technology that the NHS has ever seen, to ensure that care is delivered properly and efficiently.

7.       The NHS will become a “better employer”, strengthening the entitlement for flexible working and introducing better support services for employees.

8.       To implement the recommendations of the Accelerated Access Review to make sure that patients get drunk treatments faster, whilst ensuring value for money for the NHS.

9.       GPs will be expected to provide greater access, more innovative services and offer better facilities. A new GP Contract will be introduced.

10.   The role of the CQC will be extended to cover health related services commissioned by local authorities.

11.   10,000 mental health care professionals will be recruited. The co-ordination of mental health services with other local services will be improved.  

12.   Radical changes to social care for the elderly. Aligning the current means-testing for domiciliary care with that for residential care. The value of the family home will be taken into account, along with other assets and income when assessing the amount of funding that an individual will receive from the state. The current cap of £23,250 will be increased to £100,000. Individuals will be able to defer payments if receiving care at home in order to avoid selling their home during their lifetime.

13.   End of life care will be improved. Families who lose a baby will be offered additional bereavement support.

None of the above pledges have been costed in the published manifesto.

 

The Labour Party:

1.       A commitment of over £30 billion in extra funding over the next Parliament. Paid for through increased income tax for the highest 5% of earners and an increased tax on private medical insurance. Money will be freed up by halving the fees currently paid to management consultants.

2.       A new office for budgetary responsibility will be introduced to oversee health spending and scrutinise how it is spent. “Sustainability and transformation plans” will be halted, and a review undertaken, asking local people to contribute, considering patient need rather than available finance. A new regulator “NHS Excellence” will be introduced.

3.       Privatisation of the health service will be reversed. A legal duty will be introduced on the Secretary of State to ensure that excessive private profits are not made out of the NHS at the expense of the patient.

4.       Promise investment to give patients a modern, well-resourced service. Guaranteeing access to treatment within 18 weeks, taking a million people off the NHS waiting lists by the end of the next Parliament. Patients will be seen in A&E within 4 hours. Mixed sex wards will end.

5.       The Cancer Strategy for England will be fulfilled by 2020.

6.       Funding will be increased to GP services and cuts to pharmacies halted, and the current position reviewed.

7.       Patients will be given fast access to the most effective new drugs and treatments, and “value for money” agreements will be negotiated with pharma companies.

8.       To make the country “autism friendly”; with specialised care plans in place and access to condition management education.

9.       High quality and personalised end of life care.

10.   A commitment to completing the trial programme for PrEP, and rolling the treatment out to high risk groups to reduce HIV infection.    

11.   Free parking for patients, staff and visitors at hospitals by increasing tax on private medical care premiums.

12.   For the work force the pay cap will be scrapped, with an independent review body making the decision. Bursaries and funding for health related degrees will be scrapped (University tuition fees will be scrapped).

13.   The rights of EU nationals working in the NHS will be immediately guaranteed.

14.   The foundations for a “National Care Service for England” will be laid. Social care budgets will be increased by £8 billion. Place a maximum limit on lifetime personal contributions to care costs, raise the asset threshold below which people are entitled to state support, and provide free end of life care.

15.   Funding for mental health services will be ring fenced.  Out of area placements for young people will be ended by 2019. Early intervention for children and young people’s mental health services will be prioritised. Counselling services will be available in all secondary schools.

 

The Liberal Democrats:

1.       Pledge to put a penny on the pound on Income Tax to raise £6 billion in extra revenue for NHS and Social care funding. This money would be directed to key areas, including social care, primary care, mental health and public health.

2.       Commission a dedicated health and care tax following consultation.

3.       Guarantee the rights of all EU NHS and social care staff to remain in the UK.

4.       End the public sector pay freeze for NHS workers and reinstate nurse bursaries.

5.       Transforming mental health care and reducing associated waiting times to no more than 6 weeks for a therapy appointment for depression or anxiety. No young person will wait for more than two weeks for treatment when they first experience psychosis. The focus will be on young people and pregnant women/ new mothers.

6.       An end to out of area placements and improving front line services in schools and universities. Ensure LGBT and inclusive mental health services receive funding and support.

7.       Establish a cross party health and social care convention to carry out a review of the long term sustainability of the health and social care finances and workforce. Introduce a statutory independent budget monitoring agency for health and care, similar to the Office for Budget Responsibility.  

8.       Improving the integration of health and social care; ultimately creating one service with pooled budgets.

9.       Implement a cap on the cost of social care and increase the earnings limited from £100 to £150 per week for eligibility for carers’ allowance, and reduce number of care hours a week for qualification.

10.   Provide more choice of end of life care and move towards free end of life social care. Expanding the work of hospices.

11.   Promote easier access to GPs, expanding evening and weekend opening, encouraging the use of on line appointments, whilst supporting GPs to prevent practice closures.

12.   Using innovative funding to promote GP led multidisciplinary health and care hubs and ensure access to local pharmacies.

13.   Helping people stay healthy in the first place through a National Well Being strategy, including public awareness campaigns on cancer and by developing a strategy to tackle childhood obesity and a sugar tax.

14.   Introduce a minimum unit pricing for alcohol.

15.   Make PrEP for HIV prevention available on the NHS.

What will these pledges cost?

The Institute of Fiscal Studies has undertaken its own review of the funding behind each of the above pledges and state as follows;

The Conservative manifesto:  Would suggest an increase in Department of Health (DH) spending to £132 billion (in today’s prices) in 2022­–23, if the other (non-NHS) aspects of DH spending were frozen in real terms over this period. This would be an average growth in real spending of 1.2% per year between 2016–17 and 2022–23.

The Labour manifesto: promised a larger increase in health funding. Labour would increase spending relative to current government plans by £7.7 billion in 2017–18, rising to £8.4 billion (in nominal terms) by 2021-22. This could take DH spending to around £135 billion (in today’s prices) in 2021–22. This would be an average 2.0% per year real increase in spending between 2016–17 and 2021–22.

The Liberal Democrats: have pledged to increase spending on health and social care in England, Wales and Northern Ireland by approximately £6 billion each year, with £2 billion ring-fenced specifically for social care. This could imply DH spending of £131 billion (in today’s prices) in 2021-22, and average growth in spending of 1.4% per year in real terms between 2016–17 and 2021–22.

However they also conclude that the planned spending of all three parties is well below the historical 4% per year growth in health care spending per year that has been seen since 2009/10. The difference between the parties spending plans is in fact reasonably modest and as such the NHS will continue to suffer financially whoever will win the general election.

Julia Furley, Barrister, JFH Law LLP

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The whole tooth and nothing but the tooth - criminal investigations explained.

The whole tooth and nothing but the tooth - criminal investigations explained.

 

 

If someone makes a criminal allegation against you, whether true or false, you will be subject to a police investigation. This will no doubt be a daunting experience for you. In this article we guide you through the process and give you some important advice to help you protect your registration as a dentist.

At the police station:

It is a fallacy that only those who have done something wrong need to seek the advice of a lawyer. If you are facing criminal allegations the first thing you should do is seek legal advice from a criminal defence specialist solicitor. Good representation at an early stage will ensure your rights are protected, and can in some circumstances even prevent criminal charges being pursued. Facing a criminal allegation can be one of the most stressful events of your life, you do not need to face it alone.

The police can choose to either conduct an interview following arrest, or on a voluntary basis – commonly referred to as “caution plus three”. An interview after arrest means that you will be detained at the police station and are not at liberty to leave until the police or courts allow it. Under “caution plus three” is less draconian, and means that you are free to leave at any time as you will not be arrested. Everyone who attends for a police interview, whether, voluntary or under arrest, has the right to free and independent legal advice.

Can I choose my own solicitor?

Yes, if you are given notice of the interview it is important to research and identify an appropriately qualified lawyer.  However, if you are arrested unexpectedly and are not able to request your own lawyer, you will be offered the assistance of a “duty solicitor”. There is a duty solicitor on call at all times to provide assistance in the police station.

When you are arrested, and again at the beginning of your interview, you will be read the police caution:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

There may be circumstances when it is appropriate to answer “no comment” to questions being asked by the police officer. For example, where there is in fact limited evidence that you were present or have participated in a crime and the police are essentially “fishing” for incriminating information. Alternatively, if you do not feel comfortable or confident in answering all questions put to you, it is possible to provide a prepared statement setting out the terms of your defence. If this is done properly then it is unlikely a jury would be invited to draw an adverse inference as a result of your failure to answer all questions put.

Whilst legal advice and assistance is free and available to everyone in a police station, regardless of their means, you can choose to instruct a solicitor on a private paying basis, if for example you wish to have a consultation with them in advance of the interview.

It is very important that you make clear to your solicitor that you are a dentist, and that any police action against you could have serious consequences on your registration with the GDC. You must bear in mind that what you say to the police may be used in any later fitness to practice hearing. It can be a difficult balance to strike in providing information that offers a defence to a criminal allegation, but will not inadvertently leave you open to disciplinary action with the GDC. A defence of innocent incompetence to an allegation of fraud for example, may amount to a breach of the GDC Standards for the Dental Team.

If you did use the duty solicitor at the police station but were not happy with their service you are not obliged to continue to be represented by them.

Court Proceedings

Low level offending, such as common assault, shop lifting and traffic offences are all dealt with at the magistrates’ court. Your case will be heard by either 3 magistrates (lay people) or a District Judge. There is unfortunately very limited rights to anonymity before the criminal courts, and your name will appear on the court lists regardless of whether you are found guilty or not guilty.

Legal aid is available in the magistrates’ court, but it is both means and merits tested. The threshold for automatic financial eligibility is income under £12,475 per annum, as such most dentists will not be eligible for legal aid. When paying privately, it is important to bear in mind that even if you are found not guilty you will not be reimbursed for all your legal costs. Any reimbursement is at the legal aid rate, which is very low, and is dependent on you having applied for and been refused legal aid at the outset. Some insurance policies will cover criminal allegations, particularly where they are related to professional misconduct charges. It is always worth speaking to your insurers to find out what they will cover at the outset and remember you have the freedom to choose your own solicitor to represent you under such cover, you do not need to rely on the solicitors appointed by the insurers.

In the magistrates court you can be represented by either a solicitor or a barrister. It is worth considering very carefully the trial experience of the person who is going to represent you. Do not be afraid to ask what their experience is and whether they have dealt with similar cases in the past.

More serious offences are dealt with at the Crown Court. Legal aid is technically available for everyone who appears before the Crown Court, however, applicants have to make a contribution towards their legal costs of up to £900 per month, which is capped dependent upon the seriousness of the offence. For more serious offences you are likely to have the benefit of both a solicitor and an advocate representing you; this can be either a barrister or solicitor advocate.   Your solicitor should discuss their choice of advocate with you before they are instructed to ensure that you are happy with their choice of representative.

If I have been arrested but not charged with any criminal offence should I notify the GDC?

If you are arrested but not charged with any offence there is no obligation to inform the GDC. However, if you are charged, but not yet convicted, of an offence anywhere in the world, you will need to inform the GDC. Similarly, if you are given a formal ‘police caution’ (not the same as the caution above, but a warning from the police regarding behaviour following an admission of guilt), or accept a penalty notice for disorderly behaviour, then you will need to let the GDC know.

If you receive a fixed penalty notice for a driving offence or antisocial behaviour order, you will not need to inform the GDC.

When do I need to inform the GDC of criminal convictions/cautions?

Generally dental care professionals do need to inform the GDC immediately if they are convicted of a criminal offence. However, if you are registering with the GDC you do not need to inform them of a conviction if it is considered “protected”.

  • This means it is not a “listed offence” under S2A(5) of the Rehabilitation of Offenders Act 1974 (amended)
  • A custodial sentence was not imposed
  • The individual has no other convictions
  • It was received either when the individual was under 18 and at least 5 years and 6 months has passed, or it was committed when the individual was over 18 and at least 11 years has passed.
  • If you have a police caution that does not relate to a listed offence, and was given either when the individual was under 18 and at least 2 years has passed, or it was committed when the individual was over 18 and at least 6 years has passed.

If I am convicted of a criminal offence will I automatically face fitness to practice proceedings?

All criminal convictions and cautions will be referred to the GDC Fitness Practice department for consideration. The GDC will then consider whether the offence committed involved a departure from the high standards required of dental professionals and whether it impacts on their fitness to practice. Consideration will also be given to the dentist’s character and conduct since the commission of the offence. The GDC will assess the level of risk that the conviction or caution will have on protecting the public and maintaining confidence in the profession.

Do I have to declare my conviction to future employers?

Whether you need to declare your convictions to your employers will depend on whether it is considered ‘spent’. The rules are complicated and vary depending upon the type of conviction you have and the reason you are being asked to provide the information. For instance, an enhanced criminal records check is usually required for all jobs that involve working with children, so any convictions, including those that are ‘spent’, will usually have to be declared. If in doubt, ask an expert!

If you or someone you know has been contacted by the police, or faces criminal charges, call our criminal team on 020 7388 1658. Our dental experts work in conjunction with our criminal lawyers to ensure you have the best possible representation to protect both your personal, but also your professional life.

Julia Furley, Barrister

 

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The GDC Specialist Lists; What does the future hold?

The GDC Specialist Lists; What does the future hold?

The GDC Specialist Lists were introduced in the UK in 1998 as a result of developments in European Legislation. As of October 2015 of the 40,953 registered dentists there were 4342 registered specialists; an increase of 31 on the previous year. A significant number of patients require specialist dental treatment each year; in 2012/13 approximately 3.5% of all NHS outpatient appointments were in a dental speciality clinic. There is no precise data as to the number of private treatments being carried out by specialists each year, but it is likely to be in the millions.

Whilst the state of the nation’s teeth used to be a cause for international mirth, over the last decade our love affair with cosmetic dentistry has blossomed. Implants are so popular that there are now calls for implant dentistry to be added to the already voluminous list of dental specialities; the UK has more recognised specialities than any other European country. On the face of it specialist dentistry is big business, but for who? Is it the practitioners themselves, or those who provide and regulate the training?

Becoming a Specialist:

One thing is clear, it is hard work. To be entitled to enter onto one of the specialist lists the dentist has to complete a recognised training programme, ranging from three to five years, have a National Training Number (NTN) and to hold the agreed qualification awarded by one of the Royal Colleges. In total there are in the region of 500 specialist trainees each academic year; many of whom do sadly not complete or meet the programme requirements.

It is the GDC who set the standards required for specialist training, approving the curricula and quality assurance. The Joint Committee for Postgraduate Training in Dentistry (JCPTD), through the Royal Colleges and the Specialist Advisory Committees (SACs), is responsible for the development of curricula, devising assessments and examinations and making recommendations to the GDC on specialty training.  The GDC embarked upon a review of the regulation of specialists in 2015; our dental bulletin considering this review can be found here. The second stage of the review began in 2016, and the first results are expected in the autumn. They propose creating a generic template that will serve the basis for all the speciality curricula, bringing a uniformity of language and structure.

The alternative “assessed route” is also under consideration by the GDC. This is where an applicant is required to illustrate to the GDC Specialist List Assessment Team that they have the knowledge and experience derived through academic or research work which they might reasonably be expected to acquire had they completed the specialist training. However, there is limited guidance from the GDC as to what this actually means, the approach to assessments lacks continuity, and applications are routinely returned having been deemed incomplete. Many applicants feel that the only way to ensure success is to seek legal assistance. What is clear is that clinical experience is not evidence of equivalence.

The decision of the GDC not to include clinical experience as admissible evidence is a frustrating one for many, particularly bearing in mind that many dentists were effectively passported onto the lists under the “grandfathering” scheme. This allowed experienced practitioners entrance to their chosen list where they could illustrate that they have the requisite knowledge and experience, wherever acquired. The scheme remained open for two years after the formation of each list. As such it is possible for dentists with no postgraduate qualifications and having passed no exit examination, such as the MRD or equivalent mono specialist exam, to hold the title of specialist.

Is this fair?

Patient safety must be paramount in this argument. The assessment of specialist trainees is so rigorous that members of the public can generally be satisfied that they are receiving treatment from an appropriately qualified dentist.  For those “assessed” or “grandfathered”, there is less clarity as the assessment criteria appears to be reasonably subjective, and dependent upon the assessors view of a paper application rather than any face to face assessment over time.

There are also a limited number of training posts available; and recent attempts by universities outside of the “Big Three”, KCL, The Eastman and Queen Mary’s, to increase supply has been met with some resistance.  The lack of available NTN’s has also frustrated many applicants hoping to enter onto a training post. The Dentists Gold Guide (June 2016) states that the purpose of NTNs is for “Education planning and management” enabling Postgraduate Deans to keep track of trainees and “Workforce information”, to document within each country and speciality how many trainees are in each programme and to provide information as to when training is likely to be completed. There is anecdotal evidence that some dentists working in hospitals and universities can wait years for a training number to become available. Whilst there is a clear advantage to requiring a minimum number of placements to ensure there are sufficient specialists available, it is hard to justify a cap on the maximum. A large number of specialists do not practice in the NHS, and commercial interests will inevitably dominate private practice. An increase in the number of specialists would allow greater freedom of choice and drive down costs for patients. Why not simply maintain competitive entry onto programmes and keep a register of all specialist trainees, doing away with the NTN system in its entirety. Thus removing the lottery of when a number may come up.

The inequality of the playing field for those entering training is another problem. A three to five year, expensive training programme and a limited number of NTNs inevitably means that established practitioners, particularly practice owners, can rarely afford to take the time or money out of running their businesses to undertake the programme. Many of these individuals have been honing particular specialist skills in practice for a decade and simply don’t require extensive clinical training; indeed it is not unheard of for dentists who have limited their practice to a particular area teaching on Masters programmes in their chosen field. They missed the grandfathering window, and can’t afford to have a three year career break, but they can’t rely on their considerable clinical experience to show that they are already practicing at the level of a specialist.

A further disparity arises in relation to European dentists registered in the UK. At present a broader test is applied to European Citizens than is applied to UK dentists, who are assessed on the basis of all their experience, including clinical. So whilst an extremely experienced Spanish endodontist may rely on the number of treatments she has completed in practice, her English equivalent cannot. Although the rules were designed to give individuals coming from European countries, that follow different training pathways and recognise different specialities, an equal playing field, they have arguably ended up allowing European applicants an easier ride. Of course, post Brexit, this may all change.

Looking to the future, what could the GDC do to improve the current position?

1.       They could scrap the assessed route in its entirety. This would ensure uniformity across the specialisms and create a clear quality control of all specialists.

2.       Alternatively they could include clinical experience as a factor in the current assessment process, applying the same equivalence rules to all practitioners, regardless of their origin. This would open up the lists to a vast number of practitioners and has the potential to drive up competition in the fields. However this process would be open to criticism as the assessment process is hugely subjective, and there is no hands-on assessment required.

3.       I would propose a third option. The GDC could create a more structured assessed process; mapping an individual’s experience, both academic, research and clinical, against the specialist training programme, require a minimum number of years PQE and the successful completion of the relevant exit exam for each speciality. There would remain an element of subjectivity of course, but considerably reduced, and a candidate’s ability would be appropriately tested through the examination. 

The GDCs 2015 review talked about “tightening up” the assessed access, but gave no guidance as to how this would be done. They also considered doing away with it in its entirety. That in my view would be a mistake. The assessed route allows diversity and experience that would be lost should all specialists follow the prescribed training programme. It would also unfairly discriminate against older applicants who would not have the years of practice ahead of them to recuperate the considerable costs involved. We wait in anticipation of the results of the next stage of the review, and can only hope that good sense prevails and a fit for purpose assessment route is unveiled.  

 

Julia Furley is a barrister with a special interest in dentistry. She has assisted and represented a large number of dentists at both the application and appeal stages of their specialist list applications and has an extremely good record of success. If you are interested in applying for entry onto the GDC specialist list you can email Julia on This email address is being protected from spambots. You need JavaScript enabled to view it., or call us on 020 7388 1658.

 

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