No one can deny that modern technology has been a revelation in recent years. The use of it to improve diagnostic yields in radiography, to allow mainstream imaging in practice of aspects of dental tissues that we couldn’t previously visualise the same way can only benefit our patients. Computerisation of dental notes and management systems, (whilst restricted in the choice of manufacturers) have probably improved the efficiency of most dental practices far beyond that of the old paper systems. Digital marketing tools, online presence through websites and blogs, and social media are all here to stay, and have driven the profile of the profession upwards. All in all, I think most of us would agree, technology has been largely a good thing for the profession
But one thing that I am REALLY struggling with that has come about as a result of this type of technology is the increase in Referral Portals for NHS referrals. On the face of it is would seem to be a streamlining of the process needed to refer into secondary care, and reduce the costs and problems with paper referrals. Entering the data via a computer linked to the patient database and directly into the referral systems would seem on the face of it far more efficient that writing a letter and posting it.
So why do I have an issue with it? This sort of advanced technology is right up my street normally. However, because of the way these systems seem to be implemented, I can see potential problems for registrants falling foul of the GDC Standards when they are forced to use them. The GDC standards that I personally think relate to this type of system are :
Standard 1.7 – Put patients interests first before your own or those of any colleague, business or ORGANISATION – these systems tend to be imposed unilateral decisions that don’t seem to have any guarantee that they are better for the patient (or indeed tested fully).
Standard 4.2.6 - If a patient allows you to share information about them, you should ensure that anyone you share it with understands that it is confidential – How does a faceless system with no identification of who receives the data comply with this standard?
Standard 6.3 – Delegate and refer appropriately and effectively. However, someone else often choses where the patient goes and who they see, with the clinician often having no idea of the degree of expertise that clinician actually has. Referrals are even rejected if often irrelevant (but required) tickboxes are not filled in.
Standard 6.1.5 – You must ensure that all patients are fully informed of the names and roles of the dental professionals involved in their care - How does a portal allow us to do this? Do we give all our patients Bill Gates’ name as its done on a PC?
Standard 6.3.1 - You can delegate the responsibility for a task but not the accountability. This means that, although you can ask someone to carry out a task for you, you could still be held accountable if something goes wrong. You should only delegate or refer to another member of the team if you are confident that they have been trained and are both competent and indemnified to do what you are asking.
For me this is the big problem. This alone is where the entire concept falls down unless we are indemnified for the errors of the system. What if this is a life changing referral such as a tumour? You are going to be ultimately responsible as you have to make the referral, and you can guarantee the powers that be who thought it was a good idea to impose the portal will NOT indemnify you against the failure of the referral in some way, nor will the GDC. If the referral is rejected because of some missing tickbox that is largely irrelevant to the immediate urgency but required because some software engineer hasn’t allowed any flexibility in implementation then I personally cant see how this should ever be the responsibility of the clinician. The fact I might for example omit the patients GP because I’m more interested in the speed of the referral is a pedantic bureaucratic issue and not one of patient care.
I can’t comprehend how we as a profession have allowed this type of loss of control of patient care to creep into our referral systems. I am fairly sure there are practices that are on referral pathways that our patients will be allocated to that many of us would not be happy for them being treated in. Part of being a professional means that you take on the ultimate responsibility for the care of a patient, and the GDC standards means that includes ensuring they are referred to an appropriate colleague. Unless every single one of these referrals is triaged by a clinician then there will be mistakes made. And this pre-assumes the system actually works like it should…..
I have had the misfortune recently of being forced onto a pilot in my local area of just one of these systems. Due to the obviously more knowledgeable people in charge of procurement in my area, they foisted a system onto practitioners without actually discussing anything with them first. To say I experienced problems was an understatement, and I know many others did too (despite the LAT saying the response to their questionnaires about it was overwhelmingly favourable – presumably because the portal lost as many bad responses as it did referrals). To be quite honest, I would have been better served learning how to send smoke signal referrals rather than use the system that was imposed. I did some research into the actual system and found that it had been dropped by at least one area as it was unsatisfactory, and another region have accepted that the same system isn’t good, but it’s the best they’ve seen. Hardly a glowing endorsement is it?
For example, in the 2 months I used it, we experienced a plethora of problems. I don’t think it is particularly useful to have to spend over TWO HOURS trying to upload a Periapical radiograph, knowing that if it wasn’t sent the referral would have been rejected. This was a compressed file of just 103kb. I don’t think it is particularly helpful to have half the tick boxes missing for medical histories, or dropdowns that you can’t fill in because they are incorrectly populated. A spell check that allows only the incorrect spelling of a drug is also pretty useless. It’s not useful that the system doesn’t tell you if the referral has gone correctly, or instead forever been lost in the ether of the internet. It’s not professional to have no idea who you have just referred the patient to or who is going to read the information. Not particularly useful if your patient who doesn’t have an email address (like many of my elderly patients) can’t even be referred at all as the system refuses to accept the referral without their email address. It also falls foul of my data security policy of allowing an unknown (to me) commercial third party installing software onto my system (which is massively firewalled both by hardware and software – which would appear to more than can be said for the NHS system if the recent Cryptolocker problem is anything to go by).
But having the system obviously ticks another box for those who confuse boxticking with patient care. By having a system that once again means all the responsibility still lies with the registrant even though they have no control of it is highly convenient for the powers that be. They get to have a load of committee meetings about the procurement, knowing full well that if and when it fails, and if and when patients suffer from it, it will be the clinicians who will get the blame for it. Having a system imposed from above without actually making sure it works is nothing new: lets face it the NHS hardly have a great track record in getting IT infrastructure correct out do they? Heaven help us if our friends at Capita get involved with implementing one of these systems; patients will probably end up with an 18 month wait instead of an 18 week wait. Still, at least losing patients in the system will make the waiting lists look good for the managers and they can get their bonuses for being so successful…..
So unless we get some form of indemnification from those who perpetually get to wash their hands of responsibility, I can’t see how we can use these portals and still adhere to our required standards. Please correct me if I’m wrong.
Nice Idea shame about the impl...
As a Brit, I was both ashamed and proud of the revelations coming out of Westminster this week - ashamed that a small number of our elected representatives could act in such a grubby and misogynistic manner, but also proud of the way that the whole decades-long business is being exposed and acted on in an open way, even if it has been fuelled and inspired by our free press. There was something typically British and admirable in Sir Michael Fallon’s quick decision to resign from his post as defence minister, as opposed to my disdain for the USA’s Orang-Utan in Chief who has a considerable number of accusations of sexual assault outstanding against him and is a self-confessed and unashamed “pussy-grabber.”
It’s become obvious from the ubiquity of the ‘metoo’ hashtag (#metoo)
this week, that few walks of work life are free from sexual innuendo, threats and frank abuse and I have been wondering at what point the medical and dental professions will stand accused of similar behaviour either in the present or the past. What follows, has bothered me for years. There was nothing I could do about it at the time, and nothing I can do about it now, but I felt it was time to at least illuminate the fact that dentistry is not immune from the abuse of women.
I trained in the eighties in a fairly well-known dental school. There was a reasonably affable relationship between the students and lecturers – there were some lecturers who were frankly, evil bastards and there were some who treated you as sentient adults and although you wouldn’t go out for a pint with them, you would say “Good morning” to them in a corridor without ducking into the nearest toilet facility.
Some lecturers (and yes, it IS males) however, had a closer than affable relationship with female students and it is one that I need to focus on. This married lecturer was a reader in restorative dentistry and was a phantom head instructor. He always seemed to have a pally relationship with the female students and before long it was rumoured that he was having an extra-marital affair with a young student in the year below me. The affair became quite open within the dental school and he would often turn up at finals nights and exam celebration nights at Med Club. I didn’t follow that closely, the ins and outs of the relationship, but since it was so well-known, I assume that the dental school authorities turned a blind eye to it since the female hadn’t protested.
A few months after I qualified and left the dental school, friends of mine who were still at the dental school separately told me that the lecturer and been frequently ‘bothering’ a new and attractive dental student in a sexual manner, to the point where the young woman went to the head of the restorative department to report it.
She was later called to the Professor of the department where she found herself confronted by the Prof and the lecturer in question with the threat that if she were to take her complaint any further, they would ensure that she would fail finals.
I was told a few months later, that the young woman managed to find herself a place at another university and transferred. She apparently took her complaint no further.
I believe the head of the department is long retired (or hopefully dead), but the lecturer in question has risen to the heights, is nationally known, and is in active charge of students.
I didn’t know the victim, or even if she would have wanted to have taken this incident further. The fact that I didn’t? I am ashamed.
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:
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.
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.
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.
It has been a little while since I last wrote this blog. Various things have taken over as they tend to do in life, and the blog unfortunately was something that seemed to never quite get done. However, I’ve now found myself back in the writing frame of mind, and I still seem to have opinions that some will agree with and no doubt others will disagree with, so here we go with some more ramblings of a Yorkshireman.
I have still been keenly observing what has been going on with regards to the profession over the last few months, and there still seem to be the same old problems surfaces that always have. I shall be writing about all of these issues in the near future.
The GDC seems to still be a problem to many, and personally whilst it seems to be to have become more aware of its previous problems, I don’t think it can truly move on whilst the current chair is still at the helm. It is time for a registrant to be in charge again, and for Dr Moyes to be moved to some other Quango where he can’t oversee damage to the morale of an entire profession.
Social media is also still a hot topic, and the GDC have now issued a case study on this. Some of the profession are obviously of the opinion that social media is the real world, and seemingly lack the ability to see it in its true context. There is a lack of humility in the profession where social media is concerned, and huge damage can occur to people when they believe that all they see on their iPhone is the unadulterated truth. It isn’t.
The lack of a new NHS contract, or anything really concrete is also concerning. However, I have a fairly simple view on this. We must be deluded as a profession if we think for one moment that there is suddenly going to be a fantastic new contract that will give the patients and us everything we ask for. I will guarantee that any new contract will primarily be worded to the benefit of the DoH so that the dentists can be held responsible for whatever goes wrong with it.
I’ll write more on these subjects in the coming weeks. But for this blog I though I would concentrate on something that has seemed to be brewing for quite a time, and might actually be reaching a tipping point.
Now, I can remember when my indemnity was about £1200 a year, and didn’t particularly change by much annually. But now, as a principal dentist working full time, it is £5800. This increase is over the period of about 10 years. We have seen an increase in both the activity of the GDC and especially negligence solicitors in this time, which it is claimed to account for the increase in our costs.
Indemnity is a little bit like car insurance in that you hope you will never need it, but it is a necessary evil to have. With the costs of legal representation being what they are, and the increase in the amount of cases being brought, it is not really surprising that costs rise year on year.
But how do we know how these costs are calculated individually? If you are a young driver with a fast car (which you will no doubt be flaunting on Facebook!) then you are likely to be a higher risk than an older person in a more sedate family saloon. This doesn’t necessarily translate to your dental indemnity though. It seems that the longer you are in the profession, the more likelihood you are to be sued and thus have higher premiums. Perhaps the reason for this is that when these practitioners retire, often the patients are found to have large amounts of remedial dentistry to be done. This may be the case, and I am aware of some dentists who have built up a good practice on rectifying this type of problem, especially when they perhaps encourage the patient to take some form of action against the previous dentist.
I’m not saying a wrong shouldn’t be corrected in that situation, but there do seem to be some dentists who are quite happy to throw colleagues under the bus in order to ensure they get the benefit of the patient charges to rectify the problems. Perhaps ‘There but for the grace of god go I’ would be an apt phrase to remind those considering this course of action. In addition, they will also find that their indemnity is going to increase also when this happens.
Because that’s how this kind of indemnity really works; the current members are paying for the claims that are currently being made and are going to be made in the future. In much the same way as the state pension works. We can’t have an indemnity company suddenly have empty coffers, so they have a duty to ensure they assess the needs of the society to actively have the funds to cover their expenses. All of this is paid for by the membership.
However, this is where I spot a problem. There are some dentists who for what ever reason have higher indemnity costs. Whilst it always seems unclear why this is (as there is no apparent transparency in the fee structure when applied to an individual member), it is not unreasonable to consider that there might be an increased risk identified by the indemnifier. So they are basically saying there may be claims likely to be made against this person in the future. I have no problem with that in principle, but the issue comes when this person then leaves the society because the costs of indemnity have risen so high it is fundamentally unaffordable for them to keep paying.
What happens then? The costs of these future claims will be potentially met by the rest of the members who are maybe NOT doing the same sort of high risk dentistry as the member who has left. One can argue that this is a socially responsible and indeed professional manner in which a wronged patient can claim recompense. The problem occurs when there are more of the lower risk members paying for the expenses of the higher risk. Add into this situation that the societies offer ‘discretionary cover’, meaning that your claim only has the right to be considered by the society (and not actually guaranteed to be supported), then some people feel that they are paying an increasing amount of money for less than guaranteed and continued support in their time of need.
It seems to me that many of the members of the traditional membership societies are becoming increasingly worried about the inexorable rise in costs, and the discretionary nature of the support offered. I am aware of much conversation about the pros and cons of moving between the societies, and I’m also aware of the increase in membership of the Insurance based companies as a result of the concerns about this. One of the advantages of insurance based cover is the presence of a written contract, and the ability to make a complaint to the Insurance Ombudsman, which doesn’t exist with the discretionary membership. In addition, the insurance companies are also heavily regulated by the likes of the Financial Services Authority; the traditional indemnifiers however seem to have no regulator at all. The counter to this argument is that with discretionary cover the traditional indemnifiers can cover those who are not indeed members at the time of a claim, and for the benefit of the profession. I can recall this publically happening at some point in the past, and if I am not mistaken it was a human rights issue that became clarified as a result. However, just how many times has the discretionary cover been used in that manner, and not just to refuse cover?
The way I see it, we will reach a tipping point if something is not done soon to clarify more robustly the stance of the traditional indemnifiers, especially where their discretionary powers are concerned. I want to know that I have the support of the indemnifier in assisting me in my time of need, and not that at some point they decide to pull the plug due to a disagreement or just because it is easier and cheaper to settle (despite it being morally, ethically, and clinically wrong to do so). Does writing a blog of this nature give them grounds to refuse cover? Your guess is as good as mine since there is no real published criteria to know where you actually stand.
I can see there becoming a tipping point at some time in the future where all the good clients of the protection societies are no longer willing to put up with the uncertainty and the lack of transparency about the decisions made about any individuals’ costs and especially the discretionary element of support. These clients will leave, and since it is a requirement to have appropriate indemnity, there will be no shortage of new style companies happy to disrupt the market place and offer an alternative.
For example, what if the indemnifier needed a million pounds to cover its expenses and it had 10,000 clients? The cost per client is obviously £100 per client. But what if this indemnifier then starts to haemorrhage clients until it only has 1000? The cost per client is then £1000. These remaining clients are not necessarily going to be the high risk ones either, as it’s probably the case that those higher risk clients will have changed society much sooner in order to keep their costs down.
This is probably a gross oversimplification, and I’d actually welcome someone putting me right over this, especially from any of the defence societies. However, fundamentally what I see is an ever increasing demand on the resources of these societies, with a potentially decreasing number of members footing the bill, and those members not actually knowing if they will be fully supported by the society due to the discretionary nature of the membership. This is a prime situation for a tipping point to occur that changes significantly the whole model this operates under. This might be practitioners leaving, or it might be a re-evaluation of the business model to take things into account. However it is not something that can remain the unchanged as it appears to me unsustainable in the long term.
Before anyone says this couldn’t happen as the societies are so big and have so many customers, all I have to remind you of is Kodak not identifying the digital camera revolution, Encyclopaedia Britannica not recognising the threat of the internet, and finally the inexorable rise of Uber in its disruption of how we utilise taxis.
All indemnifiers are also reliant on the need for legal cases to continue. By this I mean there is a symbiotic relationship between the defence and prosecution of dental cases, as without one side the other cant really exist the in the same way. Once a case is begun, then costs accumulate on both sides, and the legal profession feeds from this accordingly. These adversarial sides become dependent on one another, and in particular the defence side of negligence does not necessarily work under a no-win, no-fee basis in my experience and gets paid regardless of winning or losing (by our indemnifiers). Cynically, one would say it is therefore in the financial interests of those in the legal profession to have the current highly litigious situation in dentistry to continue, because there appears to be no shortage of work for them. The practice of dentistry becomes the raison d’etre for the existence of both the societies and those legal firms feeding it until we do something to stop it.
There may be protests from the indemnifiers of the tome of this blog; certainly I have taken no account of some of the truly awful issues that result in harm befalling patients by some practitioners. I am definitely of the opinion that we as a profession most certainly still need to put our house in order, and there is probably no room within it for some of the practices that some of our colleagues routinely feel are acceptable. However, unless you are part of the solution, then you are actually part of the problem, and I feel that there should be much more clarity evident in the world of indemnity, so that the profession can practice with the confidence that our patients need us to have when caring from them.
Otherwise, what’s the point in us continuing to serve our patients? That may well create a further tipping point…..of no one in the profession left to care.
Image credit - Guiseppe Milo under CC licence - not modified.
Last Monday 14th August 2017, I had another meeting with Jonathan Green (Head of FtP) and Matthew Hill (Head of GDC Strategy).
It was a no holds barred meeting and I was free to ask any questions. I wasn't locked in dungeons under 37 Wimpole Street at any point!
Here is the agenda of the 90-minute meeting, along with the GDC answers in blue.
It raises some important considerations about what we need to do as a Profession. I think we need to think about the answers and discuss a strategy for the Profession.
At some point during your professional career you will no doubt have been faced with an unpleasant patient; you may have been unlucky enough to come across a few. However, in what circumstances can you refuse to treat them?
Alternatively, what if a patient refuses to be treated by you or someone in your practice? What if the reasons for such a request are or could be discriminatory?
At a time when instances of every day discrimination and sexism are rife in all walks of life, it is not hard to see why some dentists and doctors feel like they are walking on egg shells. This week BBC Radio 4 Today Show presenter John Humphrys, asked the tennis player Johanna Konta a series of questions regarding her origin, culminating in, ‘So, what are you?’; questioning whether she was truly British. Johanna Konta has represented Great Britain at the Olympics and the Fed Cup. She has been a UK citizen for almost half her life. Chancellor Philip Hammond, has been criticised for allegedly saying driving a train is so easy 'even a woman can do it'. We’ve even seen uproar over the “sex” of a fictional character with two hearts.
But is there ever a situation where someone’s nationality or sex can affect their ability to perform their role?
Refusing to treat a patient
With so much regulation in place and a fear of patient complaints being escalated to the GDC, you may feel as if patients hold all the power. However, there are situations when you are entitled to refuse to treat a patient. Below are 6 legitimate reasons for refusing to provide treatment:
1. When a patient questions your clinical judgment. If a patient questions your clinical judgment or expresses a lack of confidence in your abilities, we would recommend you stop treatment immediately. At this point explain to the patient that it is important they have confidence in you as their treating physician and that to carry on treating them would be unethical. Try not to take this personally, and certainly avoid arguing the toss with the patient; this could result in a complaint against you. Everyone has different views and personalities and whilst you and the patient may clash, there will no doubt be another dentist who gels with the patient.
2. When there has been an ‘act of God’. If a dentist is hospitalised or suspended, or there is an emergency, such as a flood in your practice, it will be impossible for you treat the patient at that time. Keep the patient updated and make alternative arrangements where possible, otherwise the patient may go elsewhere.
3. When a patient fails to pay a bill or continuously misses appointments. If a patient fails to pay bills or continuously misses appointments, then you should give them a warning that this conduct will not be accepted and future similar conduct will result in them being removed from the Practice. Put information on your website regarding the circumstances in which treatment may be withdrawn.
4. When there is a conflict of interest. Whilst, this is unlikely to arise that often in a dental practice, there may be circumstances, for example where a patient is pursuing a claim against your colleague, where it would not be appropriate for you to treat. If the patient comes to you and you know about the claim, there could be a perceived conflict and it would be better not to treat the patient at all. However, if you are part way through treatment, you should highlight to the patient that you are aware of a potential conflict and let the patient decide whether they wish for you to continue treatment.
5. When a patient is violent or abusive. If a patient is violent, or even threatens violence, to you or any of your staff, depending on how serious this is you may wish to call the police. In terms of treating the patient in the future, you should assess the situation and why the matter escalated. For example, was it honest misunderstanding that has got out of control, or has the patient been violent for no reason? Do you think the patient can be managed in the future without putting your staff members at risk. The more serious the incident the more justification you will have for refusing treatment. Write to the patient and confirm that you will no longer be treating them and, if you are an NHS practice, contact the NHS Commissioning Board.
6. When a patient has complained. You should avoid the temptation to refuse treatment in these circumstances as it could result in a further complaint. However, if the complaint is about your clinical treatment or is shown to be entirely unjustified or malicious you can follow the process in point 1 above.
Patient’s freedom of choice
Generally speaking, a patient has the right to choose which dentist provides them with treatment, just as you are entitled to choose who supplies your materials for your practice. Therefore if a patient requests a specific dentist to provide treatment you should seek to accommodate that request.
What if the request to be treated by a specific dentist is racially motivated? You have no obligation to treat a patient in those circumstances except in an emergency. Bear in mind, the patient also has to consent to treatment, and they can refuse treatment on bigotry grounds if they wish.
However, there is a grey area in all this. What if a female patient requests a female dentist on religious grounds? Or a Polish patient requests a Polish dentist as a result of not speaking English? In these circumstances, we would recommend accommodating such requests where possible, to prevent allegations of discrimination against you.
You should create a practice policy for dealing with such requests so staff know what to do and can identify when such requests might be reasonable.
Laura Pearce, Senior Solicitor
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.
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.
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.
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
There is a feeling amongst dentists on forums such as this that the GDC has become too heavy handed when dealing with alleged misconduct cases.
In March 2017 alone, of the 29 misconduct Fitness to Practice cases heard by the GDC, 9 dental professionals were suspended, 4 had conditions placed on them, 4 were erased and 2 were reprimanded. There were also 4 cases with the outcome still pending. That means of the 25 cases concluded 76% of dental professionals were found to have committed misconduct.
Compare this with the GMC figures for the same month, there were only 6 misconduct Fitness to Practice cases of which only 2 had findings of impairment made against the doctor. Considering there are more doctors than dental professionals registered to practice in the UK, the difference is significant.
In November 2016 the GDC introduced Case Examiners in an attempt to help streamline the Fitness to Practice process. Their role is to consider whether a referral should be made to the Practice Committee. Given this new stage is still in its infancy, we are yet to see what impact this will have on misconduct cases within the dental profession. However, it is hoped that as cases will be considered by a lay member and a dental professional, a more proactive approach will be taken at an early stage. This is the approach taken by the GMC and the low numbers of misconduct cases being referred for hearings could be a positive sign of things to come.
Unfortunately there are rarely any consequences for patients who make spurious complaints which are not upheld; however, the same cannot be said for the professional. The time, stress and expense of misconduct hearings can have a devastating effect. Many feel that their stress is exacerbated by an unsympathetic and heavy handed regulator.
If you are facing a misconduct investigation, it will no doubt be a worrying period for you. It is important to understand from the outset what legal test the GDC will be applying. This way you can properly prepare your defence and gather evidence from an early stage. Proper presentation at the start may well ensure that the Case Examiner determines that a case should be closed at an early stage. If the case should proceed to a hearing you will be armed with the necessary knowledge to put forward the best possible defence, which in turn could help with any later appeals to the High Court.
What test does the Professional Conduct Committee (PCC) apply when assessing Fitness to Practice?
The test the PCC applies is twofold;
1. Has misconduct taken place?
2. Is the dentist’s fitness to practice impaired?
Whether or not misconduct has occurred will depend on the allegations raised and the evidence produced and as such this element of the test will be fact sensitive. The PCC must decide whether ‘it is more likely than not’ that the allegations took place, which unfortunately is a relatively low threshold. However, even if any of the allegations are found to be proved, case law has established that the conduct must be ‘serious’ before moving to the next stage of the test.
Tip. Is this a potential area that can be challenged? Are you able to obtain evidence or refer to previous cases that show the misconduct is not serious and therefore no further action should be taken?
When considering if a dentist’s fitness to practice is impaired, the PCC should look at the dentist’s current fitness to practice? It will not be sufficient to show historic impairment, unless the misconduct is so grave as to warrant it.
It should be noted that impairment is not assessed against any established standards of proof; it is a matter of judgment for the PCC committee. However, a failure to comply with the fundamental standards laid out in the ‘Standards for Dental Professionals’ is likely to lead to a finding of impairment.
Tip. Even if you do not accept the allegations against you, you should consider what actions you can undertake to show your fitness to practice is not impaired. For example, attending training courses, amending your policies and procedures, or being mentored/shadowing another dental professional. This should not be seen as an admission of guilt but a recognition that professionals can always seek to improve.
If impairment is found, the PCC will go on to decide which of the following sanctions to impose:
In deciding what sanctions to impose, the PCC must apply the principle of proportionality by weighing the interests of the public against those of the dentist.
Tip. This is where you need to put forward your mitigating circumstances so as to reduce the sanction imposed. Also you are allowed to suggest out what sanctions should be imposed and if you are able to give the PCC well thought-out sanctions bearing in mind the allegations, this could prevent erasure or suspension.
Stage 1 – Case Assessment
When the GDC receives a complaint, it first considers if it is the correct body to deal with it. If so, it will obtain more information from the complainant to assess whether one of the ‘Standards for Dental Professionals’ may have been breached. It is important to note that the Case Assessors do not make any findings of fact.
You will be asked to provide:
1. Evidence of your indemnity insurance cover;
2. Details of your current employers/anyone you are contracted to provide services to;
3. If the complaint is about dental treatment, the patient’s medical records.
Tip. At this stage do not provide any further information than the above. Whilst it will be tempting to explain what has happened, at this stage the GDC has not set out what the allegations are against you, so you do not know what you are responding to. Any statement given could later be used against you.
Stage 2 – Case Examiner
If the Case Assessors consider a dentist’s fitness to practice may be impaired the case is referred to the Case Examiners; the case will be considered by one lay person and one professional. At this stage you will be sent details of the specific allegations against you and it is at this stage you will be asked to respond. The Case Examiners are not making findings of fact. Their role is to consider whether there is sufficient information to make a referral to the Practice Committee.
Tip 1. If the allegations are not clear, seek clarification. If evidence is referred to, ask for copies of that evidence.
Tip 2. Whilst the Case Examiners are not determining the case, if you can show there was no misconduct, we would recommend responding fully to the allegations and providing evidence to support your assertions. However, if you think there may be a case against you on the evidence received think very carefully before making any admissions at this early stage. It may well be worth seeing the extent of the case against you before admitting any wrong doing.
Stage 3 – Hearing
Should the case progress to a hearing then you will need to fully prepare for the same bearing in mind the test set out above. Consider:
· What evidence do you need to rebut the allegations?
· Are you able to show the misconduct is not serious?
· What have you done to show your fitness is not impaired?
· Will other dentists/patients provide statements as to your character?
· What mitigating circumstances are there?
· What sanctions should be imposed?
Tip. If you are not happy with the GDC’s decision you have the right to appeal to the High Court within 28 days. We set out the circumstances when you can appeal in Issue 2 of our dental bulletin.
If you need advice on a current Fitness to Practice investigation or appealing a decision of the GDC, please contact Laura Pearce on 0207 388 1658 or by email at
I remember thinking that when Margaret Thatcher said those words, written by speechwriter John O’Sullivan, that it was thoughtful of a politician to mention dentists. Thoughtful and unbelievable.
The use of the ‘Epistrophe’, the rhetorical tool of repeating of a word or phrase at the end of each sentence was used to echo Churchill’s ‘Anaphora’ of “We shall fight them etc”. Rhetoric has given way to the sound bite of, “The NHS is safe in our hands” which has always been Fake News or as my schoolteachers would have called it “Lies”.
The majority of politicians when given the opportunity have repeated the “safe hands” mantra. I wondered if it was a stock phrase they taught you at MP elocution school along with, “Hard working families” and "Education, education, education”.
“La-La Land” has been defined as “a euphoric dreamlike mental state detached from the harsher realities of life”. Few dentist fall into that category but I believe there are many who may hope: “To think that things that are completely impossible might happen, rather than understanding how things really are”.
A definition of madness is to do the same thing again and again hoping for a different result. Since Mrs Thatcher, governments of every hue have sought to undermine the dental profession by repeated assaults and insults both specific and general.
In the UK, like the majority of countries, most routine dentistry is provided by small businesses with the owners taking the financial risk of failure but also any profits from success. For years there was a 3-way set up, patient, dentist and NHS; the first paid the second the fees that were decided by the third that also set the rules. There was the possibility of competition, expansion and genuine entrepreneurship within the system. 2006 changed much of that.
The 2015 saw the Tories return to government free of their Lib-Dem coalition partners with talk of SMEs (Small and medium sized enterprises) being the “lifeblood of the economy”. Promises were made of more investment in super-fast broadband for entrepreneurs, a review of benefits for the self-employed and a trebling for the start-up loans programme.
A commitment was made by Prime Minister David Cameron (remember him?) to, “slash red tape” and to change employment laws to enable greater competition. One promise that was kept was for referendum, an excuse for any and all procrastination for the foreseeable future.
Cameron not only promised “the NHS is safe in our hands”, but also, “there will be no top down re-organisation” before letting Andrew Lansley set about things like a drunken bull manoeuvring a JCB in china shop.
The (genuine) news that the Inland Revenue’s “Make Tax Digital” (MTD) plans will mean all self employed individuals and small businesses having to make some form of tax return and payment on a quarterly basis hardly bodes well for dentists looking to reduce their costs. It will involve far more time and increase accountancy fees.
Changes in Business Rates will have a profound effect on many businesses, with London rates set to rise by 35.5% over the next two years. The fact is these changes should be made every 5 years but were delayed from 2015 so as not to interfere (i.e. prove unpopular) with the general election is further evidence of interference with the truth. Mrs May quickly promised help, then admitted there is no more money.
For years the GDC said that they could not make any changes and an act of parliament was required. This happened in late 2015, I am not sure that anyone has felt the benefits of “a more streamlined complaints system with timelier decisions, and with appropriate safeguards for both patients and dental professionals”.
Finally on the Fake News front that (new) NHS contract. As the BDA says, “The 2006 dental contract is not fit for purpose. It rewards dentists for hitting government targets for treatment and repair, not for improving their patients’ oral health.
In the 2010 general election, the opposition Conservative manifesto pledged a new dentistry contract. The coalition agreement – struck between the Conservatives and Liberal Democrats – pledged the contract would be introduced by the next election, in 2015.
In August 2016 Lord Prior said, “I believe that we expect the new contract to be introduced fully in 2018.”
And lawyer, John Grant ,wrote after yet another debate on the proposed contract.
“At some point there will be a new contract, but at present no one knows at all what this is going to look like.
When it does come in the government – no matter which party is in power – is going to want an awful lot more from dentists and in return is going to pay significantly less.”
If you think things can only get better (see 1997) then you are not only living in La-La Land but still expecting it to win the Best Film Oscar.
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
A number of new features and opportunities on GDPUK in 2017. Get in touch if you have any questions. Contact details below.
We have had a number of satisfied advertisers recently, which pleases us immensely. Thanks to all our customers for their continued use of the site and all the new clients we have taken on recently. We wrote about an extremely satisfied client a few weeks ago, you can read it below, their offer was extremely well received and resulted in a number of sales, which is very pleasing to hear.
Blog on a satisfied GDPUK Client.
2017 marks the 20th anniversary of GDPUK, something we have mentioned a number of times and will keep mentioning! We are close to putting together plans for a 20th anniversary Party and Conference in November and it is something that we would like as many of our members to attend as possible. Would be fantastic to celebrate with as many people as possible.
Our leaderboard banner continues to be extremely popular with our advertisers. It is 728x90px and appears at the top of all our pages as you can see above. A recent option that we added to the site, is the super leaderboard which appears in the same space as the leaderboard but is super sized - 970x90, giving you even greater brand awareness and exposure on every page of GDPUK.
Via our DFP software, our customers can actually run more than one advert at once in a given month. This means one of our customers can actually advertise two things or more at once. One of our clients MC Dental / Repairs is currently doing using this method to advertise a number of offers at once. Added value from GDPUK!
We continue to publish daily news and blogs, that get read by thousands of healthcare professionals on a weekly basis. Via our daily emails, tweets and facebook posts, we help to educate and inform our readers with the latest dental news and opinion. Something we are very proud of.
Banners are now appearing on the right hand side of the news and blogs. Considering the articles attract plenty of readers on a daily basis, it provides even more exposure for your brand.
As you can see GDPUK continues to evolve and improve, even in its 20th year! Thanks for reading.
If your best friend won’t tell you what do you do? A different problem.
“I’m feeling a little bit under the weather”. Another vague absence. Karen was good team member, a hard worker and, with the exception of a couple of days a month, punctual and reliable. The principal and the practice manager didn’t know what to do; they had tried the usual approaches mixing concern and compassion but had got nowhere.
A recent survey of 10,000 office workers has found that most one-off sickies are due to hangovers with “just hating the job” coming in second. Neither was the case with Karen, she never drank and clearly enjoyed her career.
“Alun, I wonder could you do her appraisal when you’re next visiting the practice? We’re struggling with what to do about her absences.” Sometimes a different face, voice or ear will bring results. This time was a success and I was able to get to the heart of Karen’s problem. I found her to be a sensitive soul, caring and concerned but in the horns of a dilemma.
The practice consisted of six surgeries with one principal, four full and part-time associates and part-time three hygienists. They operated an egalitarian system where, in order to ensure their were no opportunities for favourites or cliques, the nurses moved around on what appeared to be a fairly complicated rota. This way they worked with associates, principal, hygienists, did their turn in the LDU and had a share of being a “float”.
It turned out that Karen’s absences always coincided with her being due to work with Pam, one of the associates. Pam was experienced, had worked in a variety of practices, hospital departments and had also had a spell working in the community. It was acknowledged she could be a bit brusque with both patients and nurses, but her work was good, she ran to time and grossed well. She was recently divorced, had no children and lived alone.
I managed to get to the heart of things when I met Karen. She was under the impression that the visiting Business Coach was there to see her for some sort of disciplinary matter but I soon disabused her of this and she relaxed. We proceeded with her appraisal, which went well, and having gained her confidence I introduced the matter of her absences. She eventually shared with me the fact that Pam suffered from what used to be labelled as “B.O.” - in other words she was smelly. All the nurses were aware of it but for some reason Karen was particularly sensitive and had needed to run to the toilet to be sick the last time that she worked with Pam. She had now got herself into a real state in case the same thing happened again. She had started to believe that she was the one with the problem and hence the absences.
When I asked the principal and the practice manager they both admitted to having noticed Pam’s odour but had presumed that it was a rare event. Bromhidrosis or body odour, is a common phenomenon in post-pubertal individuals and can rarely become pathologic if it interferes with the life of the individual concerned.
So far, so good we had a diagnosis, but how to treat the problem?
As I was there, and Pam was there that day, it was felt that there would be less of an embarrassment if I were to broach the subject with her. Fine I thought, the client is always right and I have to earn my corn. It wasn’t something that I had done before and I am all for new experiences, if it went badly then I would get the blame and could walk away for another three months.
We met after work and I gave myself 15 minutes to achieve the objectives which were, to point out to Pam as subtly but effectively that there had been comments, to find out if she realised that there might be a problem and then work out a way to deal with it.
Her reaction, thankfully, was not one of denial or to attempt to blame someone for “sneaking” on her. She was horrified and visibly upset. It turned out that she had rather “let herself go” (her words) following her divorce and some days it was all she could do to drag herself out of bed and often didn’t get round to showering or bathing. She wore a tunic at work but wore it over clothes and we agreed that a change to scrubs might help. Most, but not all, of the clinicians wore them and as they were laundered by the practice it removed any home washing. An easier conversation than I feared with, hopefully, a positive result.
When I checked in with the practice owner during our regular coaching calls Pam had obviously had a bit of an awakening. The odour problem had gone and she had taken ownership of the problem by taking the time to ask each nurse at the start of her next session with them to please tell her if there was any recurrence.
Recently, I have been mulling over issues of personal conduct. This has led me to the specific topic of this blog which is sexual misconduct or otherwise inappropriate sexual behaviour. It looks at historic and current cases and I hope is just as interesting and thought-provoking for you readers. Before anyone accuses me of misandry, I will state that I did not come across any examples of ‘females behaving badly’.
From discussions with colleagues and on other platforms it appears that the reason why the GDC have a mandate over personal conduct is not well understood. The Standards relevant to personal conduct and behaviour are:
There are some difficulties here that need consideration:
From a legal point of view case law dictates that surgeons, dentists, journalists, headmasters and even professional footballers are role models whereby ‘higher standards of conduct can rightly be expected by the public’. This statement came about as a result of an unfaithful footballer involved in a threesome wanting to keep it out of the media believe it or not. I’m not sure that Lord Woolf, when he made his judgement anticipated that today’s role models would also include reality TV stars who happily have sex on live TV but there we go.
The Indicative Outcomes Guidance (IOG) is always worth a read to understand how sanctions are arrived at and the reasoning behind it. The purpose of a sanction is to both protect the public and the wider public interest. What may on the face of it seem draconian and intrusive to a registrant’s right to a private life actually stems from GDC working extremely hard to maintain the reputation of and public confidence in the profession and they actually deserve credit for this. Poor behaviour, even if it does not involve any patients has the potential to seriously undermine public confidence in the profession and bring the profession into disrepute. With regard to sexual misconduct the IOG says:
So essentially, sexual misconduct allegations are likely to progress to a full hearing.
Sexual misconduct is essentially an abuse of power:
With all that in mind, here are some relevant case examples:
Dr AB kissed a dental nurse on the back of the neck without consent, and this was determined to be sexually motivated. Dr AB denied the charges, gave inconsistent evidence, maintained that his actions had simply been misunderstood, accused the nurse of being racist and of wanting money from him as well as thinking he would just turn up and have his side of the story accepted as the truth. This didn’t impress the panel and he was suspended with immediate effect for 12 months to hopefully give him enough time to have a really good think about all of this. The Committee felt that the registrant lacked any insight, and pretty much knocked out all the defence submissions. A couple of interesting lines from the determination are:
“The Committee was also aware that you are older than Dental Nurse A and in a position of professional power over her………
It [the committee] considered that dental nurses and colleagues do form part of the public and are included in the considerations of protecting the public.”
Therefore, professional boundaries do not just apply to Principals and patients. Associates must also maintain professional boundaries with their supporting colleagues.
Mr CD was sentenced to three years imprisonment for sexual assault on a female; a conviction that was upheld on appeal. The events surrounding the assault were the heads of charge and the FtP hearing considered both this misconduct and subsequent criminal conviction. Misconduct was easily established, and the committee rejected the sanction of a suspension on the basis of no apology or demonstrable remorse from Mr CD and he was erased. Placing your penis toward a patient’s mouth without their consent is possibly the most serious breach of professional boundaries, however it is interesting in this case that the sanction of erasure is automatically 5 years, which obviously exceeds the duration of his criminal sentence. Whether he ought to be allowed the chance to even reapply to the register is debatable.
Dr EF accepted a caution for kerb crawling but failed to report this to the GDC. The panel disregarded the difficult personal circumstances reportedly faced by this registrant at the time of the incident as they did not mitigate against the seriousness of the conduct. They also said:
“The Committee noted that the matters before it were not clinical in nature. It noted that there had been no harm to patients. However, it bore in mind that its primary function is not only to protect patients but also to take account of the wider public interest, which includes maintaining confidence in the dental profession and the GDC as a regulator, and upholding proper standards of behaviour.”
Dr EF was given a reprimand which will be on the public register for 12 months and as it will form part of the fitness to practise history it will be always be disclosable to any future employer and authorities in other jurisdictions.
A consensual sexual relationship with a patient can cost you a 3-month suspension as Dr GH found out not to mention on-going negative PR with the story still being available on Google many years later. Dr IJ also knows only too well the damage that can be done after being reported to the GDC by a disgruntled ex-husband of a patient who lied in his witness statement about having seen ‘explicit’ text messages such that the case progressed to a full hearing before it was concluded with no case to answer. Press stories with a ‘guilty as charged’ tone to them relating to his case pre-hearing are also still available online.
Are we beginning to see the problem with reputational damage to the profession yet? The press can quite easily defame registrants with their reporting of potentially salacious cases before and during a hearing, and those pages will remain online even when a registrant is vindicated. For this reason, relationships with patients are just somewhere no dental professional should ever go, aside from the fact that it is seen as being totally unprofessional and a serious abuse of position. If you find you are heading down the route of a genuine relationship with a patient for goodness sake find them another dentist PDQ.
Moving on from relationships with patients, another potential danger zone is with employees and students. When they rely on you to pay their wages or pass their finals there is a clear imbalance of power. If you have a fling with an employee be prepared for the risk of sexual harassment claims and grievances forever more. University lecturers may be accused of offering grades for sexual favours or bias (either positive or negative). Having a relationship with a student is often considered a gross misconduct offence these days. If you are a partner and you start fooling round with the staff on the quiet prepare for a total breakdown in trust. It is just best not to go there and if you don’t believe me or feel I am being overly alarmist, ask any employment lawyer about historic compensations awards for harassment claims spanning back over years and years and partnership disputes.
At the time of writing a university lecturer is awaiting a hearing facing allegations of engaging in sexual activity in his office, and then being dishonest about it during the University investigation. We will have to wait to see if this would have made it to the GDC save for the dishonesty aspect.
For those who think that a fumble on the dental chair with one of the nurses is acceptable I am sorry to disappoint you but it is not, and it never was.
In the Mr EF case part of the charges included:
7. Whilst working with Miss LM, you had a consensual sexual relationship during the course of which on one or more occasions on Practice premises during surgery hours or shortly thereafter you:
|(a) exposed yourself wearing a thong;||Admitted and proved|
|(b) exposed your genitals;||Admitted and proved|
|(c) engaged in oral sex;||Admitted and proved|
|d) had sexual intercourse.||Admitted and proved|
8. Your conduct as above at 7 was:
|(a) unprofessional;||Admitted and proved|
|(b) inappropriate;||Admitted and proved|
The Committee found Head 8(c) proved because, by your admissions, other people were present in the practice and therefore you put yourself at risk of being discovered."
The determination also says:
The Committee has found that you behaved inappropriately and unprofessionally towards four dental nurses who worked with you, and that your behaviour towards three of them was indecent. As a partner in the practice, working directly with these dental nurses, you were in a position of authority over them – which you abused. Furthermore you conducted sexual relations with Miss B in the practice, at times when you could have been discovered.
Mr EF was erased for this and whole host of other sexual misconduct misdemeanours including touching and making inappropriate comments to other nurses.
So even though many feel that consenting adults are entitled to some degree of privacy, the simple fact that they might be discovered in the act by a member of the public is enough to take things to the level of indecency. Oh dear. This also makes it clear that consent has absolutely no relevance in excusing occurrences of sexual misconduct or otherwise inappropriate sexual behaviour.
Wherever there is a hierarchical relationship or an imbalance of power there is potential for actual abuse or allegation of abuse of power. An allegation is all it takes, and I know of 2 instances where registrants have faced criminal charges based on false allegations.
Personal conduct involving sexual behaviour has an astonishing potential to bring out the widest range of opinion on what is acceptable or not if the recent debates on Facebook are anything to go by! I am sure we all know of successful relationships between dentists and employees, lecturers and students, even dentists and former patients. But this is really an area in which to tread extremely carefully as if you get it wrong the consequences are huge.
Discussions on GDPUK forum often stimulate my thinking and my thoughts in this blog are for the nation to consider in 2017. This blog uses dentistry for some of its examples, but is about the future of the NHS, and asks if the marketplace could help development of a different type of health care system, funded not just centrally. I have tried to keep this a short piece, so I have abbreviated the steps for my intelligent readers.
Advertising opportunities are now available on GDPUK in 2017.
How can you use GDPUK to reach your target audience?
Welcome to our latest blog. Below are 5 reasons that we believe make GDPUK a unique place to market your business and reach your target audience of dentists. G.D.P.U.K.
G = Growing
Established in 1997, GDPUK continues to grow
20 years of hosting dental discussion chat and opinion
The home of dental opinion in the UK
Just under 10,000 members, who are all part of the profession
Since beginning of 2014, we have had 3500 new members, the site is constantly growing.
Approx 1,000 different people contribute to our forum discussions in a calendar year.
In 2016, we are averaging over 4,000 unique visitors a month to the site.
GDPUK is the home of dental opinion and information.
The site is proud that it gives a medium for dentists to discuss dentistry in the UK and give their opinion of what matters to them.
The site can be controversial but we see that as a good thing. We exist because the content in our news, blogs and forum pages is interesting to read. We continue to attract an audience.
This tradition continued at our conference in November 2016 and our 20th anniversary celebrations in 2017.
Publisher of Daily Dental News and Blogs
Large audience follow our news and blogs
GDPUK has a news editor, plus a number of paid content writers
News stories receive thousands of readers a week
A range of blogs are published weekly, full of opinion, humour and insight.
Our news is published instantly, so the site carries the latest stories, no monthly deadlines, no print nor post delays….
@DentistGoneBadd our comedy blogger attracts around 5,000 readers per week, 100,000 in the last twelve months.
Reach your target audience
GDPUK offers unique advertising spaces to get in front of your target audience
Dentists are reading our site every day of the week.
The site is like a dental exhibition every day!
Feature on our daily digest email, which gets sent 3 times a day, every day
Ask us about what we can offer for a 12 month marketing campaign.
K = Kinship
Become Part of the GDPUK Family
We are a small, close knit group and business at GDPUK
Work with us and we can help any problems or issues and come back to you instantly
We can provide full accountability on everything and we are always available to speak or help.
GDPUK loves to build close relationships, with our users, colleagues and also our customers who help to keep the site running.
Thanks for reading.