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JUL
03
0

Pimlico Plumbers case; a spanner in the works for self-employment?

db69_1 Employed or self -employed?

On 13th June 2018 the Supreme Court, the highest court in the UK, gave its long awaited judgment in the Pimlico Plumbers case.

Mr Smith was a self-employed plumber who had been dismissed after six years of service. He claimed he was a worker and therefore entitled to certain rights such as holiday pay.  The court found in his favour despite Mr Smith being registered as self-employed and benefiting from this status. He claimed tax relief on a home office and had his wife on the payroll of his company.

Sound familiar? Many associates are labelled as self-employed and benefit from this status for tax purposes. However, could they challenge their status in the employment tribunal and also benefit from basic employment rights?

In recent years the courts have been awash with cases in respect of worker status. With the rise of the gig economy, companies are taking advantage of those who want a more flexible way to work by offering ‘self-employed’ contracts. But is this being done at the expense of basic employment rights?

It is often the most vulnerable that are affected by the imbalance of power in such relationships. A prime example of this is in relation to a case involving a City Sprint courier. The courier took the firm to the employment tribunal claiming they were a worker and won. However, instead of changing all contracts to worker status the firm changed the contracts 'to simplify the language in these, further clarifying the rights and flexibilities available to self-employed couriers who provide their services to us'. It should be noted that in order to enforce worker rights, a claimant will need to issue a claim at the tribunal. This can involve time and money, which many in lower paid jobs do not have.

There has been a further case in the employment tribunal against Hermes, in which their couriers have also been found to be workers. Tim Roache, GMB general secretary, said: “This is yet another ruling that shows the gig economy for what it is – old fashioned exploitation under a shiny new facade. Bosses can’t just pick and choose which laws to obey"

Pimlico Plumbers Decision

Turning now to the case in hand, however, in which Mr Smith was paid highly for the work he completed, he was also able to add a 20% mark up on materials which he got for discount via the company, and he had a great deal of flexibility in his role. Is this really a vulnerable individual being taken advantage of?

Either way the Supreme Court has determined that Mr Smith was a worker and as such should benefit from the rights associated with this. As a result of another recent decision on worker status that we reported on, his claim for holiday pay could now date back to the start of his employment.

The two main issues for the court to determine were whether Mr Smith had to perform the services personally and whether Pimlico was Mr Smith’s client or customer.

Personal Service

If a person has to personally perform the services under the contract it is likely that they will be deemed a worker. Here the court looked at Mr Smith’s right to send a substitute to determine if he had to personally perform the services.

The employment tribunal held that whilst Mr Smith could send a substitute for any reason such as illness, holiday or other reason, he could only send another Pimlico plumber. This was seen as akin to employees swapping shifts. As a result of this limitation the Supreme Court held Mr Smith had to personally perform the services.

In assicoate contracts, there will often be a right to send a locum. However, is this right fettered? Does the Practice get the final say as to who can undertake the locum role? Or do they merely require a minimum qualification, DBS check and performer number? This could have a bearing on whether the associate is a worker or self-employed. 

Business Undertaking

The court looked at whether Mr Smith was an independent contractor not in a relationship of subordination with the person who receives the services.

Pimlico tried to argue that they were the client of Mr Smith and he was a business in his own right. They relied on his tax return, which put his annual gross profit at £131,000, costs of materials around £53,000 and his net pre-tax profit at £48,000. The court disagreed with this for the following reasons:

  • Pimlico’s tight control of Mr Smith, including Mr Smith wearing branded clothing, driving a branded van and carrying an ID card;
  • Mr Smith’s obligations to follow administrative instructions from the control room;
  • The fact Pimlico placed a tracking device on Mr Smith’s van;
  • The severe terms as to when and how much Mr Smith would be paid (he was paid 50% of the fees paid by the customer) meant he was not economically independent.

As such the Supreme Court found that Mr Smith was not truly independent as there was an element of subordination.

Whilst many associates have clinical freedom and would not be required to wear a uniform, they do have to follow Practice policies and Practices decide the fees to be charged and when payment will be made. 

Conclusion

This case does not suddenly change the status of self-employed associates. As stated above, someone needs to challenge their status in order to be afforded the necessary employment rights; until then the status quo will continue. Even then, simply because one associate does challenge their status this will not automatically affect other associates are affected. It must be borne in mind that dental practices come in many shapes and sizes. 

However, this case is a warning for those that employ self-employed contractors of any nature. Now is the time to review contracts and ensure they are truly self-employed. If they are not, you need to take steps to protect your position as the risk to you is much greater.

If you have any questions about this article or need a contract reviewing, please feel free to contact Laura Pearce on This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce

Senior Solicitor

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SEP
28
1

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
6812 Hits
JUN
01
0

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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MAR
14
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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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8031 Hits
FEB
07
0

How to fund a legal case without breaking the bank

How to fund a legal case without breaking the bank

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

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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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Capacity; Your Duties as a Healthcare Professional

Capacity; Your Duties as a Healthcare Professional

Capacity

In our last blog we considered the importance of patient consent. One of the key elements of valid consent is the patient’s capacity to give that consent and the Mental Health Act 2005, which came into force in October 2007, deals with all issues surrounding mental capacity.

First and foremost the Act imposes a duty on all healthcare professionals to have regard to the Mental Capacity Code of Conduct. It is therefore important to read and understand this document when considering whether a patient has capacity to provide consent.

Capacity  
 
A person lacks capacity if:

  1. They have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works; and
  2. That impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.

It is very important to note that capacity is to be assessed at the time the specific decision is required. Therefore, a patient may have capacity to consent to some treatment but not to others, or may have capacity at some times but not others.

Under the Act you must assume the patient has capacity unless you can establish that they do not. And simply because a patient’s decision to refuse treatment is unreasonable does not mean they lack capacity.

Assisting Those Who May Lack Capacity

If you are unsure whether a patient does lack capacity, all practical and appropriate steps should be taken to assist the patient in making the decision before you determine they actually do lack capacity. This will mean changing the way you provide information to the patient; giving the patient all alternatives to treatment; considering whether there is a time in the day they have more understanding to make the decision.

Best Interests of the Patient

Under English Law no one is able to give consent to the examination or treatment of an adult who lacks the capacity to give consent, even parents, relatives and healthcare professionals. The exceptions to this are where there is a Lasting Power of Attorney or a court appointed deputy.

However, the Act protects healthcare professionals from civil and criminal legal liability if treatment is provided in the patient’s best interests. The Act states that you must take the following steps before acting in the patient's best interests:

  1. Consider whether the person is likely to regain capacity and if so whether the decision can wait:
  2. Involve the person as fully as possible in the decision that is being made on their behalf;
  3. As far as possible, consider:
  • the person’s past and present wishes and feelings (in particular if they have been written down).
  • any beliefs and values (eg religious, cultural or moral) that would be likely to influence the decision in question, and any other relevant factors.
  • the other factors that the person would be likely to consider if they were able to do so.

         4. As far as possible, consult other people if it is appropriate to do so and take into account their views as to what would be in the best                         interests of the person lacking capacity, especially:

  • anyone previously named by the person lacking capacity as someone to be consulted.
  • anyone engaging in caring for or interested in the person’s welfare.
  • any attorney appointed under a Lasting Power of Attorney.
  • any deputy appointed by the Court of Protection to make decisions for the person.

      5. For decisions about serious medical treatment, where there is no one appropriate other than paid staff, healthcare professionals have to              instruct an Independent Mental Capacity Adviser

      6. If the decision concerns the provision or withdrawal of life-sustaining treatment, the person making the best interests decision must not be            motivated by a desire to bring about the person’s death.

Assessing whether a patient has capacity will be a balancing act. You will also need to bear in mind your duties to treat patients with dignity. This may therefore lead to difficult situations; remember to take notes of any decisions made as this will later assist if any queries are raised.   

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Pension Auto-Enrolment; 'We're All In'

Pension Auto-Enrolment; 'We're All In'

In October 2012 a positive duty was placed on all employers to automatically enrol ‘eligible job holders’ in to a qualifying pension scheme. For most Dental Practices the relevant date for complying is likely to be early next year. If your Practice has not been given the relevant date yet, then you should expect notification imminently. A failure to comply with this duty can result in a penalty notice with a fine or enforcement action being taken against you. Enforcement action can consist of inspections being carried out on premises, which is yet another layer of bureaucracy for Dental Practices to comply with.

In this Blog we take a look at who is eligible for auto enrolment; what is a qualifying pension scheme; and what you must do to comply with the auto enrolment requirements. We also explain the continuing duty placed on employers to re-enrol eligible job holders.

Who must comply?

All UK employers must comply with the auto enrolment requirements, even if you employ just one eligible job holder. The only exception to this is if the eligible job holder is already in a qualifying pension scheme.

If you currently do not employ anyone but offer an eligible job holder a position following your relevant date, you will have an obligation to enrol them into a qualifying pension scheme from the start of their contract.  

Who is an Eligible Job Holder?

An eligible job holder is a worker who:

•       Is working under a contract;

•       Aged at least 22 and under State Retirement Age;

•       Earns at least £10,000 (in 2015/2016);

Therefore it’s not just employees who must be enrolled; it is workers, agency staff, apprentices, and could even extend to some self-employed contractors. It will also cover permanent and temporary staff and those on fixed term contracts.

Given this is a relatively new scheme, there is limited legal guidance as to what an eligible job holder, or worker, will be for the purposes of the Pensions Act 2008. However, the definition is similar to that found within the Employment Rights Act 1996. As such, we can look to existing case law to assist with the definition of a ‘worker’ under the new act.

Interestingly, in the case of The Hospital Medical Group Limited v Westwood [2012] EWCA Civ 1005 the Court of Appeal held that a GP working as a self-employed independent contractor for a private clinic was a worker.

Dr Westwood held three positions. He was contracted by the Hospital Medical Group Ltd to perform hair loss surgery for its clients; he was referred to in marketing material as ‘one of our surgeons’. He also had his own medical practice which he worked at, and finally, he had a contract to provide advice on transgender issues with another separate clinic.

When asked to determine whether he was a ‘worker’ at the HMG Ltd, the Court of Appeal held that there is a distinction between those who market their services independently to the world in general and those who are recruited by the principal to work as an integral part of the principal's operations. Whilst there was no requirement for the clinic to provide work and for Dr Westwood to accept it, the HMG Ltd had engaged Dr Westwood because of his skills. The patients were clients of the clinic not Dr Westwood. He was therefore recruited by the principal as an integral part of the principal’s operations. He was therefore considered to be a worker despite the flexibility of his role and the terms of his written contract stating he was a self-employed independent contractor.

The parallels between Dr Westwood’s position and that of most self-employed Associate dentists are clear. As such it seems extremely likely that for the purposes of pension enrolment legislation, Associate dentists will be considered an eligible job holder working under a contract. As such they will need to be included in Practice’s qualifying pension scheme, unless of course they choose to opt out. 

Practices will also need to consider their company structure when considering who is eligible for auto-enrolment. In the case of Clyde & Co LLP and another v van Winklehof [2014] UKSC 32 the Supreme Court held that a member of a Limited Liability Partnership was a ‘worker’ for the purposes of whistleblowing legislation. In this case Ms Bates van Winklehof was an equity partner receiving a profit-related element of remuneration and a guaranteed level of remuneration. Ms Bates van Winklehof made a complaint that a managing director had accepted brides. She was subsequently removed as a partner of Clyde & Co. Ms Bates Van Winklehof alleged this removal was due to a protected disclosure, a claim a worker is entitled to bring.

The Court’s reasoning for finding that Ms Bates van Winklehof was a worker was because she could not market her services for anyone other than Clyde & Co and she was an integral part of their business. 

The result of this judgment means Limited Liability Partnerships will need to enrol their members into a qualifying pension scheme if they meet the other requirements, including the minimum qualifying earnings. If the member received drawings based on the company’s profits there is a question as to whether these would be classed as ‘earnings’. Although the definition of earnings is wide and we would recommend automatically enrolling members in any event to avoid litigation.

The position would be different for partners in a traditional Partnership Agreement, as a partner cannot employ themselves and would therefore not been deemed a worker.

As most Dental Practices are Limited companies, it is worth bearing in mind that a Director of a company is a worker only if he is also employed by the company under a contract of employment and there is at least one other person employed by the same company under a contract of employment.

Exceptions

There are some exceptions to the requirement to auto enrolling eligible job holders and these are:

•       Job holders in their notice period within six weeks of the enrolment date;

•       Job holders who have cancelled their membership after being contractually enrolled;

•       Job holders who are receiving a benefit from a lifetime allowance;

•       Job holders who have received a winding up lump sum.

What is a Qualifying Pension Scheme?

A qualifying pension scheme is an occupational or personal pension scheme or a registered pension scheme that satisfies the quality requirements. You should talk to your current or proposed pension provider to get advice on this or you can find out further information here.

The Government’s ‘NEST’ scheme is an automatic enrolment scheme, as is the NHS pension scheme. However, if the eligible job holder is not able to register in the NHS pension scheme then employers are under an obligation to find another qualifying pension scheme for them. An example of this would be someone who has retired, but later decides to return to work. If they are an eligible job holder still they will need to be enrolled into a qualifying pension scheme.  

Non-Eligible Job Holders and Entitled Workers

A non-eligible job holder is:

•       Aged between 16 and 21 or State Retirement Age and 74 and earnings in excess of £10,000; OR

•       Aged between 16 and 74 with earnings between £5,824 and £10,000

Although they are not eligible for auto-enrolment, they must be made aware of the scheme and have the right to opt-in. If a non-eligible job holder opts into a qualify pension scheme the employer must make the minimum pension contribution, which at present is 2% of which the employer pays 1%.

Finally, there are entitled workers who are:

•          Aged between 16  and 74 and has earnings under £5,824

Similarly, these workers must be made aware of the pension scheme and their right to join. However, there is no obligation for an employer to make the minimum contributions for this class of worker.

What Next?

Once a practice owner is informed of their relevant staging date they will need to:

·         Find an appropriate qualifying pension scheme;

·         Provide workers with information about the pension auto enrolment before it takes place; and

·         Enrol any eligible job holder into a qualifying pension scheme if they do not opt out.

To find your relevant staging date, click on this link.

It has been suggested that the process can take up to 12 months to complete so we recommend preparing early.

You need to write to employees within 6 weeks of the staging date. For an example letter to send to eligible job holders and an opt out form, click on this link.

Ongoing Duty

There is an ongoing duty to auto enrol. Even after your staging date has passed you will need to be aware of the following re-enrolment dates:

  • As soon as a job holder becomes eligible the employer must auto enrol. You have one month to make the necessary arrangements;
  • After three years the employer must auto enrol any job holders who previously opted out;
  • If a scheme no longer qualifies as a relevant scheme the employer must enrol the job holder into a relevant scheme.

Employment Protection Safeguards

The Pensions Act contains specific duties for employers to safeguard their workers’ rights in connection with auto-enrolment. It should be noted that these safeguards apply regardless of whether you have reached your staging date yet, and will apply to current and potential job holders. Below is a brief outline of the employment protection safeguards currently in place; a more detailed look at these can be found here.

Prohibited Recruitment Conduct. Employers must not ask questions or make statements as part of the recruitment process that indicate that an individual's application may depend on whether or not they opt out of auto-enrolment. This is enforced by the Pensions Regulator; it does not give rise to a separate claim in the Employment Tribunal by the individual.

Inducements. This is any action which has the sole or main purpose of inducing a job holder to either opt out or leave a pension scheme, or inducing an entitled worker to leave a pension scheme. An example of this would be re-negotiating contractual terms at a lesser rate if the sole or main purpose is to take into account the cost of implementing pension auto-enrolment for that individual. Again this is enforced by the Pensions Regulator; it does not give rise to a separate claim by the individual.

Right not to Suffer a Detriment.  A worker has the right not to suffer a detriment by their employer on the grounds that:

  • any action was taken, or was proposed to be taken, with a view to enforcing a requirement under the auto-enrolment regime in favour of the worker; or
  • the employer was prosecuted for an offence under section 45 of the PA 2008 as a result of action taken for the purpose of enforcing a requirement of the auto-enrolment regime in favour of the worker; or
  • any requirement of the auto-enrolment regime applies to the worker, or will or might apply.

If a worker does suffer a detriment then this will give rise to a claim that can be pursued in the Employment Tribunal. As above, re-negotiating terms could be seen as detrimental treatment. Alternatively, offering new workers lower rates to take into account the direct cost of pension auto-enrolment for that individual could be seen as a detriment.

The situation may be different if pension auto enrolment causes your Practice financial hardship; this could potentially be seen as a valid reason to re-negotiate contracts. However, this will be fact sensitive depending on the circumstances of your business, so if you are planning to take direct action then you should seek specific legal advice.  

Automatic Unfair Dismissal. If you dismiss an employee and the main or principal reason for that dismissal is one of the three points highlighted above under ‘right not to suffer a detriment’ then that dismissal will be deemed automatically unfair and the employee can pursue an Employment Tribunal claim. This right only applies to employees; not workers.

Whistleblowing. Workers are already protected from detrimental treatment as a result of blowing the whistle on their employer. If a worker makes a complaint to the Pensions Regulator and suffers a detriment as a result of such a complaint, then they will have protection under whistleblowing legislation. In the case of a worker this could include their contract being terminated; so whilst they may not have a right to claim unfair dismissal they may have a claim for whistleblowing.

This is yet another financial burden being placed on small businesses. However, given the consequences of not complying with the law, it is important to know what you must do and when; ensuring you are prepared in advance will help take the stress out of implementing pension auto enrolment and help you plan for the future.

Pension Auto Enrolment is a vast area of law and as such this Blog gives an overview of your duties. For more detailed information you can visit the Pensions Regulator website here

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Specialist Lists and the GDC Review

Specialist Lists and the GDC Review

 

The GDC specialist lists were established in 1998; the most recent, Special Care Dentistry, being added in 2008. The UK has more recognised areas of specialism than any other European country.  There are currently 4261 registered specialists across the 13 disciplines. The GDC are not obliged to have specialist lists, but are empowered to do so by various pieces of European and domestic legislation and regulation. If they wanted to dispose of the lists it would not require legislative change, but would need a compelling policy reason and would require a significant amount of regulatory change.

There is no comprehensive data about the total number of patients treated by Specialists each year; although there were 2.7 million outpatient appointments within dental speciality clinics and a further 320,000 consultant episodes in 2012/13 according to NHS data. This of course does not account for private patients.

The GDC recently undertook a review of the way in which the specialist lists are regulated. The aim was to determine what the benefit of regulation was when it comes to patient protection and whether the lists did in fact help patients make a more informed choice about their dental treatment.

The first phase of the review began in January 2014; whereby information was obtained from both the public (with a representative sample of 500 adults) and the profession regarding their experiences (there were 68 responses from the profession, including 25 from individual specialists and 5 from GDPs).

Background

Registration

The most common way to obtain entry onto a specialist list is to undertake a recognised training programme. Approximately 500 students per year attempt this route. Alternatively, candidates can seek to illustrate equivalence in “knowledge and experience gained through academic or research work”; commonly known as mediated entry.

European registrants with qualifications in Oral Surgery or Orthodontics are automatically recognised.

In 2011 there were 175 additions to the list, in 2012 245 and in 2013 231.

Title

Only a registered specialist can use the title. This is also true for the use of the “ist”; endodontist, periodontist etc. It is not permissible to use the phrase “specialising in” if you are not registered on a specialist list. The only permissible terms are “special interest in”, “experienced in” and “practice limited to”. Using an incorrect term can lead to professional disciplinary proceedings and/or a conviction and fine.

Cost

The cost of registering on a specialist list are relatively low; just £345 for initial registration and £72 per year thereafter.  

The GDC have calculated that the cost of regulating the specialist lists in 2014 was £339,000, which income is forecast to exceed by 6%. There does not appear to be any comparison with earlier years, and as such it is not known whether this is a constant figure. However, this cost also includes the cost of the review so is likely to be much higher than previous years.

Conclusions of the Review

Does specialist regulation bring any benefits in terms of patient and public protection?

The reality is that public awareness of the specialisms is extremely low; shockingly more than half of those surveyed did not know ANY specialism existed. Only 1% was aware of periodontists and restorative specialist, only 2% of prosthodontics and only 3% of endodontists. The highest recognised term was “cosmetic dentist” at 22%, closely followed by orthodontist at 19%. Worryingly 10% believed implantologist to be a recognised speciality. However, most people felt that it was important that specialists were properly regulated. Unfortunately, only a third of those questioned had even heard of the GDC (and this was when prompted!).

It is useful for specialists and practice owners to bear in mind that when choosing a specialist most of those who did recognise specialisms relied on their dentist’s referral rather than their own research. What is abundantly clear is that dental specialists are not effectively marketing their existence, and by implication their value.  

Of those in the profession who responded, the general view was that regulation should not be decreased and that deregulation risked those not properly qualified attempting procedures outside their capability. However others pointed out the lack of evidence that regulation does in fact improve patient care. Concern was raised re the lack of regulation of specialists post-entry. At present CPD requirements are the same for both GDPs and Specialists.

Is regulation proportionate to the risks posed by dentists providing complex treatments?

Perhaps understandably specialists were more supportive of the lists than GDPs. Some respondents felt that the fees charged were disproportionate. However this is surprising bearing in mind the amount of administration required in certain cases. £345 may seem a lot for someone who has been awarded the CCST, but is a small reflection of the cost of mediated entrance. It is curious that a more diverse fee structure has not been recommended and that practitioners are not being asked to fund appeal hearings, particularly if unsuccessful.

Many respondents questioned the need for the number of specialist lists. However the review concluded that they were necessary due to the number of complex procedures undertaken.

Are the specialist lists the appropriate mechanism for helping patients make more informed choices about care seen as falling outside the remit of a GDP?

74% of patients who had visited a Specialist had been referred by their GPD. Only 4% of those questioned said that they would check the details of their Specialist with a regulator. Although the majority responded that it was important that the information was there if they did want to check.

GDPs and Specialists generally agreed that the lists do assist in making appropriate referrals.

In reality although specialist lists are available on the GDC website, the public a) doesn’t know about the GDC website and b) doesn’t understand the terminology used and significance of qualifications recorded. It would appear that it is the GDC who are failing in the provision of information to patients.

Should the GDC be the body to regulate the specialities?  

It was generally agreed that the GDC are the appropriate body to regulate, however it was pointed out the GDC was reliant on the Royal Colleges to provide guidance on the skills, knowledge and behaviour of specialists. Nor does it quality assure specialist training or have a separate revalidation process in place.

The review made for possible proposals for the future:

1.       Strengthen the GDC’s approach to regulation. The GDC are developing a “work programme” to achieve this and intends to give a clearer definition as to the meaning of specialist, ensuring the lists are correct, “tightening up” mediated access or removing this route entirely, quality assuring specialist training and providing information to patients.

It appears that the only rational for proposing the removal of mediated entry is to reduce costs. Surely a fairer and more sensible approach would be to charge applicants appropriately.

2.       Explore alternative models of regulation:

If the Council is of the view that the current regulation does not offer significant benefits to either the public or patients; is not proportionate; or that resources could be more properly focussed on key regulatory functions; then there would be no further policy changes and instead possible alternatives to statutory regulation would be explored. This could include investigating the possibility of removing all specialist lists save Oral Surgery and Orthodontics:

3.       Continue to regulate the Specialties, but not make any significant policy changes. Although it is still suggested that the mediated entry route would be reduced.

4.       Further analysis of the evidence of improved patient outcomes.

Overall the review has uncovered the alarming lack of understanding by the public regarding Dental Specialists and the Lists. However, on a more positive note, appears to suggest that those within the profession believe that the lists are both necessary and helpful. Of the proposals, only one thing is clear that dentists can expect an attack on the mediated entry route over the coming years; although there seems little justification for this save on costs grounds.

 

 

**Blog image from Creative Commons

***This blog has been written for Rumpole of the Surgery by Julia Furley of JFH Law

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Andrew Shelley

Missed the point

The GDC, as usual, have missed the point. Other dentists refer to specialists and the specialist lists help them choose the approp... Read More
Monday, 21 September 2015 19:00
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