David Hallsworth, a solicitor at BLM specialising in healthcare claims, discusses a potential surge in future dental claims as a result of thousands of children missing crucial check-ups during the pandemic.
David Hallsworth, a solicitor at BLM specialising in healthcare claims, discusses a potential surge in future dental claims as a result of thousands of children missing crucial check-ups during the pandemic.
By Chris Tapper
Six years ago, I attended a two-day residential course. It was a CPD course I hasten to add, not the usual anger management or ‘appropriate behaviour in the workplace’ type of thing I used to have to attend before they found the right tablets for me.
Anyway, it was very interesting, although I freely admit I never put a single thing I learned into practice – mainly because the dental corporate I work for wouldn’t shell out for the equipment I needed unless I could produce a business plan that proved I could earn them at least a tenner for every quid they invested. But that is by the by.
On the evening of the first day (a Friday if I recall correctly), the ten participants plus the lecturer and two representatives of the sponsoring company, enjoyed a meal in the hotel where the course was being held. After a very pleasant starter and main course, I moved to where a gaggle of four youthful dentists were sitting and enquired as to where they were in terms of their careers. It transpired that all four had graduated from the same Northern dental school and had all been qualified roughly two years. They were all general dental practitioners and had all taken up associateships in NHS practices.
As the most experienced dentist on the course – actually, why mince words, the oldest – I was interested to see if the youngsters were enjoying their chosen profession so far. I think I was trying to vicariously re-establish myself with my early enthusiasm for dentistry.
I posed, what I felt, was a fairly innocuous question to the group:
"How’s it going?"
One female dentist confessed that she cried every night when she arrived home from work, and sometimes did it during surgery sessions. One of the males said he was so anxious about work that he threw up most mornings and that brushing the lingual aspects of his teeth was impossible, while the other female said she had trouble sleeping and had been put on antidepressants six months earlier.
Perhaps the most troubling response was from the other male, who confessed that he had on a number of occasions, thought of ‘ending it,’ having realised that he had made a dreadful mistake in going into dentistry, and couldn’t see any way out. My concern for him diminished a little when I saw that he had an incredibly healthy appetite, demolishing his own rhubarb crumble and a female colleague’s lemon sorbet in less than three minutes.
When I questioned them more closely, the reason for their universal despair was not down to the pursuit of ridiculous UDA targets or the student debts they were saddled with, but the fear of dental litigation.
All four were constantly worried that they would see their careers end either in a GDC meeting, or more likely, through the bad publicity and financial ruin brought about as a result of a civil action facilitated by a dental litigation firm. They felt that the chances of those events happening to them were high, since one of their fellow students had already found himself in the middle of litigation as a result of an NHS root-filling having not worked.
Now that was six years ago, and I would argue that since then, the UK dental profession has slipped into a febrile anxiety that I have never previously witnessed in the 30 years or so that I have been working in dentistry.
Never have I seen dental colleagues (and even strangers) so jaded and so preoccupied with fears of dental complaints and ‘the dreaded letter’ from a certain Northern dental litigation firm.
I will freely accept that I have no scientific evidence for my observations and that my views are based purely on the empirical, but I personally know of no dentist who has not recently entertained thoughts that a patient might ‘turn legal’ if the wind blows the wrong way.
Over the past 18 months, I have been offering support to a close young colleague, being pursued by an extremely aggressive young solicitor (she IS young, I looked her up) who is alleging ‘negligence’ after her client developed dry socket after a routine extraction of an upper first molar. Rightly or wrongly, my colleague decided she did not want to consult her defence organisation and so I have been (rightly or wrongly) equally aggressive in demanding expert witness or consultant reports in support of their absurd claim. So far, the solicitor has failed to provide any evidence of negligence or give any reason why an expert assessor’s report has not been provided. All I know is, it has been fun ‘having a go’ back, but it to me illustrates a sad fact – nobody in the UK-based dental profession is safe from opportunistic punts from patients who want to make a quick quid from the no-win-no-fee mob.
A few months ago, a solicitor I know told me that during a local meeting of his legal colleagues, a speaker said that a lucrative and growing new source of business was dental litigation and that it was “something to think about” since the clampdown on spurious ‘whiplash’ claims and ‘Benidorm Belly’ – where package holiday tourists claim compensation for stomach upsets caused by dubious calamari and fries - had resulted in less opportunity for successful claims.
Recent experience has taught me that dental litigators are a tenacious and avaricious species and are unlikely to give up easily on an area of medical law that they consider to be easy pickings. Certainly, according to my legal friend, lawyers see it as a much easier area to be successful in than medical litigation.
Soon, the cost of dental defence subscriptions will be prohibitive to viable practice, and the profession, once all our European colleagues go back home, will find itself unable to cope with patient demand. What is the answer? Your guess is as good as mine.
Until then, I am going to have a rhubarb crumble and some sorbet.
The new rules, which have now been made into the law as of Saturday, will mean all surcharges are banned when businesses process card payments.
So there will be no charges for paying by debit or credit card, including American Express and linked ways of paying such as PayPal or Apple Pay.
As an example, when booking flights, you will no longer be charged extra for paying via credit card. Below are a few examples of charges. (from Money Saving Expert)
It is estimated that surcharging cost Brits £166 million in 2015.
The rules will apply to any UK company which is selling to UK consumers.
The reason this is being mentioned in a blog on GDPUK is……
One because of our offer for members, where we can save dental practice money on their card payment fees, which are obviously different area when compared to the new law above but still relevant.
Secondly, businesses often charge these extra charges as listed above (especially smaller businesses such as dental practices) because of the fees the business was paying the merchant supplying the card service and they were passing on the charge to the consumer.
So therefore checking your card machine rate is more important than ever.
One of way of helping small business owners reduce these costs is by checking your rate. Card payment services can be very costly to dental practices and other small businesses. By comparing your rate, you can reduce your monthly bills by up to 60%. That could mean an annual saving of several thousands of pounds.
Find out more info here via GDPUK Services. Just fill out the form at the bottom of the page and within a few days you can be making savings. Just Switch and Save!
This offer is primarily for dental practices but we can also look at other businesses that take card payments on a daily basis and see how we can help reduce your costs. Just enquire via the form on the GDPUK Services page.
Further info about the EU Payment Services Directive here.
The GDPR is a new set of rules which will apply to all organisations that collect or retain personal identifiable data from any European individual. The idea behind it is to standardise data privacy laws and mechanisms across industries, and to ensure that fundamental rights of individuals are protected in today’s increasingly data-driven digital economy.
6 Things you need to know now
It is extremely important that everyone in your dental practice is made aware of the rules surrounding the new data regulation. Preparing for the GDPR will require changes in the practice’s culture, which you should start to plan in advance of the May 2018 deadline. Keeping everyone informed will ensure that your practice follows the proper procedure, and the GDPR is handled with the utmost care.
Here are 6 steps that will help your practice prepare for the changes today.
Under the new regulation, dental practices will be required to keep a record of how and when the patient gives consent to store and use their personal data. Consent will need to be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. Consent cannot be inferred from silence or inactivity of the user.
Further requests for consent will need to be separate from other terms of engagement. In practical terms this means you will need to clearly explain to your patients what you are intending to do with their personal data.
It must be borne in mind that consent once given can be revoked, and it must be made equally easy to withdraw consent given.
The GDPR also introduces a requirement for parental consent. Where services are offered directly to a child, practices will need parental consent to process the data of under 16s.
To do list:
– Identify the categories of personal data processed within your practice.
– Consider the legal basis applicable to the processing of personal data within your practice, and make sure these grounds will still be complied with the GDPR.
– Where consent is relied on, check that it will be: freely given, specific, informed, and unambiguous.
– Consider introducing processes to promptly honour any withdrawals of consent.
– Make sure you keep a record of consents given to demonstrate compliance.
Aside from the need to obtain consent, your practice will be under an obligation to ensure that the processing of data is fair and lawful. Also, appropriate information must be given to your patients as to how their data is to be used. This is normally done in the form of a privacy notice. The GDPR has a mandatory list of the information which must be given to patients where data is obtained directly or indirectly from them. You will be expected to explain to your patients what data relating to them will be collected, how it will be used, the purposes for which it will be used and how their data may be shared.
To do list:
– Get to know your data. Consider what information is being collected, who is collecting it, how and why it is being collected.
– Consider how the information obtained will be used and who will it be shared with.
– Consider what possible effect the information obtained could have on the patients concerned.
– Consider building a data catalogue (if you haven’t got one in place) and drafting a meaningful privacy notice.
There will be a significant change to records of processing activities. The GDPR does not distinguish between internal and external records anymore. Dental practices will now require only one kind of record: an on-demand internal record. A practice will be required to maintain records of the entire practice’s processing activities internally. Moreover, these will need to be available to supervisory authorities upon request.
To do list:
– Consider introducing a full compliance program for your practice incorporating features such as regular audits, HR policy reviews, and training.
You will be required to appoint a Data Protection Officer (DPO) if the dental practice is:
– A public authority (except for courts acting in their judicial capacity) (Art. 37(1)(a));
– Carrying out systematic monitoring of individuals on a large scale (Art.37(1)(b)); or
– Carrying out processing of special categories of data or data relating to criminal convictions and offences on a large scale (Art.37(1)(c)).
Dentists providing NHS care will be regarded as public authorities. Thus, even a small NHS practice will require a DPO. It is anticipated that the Clinical Commissioning Groups (CCGs) will be providing Data Protection Officers in primary care settings.
If you don’t want to recruit, it will be possible to appoint a single DPO to act for a group of practices, provided that a DPO is easily accessible from each establishment. Alternatively, you can contract the services out.
For those organisations to whom the requirements do not apply, they may still choose to appoint a DPO.
– Assess whether your practice is obliged to appoint a DPO.
– Consider who will be your DPO.
– Consider whether your practice should appoint an internal or external DPO.
– Compile information on data processing activities within the practice.
– Ensure that those to whom you have designated responsibility, their duties do not lead to a conflict of interests of their own role.
The rights of individuals under GDPR are the same as those under the Data Protection Act 1998 with a significant enhancement of the right to data portability. Under the GDPR, patients will have the right to receive the personal data which they have previously provided in a ‘commonly used and machine readable format’, and have the right to transmit that data to another controller. This information will need to be provided free of charge, thus removing the previous £50 subject access fee for dental records. This will apply only to data processed by automatic means, and not to paper files.
To do list:
– Consider whether the technical capabilities of your practice will comply with data portability requests.
– Make your patients aware of their right to data portability. Does your company send out e-bulletins and/or newsletters? Let your subscribers know by including a short paragraph at the end of the article.
Any practice in breach of GDPR can be fined up to 4% of annual global turnover (not profit) or €20 million – whichever is greater. This fine can be imposed for the most serious infringements, for example for not having sufficient customer consent to process data. The practice can also be fined 2% for not having their records in order, or for not notifying the supervising authority and data subject about a breach, or not conducting impact assessment. In the case of a breach, practices will be required to report the breach to relevant authorities within 72 hours. The practice will be obliged to give full details of the breach and offer proposals for mitigating its effects.
You should be preparing for the new requirements that will affect your practice. Considering the above steps in the context of your practice is the very first step you can take in order to prepare for the upcoming legal changes. Do not assume that you will be able to claim innocence through ignorance of the rules – the whole point of the GDPR is to keep your company better protected and able to deal with breaches in security. If preparation is approached in the right way, your practice will be well-prepared in time for the regulation coming into force, and your business will be secured for years to come.
We will be running a workshop on 22nd February aimed at dental practices to help them prepare for the new GDPR requirements.
Really CCG be Data Protection ...
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.
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”.
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
In this blog we look at two recent cases, one before the Fitness to Practice Committee of the GDC and one before the Health, Education and Social Care first tier Tribunal (‘HESC Tribunal’), and consider what lessons dental practitioners can learn from them.
Dr Darfoor, a dentist, was before the Professional Conduct Committee (PCC) on 18th January 2016. The allegations against him concerned the treatment of three patients during the period 2011 to 2014. The charges against Dr Darfoor ran over three pages of the judgment and included allegations of failing to adequately explain and/or record explaining to the patients the treatment they were to receive and thus failing to obtain consent.
The most serious allegation against Dr Darfoor was an allegation that he had failed to obtain consent and was dishonest in his failure to do so. It is this allegation we are going to focus on in this article.
Dr Darfoor was carrying out treatment on Patient C for composite restorations and bone grafting. Dr Darfoor informed Patient C that the bone would be “synthetic”. In fact the bone was xenograft, which as you all know is bovine derived. Dr Darfoor had made the same assertion to Patient B, however, what made this allegation against Patient C more serious was the dishonesty element. Patient C had informed Dr Darfoor on a couple of occasions that he was a vegetarian and would not want animal products to be used on him.
Dr Darfoor denied knowing Patient C was a vegetarian but the Fitness to Practice Committee found that he did know this but went ahead with the procedure using xenograft in any event. The allegation of dishonestly failing to obtain consent was therefore found to be proven.
On 22nd April 2016 the Fitness to Practice Committee was reconvened to consider if Dr Darfoor’s fitness to practice was impaired as a result of his dishonesty. Dr Darfoor had previously been before the GDC before in relation to allegations of failing to obtain consent and this factor was taken into account. The Fitness to Practice Committee determined that Dr Darfoor’s fitness to practice was impaired and he was suspended for 12 months.
Every dentist knows the importance of obtaining consent from a patient. In Issue 5 of our Dental Bulletin we set out the legal issues surrounding consent. Essentially, in order for consent to be valid it must be given voluntarily and freely, by an informed person and by a person who has capacity to give consent. In the recent case of Montgomery the court put a greater burden on dentists when obtaining consent in that it held a medical professional will need to look at what a reasonable person in the patient’s position would consider was a material risk and this places a duty on the medical professional to advise on that material risk. Therefore if the dentist has knowledge of a patient’s wishes or beliefs he must take this into account when providing information as to the procedure that is being undertaken.
Dr Darfoor had also failed to provide Patient C with other information about his treatment. However, it was the knowledge of Patient C’s vegetarianism and his failure to inform the patient he was using animal material that made his actions dishonest.
This case highlights the importance of ensuring you have an open and frank discussion with patients about the treatment you are providing. Make sure you listen to any concerns or queries raised by the patient, as this could affect the information you provide to them. Dr Darfoor also failed to keep adequate notes. Therefore, if a patient does raise an issue, make sure this is in your notes along with any advice you have provided in response and the patient’s final decision.
If you would like to read the judgment in full you can find it here.
This is an interesting case, in which the CQC’s decision to cancel registration was challenged at the HESC Tribunal. It highlights that the CQC’s decision is not final and can be reviewed by an independent body.
However, we would not recommend following the path of Mr Corney and Mrs Webb when deciding if you should challenge the findings of an inspection report.
The couple purchased a care home in 1994 and described their philosophy of care as being based on the ‘European Style’, which they say meant living in the home with the residents and caring for them as if they were their relatives.
The home registered with the CQC in October 2010. Between January 2013 and April 2015 there were six inspections carried out. Each recorded a finding of ‘inadequate.’ In fact on the last visit by the CQC the couple and staff refused to speak to the inspector or show him any documentation; his visit lasted 17 minutes! If only all inspections were that quick. In August 2015 the CQC issued a notice of proposal to cancel registration.
In addition to the action taken by the CQC, in November 2013 Dorset County Council ceased to commission the care home due to safeguarding concerns they had with the home.
Mr Corney gave evidence on behalf of the couple. He was adamant that the findings of the CQC were wrong but produced no additional or expert evidence to support his case. He maintained throughout that the CQC and the local council were working together to shut his business down. The couple failed to make any changes to their practices or procedures despite having clear recommendations from the CQC.
The HESC Tribunal found that the couple were unwilling to change and to keep up to date with current standards and regulation. They went so far as to say ‘Mr Corney also has an unmoveable conviction that he is right.’ The cancellation of registration was therefore upheld. The full judgment can be found here.
We consider this is a rare case; most providers when issued with an inadequate report will do all they can to improve standards. Not wait for a further five inspections to take place. However, what it does highlight is that if you can challenge the CQC’s findings, with say additional or expert evidence, you can pursue the matter via the HESC Tribunal.
It also shows the importance of accepting where errors may have been made and looking to improve on standards or change procedures. Mr Corney clearly did not like change and we consider this factor and his failure to work with the CQC played a part in the removal of the couple’s registration.
We would comment that with the new regime for inspection that came into force last year for dentists, there is less of a focus on a ‘tick box’ exercise. Inspectors have five key questions to consider and should be taking into account all relevant factors when assessing if the regulations have been met.
Image credit -Tori Rector under CC licence -
Spring is finally here, but with it comes the first wave of new UK legislation for 2016.
So what key changes do you and your practice need to be aware of?
National Living Wage. From 1st April 2016 any worker who is 25 years old or above will be entitled to the National Living Wage, which is initially set at £7.20 per hour. The National Minimum Wage will continue to apply to workers under the age of 25. In addition, the penalty for employers who fail to pay the minimum amounts to workers has doubled from 100% of the underpayment to 200%. This, along with the introduction of Pension Auto Enrolment (which for many practices is due to take effect this year), will mean further increases in the cost of running your business. There is therefore little comfort in the 1% pay rise announced by the DDRB (for more on this see below).
Apprenticeships. As part of the Government’s drive to create more apprenticeships for young people, they have abolished the requirement on employers to pay NIC for apprentices under 25. This comes into effect from 6th April 2016. In addition, although not yet in force, the Government wants to ban organisations from using the term ‘apprenticeship’ unless it is a statutory apprenticeship. In order to be a statutory apprenticeship, there are certain legal requirements that must be met.
Zero Hour Contracts. It is unlikely that these contracts are common within in the dental community. However, if you do employ staff on a zero hours contract, for example bank nurses, if those contracts contain an exclusivity clause, stating the employee can only work for you, the employee can now seek redress against unfair dismissal and detrimental treatment following a breach of such a clause.
Hazadous Waste. From 1st April 2016 dentists in England, who produce or store waste of 500kg or more per year, will no longer have to register with the Environment Agency. Dentists in Wales still need to register with Natural Resources Wales. This will mean slighlty less adminsitrative paperwork for dentists in England.
Immigration. From April 2016 tier 2 skilled workers from outside the EU who have been in the UK for 5 years or more must be earning £35,000 or above to remain in the UK. This will not affect workers on the Shortage Occupation List, such as nurses, but could affect teachers and IT workers.
Pension. From April 2016 there will be a new flat rate pension; as opposed to the lower basic rate pension and secondary and additional payments.