The GDPUK.com Blog

All that's new in the world of dentistry
JAN
15
1

Is your dental practice ready for GDPR?

Is your dental practice ready for GDPR?

What is the GDPR?

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.

1. Article 7 GDPR – Consent

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.

2. Articles 12-15 GDPR – Privacy notice

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.

3. Article 30 GDPR – Records of Processing Activities

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 implementing measures to prepare records of your practice’s processing activities.

– Consider introducing a full compliance program for your practice incorporating features such as regular audits, HR policy reviews, and training.

4. Articles 37-39 GDPR – Data Protection Officer

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.

To do list:

– 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.

5. Article 20 GDPR – Data Portability

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.

6. Article 84 GDPR – Penalties

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.

What next?

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.

  10593 Hits
Recent comment in this post
Paul Carpenter

Really CCG be Data Protection ...

The local CCG cannot be the Data Protection Officer as the duties of the Data Protection Officer on [url]https://ico.org.uk/for-or... Read More
Friday, 02 February 2018 12:48
10593 Hits
AUG
08
2

6 Top Tips for dealing with difficult patients

6 Top Tips for dealing with difficult patients

At some point during your professional career you will no doubt have been faced with an unpleasant patient; you may have been unlucky enough to come across a few. However, in what circumstances can you refuse to treat them?

Alternatively, what if a patient refuses to be treated by you or someone in your practice? What if the reasons for such a request are or could be discriminatory?

At a time when instances of every day discrimination and sexism are rife in all walks of life, it is not hard to see why some dentists and doctors feel like they are walking on egg shells. This week BBC Radio 4 Today Show presenter John Humphrys, asked the tennis player Johanna Konta a series of questions regarding her origin, culminating in, ‘So, what are you?’; questioning whether she was truly British. Johanna Konta has represented Great Britain at the Olympics and the Fed Cup. She has been a UK citizen for almost half her life. Chancellor Philip Hammond, has been criticised for allegedly saying driving a train is so easy 'even a woman can do it'. We’ve even seen uproar over the “sex” of a fictional character with two hearts.

But is there ever a situation where someone’s nationality or sex can affect their ability to perform their role? 

Refusing to treat a patient

With so much regulation in place and a fear of patient complaints being escalated to the GDC, you may feel as if patients hold all the power. However, there are situations when you are entitled to refuse to treat a patient. Below are 6 legitimate reasons for refusing to provide treatment:

1.   When a patient questions your clinical judgment. If a patient questions your clinical judgment or expresses a lack of confidence in your abilities, we would recommend you stop treatment immediately. At this point explain to the patient that it is important they have confidence in you as their treating physician and that to carry on treating them would be unethical. Try not to take this personally, and certainly avoid arguing the toss with the patient; this could result in a complaint against you. Everyone has different views and personalities and whilst you and the patient may clash, there will no doubt be another dentist who gels with the patient.

2.   When there has been an ‘act of God’ If a dentist is hospitalised or suspended, or there is an emergency, such as a flood in your practice, it will be impossible for you treat the patient at that time. Keep the patient updated and make alternative arrangements where possible, otherwise the patient may go elsewhere.

3.   When a patient fails to pay a bill or continuously misses appointments If a patient fails to pay bills or continuously misses appointments, then you should give them a warning that this conduct will not be accepted and future similar conduct will result in them being removed from the Practice. Put information on your website regarding the circumstances in which treatment may be withdrawn.

4.   When there is a conflict of interest. Whilst, this is unlikely to arise that often in a dental practice, there may be circumstances, for example where a patient is pursuing a claim against your colleague, where it would not be appropriate for you to treat. If the patient comes to you and you know about the claim, there could be a perceived conflict and it would be better not to treat the patient at all. However, if you are part way through treatment, you should highlight to the patient that you are aware of a potential conflict and let the patient decide whether they wish for you to continue treatment.

5.   When a patient is violent or abusive If a patient is violent, or even threatens violence, to you or any of your staff, depending on how serious this is you may wish to call the police. In terms of treating the patient in the future, you should assess the situation and why the matter escalated. For example, was it honest misunderstanding that has got out of control, or has the patient been violent for no reason? Do you think the patient can be managed in the future without putting your staff members at risk. The more serious the incident the more justification you will have for refusing treatment. Write to the patient and confirm that you will no longer be treating them and, if you are an NHS practice, contact the NHS Commissioning Board.

6.   When a patient has complained. You should avoid the temptation to refuse treatment in these circumstances as it could result in a further complaint. However, if the complaint is about your clinical treatment or is shown to be entirely unjustified or malicious you can follow the process in point 1 above.

Patient’s freedom of choice

Generally speaking, a patient has the right to choose which dentist provides them with treatment, just as you are entitled to choose who supplies your materials for your practice. Therefore if a patient requests a specific dentist to provide treatment you should seek to accommodate that request.

What if the request to be treated by a specific dentist is racially motivated? You have no obligation to treat a patient in those circumstances except in an emergency. Bear in mind, the patient also has to consent to treatment, and they can refuse treatment on bigotry grounds if they wish.

However, there is a grey area in all this. What if a female patient requests a female dentist on religious grounds? Or a Polish patient requests a Polish dentist as a result of not speaking English? In these circumstances, we would recommend accommodating such requests where possible, to prevent allegations of discrimination against you.

You should create a practice policy for dealing with such requests so staff know what to do and can identify when such requests might be reasonable.

If you need advice or assistance in dealing with a difficult patient, you can contact Laura Pearce on 0207 388 1658 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce, Senior Solicitor

  6663 Hits
Recent Comments
Chris Burton

Font

Great article Laura but terrible font!
Thursday, 10 August 2017 09:48
Laura Pearce

thanks

Thanks Chris, I am not sure what happened there. I will see if admin can resolve it.
Thursday, 10 August 2017 10:07
6663 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

  4365 Hits
4365 Hits
MAY
09
0

Assessing Fitness to Practice: what test must the GDC satisfy?

Assessing Fitness to Practice: what test must the GDC satisfy?

There is a feeling amongst dentists on forums such as this that the GDC has become too heavy handed when dealing with alleged misconduct cases.

In March 2017 alone, of the 29 misconduct Fitness to Practice cases heard by the GDC, 9 dental professionals were suspended, 4 had conditions placed on them, 4 were erased and 2 were reprimanded. There were also 4 cases with the outcome still pending. That means of the 25 cases concluded 76% of dental professionals were found to have committed misconduct.

Compare this with the GMC figures for the same month, there were only 6 misconduct Fitness to Practice cases of which only 2 had findings of impairment made against the doctor. Considering there are more doctors than dental professionals registered to practice in the UK, the difference is significant.
 
In November 2016 the GDC introduced Case Examiners in an attempt to help streamline the Fitness to Practice process. Their role is to consider whether a referral should be made to the Practice Committee. Given this new stage is still in its infancy, we are yet to see what impact this will have on misconduct cases within the dental profession. However, it is hoped that as cases will be considered by a lay member and a dental professional, a more proactive approach will be taken at an early stage. This is the approach taken by the GMC and the low numbers of misconduct cases being referred for hearings could be a positive sign of things to come.

Unfortunately there are rarely any consequences for patients who make spurious complaints which are not upheld; however, the same cannot be said for the professional. The time, stress and expense of misconduct hearings can have a devastating effect. Many feel that their stress is exacerbated by an unsympathetic and heavy handed regulator.

If you are facing a misconduct investigation, it will no doubt be a worrying period for you.  It is important to understand from the outset what legal test the GDC will be applying. This way you can properly prepare your defence and gather evidence from an early stage. Proper presentation at the start may well ensure that the Case Examiner determines that a case should be closed at an early stage. If the case should proceed to a hearing you will be armed with the necessary knowledge to put forward the best possible defence, which in turn could help with any later appeals to the High Court.

What test does the Professional Conduct Committee (PCC) apply when assessing Fitness to Practice?

The Test

The test the PCC applies is twofold;

1.       Has misconduct taken place?

2.       Is the dentist’s fitness to practice impaired?

Whether or not misconduct has occurred will depend on the allegations raised and the evidence produced and as such this element of the test will be fact sensitive. The PCC must decide whether ‘it is more likely than not’ that the allegations took place, which unfortunately is a relatively low threshold. However, even if any of the allegations are found to be proved, case law has established that the conduct must be ‘serious’ before moving to the next stage of the test.

Tip. Is this a potential area that can be challenged? Are you able to obtain evidence or refer to previous cases that show the misconduct is not serious and therefore no further action should be taken?

When considering if a dentist’s fitness to practice is impaired, the PCC should look at the dentist’s current fitness to practice? It will not be sufficient to show historic impairment, unless the misconduct is so grave as to warrant it.

It should be noted that impairment is not assessed against any established standards of proof; it is a matter of judgment for the PCC committee. However, a failure to comply with the fundamental standards laid out in the ‘Standards for Dental Professionals’ is likely to lead to a finding of impairment.

Tip. Even if you do not accept the allegations against you, you should consider what actions you can undertake to show your fitness to practice is not impaired. For example, attending training courses, amending your policies and procedures, or being mentored/shadowing another dental professional. This should not be seen as an admission of guilt but a recognition that professionals can always seek to improve. 

The Sanctions

If impairment is found, the PCC will go on to decide which of the following sanctions to impose:

·         Reprimand;

·         Conditions;

·         Suspension;

·         Erasure.

 

In deciding what sanctions to impose, the PCC must apply the principle of proportionality by weighing the interests of the public against those of the dentist.

Tip. This is where you need to put forward your mitigating circumstances so as to reduce the sanction imposed. Also you are allowed to suggest out what sanctions should be imposed and if you are able to give the PCC well thought-out sanctions bearing in mind the allegations, this could prevent erasure or suspension.  

Stage 1 – Case Assessment

When the GDC receives a complaint, it first considers if it is the correct body to deal with it. If so, it will obtain more information from the complainant to assess whether one of the ‘Standards for Dental Professionals’ may have been breached. It is important to note that the Case Assessors do not make any findings of fact.

You will be asked to provide:

1.       Evidence of your indemnity insurance cover;

2.       Details of your current employers/anyone you are contracted to provide services to;

3.       If the complaint is about dental treatment, the patient’s medical records.

Tip. At this stage do not provide any further information than the above. Whilst it will be tempting to explain what has happened, at this stage the GDC has not set out what the allegations are against you, so you do not know what you are responding to.  Any statement given could later be used against you.

Stage 2 – Case Examiner

If the Case Assessors consider a dentist’s fitness to practice may be impaired the case is referred to the Case Examiners; the case will be considered by one lay person and one professional. At this stage you will be sent details of the specific allegations against you and it is at this stage you will be asked to respond. The Case Examiners are not making findings of fact. Their role is to consider whether there is sufficient information to make a referral to the Practice Committee.

Tip 1. If the allegations are not clear, seek clarification. If evidence is referred to, ask for copies of that evidence.

Tip 2. Whilst the Case Examiners are not determining the case, if you can show there was no misconduct, we would recommend responding fully to the allegations and providing evidence to support your assertions. However, if you think there may be a case against you on the evidence received think very carefully before making any admissions at this early stage. It may well be worth seeing the extent of the case against you before admitting any wrong doing.

Stage 3 – Hearing

Should the case progress to a hearing then you will need to fully prepare for the same bearing in mind the test set out above. Consider:

·         What evidence do you need to rebut the allegations?

·         Are you able to show the misconduct is not serious?

·         What have you done to show your fitness is not impaired?

·         Will other dentists/patients provide statements as to your character?

·         What mitigating circumstances are there?

·         What sanctions should be imposed?

Tip. If you are not happy with the GDC’s decision you have the right to appeal to the High Court within 28 days. We set out the circumstances when you can appeal in Issue 2 of our dental bulletin.

If you need advice on a current Fitness to Practice investigation or appealing a decision of the GDC, please contact Laura Pearce on 0207 388 1658 or by email at lpearce@jfhlaw.This email address is being protected from spambots. You need JavaScript enabled to view it. for advice.

  7325 Hits
7325 Hits
MAR
14
0

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

 

  7911 Hits
7911 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

  6404 Hits
6404 Hits
AUG
04
0

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.

 

  6613 Hits
6613 Hits

Please do not re-register if you have forgotten your details,
follow the links above to recover your password &/or username.
If you cannot access your email account, please contact us.