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The Tooth Counsel

Here at the Tooth Counsel we pride ourselves on giving honest and practical advice to dentists, whatever their problem maybe.
 
Over the years our lawyers at JFH Law have assisted dentists with employment and HR matters, helped them prepare for CQC inspections, made applications to the GDC for entry onto the specialist lists and respond to complaints, whether raised via patients internally or matters before the NHS or GDC.
 
Remember; prevention is better than cure so ensure you obtain the right counsel for your dental/legal needs before a small filling becomes a root canal.
Category contains 1 blog entry contributed to teamblogs
28
Sep
1
Posted by on in The Tooth Counsel

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

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

Accusations against Dr Bates

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

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

Barclays’ vicarious liability

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

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

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

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

When is a relationship “akin to employment”?

When the following criteria are satisfied:

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

Tort closely connected with the employment

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

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

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

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

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

©Julia Furley, JFH Law LLP, GDPUK Ltd, 2017
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08
Aug
2
Posted by on in The Tooth Counsel

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

©Laura Pearce, GDPUK Ltd, 2017
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18
Jul
0
Posted by on in The Tooth Counsel

Since the Central London employment tribunal handed down its decision in the Uber case on 28th October 2016, the courts have been awash with claimants seeking to gain worker status. Pimlico Plumbers and CitySprint have both had judgments against them, and claims against Deliveroo, Amazon Logistics and Hermes are all in the pipe line.

But how is this relevant to the dental profession?

Whilst associates enjoy self-employed status for tax purposes, this is an arrangement with HMRC; not the legal system. Since the Uber case it is clear the courts are cracking down on false self-employment and so dental practices need to be live to this issue.

Failing to identify a person’s status from the outset will be a costly mistake to make.

Here we take a look at the recent judgments in the Pimlico Plumbers and CitySprint cases and explain what impact they have on worker status in the dental profession.

Definition of worker

What are the benefits of being classed as a worker? Workers have rights such as the national living wage, holiday pay, statutory sick pay and the right to pension auto enrolment, whilst still retaining the flexibility of a self-employed person.

The courts will ask three questions to determine if someone is a worker:

  1. Must the person personally provide the service or can they send a substitute?
  2. Is the company obliged to provide work and is the person obliged to accept it?
  3. Was the status of the “employer” under the contract that of a customer? 

Over the years the dental profession has changed considerably. Increased regulation has meant that practices must have more control over how their associates work. Corporates seek to have a unified model of delivering dental services under a brand name. Practices more generally need to ensure they meet targets provided by NHS contracts.

The net result has been that associates have less control over their working practices, and have more obligations placed on them. This is likely to elevate them from self-employed into the category of worker.

Recent decisions

Pimlico Plumbers – sending a substitute

At the very outset of the judgment the Court of Appeal stated, The case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker’. A model that should sound familiar to most dentists.

The main focus of this appeal was the Tribunal’s finding that the plumber was obliged to perform the services personally.

The primary argument put forward by Pimlico Plumbers was that the plumber in question had a right to send a substitute and as such he was not engaged to perform the services personally. However, the Tribunal’s findings on this point was that the plumber could not send anyone he wished to do the job, he had to send another Pimlico Plumber. As such there was not an unfettered right to send a substitute at will, but instead the position was more akin to a shift swap.

The Court of Appeal recognised three types of relationship:

  1. Persons employed under a contract of service (worker);
  2. Persons who are self-employed, carrying on a profession or a business undertaking on their own accord;
  3. Persons who are self-employed and provide their services as part of someone else’s business or undertaking.

It is this last category that the plumber, and also dentists, would fit into.

The Court of Appeal went on to define the requirements of personal performance and set these out as follows:

  1. An unrestricted right to send a substitute to do the work is inconsistent with an undertaking to do the work personally. This is simple to determine and pretty obvious by all accounts;
  2. A conditional right to send a substitute may or may not mean there is personal performance; it will depend on the conditions placed on that right. In other words, it will depend on nature and degree of any fetter on the right. This was broken down further into:
    1. A right to send a substitute only when the contractor cannot perform the services suggests the contract is for personal performance;
    2. A right to substitution limited only to one who is suitably qualified, is inconsistent with personal performance;
    3. Where the right to substitution is dependent on the other party’s consent suggests the contract is for personal performance.

The Court of Appeal found that as the plumber could only send another Pimlico Plumber to undertake the work, this meant he had to perform the services personally and was therefore a worker.

In a dental practice the right to substitution is often limited to the circumstances set out in a. to c. above, meaning a court is likely to find that they are engaged to perform the services personally.  However, it is important to bear in mind that this conclusion has not yet been tested by the Courts. Arguably the very nature of the provision of a medical service should be given special status on the basis that it is the patient’s needs, not the employers that must be taken into account. There are many circumstances where it would not be acceptable for a substitute to be sent, such as when a dentist is dealing with a patient with special needs.

CitySprint – controlling performance

In this case the courier had a contract that purported to be a self-employed contract. It had terms such as:

  • The Contractor agrees and warrants that he is a self-employed contractor and is neither an employee or worker;
  • The Contractor shall…provide the Services using reasonable case and skill and use his best endeavours to promote the best interests of CitySprint…the Contractor has discretion to determine the manner in which the services are performed at all times;
  • The Contractor warrants and represents that he has read and understood the Information Booklet;
  • The Contractor may at his own cost provide a substitute to perform any particular job. However, if that substitute is not a person or an entity who or which has itself already entered into a Tender Agreement with CitySprint the substitute shall be a person or entity this has the required insurance cover, knowledge, skills and ability.

Not too dissimilar from terms found in many associate contracts.

The courier accepted that if these terms were genuine then she would be self-employed. However, she asked the tribunal to look at the true relationship. It should be noted the courier had signed to confirm acceptance of the self-employed contract and had been registered as such for tax purposes.

It is well established that the Courts can look behind the contract to determine what the true relationship is between the parties. The Tribunal in this case re-iterated that the threshold for doing this is low; a firm reminder therefore that the terms of the contract should reflect the reality of the situation.

In this case the Tribunal held that there was sufficient evidence to show that the contract did not reflect the true relationship, and that the courier was in fact a worker for the following reasons:

  • The Tribunal found that the courier did not have ‘discretion to determine the manner in which the services are performed at all times’. The courier had a one day training session where she was instructed on things like how to greet the customer and what to do if someone was not home. This showed an element of control by CitySprint as to how the service was to be provided.

Whilst clinical work will naturally be at the associate’s discretion; if a practice has strict polices in place in relation to how long each patient must be seen for, what documents must be completed for each patient visit, complaints procedures the associate must abide by or even compulsory training sessions and staff meetings, this could show an element of control.

  • When looking at whether the courier had to provide the services personally, the Tribunal found that even though there was a right to send a substitute the reality was that the circumstances when she could were so small that she was in fact engaged to perform the services personally.

Associates very rarely send a substitute as patients expect to see their own dentist, and have often been recruited due to their specific skills. As stated in the judgment ‘the legal test is not whether there is a valid substitution clause but whether the claimant was contracted personally to carry out the work’.

  • Finally, the tribunal found this was not a client/customer relationship; the courier was not in business on her own but part of the CitySprint business. They made this determination on the basis that the courier had to work when she said she would, when working they are directed as to what they will do, they have procedures to follow, and are part of the ‘family’ of couriers.

Dentists who have set hours, are told what patients they will see, follow practice procedures and are advertised on the dental practices website as part of the services the practice provides are likely to be deemed to be working as part of the practice not independently.

Conclusion

In issue 34 of our dental bulletin we set out how the Uber judgment would impact on associate contracts and these recent cases only strengthen our view that many associates legally will be defined as workers.

Of course, until an associate decides to test their status in court, the status quo is likely to remain as  many associates enjoy tax benefits of being self-employed. That being said, it is perfectly possible that whilst an individual is deemed self-employed by HMRC, they are deemed to be a worker for the purpose of their employment status; an associate may well be able to have their cake and eat it. Employers need to consider this issue very carefully; failure to do so may result in a hefty bill to pay.

That is not to say you cannot retain the self-employed relationship between you and associates. With well drafted contracts tailored to your business you can ensure that you are protected. Remember; one size does not fit all.

If you need advice on the status of anyone in your workforce or need assistance with re-drafting contracts or documents to ensure associates are truly self-employed, please contact Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it." style="text-decoration-line: none; transition: color 300ms; color: rgb(247, 180, 51); outline: none !important;">This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce, Senior Solicitor

©Laura Pearce, GDPUK Ltd, 2017
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01
Jun
0
Posted by on in The Tooth Counsel

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

The Commitments

 

The Conservative Party

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Labour Party:

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

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

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

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

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

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

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

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

9.       High quality and personalised end of life care.

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

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

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

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

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

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

 

The Liberal Democrats:

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

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

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

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

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

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

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

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

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

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

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

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

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

14.   Introduce a minimum unit pricing for alcohol.

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

What will these pledges cost?

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

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

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

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

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

Julia Furley, Barrister, JFH Law LLP

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09
May
0
Posted by on in The Tooth Counsel

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 This email address is being protected from spambots. You need JavaScript enabled to view it.">lpearce@jfhlaw.This email address is being protected from spambots. You need JavaScript enabled to view it. for advice.

©Laura Pearce, GDPUK Ltd 2017
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