breaking new ground ourna in dental defence - the ddu/media/files/ddu/publications/ddu...

The

of theDDU

Volume 6 Issue 1 April 2002

Breaking new ground in Dental DefenceBreaking new ground in Dental Defence

- Professional Indemnity Policy- Practice Insurance- Becoming an Associate

J ou

rn

a

ISSN 1466 5948

Improving employmentopportunities for women dentistsBetter Opportunities for Women Dentists, the Chief Dental Officer,Dame Margaret Seward’s recent review of the contribution ofwomen dentists to the workforce, made a number ofrecommendations, including reviews of working patterns andsuggestions for ways of assisting women to return to dentistryafter career breaks. It is a thorough and constructive review, thathas importance for all those seeking to return to clinical practiceafter a career break.

So what is the dento-legal significance of this report, andwhat can the DDU do to help members?

We can be flexible with our subscription structure, so that oursubscriptions better reflect members’ changing work patterns.We already offer subscriptions which are based on the averagenumber of clinical sessions each week for those working part-time. We also offer a Keep In Touch Scheme (KITS) subscriptionfor dentists taking a career break, so they can remain in touchwith dento-legal developments, through the DDU Journal andwebsite.

Dento-legally, the most important issue is that dentists returningto practice are properly equipped and ready to do so. They needto be up to date and must have access to appropriate retraining,as well as satisfying the General Dental Council’s now mandatoryRecertification Sheme cpd requirements. We can assist here in anumber of ways. We are offering to all dentists, as they renew,access free of charge to a high-quality, interactive, on-line trainingprogramme entitled Open and Shut Case, produced incollaboration with Redbus CPD. (Further details on page 4).The DDU is also providing dento-legal presentations on ‘Backto Practice’ courses, and all members have access to our full rangeof publications and risk management programme, also free ofcharge. Last but not least, my dento-legal adviser colleagues andI are always available on our freephone advisory number toprovide up to date legal and ethical advice.

We are very keen to do all we can to assist members to make asmooth, trouble-free return to clinical practice and if there areother ways you think we can be of assistance, I would bedelighted to hear from you.

Rupert HoppenbrouwersHead of the Dental Defence Union


The traditional benefits of membership of the MDU are discretionary and are all subject to the Memorandum and Articles of Association

co

nt

en

tsDENTAL EDITOR MAGAZINE MANAGER

Rupert Hoppenbrouwers Dominique Luqman

*Opinions expressed by authors of articlespublished in the Journal of the Dental DefenceUnion are their own and do not necessarilyreflect the policies of The Medical DefenceUnion Ltd.

The dento-legal advice in The Journal of the DDU is for general information only.Appropriate professional advice should be taken before taking or refraining from actionbased on it.

If you have any queries or comments please write to:The Marketing DepartmentThe DDU230 Blackfriars RoadLondon SE1 8PJ

Breaking news 2

News 3

Membership news 4/5

Today’s DDU supporting your needs 6

A specialist policyfor your practice 7

Advanced restorative treatment 8

Risk managementCase studies 9/10

The General Dental Council 11

Member feedback - Is it worth it? 12

Becoming an Associate 13/14

How safe is my data? 15/16

Case histories 17/18

Risk management module update 19

Dentists’ DilemmasQ&As 20/21

2

Issue 1 April 2002 Volume 6

Breaking newsReview of Fee Protocols

The DDU is urging members to review their fee protocolsfollowing a recent announcement by the Office of Fair Tradingthat it may launch an official investigation into private dentistryin the UK. The move could lead to a radical shake-up of theprivate dental market and members may consider taking thisopportunity to review their procedures.

‘This announcement highlights the need for patients to knowthe basis of their acceptance and the fees involved beforetreatment goes ahead’, said Dr Rupert Hoppenbrouwers, Headof the Dental Defence Union.

‘Patients must be informed what their treatment options are,the risks and benefits of each option and the costs involved,before any treatment is delivered’.

‘If dentists follow this advice it is unlikely that they would bejustifiably criticised over their approach to fees.’

Dr Hoppenbrouwers adds that good communication is vital tosuccessful dental practice, particularly when fees are involved.

‘An analysis of DDU claims demonstrated that during a twoyear period, 34% of complaints against DDU members occurreddue to communication failure. Within this percentage, fees,treatment costs and protocols for fee collection were commonsources of complaints.’

Providing a written treatment plan with costs explained, thathas been agreed and signed by the patient, with a signed copyfiled in the clinical records, will help refute an allegation thatthe patient was not properly informed, or was misled. It is alsorecommended that dental practices offer a ‘cooling-off’ periodbefore expensive or extensive procedures begin, so that patientsdon’t feel rushed into a costly decision they may regret.

Reforming the NHS Complaints ProceduresThe Department of Health issued a ‘listening’ document inSeptember 2001 to canvas opinion on various proposed reformsto the NHS complaints procedure. The document follows thecompletion of a two-year national evaluation of the currentsystem. The DDU has been monitoring the effectiveness of thenew system since its introduction in April 1996 and wecontributed detailed analyses of our dental complaints data tothe evaluation team. These analyses revealed that 88% ofcomplaints referred to the DDU between April 1996 to March1998 were resolved at practice level, which testifies to thesuccess of the first stage of the procedure. In our experience,the Ombudsman’s stage of the procedure also works well,though there can be lengthy delays. However, we noted thatstandards at the independent review stage can vary greatly. Thelistening document acknowledges that there are problems withthis stage and seeks views on how the whole complaints systemcan be made to work ‘independently and consistently acrossthe country’ (England). We agree that uniform standards needto be introduced across the NHS, particularly at the independentreview level. We responded on behalf of both our dental andmedical members and suggested:

• Establishing a new body called the National ComplaintsAuthority, responsible for setting standards and foroverseeing the complaints procedures from ‘beginningto end’. We propose that such a body would need tobe independent of the complaints process, but that itshould include representatives from all stakeholdersin the complaints procedures.

• Training. We believe that all NHS staff should be trainedin the NHS complaints procedure as part of theirinduction and continuing education. We suggest thattraining should cover details of what the NHS

complaints procedure involves as well as communicationskills to enable staff to handle complaints in aconciliatory manner as soon as one arises.

• Every employing authority or authority contracting withindependent contractors should have a full timecomplaints officer.

• A system to learn from adverse events. We welcomethe listening document’s proposal that ‘Once acomplaint has been made, ... the NHS needs to monitoroutcomes effectively and learn the lessons from thedecisions taken’. We agree that it is vital to havefeedback mechanisms to allow practitioners to learnfrom adverse incidents and make improvements to theirpractice. In our response we wrote:

‘Complaints need to be logged and analysed in order to assesswhat is generating complaints and how patients’ dissatisfactionresulting in complaints can be prevented. However, datagathered from complaints analyses alone will not identify allthe problems in the system. This must be combined withinformation gathered through the adverse incident reportingsystem which is proposed by the National Patient SafetyAgency... Perhaps the National Complaints Authority couldbe an arm of the new National Patient Safety Agency, to ensurea co-ordinated approach in collation, analysis and feedback ofdata.’

A full copy of our response to the listening document isavailable on the MDU website at: www.the-mdu.com andthe Department of Health listening document is available at:www.doh.gov.uk/nhscomplaintsreform/We will continue to monitor developments and will makerepresentations on members’ behalves, where appropriate.


3

News

The Health and Social Care Act 2001, which implements anumber of proposals from the Government’s NHS Plan,reached the statute books in May 2001. The Act introducedprovisions which may have a significant dento-legal impacton members and came into effect on 1 December 2001.

Regulation of general dental practitionersThe Act makes new arrangements for regulating generaldental practitioners. It provides that, as well as keeping a listof all dental practitioners practising in their areas, healthauthorities will also have to keep supplementary lists forassistants.

The Act provides that heath authorities will have to approveall practitioners who practise in their areas. Health authorityapproval will take the form of pre-employment checks andensuring that dental practitioners provide evidence ofcontinuing suitability to practise. The Explanatory Notes to theAct state that this will be done ‘through a system ofdeclarations, annual appraisal and participation in clinicalaudit’. In addition, health authorities will have discretionarypowers to exclude, suspend or impose conditions on clinicians’

practice. Exclusion from the register will be automatic if a practitioner has been convicted of a crime which carries asix-month prison sentence.

Section 22 of the Act provides that health authorities can makearrangements with ‘dental corporate bodies’ to provideGeneral Dental Services (as well as individual practitioners),and they must therefore be included on their lists.

The Act also creates a new independent body called the FamilyHealth Services Appeal Authority (FHSAA) whose functionswill include dealing with appeals by practitioners againstHealth Authority decisions. As a result of these changes, theNHS Tribunal will be abolished.

We have spoken to officials at the NHS Executive about theapplication of these regulations to our members. Full detailsof our discussions are available on our website (www.the-ddu.com). Alternatively you may contact our FreephoneAdvisory Service Helpline on 0800 374 626 for furtherdetails and specific advice.

Tooth Bleaching

Health & Social Care Act

Following our update on tooth bleaching in the last Journal,we are sorry to report that the current legal position is stillunclear, despite our attempts to seek clarification on behalfof members.

Advice given by the former Chief Dental Officer suggests thatdentists are permitted to bleach teeth in any appropriate way,including using carbamide peroxide preparations which releasemore than 0.1% hydrogen peroxide, provided the preparationused is not classified as an oral hygiene product, when it wouldfall within the EU Cosmetics Directive. But on the other hand,the Department of Trade and Industry advise that anybodyusing such a preparation, however classified and obtained,would be committing a criminal offence, and would beprosecuted if the matter came to the attention of TradingStandards Officers. Furthermore, the House of Lords recentlyupheld the decision of the Court of Appeal (Optident Limitedand another v. Secretary of State for Trade and Industry &another 28/06/2001) in relation to the tooth bleaching kitproduced by Opalescence.

In view of the uncertainty over the legal position of bleachingproducts containing or releasing more than 0.1% hydrogenperoxide, the DDU must advise caution to our members. Itis not possible to guarantee that a practitioner prescribing

or using such products would not fall foul of the EU CosmeticsDirective, and be at risk of a successful criminal prosecution.While a member facing such a prosecution may seek theDDU’s assistance in the usual way, a successful defence mayprove difficult. Similarly, members may seek our assistance inrelation to a complaint or claim arising out of the provision ofbleaching, but there must be a risk that the patient or theirlawyers will use the uncertainty over the legality of theprocedure to suggest negligence.

The DDU is aware that the BDA’s advice on bleaching isdifferent to our own. The BDA appears to suggest that patientconsent is paramount and if bleaching is provided, consentshould be obtained in the usual way, with an explanation ofthe unclear legal position. It is our view, based on advice wehave received from our solicitors, that if bleaching is indeedillegal, a patient cannot give valid consent to an illegal act.

The debate is ongoing and as soon as the matter is properlyclarified, the DDU will advise members on our website atwww.the-ddu.com. In the meantime, members are welcometo call our dento-legal advisers on our UK Freephone 24-hour Advisory Helpline on 0800 374 626 to discuss this orany other dento-legal matter.

If you change the number of hours you work, your address,or the treatments you undertake, then please contactMembership and let us know. If your registered details are incorrect you may be paying too much or too little in subscription payments, you may also risk access to your policy and discretionary assistance.

4


Please be aware that you must pay a membership supplement if you conduct any implant treatments. This applies if you are involved in any of the following:

•Placement of implants•Provision of fixed or removable implant retained prostheses

•Extra-oral bone grafting or sinus lifts

Are your details correct?

Membership newsInteractive Verifiable CPD

DDU UK Freephone Membership Helpline is available Monday – Friday 8am – 6pm on

0800 085 0614

Keep-up-to-date.tv is at the cutting edge of internettechnology delivering verifiable Continuing ProfessionalDevelopment (CPD) direct to your personal computer. Offeringa range of unique, high quality interactive full-screen and full-motion online video, it has been designed to provide ‘on-demand’ training for dental professionals. Theprogrammes are accessed from a PC enablingdental practitioners to study, complete andverify all their mandatory CPD at theirconvenience, saving the time, hassleand expense of attending lectures,courses or conferences. Anextensive range of programmesare currently available, many ofwhich incorporate interactionsseamlessly embedded withinthe programmes. These highlysophisticated animatedactivities are designed to testthe participants’ understandingas they work through theprogramme and verify theirparticipation. While they workthrough the programmes,participants’ responses areautomatically logged in their individualon-line Professional Development Record,to enable them to record and prove their CPDparticipation.

The DDU takes the educational needs of dentists very seriouslyand we actively work to support your professional career

development throughout your working life. Becauserecertification is critical to dental practitioners who wish tocontinue in practice, the DDU has agreed with Redbus CPDto provide FREE access to Open and Shut Case, just one ofthe nine interactive programmes available from www.keep-

up-to-date.tv if you renew your membership between 1May 2002 and 30 April 2003. Open and Shut Case

is an hour long programme with dramatisedscenarios that demonstrate the importance

of sound practice processes in preventingdento-legal disasters with expert

commentary by Dr RupertHoppenbrouwers BDS LDSRCC, Headof the Dental Defence Union. Asthe drama unfolds, riskmanagement advice designed tohelp dentists develop andimplement comprehensive riskassessment procedures areillustrated. The programme is

interlaced throughout withengaging activities, which the

dental profession is required to workthrough in order for the action to

continue. This is great news for ourmembers attaining the compulsory

recertification required by the General Dental Council.

For more information on what Redbus CPD has to offer visitwww.keep-up-to-date.tv or telephone the keep-up-to-date.tv helpline on 0845 200 8712 and quote 'DDUmember'.

Membership news

To comply with the Data Protection Act 1998, the DDU’sAdvisory Department is no longer able to retain personal dataabout members’ patients, though we are able to keep patientdata relating to legal procedures such as clinical negligenceclaims and criminal investigations. This has important practicalimplications for members who are intending to sendinformation to the DDU and we set out new guidance below.

Clinical negligence claims and criminal investigationsMembers who contact us for assistance with a clinical negligenceclaim or a criminal matter will be advised by a claims handler ora solicitor, who will give directions about the information weneed. Our claims Response Pack also contains advice on this.

We will typically ask you to send us originals of all relevantdocuments - which may include patient information, solicitors’letters and details of court proceedings and which must notbe amended or altered in any way. Since you will be submittingoriginals, you may wish to take a copy for your own filesbefore sending us the original.

Advice on any other matterThere are many occasions when the DDU’s dento-legal advisersask to see dental records in order to assist members. The mostcommon cases are listed below:

• Complaint made under NHS complaints procedure

• Independent review of a complaint

• Inquiry by NHS ombudsman

• Report for internal or external inquiry into anadverse incident

• Statement requested by police

• Precognition requested by Procurator Fiscal orsolicitors (in Scotland only)

• Statement in relation to an NHS claim

• GDC complaint

• Employer’s disciplinary investigation

• Assistance with an inquiry by CHI

• Assistance with a public inquiry

• Specific advice on a dento-legal or ethical issue suchas consent or confidentiality

To help us to comply with the Data Protection Act, if youare writing to a DDU dento-legal adviser on any matter, pleasedo not send us originals of any document that identifypatients. Patients’ records and other documents should becopied and the patient’s name, address and any other detailsof relatives, spouse or partner which might identify that patientshould be blanked out on the copy.

While we appreciate that this may impose an extra workloadon our already overworked members, it is important thatwe comply with the law. If you are writing to an adviser andare referring to a patient please use only the patient’s initials,date of birth and gender. With this information, we will stillbe able to identify your case in future and it will help us toassist you with your case quickly and efficiently.

If you are in any doubt, please consult a DDU adviser beforesending in any information and we will be happy to discussthis with you.

Our freephone 24-hour advisory helpline number is 0800 374 626

Rupert Hoppenbrouwers Head of the DDU


5

Important Notice for Members Sending Information to the DDU

Advice for Practice Managers

The Data Protection Act 1998 and Patients’ Data

Third Party Membership Enquiries

From time to time we receive phone calls from practicemanagers on behalf of dental members who are unable tocome to the phone. Invariably, such calls involve enquiriesrelating to a member’s subscription and, understandably, thepractice manager is not pleased to learn that we cannot answersuch enquiries.

The duty of confidentiality we owe to our members, combinedwith our duties under the Data Protection Act 1998, means weare unable to answer any enquiries from third parties withoutthe explicit consent of the member.

We realise that this can be frustrating for practice managers,who are just merely trying to ensure that the practice runssmoothly, but unfortunately this is unavoidable. We trust that,from this explanation of our position, members will understandthat we are not being obstructive, and feel reassured that weare acting in their best interests.

We suggest that members should consider giving signedconsent to anyone to whom they delegate the task of enquiringabout their subscription. This should be sent to the membershipdepartment.

6


The DDU is the specialist dental division of the MDU and weaim to provide our members with the best possible dentaldefence service. In 2000, the MDU formed a joint venturecompany, MDU Services Limited, with Zurich InsuranceCompany, one of the world’s largest insurance groups with along history in the UK.

Together we have developed a unique dental defence servicefor our members that combines the security of a ProfessionalIndemnity Policy with the traditional discretionary benefits ofmembership. In other words, the strength of insurance withthe flexibility of a mutual.

The Professional Indemnity Policy* is underwritten by Zurichand covers incidents which have occurred during any periodof membership.

Traditional discretionary benefits only give a member the rightto ASK for support, not the right to RECEIVE it. In today’scurrent market, this is not enough and our members expectand deserve the additional security of the contractualcommitment of an insurance policy. In the event of a claimagainst you for clinical negligence, Zurich’s ProfessionalIndemnity Policy indemnifies you against any legal liability topay compensation, claimants’ costs and defence costs up to£10 million. Members also have access to discretionary benefitsto support them for incidents notified after they retire or leavethe DDU.

There is still a place for discretion• in the unlikely event a claim should exceed the

£10 million limit, a DDU member has access todiscretionary assistance to meet any additionalcosts or compensation

• there may be a rare occasion where a claim will notfall strictly within the terms of the insurance policy.In this situation, a DDU member has the right to applyto have their case supported from the discretionaryfunds

• dental members have access to the insurance contractfor as long as they remain members. If a member retiresor ceases membership payments, they will still have accessto the discretionary funds to support them with anyclaims that were incurred during their membership yearsbut reported at a later date

Indemnity benefits are only a part of what we offer. In thecurrent climate of rising numbers of patient complaints, it isof ever increasing importance that members can rely on thebest available support.

Support from an expert dento-legal advisory teamWe offer 24-hour dento-legal advice provided by advisers whoall have wide clinical experience and therefore understandyour particular circumstances.

Support for professional practiceThrough our market leading Risk Management Programme, we are promoting the adoption of best practice. Module 1 coverscommunication and is available to members free of charge.

Support at a personal level when a problem arisesMembers have access to assistance or legal representationwith complaints, disciplinary procedures, inquests or criminalinvestigations related to the care of patients. Our advisers canbe there to attend at a member’s side – the best support fromdental experts who understand.

Support when a member faces the media spotlightOur Press Office can provide support in dealing with mediaenquiries, advising our members how to handle the pressthemselves or by taking the pressure off them by issuingstatements and handling press calls on our members’ behalves.

Support for Continuing Professional DevelopmentOur booklets, website, journals and risk managementprogrammes help to keep our members up-to-date and tomeet the demands of clinical governance.

Support for members’ interests with policy makersWe devote substantial resources to representing members’dento-legal interests with policy makers and opinion formers.

Innovation to improve the support we giveWe are constantly looking to enhance our services and are currentlyworking on the development of a range of new services formembers including a new range of insurance products with Zurich.Our practice policy was recently launched offering a one-stop shopfor all your practice insurance.

Members will be pleased to know that we are still a mutual,not for profit organisation owned by our members. Our members are our priority and the defence of your interestsis our paramount concern.

We have a record of being the first to develop newapproaches; we are the first dental defence organisation to:

• introduce an in-house legal team• introduce a dedicated risk management team• introduce specialist press liaison• offer the unique combination of the Professional

Indemnity Policy with the traditional discretionarybenefits of membership

Today’s DDU is supporting your needs better than ever

(*subject to the terms and conditions of the policy)

Every dentist and dental practice manager needs the reassurancethat their surgery is adequately insured against the consequencesof fire, flood and theft. Practice staff too need the reassurance thatthey have protection in the event of a personal accident ormalicious assault occurring whilst they are work.

A specialist policyyou can really trust

Unfortunately, it seems that all too often dental practices are forced to settle for asimple office insurance package that is not truly tailored to a working practice’s needs.

The Practice Insurance Policy draws upon the dental experience of the DDU and theunderwriting expertise of Zurich Insurance Company to offer specialist yet highlyflexible cover for your practice premises. Our premiums are competitive because youpay only for the cover you need, not for unnecessary extras.

Freephone 08000 684946

Dr/Mr/Mrs/Miss/Ms First name: Surname:

Job title/role:

Practice address:

Postcode:

Telephone number: Email address:

Policy renewal date:

Please contact me to discuss my practice insurance(An adviser from Zurich will call you to discuss your personal requirements)

Is there a particular time of day when it is best to call?

Please send me further information on the Practice Insurance Policy

Practice Insurance Policy

✔

✔

• Drugs and dental stock insured

up to £6,000

• Precious metals and alloys

insured up to £1,000

• Cover of up to £2,500for dental equipment temporarilyremoved from the practice

• Malicious attack benefits

up to £10,000

• Freephone emergency helplineand 24-hour glass replacementservice

quoting reference code DP11

For further information on the Practice Insurance Policy,or for a quotation for your practice premises, pleasecomplete the form below and return to: The MarketingDepartment, MDU Services Limited, FREEPOSTWC438, London SE1 8YX.

Alternatively, call Zurich Commercial Insurance direct on

✂cut here

8


Advanced Restorative Treatment John Cunningham offers DDU members some risk management advice to helpmembers to improve patient care, and avoid complaints and claims.

Advanced restorative dentistry is a highly technique sensitivediscipline practiced in an often unpredictable biologicalenvironment and it is rarely possible to guarantee thattreatment will be successful, certainly in the long term.Without care, the potential for failure may be reflected in harmto patients and the potential for litigation.

Many patients who make claims against their dentists believethey have had no opportunity to discuss the range and natureof treatment options along with their benefits and risks. They feel they were deprived of the chance to make aninformed choice. Before they know it, the chair is back andthe dentist has begun work. Such an approach is clearlydifficult to defend and although the treatment itself may besatisfactory, the dentist could be open to a claim that consenthas not been valid. Where treatment is complicated,destructive and irreversible it is important for patients to havethe opportunity to consider the treatment options and to askquestions about them - even to have second thoughts. To propose advanced treatment and commence its delivery atthe same appointment is unwise. I have spoken to manypatients who had been horrified, I believe quite genuinely,when they discovered what was involved in treatment, forexample, crowns, only after it had begun. As well as writtentreatment plans, there are many ways to help patientsunderstand treatment such as the use of radiographs, models,photographs, prepared illustrations and advice sheets.

All aspects of the patient’s oral health should be consideredand managed appropriately. It has been known for patientspursuing a claim over crown or bridgework to find out fromtheir expert that they also have well-established periodontaldisease. A previously unidentified issue like this can thenbecome a major element of the claim.

Treating the patient correctly is one thing, but being in aposition to demonstrate that you have done so whenchallenged may be quite another. It is frustrating for expertsto find there is little or no objective evidence available, despite the belief that no wrong has been done. The dentalrecords are usually the single most important source of suchevidence. They should record clinical findings, the diagnosisand treatment plan along with the treatment optionsconsidered. As well as the treatment given at eachappointment, any unusual or adverse events should be notedand, most importantly, the fact that the patient was told aboutthem. It is greatly encouraging for an expert to read in thenotes ‘pt told’. This not only gives a strong indication that thepatient was told about a problem, but it sets on the record thedate that the information was given. Experts are often askedby lawyers when they believe the patient became aware of thealleged negligence as it is fairly common to encounter a disputeover the patient’s date of knowledge. Adult patients normallyhave three years to present a claim following the date of the

alleged negligence or the date the patient learned of it.

Chronic periodontal disease is a good illustration of this. It iscommonplace, and its successful management largely dependson the patient complying with the dentist’s advice. Althoughmost dentists are probably aware of their patients’ periodontalstatus and give the right advice and treatment, not all of themwrite this in the records. Without this objective evidence, it isvery difficult for an expert to respond to the allegation thatthe disease has not been recognised or treated. Again, a fewsimple record entries in addition to the BPE and a diagnosiscan make all the difference. If the patient is clearly notresponding, the fact should be noted.

Radiographs are another valuable source of objective evidence.They need to be taken primarily for effective diagnosis andtreatment, but they may be needed many years later to assistin the dentist’s defence. To be useful, they need to be of highquality and to have been well processed and preserved. Theyshould be clearly dated and preferably mounted. Failing totake radiographs, for example during root canal treatment,can create significant problems not only in treating the patient,but also in defending a case later.

Communication is the key word in this type of riskmanagement, not only between professionals through therecords, but between dentist and patient. It is important tomake sure patients understand what is proposed and what isgoing on. While treatment failures may give rise to litigation,the patient often decides to seek legal redress because ofperipheral issues. This is most readily appreciated by the expertat the time the patient is examined and statements like – thedentist refused to see me, the dentist was clearly annoyed,the dentist said it was all in my mind – do crop up fromtime to time. While such reactions may bring some immediatesolace and satisfaction to the dentist on a bad day, the take-home risk management message is clear – thinkbefore you speak and, if necessary, bite your lip.

Information for inclusion in the dental recordsmedical historyprincipal clinical findingsdiagnosistreatment plantreatment options considered (if appropriate)specific warnings givenall treatment delivered at each appointmentadverse occurrences - patient informed

John Cunningham is a Senior Fellow in Clinical DentalSciences at Liverpool Dental School, Honorary Consultant inRestorative Dentistry and Deputy Chairman of the DDU’sdental advisory committee.


9

Risk Management case studiesEffective risk management can minimise the risks a dental practice faces, by helpingdentists to identify and analyse risks and put in place preventive measures to avoidand control them. To help you identify certain risks and minimise their potentialto escalate, the DDU’s risk management team has compiledsome useful case histories. These cases are based on the DDU’sfiles but some details have been omitted or amended toprotect confidentiality.

Problems contacting the on-call dentistQI have received a letter of complaint from one of my patientswho was unable to get emergency treatment for an abcessover the weekend. I take part in an emergency rota organised by the LDC and health authority, and at weekendsthe answer phone at the practice advises patients to contact the emergency rota. The patient contacted theemergency phone number and was informed that themessage would be passed to the on-call dentist. The on-calldentist failed to contact the patient despite a second call to the emergency number. In desperation, the patient wentto the accident & emergency department of the local hospitalwhere he was given antibiotics and painkillers. How should I respond?

AYou should immediately acknowledge the letter of complaint,in line with general guidance on complaint management,confirming that the matter will be investigated. You might atthe same time, also invite the patient to contact yourreceptionist to make an early appointment in order to examinehim and provide whatever further treatment is necessary. I suggest you then contact the person responsible fororganising the rota and the dentist on-call at the time, to ascertain what happened.

Having spoken to both the rota organiser and the on-calldentist, I suggest you send a sympathetic, conciliatory replyto the patient. You should aim to send a definitive response within ten working days of receiving the original complaint and we will happily assist you in draftingthis letter if required. The letter should explain thearrangements in place at weekends, apologise for theproblems that arose, explain the reason for the failure and the steps taken to avoid a recurrence. Under the NHSTerms of Service, if the dentist deputising on the rota was also on the health authority dental list, he/she is responsible for the failure to respond. This would be relevant in the event of an investigation of the complaint or disciplinary action by the health authority, and in the event of a civil claim for negligence.

Risk Management considerations• Always ensure that the practice answer phone and

appropriate emergency message are left on out-of-hours.

• If you are the on-call dentist, always make sure your phoneand/or pager are in good working order.

• When you are on-call, ensure that all communication andadvice given to a patient is recorded fully.

Refusing to treat a patientQI have a patient who has been told she should have an HIVtest. Can I refuse to treat her until she has had the test, or if it is positive?

AUnder paragraph 4.1 of the GDC’s guidance to dentists,Maintaining Standards, it is unethical to refuse to treat a patient solely on the grounds that they have a blood bornevirus, or any other transmissible disease or infection. If proper cross-infection control procedures are adopted foreach and every patient, as they should be, a patient who isHIV positive can be safely treated with no additionalprecautions. Indeed, it is likely that you have treated HIVpositive patients unknowingly, because inevitably somepatients are not aware of their HIV status. If such patients arediscriminated against there is, of course, the risk that theymay decide to withold their HIV status, which may have a significant bearing on their oral health.

Risk Management considerations• Ensure cross-infection protocols are in place for all patients.

• Always obtain and update medical histories.

• Ensure the whole practice team understands theirresponsibilities in relation to confidentiality.

• Ensure everyone is aware of the practice protocols fordealing with sharp stick injuries.

Record keepingQI have been asked for some records by the DPB which I haveprovided. I subsequently received a letter from my HealthAuthority alleging that I may be in breach of paragraphs 4(1)(b)and 27(4)(a) of my terms of reference. I submitted claims tothe DPB by EDI link. I’m not sure what I have done wrong,could you explain?

AParagraph 4(1)(b) of the National Health Service (GeneralDental Services) 1992, as amended, states that:

At the time of his first examination of the patient, provide thepatient with a plan for treatment on a form supplied for thatpurpose by the Health Authority (FHSA) which shall specify:

• details of the care and treatment (if any) which in theopinion of the dentist, at the date of that examination, is necessary to secure and maintain the oral health of the patient;

• the approximate period following which a furtherexamination is recommended by the dentist;

• his estimate of the NHS charge, if any, in respect of thatcare and treatment; and

• any proposals he may have for private care and treatmentas an alternative to the care and treatment proposedunder general dental services, including particulars of thecost to the patient.

This means that dentists are required to ask the patient tosign, or to provide the patient with a form FP17DC. Our experience is that many practices still do not provide theseforms to their patients on a regular basis and are layingthemselves open to an allegation of a breach of their termsof service. The forms are obtainable from the health authority,so it is quite easy for the health authority to identify anypractices which are not using the FP17DC. The regulations domake allowance for forms which, though not supplied by thehealth authority, are in all material respects the same as a formwhich is supplied by the health authority.

The provision of a written treatment plan is covered in the GDC’s guidance to dentists, (Maintaining Standards paragraph 3.6 ). A written treatment plan will help to avoidmisunderstandings, particularly where treatment under private contract is being offered to registered NHS patients .

Paragraph 27(4)(a) of the terms of service states:

A dentist who, in accordance with sub-paragraph (2), uses acomputer to send an estimate shall at the appropriate timesecure the completion, so far as applicable, by the patientor by any person acting on behalf of the patient, of thepractice record form (FP17PR).

In our experience, many forms FP17PR are sent to the DPB, inresponse to a routine request for records, with details missing,particularly dates of signature by the patient. It is also ourexperience that the DPB consider that such omissions negatethe entire claim and an allegation of a fraudulent claim mayfollow.

Form filling is not anybody’s favourite pursuit, but if it is notdone, the dentist may be called before a Dental DisciplinaryCommittee Panel, where he or she may face the prospect ofa substantial withholding of fees and a possible referral to theGDC’s disciplinary process. A small amount of time spent bythe practice receptionist in ensuring that the correct forms areprovided and properly completed, will help to prevent this.

Risk Management Considerations• You should ensure that you know when form FP17DC

should be used, provide patients with a copy and retaina copy in the notes.

• A plan for treatment on form FP17DC must be providedto NHS patients when:

A patient is first examinedA patient requests onePrivate treatment is to be providedAny of the care and treatment to be provided includesitems of treatment as specified in the NHS regulationsPart 2(4)(3) (as amended)There is a change to the treatment plan

• Ensure NHS patients sign form FP17DC whenever privatetreatment is provided.

• If you send claims to the DPB via an EDI link, patients mustsign form FP17PR at registration and completion oftreatment. If you do not use an EDI link then form FP17should be used and signed by the patient at registrationand completion of treatment.

• It is desirable that all patients receive a written treatmentplan and fee estimate. If the treatment is extensive andexpensive, the GDC demands a written treatment and feeestimate is provided.

10


Pose

d by

mod

els

The Council recognises the fact that members view contact with the GDC with an air of trepidationand even anxiety. Antony Townsend, Chief Executiveand Registrar of the General Dental Council, tries to allay some of these fears.

Dentists can be forgiven for viewing the GDC with a measureof alarm. One senior dentist confessed to me recently thatwhenever he received correspondence from the Council his reaction was, ‘Oh my God, what have I done?’ and, ofcourse, public hearings and erasures from the Register arewhat captures the media’s (and readers’) attention. It is worthremembering how few dentists find themselves the subjectof any kind of complaint to the GDC in a year – well under5% of those registered; and, more significantly, a tinyproportion (0.1% a year) are the subject of hearings. Eventhough the risk for the individual dentist of facing GDCproceedings is minimal, the effect upon those who do is, of course, potentially devastating.

We are discussing with dental defence organisations how wecan, without minimising the gravity of GDC proceedings,reduce unnecessary distress. We have also publicly consultedon a radical review of our Fitness to Practise proceedings whichwill shift away from our current criminal style proceedings,with their overtone of blame, towards a system focused uponfitness for registration and the safety of patients. This shouldbe more beneficial for patients and dentists alike. Plans arealso advancing for the introduction of performanceprocedures, the aim of which will be to identify early, and where possible remedy, declining performance beforeproblems occur.

On top of this, the Council has an ambitious programme ofconstitutional reform to reduce the size of the Council andincrease its effectiveness; well advanced proposals to registerthe entire dental team, with the dentist as leader, opening theway to better public protection and more flexible working;the introduction of a complaints system for non-NHStreatment, to provide prompt and local resolution of problemswhich ought never reach the GDC; and reform of the archaicrestrictions upon dental bodies corporate.

We now have Government commitment and resources in theDepartment of Health, to make these changes. Our firstlegislative Order was approved by Parliament in November2001 and we have the promise of a further one this yearwhich will go a long way to completing our programme. Many of these changes will have significant impact upon the

work of dentists – not just the small minority unfortunateenough to face GDC proceedings.

The GDC’s website is www.gdc-uk.org is regularly updatedso that members of the profession and members of the publiccan learn about developments and contribute to debates.Perhaps it is over optimistic to expect dentists to think, ‘Ah,more good news from the GDC!’ – but a little less dread anda little more enthusiasm would be welcome.


11

The General Dental CouncilThe General Dental Council (GDC) is the statutory body, created in 1956, which regulates the dental profession in the United Kingdom. It is responsiblefor maintaining standards in the dental profession and for ensuring the public is protected.

Pose

d by

mod

el

12


Member Feedback - Is it worth it?

Well, we believe it is and naturally we place a great deal ofimportance on your opinions which enable us to remain alertto your requirements. Recently you may have been asked totake part in research discussions organised by the DDU andsome elements of your feedback are summarised in this article.We hope you will find this of interest.

24 Hour Advisory ServiceThe Advisory service is the cornerstone of everything that theDDU stands for and is often cited as the main reason forjoining us. It is reassuring therefore to see the high regard inwhich you hold this service. Many members ask for advice,often in difficult personal circumstances, and your feedbackindicates that you value the support, reassurance and practicalno-nonsense assistance we provide. Typical feedback frommembers includes:

‘I’ve always been very satisfied with the DDU’s help andservice. I’ve phoned on a number of occasions just to checkthings out’.‘I have had no problems whatsoever. The experience I havehad of them has been excellent’.

Being innovative in our approach, we continue to adapt ourworking practices to improve benefits to members and theadvisory service is a key area for us to maintain the highest ofstandards.

CommunicationThe way we communicate with you is an important area forus to get right. One publication that members clearly value asa source of useful information is the DDU Journal. Case studieswere highlighted as the main point of interest and there isevidence that members use these as topics for discussion atpractice meetings as well as raising issues directly withcolleagues. Typical feedback includes:

‘It acts as a knowledge base’‘There are potentially some good lessons to learn’‘I’m at the cutting edge. I like to know the current advice’

Members have suggested relevant topics for future inclusionwithin the Journal and you should see some of these coveredin this edition:

• more case studies• procedures for dealing with a complaint• updates on new legislation• contemporary practice issues, e.g. clinical

governance/professional development• advice and guidance, e.g. the DDU view on tooth bleaching

Remember, the DDU website (www.the-ddu.com) is also arich and accessible source of useful information.

Zurich – What is this all about?In recent research, many of you have advised us that youare aware of our joint venture with Zurich. However it isalso clear from your feedback that some of you are unsureexactly how this affects you and why there has been a needfor change. The following comments are just some of thosewe have received:

‘I have doubts about why they’ve joined with Zurich. A fewreservations about what it will mean’.‘I’ve obviously been aware of the Zurich partnership. I dowonder what will change’.

It is important for us to clarify the position more clearly andexplain the additional benefits that you will receive as amember. You will find further details of the ProfessionalIndemnity Policy, underwritten by Zurich Insurance Company,on page 6 in this Journal. We hope this will go some way toanswering your queries, but if you have any more questionsyou should contact the UK Freephone MembershipHelpline on 0800 085 0614.

Finally, as we move forward, the DDU will look to introducenew services that we believe will benefit you in yourprofessional life. To do this effectively we will continue to seekyour opinions. If you have already taken part in a researchdiscussion may I thank you for taking the time to participate.If you are asked in future to comment about the DDU I hopeyou will agree to take part so that we can ensure the needsand requirements of our members continue to be sought.

By Chris Horrell, Market Research Manager at the MDU.

We have always taken an interest in the views of our members to ensure thatour future direction and services provided are of relevance to you. But is memberfeedback really helping us to provide you with what you want?

Very good 60%

Good 22%

Quite good 7%

Quite poor 2%

Very poor 0%

No answer 9%

’No answer’ reflects the number of dentists who haven’t used the service and who have no experience by which to judge it.

Satisfaction rating of the 24-hour Advisory Service

What is an‘Associate’?

The term ‘associate’ is not a precise one. In essence, an

associate works in a practice owned by one or more principals,

or a corporate body. The principals or corporate body provide

patients, surgery facilities, materials and support staff.

In return, the associate pays to them an agreed proportion of

the fees earned. An associate is a self-employed, independent

contractor practitioner, separately in contract with a health

authority or health board, and is totally responsible for his/her

own acts and omissions – professionally, financially and legally.

For example, he/she will be responsible for paying income tax

and national insurance, as a self-employed person.

Your optionsYou may consider staying in your VDP practice as an associate.There are many advantages in doing this, for example, you benefit from seeing the results of your work over a periodof time and you offer a continuity of care to your patients.

Also, you will already know a lot about the practice, the otherstaff there, the amount of work available and whether youcould sustain an income from it. Alternatively, you may preferto move to pastures new and widen your experience, in whichcase there will be many additional factors for you to weigh up, such as:

• Private or NHSWhen choosing a practice in which to work as anassociate, you will need to consider the extent towhich your chosen practice offers private or NHStreatment, as this will determine your potentialearnings.

• LocationConsider how the practice location affects the type of patient you see. For example, a city centrepractice is unlikely to attract many children – patients are likely to be adults working in nearbyshops, offices and other businesses.


13

Becoming an AssociateEven before you finish your VDP training you will begin to start considering youroptions on what to do next. There are many opportunities available to you andthese may be daunting at first, but the DDU has considerable experience in advisingand assisting you in choosing your first associate job.

Pose

d by

mod

els

• SizeDecide whether you want to work in a small practice,a large or group practice, or perhaps for a corporatebody. Each practice type has unique benefits,some of which may be better suited to your needs.

You should start by finding out what is available, using asmany sources as possible including your former dental school, personal contacts and various professional journals. The British Dental Journal, in particular, is extremely usefuland has a comprehensive website www.nature.com/bdjcontaining a wide range of advertisements for associate positions.

Having narrowed down your search, you can research in moredepth those practices that look of most interest to you. Many practices have websites or produce advertising literatureproviding information on how many dentists work there ordetails of specialist treatments offered. It is useful to knowthat NHS practices are obliged to produce a practiceinformation leaflet providing information about surgery hours,emergency contact numbers and complaints procedures,amongst other things.

You will need to have a good CV which accurately reflects theimage you want to portray. You will want to be well prepared

for your interview and have your questions well thought outand ready. Remember you are there to see whether thepractice is the right one for you as much as for the practiceto decide whether you are the right prospect for them.

These are only the first steps to becoming an associate andthere are many other factors to take into account whenselecting and starting to work at your chosen practice.

The DDU has a great deal of experience in this field and canoffer you advice and guidance through every stage of yourcareer in the dental profession. In our experience, those invocational training start looking for their first associate jobquite early in the VDP year. To recognise this, we havedeveloped a guide entitled ‘Becoming an Associate’, which gives a wealth of invaluable advice and guidance.The booklet covers all aspects of looking for, selecting andtaking up that first associate job and is full of risk managementtips to help you avoid the many common pitfalls.

It is available free of charge to members, by phoning ourUK Freephone Membership Helpline on Freephone 0800 085 0614 or email us at [email protected]. It can alsobe found on the DDU website www.the-ddu.com

By Mark Philips, DDU Adviser.

14


Pose

d by

mod

els


15

How safe is my data ?

The relevant legislation is found in Schedule 1, Principle 7 ofthe Data Protection Act (DPA) 1998. This states: ‘Appropriatetechnical and organisational measures shall be taken againstunauthorised or unlawful processing of personal data andagainst accidental loss or destruction of, or damage to,personal data’.

The Department of Health has also produced information onElectronic Patient Records.

Copies of the legislation and guidance to the interpretationof data are available on the web. All these sites can beaccessed via our website at: www.the-ddu.com

How can I ensure the security of confidential dataheld on my computer?The DPA states ‘Having regard to the state of technologicaldevelopment and the cost of implementing any measures, themeasures must ensure a level of security appropriate to a) the harm that might result from such unauthorised orunlawful processing or accidental loss, destruction or damageas mentioned in the seventh principle and b) the nature of the data to be protected.’

No manual or electronic system will ever be 100% secure butshould an unauthorised disclosure occur you would need tobe able to justify the steps that you have taken to preventbreaches in patient confidentiality. Failure to implement basicprinciples in electronic security may also contravene theguidance produced by the GDC that states ‘A dentist withcomputerised patient records must ensure that the computersystem used includes appropriate features to safeguard thesecurity and integrity of those records.’

Theft. You are expected to take appropriate steps to preventtheft of computer equipment. While paper records are unlikelytargets for random theft, computer equipment may be adifferent matter. Laptop and handheld devices are perhapsthe most vulnerable to theft and you may wish to considerwhether sensitive data should ever be kept on them.

Unauthorised Access. This could happen either in the workplace or following a theft. It is expected that suitable securitywill be built in to the computers themselves to preventunauthorised access.

Various security methods can be used to secure thecomputer/laptop from unauthorised access. These include:-

• activating a password when the computer is switchedon, however this does not protect the hard disk frombeing removed and accessed from another computer

• purchasing one of the available third party securityproducts. These encrypt the entire hard disk and askfor a password when the computer is started. If thecomputer or laptop is stolen, then the thief will notbe able to read the contents of the disk which aresecurely scrambled

• windows 2000 provides a new feature called EFS –encrypting file system. This allows specific directorieson the hard disk to be encrypted, requiring a

The DDU regularly receives enquiries in relation to patient records storedelectronically. Questions usually relate to members’ individual responsibilities forsecurity and integrity of the data. Here, we look at a few of the commonly askedquestions and the DDU’s current advice.

16


password to read the data. Patient data andcorrespondence can be stored in such directories.Other third party security products are also availableto achieve this

• the application used to store the data (e.g. adatabase) should require a password in order to viewits data and the data should not be able to be readwithout a password

With networked computers connected to the Internet, a firewall capability should help to prevent unauthorised accessby hackers. Personal firewalls are now available for individualstand-alone computers.

In the workplace all staff should have a confidentialityclause in their contracts that covers patient data held in anytype of storage medium. Software should have the facilityto provide an audit trail indicating which user has had accessand processed data and at what time.

Hardware or Software Failure. You will need to takemeasures to safeguard against accidental loss of data. Over time, errors will develop in all types of storage mediaand for this reason regular ‘backing up’ of data on to anexternal medium (such as a removable zip drive) isrecommended by many IT experts. Backup data should notbe left with the computer, as it is preferable to keep it off siteto prevent total loss of data in the event of a fire or theft.It is advisable to ensure that hardware is regularly servicedto reduce the risk of losing data.

What steps can I take if the PC needs maintenance?At some stage, all electronic equipment will develop faultsand require maintenance. Often equipment will also requireregular servicing. In this situation it is advisable that the repairsare conducted by a reputable company and that a writtencontract should be in place. The contract should indicate thatthe computer contains sensitive data and should ensure theconfidentiality of such data. The contract should also statethat the repairer would not attempt to access the patient dataheld on the machine.

Data can also be secured during maintenance by storing itin an application that requires a password to view the data,as mentioned above. Windows EFS or other third party securityproducts can encrypt the part of the disk used to storeconfidential data allowing general maintenance to beperformed on the rest of the system. Another option fornetworked computers is to store all the confidential data ona network server rather than the workstation. This way theworkstation can be sent for repair without containing anysensitive data.

What do I do with old computers?Information held on hard disks is notoriously difficult to erase.Even formatting a hard disk may not make all the datapreviously held on it irretrievable to a determined person.

Security products are available for your PC, to wipe the harddrive. Alternatively there are companies that specialise incollecting old computers and they guarantee to securely wipethe hard disk and to destroy or recycle the computer (somebeing sent to developing countries).

By Bryan Harvey, DDU Adviser.


17

Case Histories

GDC Professional Conduct CommitteeA family with three children had been patients of our memberfor many years. The parents were private patients and thechildren were NHS registered as it was our member’s policythat children should have access to NHS treatment when oneor both parents are private. When the parents chose to moveto another practice, leaving the children registered with thedentist’s practice, he telephoned his local health authority toverify the procedure for de-registering the three children. Hesubsequently returned three FP18s requesting three monthsnotice for de-registration as set out in the NHS Terms ofService. There was no outstanding treatment on any of thechildren and the health authority informed him that theywould notify the patients of the de-registration. Severalmonths later, the dentist received a request for extractions forone of the children from his orthodontist, which he dulyreturned explaining that the patient was no longer registeredat the practice. The child’s mother subsequently telephonedthe dentist to express her concern and he apologised on behalfof the health authority for their failure to inform the family.

The children’s parents complained directly to the GeneralDental Council and our member received a letter from theGDC stating that the matter was to be considered by thePreliminary Proceedings Committee. Our member approachedus for advice and we instructed a solicitor who respondedto the Preliminary Proceedings Committee on his behalf,explaining the situation in detail. However, despite this, the case was referred to the Professional Conduct Committeeof the GDC.

Misconduct AllegedThe dentist faced a number of charges before the ProfessionalConduct Committee of the GDC relating to his failure toadvise the parents personally of his decision to remove theirchildren from his list of patients. It was alleged that, in failingto do so, he was in breach of a number of provisions of hisTerms of Service.

OutcomeThe DDU’s dento-legal adviser arranged a meeting withrepresentatives of the relevant health authority to discuss thevarious issues regarding the de-registration of these children.The health authority confirmed that it is the dentist’sresponsibility to notify patients of the termination of acapitation arrangement after a three month period and thatour member had been misinformed. It was the policy of thehealth authority to notify patients only when immediate de-registration is requested. At the hearing, counsel for theprosecution, in his opening address, made no reference to thestatutory provision requiring the dentist to inform a patient

personally of removal from the practice list and an effort wasmade to enlarge the scope of the inquiry, to allege that ourmember had been abrupt and unhelpful in his contact withthe family. Until that point, no such allegation had been madeagainst our member and representations were made on hisbehalf to prevent the inquiry being enlarged and confirmationsought on the precise statutory provision which it was allegedhe had breached. The prosecution then confirmed that theydid not intend to seek to allege that our member had beenguilty of abrupt and discourteous behaviour. The caseprogressed and the mother of the three children was called.She accepted that there had been a “mix-up”.

A submission was made by our member’s barrister that thefacts alleged could not, as a matter of law, amount to seriousprofessional misconduct on the grounds that it was acceptedby the prosecution that he had sought advice from the healthauthority as to the correct course of action. Unfortunately, hehad been given incorrect advice and the health authorityclearly did not regard this breach as serious or significant asthey had not begun proceedings against the dentist for breachof his Terms of Service. In any event, as had been acceptedby the children’s mother, the whole episode had been no morethan an unfortunate mix-up.

The application was granted by the Committee and thecase was dismissed.

Trauma to floor of mouthThe patient visited the dentist for a lower molar crownpreparation. During the course of the procedure, the rotatingbur of the air turbine caught the floor of the mouth when thepatient swallowed, causing a small laceration. The dentist,who was using a dental mirror to protect the tongue, informedthe patient of the complication and recommended hot saltmouthwashes. The crown was fitted two weeks later whenthe floor of the mouth was noted to be healing well.

The patient returned to the surgery three months latercomplaining of a swelling in the floor of the mouth which wasaffecting her speech. On examination, the dentist noted salivacollecting in a pocket of tissue and referred the patient to theoral surgery department of the local hospital, where theswelling was opened and curretted. Two months later thepatient was still having recurrent swelling and it was decidedto excise the lesion and associated sublingual salivary gland,which was undertaken on a ‘day-stay’ basis under generalanaesthetic two months later. When reviewed one monthpost-operatively, it appeared the procedure had beensuccessful and the patient was discharged.

We have identified a selection of case studies which we hope you will find bothvaluable and interesting. These are based on real life closed cases from the DDUclaims handling and advisory teams and have been suitably anonymised in orderto protect the identities of both members and their patients.

18


Negligence allegedThe patient claimed the dentist had “dropped” the drill in her mouth and there were other differences in the accountof events. The DDU’s expert advised that an injury to the floorof the mouth caused in this fashion would be just the sort oftriggering event that might cause a mucous retention cyst.The DDU’s expert also concluded that the technique of usinga mouth mirror to retract the tissues of the floor of the mouthwas a perfectly reasonable and orthodox method of securingsafe access to prepare a full crown on a lower molar toothand that the patient’s account of the injury appeared unlikely.In his view the more likely explanation for the injury was thatthe patient swallowed, causing the tissues of the floor of themouth to contact the bur, and that a laceration of the floorof the mouth caused in this way did not constitute a negligentact. The expert was quite certain that every dentist (himselfincluded) had had many similar incidents even when fullconcentration and awareness was being applied to the task in hand.

OutcomeThe DDU senior claims handler discussed with the dentist thedifficulty in successfully defending this type of injury, notwithstanding the supportive expert advice. In the DDU’sexperience, judges are unwilling to find that such an injuryis simply a recognised and acceptable complication of toothpreparation. Furthermore, the patient would almost certainlyhave been able to secure an expert to contradict the DDUexpert’s view that the dentist was not negligent. There wasalso a conflict of evidence between the dentist and the patientas to the mechanism of injury and other factors concerningthe management, such that the outcome of any litigation wasuncertain.

With the dentist’s agreement, the DDU negotiated a settlement of £6,000 without admission of liability.

After-effects from local analgesiaThe patient had been attending the DDU dentist’s practice fora number of years for routine dental treatment under localanalgesia without any problem, including crowns on all hisupper incisors following an accident.

The patient had become conscious of the appearance of twoupper canines, which were a different colour from the crownsand were progressively beginning to discolour at the gummargins. He agreed to both these teeth being veneered toimprove their appearance. The teeth were prepared underlocal analgesia at the following visit and impressions weretaken to construct the veneers. On the following day, the patient noticed that the analgesia on the left side was stillpresent, whilst on the right-hand side it had worn off as usual.Moreover, the left side of his face, where the injection hadbeen given, was noticeably swollen, painful and tender to touch.

The patient consulted the dentist two days after the injectionsand was advised that there may have been some soft tissuedamage caused by the local analgesia. Ibuprofen tablets wereprescribed and the patient was reassured. The left side of the

patient’s face developed some mild bruising over the next fewdays, but this resolved spontaneously, though the numbnessand swelling remained. The veneers were fitted uneventfullytwo weeks later and were satisfactory.

The facial swelling gradually reduced over the next six monthsand eventually resolved completely, although the patient stillcomplained of mild pain when firmly pressing the cheek justbelow the left eye. The area of facial skin affected by thenumbness also gradually reduced over 6 months, but did notcompletely resolve.

The patient reported that the affected area felt different(paraesthesia) from the remainder of his face. He alsocomplained of a mild twitch in his left upper lip whichdeveloped after the injection. As there was no improvementin the symptoms, the dentist referred the patient to the oralsurgery department of the local hospital. The senior houseofficer diagnosed direct trauma to the nerve during theadministration of local analgesia and the patient was advisedthat sensation should improve, but recovery might not becomplete. In view of the incomplete recovery of sensation,the patient was referred to a school of denistry.

Negligence allegedDuring the patient’s consultation at the school of dentistry,a note was made of “inadvertent infra-orbital nerve block”,which was referred to later by the solicitors and expert actingfor the patient. The patient’s expert, a maxillofacial surgeon,maintained that during the administration of the localanaesthetic the infraorbital nerve had been contacted bythe point of the needle and as a result the patient had sufferednerve damage. He concluded that the dentist was negligentas he was using a local anaesthetic technique which wasunnecessary for the required treatment and that had aninfiltration local anaesthetic been given there would not havebeen any neurological damage.

OutcomeThe DDU’s dento-legal adviser instructed a consultant inrestorative dentistry, who concluded that ‘the evidence stronglysuggests that, on the balance of probabilities, this injurywas caused by pressure from a sub-periosteal haematomarather than physical damage from the injection needle.’ He went on to add ‘It is generally agreed that the productionof a haematoma during the injection of local analgesia is anunfortunate accident which could happen in the best of hands.There is therefore nothing to show that the practitioner’smanagement of this case fell below the standard expected ofa reasonably competent general practitioner.’

Following receipt of the expert’s report, the dentist maintainedthat he would never have given an infra-orbital block, eveninadvertently, and confirmed that he wished to continue todefend the case. A review of the case estimated that shouldthe case be lost, then damages would be awarded to thepatient in the region of £7,500 to £10,000 plus their costswhich could be in the region of £10,000 to £15,000.

A trial date was set and after two days of trial, the judge foundin favour of the dentist and the case was dismissed.

19

Over 1000 copies of the DDU’s Risk Management in Dentistry– module 1 have been requested by dentists and their teams.This module covers different aspects of communication indental practice administration and includes:• advertising• contact and appointment systems• explaining fees to patients• internal discussions on practice issues• continuing professional development

The module helps dentists and their teams to identify andreduce risks related to dental practice administration and ispresented within an easy to follow booklet. Practical riskmanagement advice, background information and referencesfor further reading are included. An action plan for in-houseuse gives a framework for planning and evaluating change.A benchmarking service is also available.

A number of you have already completed module 1 andalso filled out our evaluation questionnaire for which we aregrateful. The feedback we have received from dentists so farhas indicated that a great deal of benefit has been derivedfrom working through the module and the majority havestated that they found it useful to the practice and wouldrecommend the pack to others. The module has clearly madedentists think about the way the practice operates and formany it has resulted in a general review of existing procedures.Typical comments include:

‘General review and fine-tuning of systems already in place.Very thought provoking.’‘Look at each section at staff meetings and try to improvepractice. Use as a basic foundation to improvement.’

Completion of the module can also help members to identifyareas of their practice that may benefit from a clinical auditor peer review. Members may also wish to include the timespent completing the module as part of their verifiable CPDas required by the GDC.

You can order your copy of the first module of the RiskManagement Programme now. It is available FREE tomembers; and to non-members for £50.

To order, please contact the Risk Management Department on

020 7202 1589.

Member feedback has also indicated other areas that couldbe included in future modules and many of these suggestionswill be taken into account when developing our future riskmanagement programmes.

COMING SOON…. Module 2 of the DDU’s RiskManagement Programme. This will be available soon andwill cover risk management in relation to Consent, Recordsand Confidentiality. This module will be sent automaticallyto all members who have previously requested module 1.

Feedback on Risk Managementprogramme - Module 1


Effective Risk Management can help members and their teams to comply withclinical governance requirements by avoiding errors and maintaining a consistentlyhigh standard of patient care. It is a clinical governance requirement that a dentisthas ‘a system to ensure that all dental care provided is of a consistent quality’.

20


Dentists’ Dilemmas Q&As

QI live and practice in a small village, where there is just oneother dental practice. I wish to name my practice after thevillage but, I’m worried that the other dentist in the villagemight object to this. I don’t think this should be a problem,but I do not wish to fall foul of either my colleague or theGeneral Dental Council.

AThe GDC has no objection to the use of geographical namesin practice titles and it is merely a question of who choosesto use the title first. Paragraph 6.13 of the General DentalCouncil’s publication Maintaining Standards states: ‘Theapproval of the Council is not needed for practice titles. Themain consideration in relation to the title of a dental practiceis that it should not mislead the public. When choosing apractice title, dentists should have regard for other practicesin the area’. So, you would be at liberty to use the title butclearly this will upset the other dental practitioner in the villageand you may want to consider this.

QMy practice manager has just received a telephone call froma patient complaining that she had to see the emergencydentist (from our rota) at the weekend as she had severe painfrom a tooth on which I had started root treatment last week.The patient has cancelled her appointment and said we wouldbe hearing from her. What should I do?

AYou will need to write to her within the next three days toacknowledge her complaint and to explain you will beinvestigating it fully. You may also wish to add that you aresorry to hear she had pain from this tooth. You should thendraft out a letter outlining the treatment that you hadprovided, your views on the complication that occurred andinforming her of the need for further treatment. You may wishto offer her an opportunity to come to the practice to discussit further. You are very welcome to send this draft letter to theDDU for comment before it is sent to the patient.

QI have just heard from a patient’s solicitor asking me to preparea report on dental injuries sustained by the patient during anindustrial accident. I have seen the patient on a regularbasis over a number of years but I have not examined himsince his accident at work, which was many months ago.Apparently the patient’s solicitor advised him not to have anytreatment pending settlement of the claim, and the patienthas recemented a postcrown with ‘Superglue’. How shouldI respond to the solicitor?

AFirstly, it is important to differentiate between the roles andobligations of a witness to fact and an expert witness. The former will have existing knowledge of the patient, usuallyhaving treated him and will be in a position to provide a purelyfactual report on his involvement in the case. By contrast, theexpert witness (and any dentist can be invited to act as anexpert), has not been involved in the treatment of the patientor any other aspect of the case and can be considered trulyindependent, which is a prerequisite for an expert.

I suggest that you reply to the solicitor explaining you are theirclient’s general dental practitioner. You should go on to explainthat you are therefore willing to examine their client and treathim as his general dental practitioner. You could includethat you are also willing to prepare a report as a witness tofact on his dental history, the account he gives of the accident,your findings, treatment plan, and any treatment given, butyou consider it inappropriate to act as an expert, given yourprevious involvement with their client.

Our advisers answer a selection of typical queries from dentists who have calledour Freephone 24-hour Advisory Helpline. If you have any queries yourself, pleasedo not hesitate to call us on our UK Freephone 24-hour Advisory Helpline on 0800 374 626.

QDo I need to ensure that I have a signed consent form frommy adult patients before providing them with any treatment?

AThis apparently simple question does not allow acorrespondingly simple answer!

The consent form is a document which many practitionersseek to rely upon to demonstrate that they had their patientsconsent for a procedure. However, the form is, at best,documentary support that a procedure has been discussed.

It must be stressed that consent is a process by which a patientfreely gives his or her permission for an intervention. It isthe dentists’ duty to ensure the patient understands thenature, purpose, effects (both intended and unintended) andcomplications of the procedure. It is also essential that thedentist explains any alternatives.

To ensure valid consent, patients must be encouraged to takepart and you will need to record this in the treatment record.Clearly, the value of a consent form without a written recordof the process by which consent was achieved is greatlyreduced. The DDU advises that all discussions relating toconsent are noted in the patient record and a consent formcan represent acknowledgement of this process having takenplace. More detailed information about consent is availablein the DDU publication Guide to Good Dental Practice.

QI am an orthodontist and wish to make clear to patients thespecialist nature of my practice. Can I do this?

AYou are allowed to state that you are an orthodontic specialistif your name is entered on the GDC’s specialist list fororthodontics, in which case you can use the words‘orthodontic specialist’ on your notepaper, professional plate,practice information leaflet and advertisements for yourpractice.

If, however, you have an interest in orthodontics, with orwithout a postgraduate qualification but are not on the GDC’sspecialist list, you are only permitted to state that your practiceis restricted to orthodontics and confirm your interest in thesubject, but you must not use the word ‘specialist’.

The GDC is quite clear that no dentist should imply possessionof specialist status in terms which could mislead patients andthis view is set out in paragraphs 1.5 and 7.6 of the GDC’sguidance to dentists ‘Maintaining Standards’. Any practitioneron the GDC specialist list for a recognised specialty other thanorthodontics can confirm their status in a similar fashion.

QOne of my NHS registered patients needs a cobalt-chromedenture, but the laboratory fee for the denture will exceedthe total NHS fee for the course of treatment. Do I have toprovide the denture under the NHS or can I refuse but offerit privately for a more realistic fee?

AI do sympathise with you over this dilemma but under theNHS terms of service for dentists, you are obliged to provideall the treatment necessary to secure and maintain oral healthfor any registered patient and that treatment must beprovided, or at least offered, under NHS arrangements, unlessthe patient freely elects to have private treatment or thetreatment is not available under the NHS. The regulationsdefine oral health as follows: ‘such a standard of health ofthe teeth, their supporting structures and other tissues of themouth, and of dental efficiency, as in the case of any patientis reasonable having regard to the need to safeguard hisgeneral health’.

Thus, if the treatment could be reasonably considered asnecessary to secure and maintain oral health, you are obliged to provide it under the NHS, subject to thepatient’s wishes and consent, not withstanding the economicsof the situation. If alternative, less complex and more economictreatment would be just as effective in securing andmaintaining oral health, then that treatment should be offeredinstead because the regulations equally prohibit the provisionof treatment in excess of that which is necessary to secureand maintain oral health. In the latter event, you would beentitled to offer the patient the more complex treatment underprivate contract only, as an alternative to the NHS option.However, difficulties can arise when this is done and thepatient complains he/she should have been offered the morecomplex treatment under NHS arrangements. In the event ofa formal investigation of such a complaint, it may be difficultto justify declining to provide certain treatment under the NHS,but nevertheless providing it privately. It might be suggestedto you that if the treatment was not necessary to secureand maintain oral health as defined in the NHS regulations,whose definition is fairly broad, then why was the treatmentprovided at all?

The basic position is that I believe you should also consideryour obligations when mixing private and NHS treatment andthe conditions in which this is acceptable.


21

breaking new ground ourna in dental defence - the ddu/media/files/ddu/publications/ddu...

Documents