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12 • Professionalism, Law and Ethics
317
cards and investigation results. Consent forms, copies of
treatment plans and cost estimates should also be retained
with patients’ records. If patients are receiving treatment
under NHS regulations, NHS documentation should also be
retained. Appointment books and day sheets may be useful
should any query arise concerning the timing and extent of
a particular patient’s treatment; consequently, their retention can be extremely helpful. Telephone messages and any
other memoranda concerning patients should be stored
with their records. Finally, all records should be stored in a
safe and secure place where they are easily retrievable
when next required. Paper records must be kept in a locked
container (e.g. a filing cabinet); electronic records must be
protected using appropriate electronic security measures.
Access to data must be restricted to personnel who have a
legitimate reason for that access.
When records are eventually disposed of, they must be
destroyed under confidential conditions.
Data Protection
Failure to comply with data protection has been a criminal
offence since the Data Protection Act (1998). The holding
and processing of personal data was made more stringent
by the General Data Protection Regulation (GDPR) that was
approved by the Parliament in 2017 and came into effect in
May 2018. Personal data is any information relating to an
identified or identifiable person and includes:
n
names
n
addresses and telephone numbers
n
dates of birth
n
name of general medical practitioner
n
hospital record numbers.
There are also special (sensitive) categories of personal
data, such as:
n
health details
n
ethnicity
n
sexual orientation
n
religion
n
political views.
With the exception of non-profit making organisations,
all organisations have to register with the Information
Commissioners Office (ICO). All (including non-profit making organisations) have to appoint a Data Controller who
will probably be the head of the organisation and a Data
Protection Officer (DPO) who is responsible for the control
of all data processing activity; one person can undertake
both of these roles in small organisations. The DPO has to
decide who in the organisation can process or have access
to personal data (a data processor). All data processors have
to formally agree to abide by their legal obligations under
GDPR in their contracts of employment, or their independent involvement in the organisation if they are selfemployed. To ensure compliance with these regulations, it
is advisable that all staff are made aware of their obligations under these regulations. The ICO must be given the
contact details of the DPO.
All patients have to formally consent to the retention of
their personal data by the organisation, be informed of the
limitations governing the use of that data and given a Privacy Notice informing them what the data will be used for.
The Privacy Notice should also be available on the premises
and the organisation’s website; it should include:
n
the Data Controller’s identity
n
the Data Protection Officer’s contact details
n
the purpose of the data processing
n
the legal basis for data processing
n
categories of personal data processed
n
potential recipients of personal data
n
details of retention periods of data
n
a list of data subjects rights, including the right to complain to the ICO if they have any concerns about the
handling of their data.
Retention of Records
Records should be retained in accordance with the current
legislative requirements.
The UK Department of Health, via NHS Digital, publishes a
Records Management Code of Practice for Health and Social
Care. This was last updated in 2016. This document contains
detailed retention schedules. Timescales for retention of records are dependent on a number of criteria – full details of
this Code of Practice and detailed retention schedules are
available on the NHS Digital website (https://digital.nhs.uk).
It cannot be overstated that records should be:
n
accurate
n
complete
n
comprehensive
n
contemporaneous
n
legible
n
retrievable
n
retained in accordance with the current legislative
requirements.
Medical History
It should never be forgotten that medical history is an essential part of dental or medical records. Medical history
should always be taken at the initial visit of a patient and
rechecked and updated at every subsequent appointment.
Confidentiality and Disclosure
All health care records are confidential between the patient
and those involved in their care and should not be disclosed
to a third party without the patient’s permission. There are
occasionally circumstances when a Court Order may be
produced which would compel disclosure. As the rules governing disclosure vary according to the circumstances, the
advice of the dentist’s defence/protection organisation
should be sought on this matter. It is essential that all staff
employed by a dentist are aware of patient confidentiality
and do not break any confidences. Any breach of confidentiality by a member of staff is the responsibility of the dentist both legally as an employer and ethically as a member
of a caring profession.
CONSENT AND RELATED MATTERS
No treatment can be carried out on a patient without that
patient’s or their legal guardian’s valid informed consent
for that specific treatment to be undertaken. Undertaking
treatment without consent is an assault on the patient.
Consent can be implied, verbal or written.
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Master Dentistry
Implied Consent
Examples of implied consent:
n
If a patient has previously been presented with a treatment plan and arranges further appointments for this
treatment plan to be carried out, implied consent can be
assumed.
n
If a patient requests local anaesthetic for fillings and
opens his/her mouth to allow local anaesthetic to be
administered.
Verbal Consent
For example, a dentist may say:
n
‘Would you like a local anaesthetic for me to put the
filling in your tooth?’
n
‘I am going to give you local anaesthetic for this filling/
extraction’.
n
‘I think that the most urgent treatment you need is a
filling in this tooth’.
The patient either verbally agreeing to the above or opening his/her mouth to allow the dentist to proceed would be
valid consent, providing the dentist is confident that the
patient understands what is going to happen. If there is any
doubt regarding the patient’s capacity to understand the
treatment fully, no treatment should be undertaken.
Implied or verbal consent is frequently sufficient for treatment without any form of anaesthetic or when treatment is
undertaken with local analgesia, as the patient can request
that the treatment is stopped at any time, and they may
wish to withdraw consent.
Written Consent
Written consent must be obtained if the patient is having
treatment under sedation or general anaesthesia when
they are not fully conscious of the treatment being carried
out and are, therefore, in no position to ask for the treatment to be stopped should they wish to withdraw consent.
Written consent is also advisable for any complicated and/
or expensive treatment even when this is carried out without any form of anaesthetic or with local analgesia.
Written consent is advisable when carrying out a procedure that carries one or more specific risks. For example,
prior to the removal of an impacted lower wisdom tooth, a
patient should be warned of the possibility of swelling, trismus and the risk of trauma to the inferior dental nerve,
which would lead to labial anaesthesia/paraesthesia, or
trauma to the lingual nerve, which would cause similar
problems with the tongue. The use of the mnemonic STALL
(swelling, trismus, anaesthesia of lingual or labial nerves)
may ensure that appropriate warnings are given. These
warnings should be entered in the patient’s record. It is essential that written consent should contain details of the
procedure, the type of anaesthetic or analgesic that will be
used and any complications that may occur during treatment. Without being patronising, consent should be worded
in a language that the particular patient understands,
avoiding the use of jargon and abbreviations to describe a
particular clinical procedure.
As part of the consent procedure, the clinician should
advise the patient of all treatment options, as well as any
risks of not having the suggested treatment. Also, if appropriate, the patient should be informed of the current
national guidelines relating to the treatment of the condition. When discussing risks, it is essential to have knowledge of the patient’s circumstances; for instance, the
likelihood of nerve damage resulting from the removal of
impacted wisdom teeth will need to be quantified as it
could affect the livelihood of, for instance, a lecturer,
singer or musician.
For treatment carried out under sedation of general
anaesthesia, it is advisable to undertake the consent process at an initial consultation, and to confirm the consent
when the patient attends for the actual treatment. Particularly under these circumstances, except in an emergency,
consenting just as treatment is about to commence is not
advisable.
Additionally, after the patient has been made aware of
all choices including alternatives and any risks, this does
not diminish the duty of care that the operator has to act
carefully and skilfully when carrying out a procedure, as
obtaining consent is no defence for inadequate treatment
or a poor technique.
Because of the nature of dentistry in the United Kingdom at the present time, it is essential that the patient
is aware of whether they are consenting to treatment under the NHS or by private contract before treatment
commences.
Special Cases
Age of the Patient
The minimum age for valid consent is considered to be
16 years; however, if a practitioner is satisfied that someone
of less than 16 years of age fully understands the treatment
to which they are consenting, their consent may be valid.
Particularly in the case of sedation or general anaesthesia,
the consent of a parent or guardian or someone over
18 years should be obtained as well as from the patient
themselves for those between 16 and 18 years of age.
Adults Lacking Capacity
These patients may be unable to give informed consent, it
is recommended you review local legislation that will govern these circumstances. In the UK, this is covered by the
Mental Capacity Act.
According to the Mental Capacity Act of 2005, a person
is unable to make their own decision if they cannot do one
or more of the following four things:
n
understand information given to them
n
retain that information long enough to be able to make
the decision
n
weigh up the information available to make the decision
n
communicate their decision – this could be by talking,
using sign language or even simple muscle movements
such as blinking an eye or squeezing a hand.
For any major treatment, it is normal practice for the
agreement of two practitioners of consultant status to be
obtained prior to treatment. Alternatively, as a result of the
2019 Amendment to the Mental Capacity Act, a trained
Independent Mental Capacity Advocate (IMCA) can be
appointed to look after the patient’s best interests.
12 • Professionalism, Law and Ethics
319
Patients With Specific Ethnic Customs or Beliefs
Practitioners should always be sympathetic to specific
patient beliefs and requests (e.g. the avoidance of blood
transfusions to Jehovah’s Witnesses, the avoidance
of materials derived from any animals for vegetarians and from certain animals for religious or cultural
reasons). It should also be remembered that certain cultures object to women receiving treatment from male
practitioners.
Life-Saving Procedures
Occasionally, it may be necessary to carry out a life-saving
procedure on an unconscious person. Under these circumstances, informed consent is normally unobtainable, but
any treatment under these circumstances should be limited
to that which is life-saving. Non-life-saving treatment
should be delayed until consent is obtained.
CHAPERONES
It is always advisable to have a chaperone present for all
patient contact even if active treatment is not involved. The
presence of a third person can be useful in confirming consent and may be required to avoid any allegation of impropriety. When carrying out treatment, the dentist should
normally be assisted by a dental nurse, who can also act as
a chaperone. It should be remembered that whether attending a patient in the dental surgery or on a domiciliary visit,
another member of the dental team or another person
should be present at all times. It would be considered good
practice to take into account who would be appropriate as a
chaperone in individual situations; this may, for example,
include gender or cultural considerations.
12.6 General Anaesthesia and Sedation
LEARNING OBJECTIVES
You should:
• know who can administer general anaesthesia and
sedation to your patients
• understand the role of the dental operator under these
circumstances.
When patients are receiving treatment under general anaesthesia or sedation, it is essential that written informed
consent is obtained prior to the procedure being undertaken. Whenever possible, this consent should be obtained
at a consultation and treatment planning appointment, as
signing the consent form when the patient arrives for this
treatment and immediately before the anaesthetic and sedation is administered could be considered as signing under
duress.
Any patient who is to receive treatment under general
anaesthesia or sedation must be accompanied by a friend or
relative who can take responsibility for the patient’s care
following treatment. The presence of this accompanying
person, and confirmation of their availability for the time
required for the patient to recover sufficiently to not need
support, must be established prior to administering any
general anaesthesia or sedation.
Prior to November 1998, dental surgeons who had received the appropriate training were allowed to administer
general anaesthesia to patients. The ethical guidance on
general anaesthesia from the GDC clarified the roles and
responsibilities of those involved in carrying out dental
treatment under general anaesthesia, and it specifically
precludes dentists from administering general anaesthesia.
GENERAL ANAESTHESIA
The Referring Dentist
Any dental surgeon who refers a patient for treatment
under general anaesthesia must:
n
take a full medical history
n
explain to the patient the risks involved
n
offer alternative methods of pain control
n
obtain consent.
When sending a patient for treatment under general
anaesthesia, the dentist’s referral letter should contain full
justification for the use of general anaesthesia and proper
records must be kept by the referring dentist.
The Dentist Treating a Patient Under General Anaesthesia
The dentist treating a patient under general anaesthesia must:
n
repeat the history taking
n
repeat the explanations concerning risk and the alternative methods of treatment and pain control
n
obtain the patient’s or the parent’s written consent
n
give written pre- and postoperative instructions
n
keep careful records.
Treatment Under General Anaesthesia
For treatment of a patient under general anaesthesia, it is
essential that:
n
the dentist/surgeon has an appropriately trained dental/
general nurse available for assistance
n
the anaesthetic is administered by an anaesthetist on
the GMC’s Specialist Register; if a trainee anaesthetist/
non-consultant career-grade anaesthetist gives the anaesthetic, that doctor must be working under a named
consultant anaesthetist
n
the anaesthetist is supported by someone experienced in
monitoring the patient’s condition and able to assist the
anaesthetist in an emergency
n
the anaesthetist and the dental surgeon have an agreed
written protocol for the provision of advanced life support, including agreed arrangements for the immediate
transfer of a patient to a critical care facility
n
recovery and discharge is the responsibility of the anaesthetist, and recovery nurses must be properly trained
and responsible to the anaesthetist
n
all personnel involved in anaesthetics train together.
The GDC makes it clear that it is the responsibility of the
treating dentist to ensure that these protocols for general
anaesthesia are adhered to.
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Master Dentistry
SEDATION
Conscious sedation is defined as a technique in which the
use of a drug or drugs depresses the central nervous system, thus enabling treatment to be carried out, but during
which communication with the patient can be maintained.
The modification of the patient’s state of mind should be
such that the patient will respond to command throughout
the period of sedation. Techniques used should carry a
margin of safety wide enough to render unintended loss of
consciousness unlikely.
A suitably experienced and trained dental surgeon can
administer sedative drugs as well as operating on the patient, providing at least one other appropriately trained
person is present throughout the procedure. This other
person must be capable of monitoring the clinical condition of the patient and of assisting the dental surgeon in
the event of an emergency. An appropriately trained dental
or general nurse can fulfil this duty; ideally, this person
should be present in addition to the dental nurse providing
close support for the dental treatment.
The GDC recommends that normally a single drug should
be used for intravenous sedation; if more than one sedative
drug is utilised, the provision of advanced life support must
be immediately available. Whatever sedation techniques
are used, contemporary appropriate standards of patient
monitoring should be adopted during conscious sedation.
As intravenous sedation is unpredictable in children, it is
recommended that this technique is used only under very
special circumstances.
Before undertaking treatment under sedation, a dental
surgeon must:
n
carefully assess the patient, including a full medical and
dental history
n
explain the sedation technique proposed
n
advise on appropriate alternative methods of pain and
anxiety control
n
provide clear and comprehensive pre- and postoperative
instructions in writing
n
obtain written informed consent for the sedation and
treatment proposed
n
ensure that proper equipment for the administration of
the sedation technique is available
n
ensure that the facilities are adequate
n
adopt contemporary standards of monitoring the
patient
n
ensure that appropriate drugs for resuscitation of the
patient are readily available
n
ensure that the dentist and staff are trained in the sedation procedure being used and resuscitation techniques.
It is essential that all those involved in the provision of
sedation and/or the supervision of recovery of sedated
patients should train together as a team to deal with any
emergencies, and that this training should include frequent practice of resuscitation routines in a simulated
emergency
n
ensure that patients recovering from sedation will be
appropriately supervised, protected and monitored in
adequate recovery facilities.
Monitoring of patients should be undertaken either
by the sedationist or by an appropriately trained person
responsible to the sedationist. When the sedationist considers the patient is sufficiently recovered to leave the premises,
they must be accompanied by a responsible adult. Where
nitrous oxide/oxygen sedation alone has been used for
an adult patient, a dental surgeon may exercise discretion
as to whether that patient is fit enough to be discharged
unaccompanied.
CHAPERONES
During treatment under general anaesthesia or sedation
and in the recovery room following general anaesthesia or
sedation, the presence of a third person is mandatory.
It is advisable that either the dentist or another person
present is of the same sex as the patient, or is a relative of
the patient.
12.7 Complaints Procedure and Negligence
LEARNING OBJECTIVES
You should:
• understand how the health complaints procedure
works in the United Kingdom so that you are able to
deal with any complaints expeditiously
• understand the meaning of negligence
• be aware of how best to avoid an accusation of
negligence.
All health care organisations must have a complaints procedure; this applies to all branches of dentistry, including
general dental practice. There has to be designated person/
persons in each health care organisation to accept complaints, acknowledge the receipt of all complaints and keep
the complainant informed of how the complaint is progressing. Complaints should be answered within a
reasonable time of the complaint being made. Mediation
between the parties, rather than confrontation, is encouraged to allow the resolution of any grievance the patient
may have. As part of the GDC’s information, standards and
guidance, there are principles published for complaints
handling best practice and a publication entitled Handling
Feedback and Complaints in the Dental Practice. This is available to download from the GDC website along with other
useful resources.
Adaptation and flexibility are important when handling
complaints, and whilst there is no one correct way to approach their management, there are a number of key areas
to consider. These include ensuring complaints are recognised, a thorough investigation ensuring all of the facts are
gathered, establishing what is needed to resolve dissatisfaction and an appropriate response. It is also important to
consider what learning that can be taken forward following
complaints for future personal/practice development and
risk management. This may include review of aspects
which led to the complaint and processes and protocols
which are currently in place.
Further advice, face-to-face training and web-based
resources are available from a variety of organisations to
gain further understanding of key areas of how you should
12 • Professionalism, Law and Ethics
321
approach the management of a complaint. These include
dental indemnity providers.
‘MIXING’
Mixing is the term used for providing some treatment under
the NHS for a patient and other treatment for the same patient privately. It is a situation fraught with difficulties and
is best avoided if at all possible. It is advisable that any
course of treatment be undertaken entirely under NHS
regulations or entirely under a private contract. If this is
not possible, it is important that:
n
it is not implied to the patient that NHS treatment is
inferior to private treatment
n
the patient fully understands which items are being carried out under NHS regulations and which privately and
consents to this, preferably in writing
n
the NHS-funded treatment is completed prior to undertaking items of treatment that will be charged privately.
When dealing with complaints, as previously mentioned, every provider of health care is obliged to set up a
system for dealing with complaints from patients. Since
2009, a complainant can complain directly to the primary
care organisation responsible for the service or directly to
the service provider. In secondary care, the complaint
should be made to the hospital or other institution providing the care. Each part of the United Kingdom (England,
Scotland, Wales, Northern Ireland) has slightly different
protocols for this, which can be found on the appropriate
websites. For England, it is the Local Authority Social Services
and National Health Service Complaints [England] Regulations 2009.
Every effort should be made to deal with complaints as
quickly as possible, as the longer a feeling of dissatisfaction or aggravation continues, the more entrenched the
parties become, which makes the problem more difficult
to solve.
In addition to a complaints procedure, organisations may
wish to have processes in place to actively seek and encourage
comments and suggestions from patients.
It is hoped that the vast majority of complaints will be
dealt with locally. If a patient makes a complaint in person,
the designated person should endeavour to discuss the nature of the problem at the time the complaint is made. Any
discussion should take place in a private office to protect
patient confidentiality and give an atmosphere conducive
to resolution of the complaint. The term ‘Complaints Manager’ is probably best avoided, but the person designated to
deal with complaints (the responsible person) should inform
the complainant of their name and status in the practice or
organisation.
Organisations have a responsibility to develop an effective complaints procedure. These will vary dependent on
local circumstances and must be compliant with their
legal and contractual obligations. The contracting agreement will contain specific details of what the complaints
process should contain and the timelines within which
this should be actioned. Practitioners should ensure their
patients are aware of the local complaints policy. Some
complaints processes include scope for a local resolution
meeting.
Parliamentary and Health Service Ombudsman
This body makes final decisions on complaints which have
not been resolved by the NHS in England and UK government departments and other UK public organisations. Any
patient still dissatisfied after the NHS complaints procedure
has been completed may ask the Parliamentary and Health
Service Ombudsman to investigate the case. This ombudsman is completely independent of both the NHS and the
government and can investigate complaints about NHS
services and how the complaints procedure is working. The
Ombudsman is not obliged to investigate every complaint
and will not generally consider any case that has not first
been through the NHS complaints procedure, nor any case
that is being dealt with by the courts.
GDC Complaints Service
The 2005 Amendment Order to the Dentists Act of 1984
allowed the GDC to set up a complaints scheme for private
patients. This is known as the Dental Complaints Service and
was launched in 2006. This service is funded by the GDC.
They will look into complaints raised with them within
12 months of the treatment happening or within 12 months
of the patient becoming aware they have something to
complain about. Again, patients are recommended to attempt local resolution in the first instance. If local resolution is not successful, a complaints officer discusses the
matter further with the patient and the practice to attempt
resolution. This service has also set up complaints panels
consisting of two lay people and one dental professional
who have been given appropriate training. If the patient
remains dissatisfied and the complaints officer is unable to
resolve the complaint, the service will convene a complaints
panel if it believes this is appropriate. The panel will listen
to both parties, independently and impartially in a nonlegalistic way. After the panel has considered the complaint,
it is able to endorse any appropriate agreement reached
between the dental professional and the patient, or if an
agreement cannot be reached, recommend one or more of
the following:
n
That no further action should be taken.
n
That the dental professional reviews their future practice.
n
An apology to the patient.
n
An offer of a refund of part or all of the fees.
n
A contribution towards remedial treatment up to the
amount of fees paid.
Further information is available on the dental complaints
service website (https://dcs.gdc-uk.org).
NEGLIGENCE
In the treatment of patients, the following may be considered
negligent:
n
Failure to exercise reasonable skill and care.
n
Omitting to do something that a reasonable person would
do, considering what normally regulates the conduct of
human affairs.
n
Doing something that a prudent reasonable person
would not do.
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Master Dentistry
Every dentist is expected to exercise reasonable skill and
care in every treatment she/he carries out by virtue of their
dental qualification (i.e. a similar degree of skill and care as
exercised by the majority of colleagues). A general practitioner would be compared with other general practitioners,
and a specialist with other specialists in the same field. Also,
no dentist should undertake treatment for which he/she is
not trained and competent to undertake; consequently,
failure to refer to a specialist when appropriate could be
considered negligent.
A practitioner is expected to exercise reasonable skill and
care whether a patient is being treated privately, under the
NHS, as an act of friendship or even as a ‘good Samaritan
act’ in an emergency.
To recover compensation for negligence, it is necessary to
prove:
n
that the practitioner owed a duty of care to the patient at
the time
n
that there was a breach of that duty
n
that damage or suffering occurred as a result of the
action of the practitioner.
This means that if the patient suffered no harm or damage as a result of the practitioner’s action, there is nothing
for the patient to be compensated for, so no compensation
will be paid.
A dentist cannot guarantee that all treatments provided
will be uneventful or free from accident even if there is no
lack of care and skill. To prove negligence, the patient
(plaintiff) has to prove that harm has been caused as a result of lack of care and/or lack of reasonable skill that the
practitioner (defendant) had a duty to apply. Unless the
plaintiff can satisfy the court of this, the claim will fail.
If a very obvious mistake or damage has occurred to a
patient, the patient’s legal adviser will make a plea of res
ipsa loquitur. This legal term basically means ‘the thing
speaks for itself ’. Carrying out treatment on the wrong
tooth or treating the wrong patient could be considered as
examples.
Contributory Negligence
If something occurs or is made worse by an action or failure
by the patient, the defendant can plea contributory negligence, which may reduce or negate any damages that are
awarded. An example of this would be failure on the part of
the patient to follow pre- or postoperative instructions
or grabbing the dentist’s arm when he was using a sharp
instrument or a dental handpiece.
Unsuitable Treatment
Dentists should always resist being talked into undertaking
treatment by a patient that is unsuitable or of very poor
prognosis (e.g. advanced restorative treatment on teeth
with gross periodontal disease). Carrying out treatment
that is very likely to fail or cause severe problems is as much
negligent as any other professional act a dentist performs.
Vicarious Liability
As an employer, a dentist can be held responsible for any
acts or omissions of his/her staff. This applies to all grades
of staff, whether or not that member of staff was or was not
acting in accordance to instructions. At the same time,
however, the employee is responsible for his/her own acts.
Therefore, a claim for negligence could be brought against
the employer, employee or (as is more commonly the case)
against both. In the case of partnership agreements, each
partner is individually and jointly liable for the actions of
other partners. Therefore, it is essential that all partnership
agreements include the provision to provide indemnity for
the partnership as a whole.
The Bolam Principle Test
The Bolam principle has been used as the benchmark in
the assessment of professional negligence. In 1957, Judge
McNair in the High Court directed the jury in the case of
Bolam v. Friern Hospital Management Committee that ‘a doc-
tor is not guilty of negligence if he has acted in accordance
with the practice accepted as proper by a reasonable body
of medical men skilled in that particular art’. This means
that, if there is more than one respectable body of professional opinion concerning diagnosis or treatment, there is
no negligence should a practitioner choose one protocol in
preference to another.
The Bolam principle was re-examined in 1997 in an appeal to the House of Lords (Bolitho v. City and Hackney
Health Authority). This particular case involved an omission to carry out a procedure on a patient that several
experts supported but others did not. Their Lordships
opined that the use of the adjectives ‘responsible, reasonable or respectable’ concerning a body of opinion may not
be sufficient, but that experts’ views should include scientific evidence on the comparative risks and benefits to decide whether or not an act or omission is defensible. With
the advent of clinical governance and evidence-based
medicine leading to clinical guidelines, the Bolitho judgement replaced the Bolam principle as the benchmark for
negligence.
Where there is more than one accepted medical/dental
opinion in a particular case, it is the clinician’s decision
which is most appropriate. It is not a decision for the court
to make, as there is seldom any one answer exclusive of all
others to the problems of professional judgement. Even if a
court prefers one body of opinion to another, that is no basis for a conclusion of negligence (Maynard v. West Midland
Regional Health Authority, 1984).
Further guidance arose following the case of Montgom-
ery v. Lanarkshire Health Board (2015) in which the UK
Supreme Court opined that as it was not recorded that the
patient had not been informed of a risk that a reasonable
patient may wish to take into account before deciding
whether or not to proceed with a particular treatment option, the clinician was negligent. This reinforced the decision made by the High Court in 1985 (Sidaway v. Board of
Governors of Bethlem Royal Hospital) concerning risks of
treatment. The conclusions from these cases confirm that
the patient must be informed of any material risks as well as
the benefits of treatment, as it is the patient who will have
to live with any complications that occur. The process of
obtaining consent must be patient centred, rather than the
former paternalistic approach of the clinician as the one
who ‘Knows Best’.
Time Limits
Claims for negligence normally have to be made within one
of the following time limits:
n
Within 3 years of the plaintiff becoming aware of having
suffered damage.
n
Within 6 years of the incident occurring.
n
Within 6 years of reaching the age of majority (18 years)
in the case of alleged negligence occurring in a minor.
At the Court’s discretion, claims can be brought outside
these limits if the plaintiff can persuade the Court that
there is a good reason for ignoring them.
In 1999, two important legal changes have occurred
affecting all claims for compensation, not just medical and
dental claims: legal aid/contingency fees and the Woolf
report.
Legal Aid/Contingency Fees
The government has introduced further limits to the payment of legal aid so that fewer plaintiffs will be eligible
to receive legal aid. By way of compensation for this
restriction of legal aid, solicitors are now able to work on
a contingency fee basis. Contingency fees, which have
been accepted in the United States for many years, involve
the lawyer only receiving a fee if the client’s claim is successful. It has the advantage that if the plaintiff/client
does not have sufficient capital available to pay legal fees,
these will not be charged should the case be unsuccessful.
This gives an additional impetus to the lawyer to make
certain of success. Disadvantages may include lawyers
charging higher fees, which may be fixed or a percentage
of the total compensation obtained, and a reluctance of
lawyers to take on any cases except those with an almost
certain chance of success. Even with this system, there
may be some cost to the claimant, as solicitors may be
unwilling to fund such fixed costs as specialist medical
reports necessary to support a claim – unless, that is, they
can find dental/medical experts who are also willing to
work on a contingency fee basis.
The Woolf Report
In July 1996, Lord Woolf published his report to the Lord
Chancellor on proposed reforms of the Civil Justice System
for England and Wales. These recommendations came into
effect on 26 April 1999 and affect the legal profession more
than the dental and medical professions in that a very strict
timetable is laid down for each stage of the procedure.
These rules are detailed in the Civil Procedure Rules published in January 1999. The over-riding objective of these
rules is to enable the courts to deal with cases justly. This
includes the following:
n
Ensuring that the parties are on an equal footing.
n
Saving expense.
n
Dealing with the case in ways that are proportionate to:
n
the amount of money involved
n
the importance of the case
n
the complexity of the issues
n
the financial position of each party.
n
Ensuring that the case is dealt with expeditiously and fairly.
12 • Professionalism, Law and Ethics
n
Allotting to a case an appropriate share of the court’s
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resources, while taking into account the need to allot
resources to other cases.
n
Requiring the parties involved to help the court in the
furtherance of the above objectives.
n
Restricting expert evidence to that which is reasonably
required to resolve the proceedings; this means that,
whenever possible, a single joint expert is appointed to
act on behalf of the court, rather than the plaintiff/
claimant or the defendant. This can occur either by
agreement with the parties involved or, if necessary, an
expert can be appointed by the court.
n
The plaintiff/patient will in future be called the claimant.
Claims will be divided into three types:
n
Small claims track: this is for claims of compensation of
up to or equal to £5,000 in most cases but is limited up
to £1,000 in personal injury.
n
Fast track: this is for claims of up to £15,000; complicated claims of under or equal to £15,000 may not be
considered suitable for the fast-track system; dental/
medical negligence claims may often come into this
category and have to be dealt with under the multitrack system.
n
Multitrack: this is for cases which are complicated or
where claims are in excess of £15,000.
On occasions, potential claims may start as a complaint.
In this case, dealing with the complaint fairly and expeditiously with a clear explanation, as recommended
earlier, may mean that a claim does not arise. However,
should the patient be dissatisfied, she/he may consult a
solicitor for advice regarding whether or not a claim for
damages should be made. The solicitor may request a
copy of the patient’s health records from the health
care provider (HCP), and these should be disclosed
within 40 days. If this time limit is not kept, the patient’s solicitor can apply to the court for an order for
pre-action disclosure, and the HCP will be responsible
for any costs involved in this. Should the patient or
their legal adviser decide there are grounds for a claim,
a detailed letter of claim should be sent to the HCP. This
letter should contain:
n
a clear summary of the facts of the case
n
the main allegations of negligence
n
the injuries incurred, present condition and future
prognosis
n
any financial losses and damage
n
reference to any relevant documents.
The HCP then has 3 months to respond to this letter
of claim before court proceedings are issued. During this
period, either side may negotiate or offer to settle the
claim. Either side may support its position with an appropriate dental/medical report. Should this not lead to
the resolution of the matter, there are strict protocols
and timetables that have to be observed, or the defaulting party may be liable to any additional costs of the
other side.
Fast-Track Timetable
It is intended that any fast-track cases will come to trial
within 30 weeks of the court issuing a Notice of Allocation
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following the submission of a claim. In fast-track cases, the
trial is expected to last a maximum of 1 day. The timetable
following the date of the Notice of Allocation is:
n
4 weeks for the disclosure of documents by both parties
n
10 weeks for the exchange of witness statements between
the parties
n
14 weeks for the exchange of expert reports between the
parties
n
20 weeks for sending a list of questions to the court and
the other party for clarification
n
22 weeks for response to questions from the other side or
the court (note: each side is limited to one request for
clarification and cannot delay matters by asking further
questions at a later date)
n
30 weeks for the court hearing, unless the case has been
previously resolved.
Under the Civil Procedure Rules (2009), there is an appendix setting out the fast-track standard directions, which
it is expected that the parties will use to ensure that the
timetable is adhered to.
Multitrack Timetable
It is expected that the majority of clinical negligence claims
will be dealt with by the multitrack system even if they are
below or equal to £15,000 in value. This is because they are
regarded as too complex for the fast track. The multitrack
timetable is not as tight as the fast track, but the court will
have far greater control of cases than previously. Once a
case has been allocated, a case management conference
will be called. At the case management conference:
n
both parties and/or their legal representatives will be
expected to be present
n
a substantial amount of information will be expected
from all parties, including details of witnesses to be
called and experts whose evidence will be heard; this
means that parties must have their case in order at a
very early stage, and this may facilitate settlement in
some cases
n
the timetable for the case will be set, which will be closely
controlled by the court, who will not allow delay
n
trial dates will be fixed at, or soon after, the case management conference, and these dates will be immovable.
To ensure that the case is dealt with expeditiously, the
courts have power to impose sanctions should, for example,
either party fail to comply with the pre-action protocol.
These sanctions include costs, penalties and the disallowing
of evidence.
To further speed resolution of a case, the court may
suggest mediation, and it is expected that courts will build
up a list of mediators suitable for different categories of
claims. In addition, the trial judge will hold a pretrial review of the case. Normally, additional evidence or reports
cannot be submitted following the case management conference without the permission of the court and the other
parties.
These changes basically mean that the court will control
the timetable and scrutinise the progress of the case. The
court will now act without prompting by one of the parties,
which means that the lawyers will no longer be able to
determine the timetable of the case.
12.8 Laws and Regulations
LEARNING OBJECTIVES
You should:
• realise the extent that the law of the land governs you
as a dentist, an employer and an employee
• be aware of the need to seek professional advice
whenever it is appropriate
• understand agreements and contracts of employment
as they affect dental practice.
A dentist may be an employer and/or an employee, both of
which involve a myriad of legislation. The Dentists Act of
1984, which has had several minor amendments over the
years, makes the practice of dentistry illegal other than by
registered practitioners and enrolled auxiliaries. It is this
Act that gives the GDC the powers that have already been
discussed.
A summary of other important legislation is listed below; as it is so extensive and complicated, appropriate professional advice should always be sought. This list should
be used only as a guide to those situations or occasions
when further details should be sought and/or appropriate
professional advice obtained. Ignorance of the law is not
acceptable for defence or mitigation.
EMPLOYMENT
All employees should have a written contract of employment.
There is a nationally agreed contract for the employment
of foundation dentists, and the BDA offers specimen contracts for various types of employee and working agreements to its members on request.
Termination
There is specific legislation regarding the termination of
employment, redundancy and unfair dismissal. Legal advice
should be sought on this matter.
Discrimination
This now comes under the aegis of the Equality and Human
Rights Commission in the United Kingdom, which was
established under the Equality Act 2006. Under this legislation, there are nine protected grounds against discrimination
both within the workplace and in general:
n
age
n
disability
n
sex
n
race
n
religion or belief
n
pregnancy and maternity
n
marriage and civil partnership
n
sexual orientation
n
gender reassignment.
Employers’ Liabilities
These include the safety of employees, customers and the
general public, as well as the collection of income tax and
National Insurance contributions.
12 • Professionalism, Law and Ethics
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Premises and Working Environment
Legislation involving factories, offices and other workplaces
prescribes standards of cleanliness, levels of occupation,
the provision of appropriate protective clothing for employees and the provision of sanitary facilities of any workplace.
Specific legislation concerning, for instance, eye protection,
air compressors, autoclaves and the safety of all electrical
appliances are among those applicable to dental practice.
Health and Safety at Work Legislation
This states that every employer has a general duty to ensure
the health, safety and welfare at work of all employees.
There are many general and specific regulations under this
umbrella. Every employer has to:
n
provide and maintain safety equipment and systems of
work
n
ensure safe handling and storage of any potentially
harmful substances
n
maintain entrances and exits in a safe condition
n
provide a working environment for employees that is no
risk to their health
n
provide instruction, training and supervision necessary
to ensure health and safety.
The Health and Safety Executive has the duty to enforce
legal requirements and provide advisory services. Its inspectors have the power to enter premises and carry out
investigations.
If an inspector notes a risk to health and safety, she/he
can issue a Prohibition Notice preventing the continuance
of that risk activity until remedial action as specified has
been taken. In the case of a less severe risk, an Improvement Notice may be issued, which requires action within a
specified time to remove that risk. Failure to comply with
either of these notices within a specific time can lead to
prosecution of the offender (employer).
Under the health and safety umbrella, there are several
specific regulations that are particularly important to
dentistry:
Ionising Radiations Regulations
The Ionising Radiation Regulations (IRRs) are concerned
with the safety and maintenance of X-ray equipment, quality assurance and the health and safety of employees and
the general public.
The protection of patients is covered by the Ionising Radiations (Medical Exposure) Regulations (2000) (IRMERs).
IRMERs came into force on 13 May 2000 and are mainly
concerned with the protection of patients and specify the
responsibilities of those ordering and taking radiographs.
They are to ensure that only necessary examinations are
undertaken and that the dose of radiation that the patient
receives is kept to a minimum.
As there is no doubt that dental radiography is included
in medical exposures, these regulations have to be fully covered in all undergraduate dental courses in the United
Kingdom. Additionally, all dentists and ancillary staff involved in ordering and/or taking radiographs for patients
must undertake a formal radiation protection course of at
least 5 hours of verifiable CPD covering these regulations
every 5 years.
The IRRs and IRMERs were updated in 2017, and the
new IRMERs came into force in February 2018. Since then,
all organisations that use ionising radiation have to be registered with the UK Health & Safety Executive and appoint
a Radiation Protection Adviser (RPA). Also, these regulations lowered the maximum permissible doses to certain
organs of the body.
Each organisation using ionising radiation has to have a
Legal Person to ensure that this legislation is abided by and
that good working practices are implemented. In dental
practice, the Legal Person is usually the practice owner.
In dentistry the Legal Person must:
n
ensure that there are written protocols for all radiation
procedures
n
keep training records of all staff undertaking X-ray
examinations
n
make up referral criteria for all X-ray examinations
n
ensure there are written protocols for each radiographic
examination and all X-ray equipment
n
publish Diagnostic Reference Levels (DRLs) for each
category of X-ray examination
n
have procedures for investigating and managing any
overexposures to ionising radiation
n
keep an inventory of all X-ray equipment
n
register the X-ray equipment with the Health & Safety
Executive (HSE)
n
appoint an appropriately qualified member of staff as
the Radiation Protection Supervisor (RPS) whose duty is
to ensure the implementation of ‘Local Rules’ for X-ray
usage
n
ensure that staff dosage is as low as reasonably practicable
(ALARP)
n
appoint an RPA to examine and test X-ray equipment,
undertake risk assessments, quality assurance and training. This needs to be undertaken at least every 5 years
and when any new X-ray equipment is installed.
n
appoint a Medical Physics Expert (MPE) to advise on
patient dosage, X-ray examination techniques and
radiation protection.
It is worth noting that a suitably qualified medical physicist
can act as both RPA and MPE.
Any incident involving an excessive dose of radiation
must be reported to the RPA/MPE, who will decide if the
incident needs to be reported to the relevant statutory body.
There are three categories of staff involved in X-ray examinations; however, in dental practice, they are often the
same person.
Referrer: the person who refers the patient for the X-ray
examination and ensures that the referral is in line with
reference criteria.
IRMER Practitioner: who must justify the need for an X-ray
examination, ensuring that the benefit to the patient
outweighs the detriment of that X-ray exposure.
Operator: is the person who carries out the investigation on
the patient, and is responsible for identifying that it is the
correct patient, taking and processing the image, evalu-
ating that the exposure is appropriate and is responsible
for quality assurance of the equipment.
There are two terms that have specific meanings in
regard to the use of ionising radiation in diagnosis.
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Justification: this is an estimation of the benefit to the patient
and includes:
n
ensuring that the patient will benefit from the X-ray
examination and that the benefit will outweigh the risk
n
checking that the X-ray examination has not already
been undertaken in the recent past
n
ensuring that there is no suitable diagnostic alternative
to the exposure.
Optimisation: the operator must ensure that:
n
The dose is as low as reasonable practicable.
n
The technique is in line with protocols.
n
They have sufficient skill to carry out the procedure.
n
The exposure is within diagnostic reference levels.
n
There is a clinical evaluation of the image(s) and ensure
that those findings are recorded in the patient’s records.
Control of Substances Hazardous to Health Regulations 2002 (COSHH)
Within these regulations are occupational exposure limits
and maximum exposure limits. In dental practice, for example, substances such as glutaraldehyde, mercury, methylacrylate, phenol and trichloracetic acid are common and
could cause hazard if mishandled. The employer has the
duty to make a risk assessment on all hazardous substances
and to reduce any identifiable risk as much as possible.
The Control of Mercury (enforcement) Regulations 2017
Since July 2018, dental amalgam must not be used for
dental treatment in:
n
primary dentition
n
children under 15 years of age
n
pregnant or breastfeeding women.
Amalgam may be used when deemed strictly necessary by
the dental practitioner based on the specific medical or dental needs of the patient. If advising the use of dental amalgam in any of the above groups, discussion with the patient
or their legal guardian is required and consent is essential.
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (2013)
Any serious injuries, accident, work-related diseases or dangerous incidents that could potentially cause harm arising
out of or in connection with work affecting the employer, an
employee or a member of the public on the premises must be
reported to the Health & Safety Executive.
Freedom of Information Act (2000 or 2002 in Scotland)
Dentists who provide NHS treatment are considered to be a
‘public authority’ and are therefore covered by this legislation. This Act allows patients to examine any records held by
the practice and allows the primary care organisation and
individuals to request information such as NHS contract
value and Unit of Dental Activity (in NHS dental treatment)
(UDA) targets. Dentists are also able to request information
held by the primary care organisation.
Care Quality Commission
This body is the independent regulator of health and adult
social care in England; it is an executive non-departmental
public body sponsored by the Department of Health and
Social Care of the United Kingdom. It was established in
2009; its purpose is the regulation of organisations and the
premises where health and social care is undertaken.
The Care Quality Commission (CQC) set out fundamental
standards of care which encompass quality and safety.
They also monitor, inspect and regulate services to ensure
these standards are met. Their findings are published and
publicly accessible. The CQC has had a rolling programme
of inspecting dental practices since 2015. These inspections are judged in five key areas—is the practice:
n
safe
n
effective
n
caring
n
responsive
n
well-led.
The CQC remit covers all health and social care organisations, not just dentistry. Its fundamental standards are to
insure that there is:
n
person-centred care
n
dignity and respect
n
need for consent
n
safe care and treatment
n
safeguarding service users from abuse and improper
treatment
n
meeting nutritional and hydration needs
n
suitable premises and equipment
n
receiving and acting on complaints
n
good governance
n
staffing
n
fit-and-proper persons employed.
There is a Primary Care Dental Services Provider Handbook available from CQC covering details of what is expected
to demonstrate that a practice is well-led and compliant.
At the time of writing, the information taken from the
CQC website shows that the CQC currently registers and
regulates:
n
hospitals
n
dental practices
n
ambulance services
n
care homes
n
children’s services
n
healthcare clinics
n
services based in the community
n
GP and doctor services
n
hospices
n
mental health services
n
services in secure settings
n
home care services.
Further information about the Care Quality Commission
is available on their website (www.cqc.org.uk).
Disclosure and Barring Service (DBS)
The Disclosure and Barring Service is an executive nondepartmental public body sponsored by the Home Office of
the United Kingdom. Previously, this facility was provided
by the Independent Safeguarding Authority and later by
the Criminal Records Bureau. Any individual working
with vulnerable groups, for example, treating or caring for
children or vulnerable adults, has to undergo checks by
this organisation. They will check whether the applicant