On 16^th June 2022 the Employment Appeal Tribunal (EAT) handed down its decision in a case concerning a dentist claiming worker status. This is another in a long line of cases where dental associates have claimed that they are not ‘self-employed’, but instead have worker status.

There has understandably been concern amongst the dental profession that this decision will significantly impact the future of NHS dentistry. However, it is important to bear in mind that the EAT did not determine that the associate was a worker, only that the original employment tribunal’s determination that she was not had been incorrectly reasoned. The case will now return to the employment tribunal for rehearing.

Crucially, this is not a current case, in that the associate in question was working under a 2010 version of the BDA contract; a contract that since has been updated on at least two occasions.

Whilst some important points have been raised by the EAT, which may require dental practices to consider their current business model, it is important to bear in mind that the EAT has not been asked to consider the current BDA contract, which no doubt was updated as a result of the spate of cases on worker status in recent years.

In this article we set out the facts of the case and comment on the EAT’s decision; as we represented the dental practice in this matter, we have an insight into the facts and findings.

The Law

Before we review the case, it is helpful to remind ourselves of the test for worker status. A person is a worker if they work under;

1. a contract of employment, or
2. any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

The latter is often referred to as a ‘limb B’ worker. You also have to bear in mind that a person can be self-employed for tax purposes,  but a limb B worker for employment purposes.  

What the tribunal will ask itself:

1. Was the dentist required to perform any work personally? If the answer to this questions is no then the dentist is not a worker. If the answer to this question is yes then the tribunal will ask;
2. Was the practice a client of the dentist and was the dentist in business in their own right? If the answer is yes then the dentist is not a worker. If the answer is no then the dentist is a worker.

When looking at the first point, the courts will look at the substitution/locum clause and whether there is any ‘fettering’, or limitation, on that clause. The more fettering there is, the more likely the dentist is required to perform the work personally.

For the second point the tribunal will consider how much control the practice has over the associate; how much the associate is integrated into the practice.

The Facts

The dental practice is a corporate with locations across the country. The dentist had originally worked in Oxford, before moving to their Kensington practice 2021. The dentist was working under a contract that said:  

In the event of the Associate’s failure (through ill health maternity paternity or other cause) to utilise the facilities for a continuous period of more than 14 days the Associate shall use his best endeavours to make arrangements for the use of the facilities by a locum tenens, such locum tenens being acceptable to the Primary Care Trust and the Company….

The dental practice argued that this locum clause meant the dentist was not required to provide the services personally. Whilst the dentist had never sent a locum herself, evidence was provide to the tribunal of other dentists within the business utilising the locum clause, for example for sickness and maternity leave.

However, the contractual term only imposed an obligation to send a locum after 14 days of not utilising the facilities. The practice in response gave witness evidence that dentists within the business, as across the profession, were entitled to send a locum at any time.

The tribunal accepted that the locum clause meant the dentist was not required to perform the services personally and her claim was rejected.

Decision

By the time the case came before the EAT, the Supreme Court had handed down its decision in Uber. Whilst the Court of Appeal overall decision was the same. The Supreme Court made it clear the test is a statutory test not a contractual test. The focus should be on the reality of the of the working relationship, not the contractual one. Whilst the contract can be helpful, the courts must look at what happens day to day.

The EAT relied on this case when determining this appeal and found that the tribunal judge had relied on contractual interpretations over statutory provisions.

The EAT went on to find that the tribunal judge was wrong to find there was no fettering on the right of substitution in this case. They considered the following were such fetters:

• the contract only allowed the dentist to send a locum after 14 days;
• the locum must be acceptable to the practice;
• the fact that elements of the agreement were due to regulatory requirements (registration with the GDC, being on the performers list) this did not prevent them from being taken into account when considering the fetters on the right to send a substitute;
• the dentist had never sent a locum, which was relevant to the issue of what the true agreement was between the parties.

In the opinion of the EAT, the above all amounted to fetters on the right to send a substitute, meaning the dentist was required to perform the services personally.

The EAT did not consider the second part of the test, which has been remitted to the tribunal to consider the point by a fresh panel. This means the dentist has not yet been found to be a worker; only that she was required to perform the services personally.

Conclusion

The BDA has since updated its template to state:

The Associate

1. may at any time; and
2. shall, if they are unable to utilise the facilities for a continuous period of more than 14 days, use their best endeavours to make arrangements for the use of the facilities by a locum tenens.

The question now is whether the above amendment is sufficient to avoid worker status.

If you are interested in further analysis of the case, including our tips on how practices and dental associates can work together moving forward, join our webinar on 27^th July 2022 at 7pm. To sign up for this webinar please email This email address is being protected from spambots. You need JavaScript enabled to view it..

Julia Furley, Barrister and Laura Pearce, Senior Solicitor

GDPR: One year on.

25^th May 2018 is a date etched in the memories of all dentists and practice managers; the date when the General Data Protection Regulations, and the Data Protection Act 2018, came into force. A little like the millennium bug, the furore surrounding this data protection revolution was immense. Was this just another layer of regulation for an already over regulated profession, or a fundamental change in the way that we treat personal data?

12 months on we look at the effect of the regulations and whether dental practices have got to grips with the changes and how the Information Commissioner’s office has been dealing with data breaches. 

The General Data Protection Act, a brief history.

The GDPR and the Data Protection Act 2018 came into force on the 25^th May 2018. The regulations were intended to provide Europe wide rules to protect individuals with regard to the processing of their personal data, and to regulate the movement of European citizen’s personal data across the world.  The regulations included:

• · Enhanced rights of individuals
• · Increased transparency
• · More accountability when record keeping
• · Changes to the legal basis upon which data can be processed
• · Introduced the new role of the Data Protection Officer
• · Significantly increased the sanctions in the event of a breach.

In practical terms the changes saw dental practices having to thoroughly overhaul the way in which they managed their patients’ data, adopting a much cohesive and considered approach to handling the personal data of their patients.

But has GDPR made a practical difference?

What do the statistics tell us?

The ICO data shows that between January 2014 and December 2016 Healthcare Organisations accounted for 43% of all reported data breaches to the ICO. In 2017 there were 2877 reported breaches, 1062 were from healthcare, 37%. The main types of breaches related to loss or theft of paperwork and data being sent to the wrong person by email or letter.

For the first “Post-GDPR” quarter, April to July 2018, healthcare data breaches accounted for 677 of 3146 reported breaches; just 21.5%. In the second quarter, August 2018 to November 2018 healthcare breaches accounted for 619 of 4056 reported breaches; just 15%.  However, whilst the percentages may be going down, the overall number of breaches complained of has gone up significantly for all areas, including healthcare.

Does this mean that all the changes implemented by dental practices have been a failure?  No, one reason for the significant increase in reported breaches is the general public’s greater understanding of their data protection rights. The message that your data is owned by you as an individual, and therefore should be controlled by you, is finally getting through. People are much more alive to the dangers of sharing their data freely, and know their rights. The ICO is now in the public lexicon and people know how to complain.

What the statistics do show is that there is still a great deal of room for improvement in our data processing systems and the training that we provide to team members.

What have the ICO been doing over the last year?

The short answer is, working very hard. The regulators have had to deal with the biggest changes to data protection laws in a generation, and are now coping with a significantly higher number of complaints. But along the way they have managed to catch a few of the major offenders.

In October 2018 the ICO issued the maximum fine possible (under the old regime) to Facebook for failing to protect its users’ personal information. The investigation found that between 2007 and 2014 Facebook processed the personal information of its users unfairly, by allowing application developers access to their information without sufficiently clear and informed consent, and allowing access even if users had not downloaded the app, but were simply ‘friends’ with people who had. Facebook failed to check the way in which app developers were using its platform. One developer harvested the data of over 87 million people worldwide.

In November 2018 the ICO fined Uber £385,000, again under the old regime, for data breaches that occurred between October and November 2016. A series of data security flaws allowed the personal data of around 2.7 million UK Uber customers to be accessed and downloaded by hackers. The records of almost 82,000 drivers were also stolen. Uber made matters much worse by failing to tell their customers or their drivers about the breach for over a year.

Whilst these fines may have had little impact on either of these multi-national companies, under the new regime the ICO can impose fines of €20 million or 4% of the company’s global turnover, whichever is higher. To put this into perspective, Facebook’s annual revenue for 2018 is reported as being $55.8 billion.

And whilst the ICO has not yet concluded any large scale investigations under the new regime, in January 2019 the French equivalent, the CNIL, fined Google €50 million for its lack of transparency and information regarding the processes it uses when processing data and the failure to provide data retention information. Furthermore, Google had not obtained valid consent, as users were not sufficiently informed, nor was the consent obtained specific or unambiguous. Google had continued to use pre-ticked boxes in certain circumstances, which drew particular criticism.

The Future

In reality, the 25^th May 2018 was the start not the end of GDPR preparation. Practices must ensure that they are fully compliant and can evidence compliance in the event of a breach. Records of processing activity, privacy policies and notices must be reviewed and updated where appropriate. Staff must continue to be alive to the risk of breaches. Systems must be put in place to ensure that the risk of data breaches is reduced.

GDPR Training

On 24^th July 2019 JFH Law will be holding a one day seminar on GDPR for dentists. This course will look at GDPR a year on, setting out any updates since implementation and providing practical tips to ensure your practice is compliant with data protection laws. To register your interest please email This email address is being protected from spambots. You need JavaScript enabled to view it..

Julia Furley, Barrister

Image credit - Linda Hudson under CC licence - not modified.

Dealing with dental complaints

Although dentists may feel under attack a lot of the time, the risk of litigation is actually (relatively) low. Complaints can often be dealt with through excellent communication skills and a willingness to listen and respond sensitively to the concerns raised by the patient. Unfortunately, it is not always possible to resolve disputes or complaints by patients internally. This can be the result of a number of factors, from the dental practice’s internal complaints procedure, lack of staff training to patient demographic. If all reasonable attempts to resolve the complaint internally have been exhausted, then dentists should be signposting other, objective complaints handling services. This not only assists the parties in moving forward from sometimes intransigent positions, it avoids patients turning immediately to lawyer for advice on resolution.

Complaints about NHS treatment

Every NHS practice must have a copy of the NHS complaints policy and must provide it to a patient if a complaint has been made regarding NHS treatment provided. Patients should also be advised that help is available to them via the NHS Complaints Advocacy Service. Bear in mind, patients are not obliged to complain directly to a practice first, the patient can go straight to the NHS; although following the internal complaints procedure should be strongly encouraged, and patients should always be provided with access to a clear and comprehensive internal complaints procedure. A complaint to the NHS will be made directly to NHS England and must include the patient’s contact details, a clear description of what is being complained about, the name of the service being complained about and all relevant correspondence. The patient will be asked to give their consent to the practice being contacted regarding the complaint.

Complaints must be made within 12 months of the date on which the subject matter of the complaint occurred, or 12 months after the date that the subject matter of the complaint came to the notice of the complainant. Complaints are acknowledged within 3 days of receipt. However, the NHS has a 40 working day target to investigate (this can be extended where appropriate). Investigation A case officer will be appointed and will obtain the relevant information about the case and make sure that it is accurately recorded. The process of the investigation itself is reasonably flexible, and the case officer will take necessary steps to properly investigate the complaint. They will prepare an investigatory report and thereafter send a formal response to the patient. During the investigation the practice may wish to consider both mediation and obtaining a second opinion if appropriate. The response will contain: An explanation as to how the complaint has been considered. Conclusions and an apology if appropriate. An explanation as to why the decision has been reached. Whether the complaint is upheld (in part or in full). What remedial actions are being recommended. Confirmation from the dental practice that action has or will be taken. A response regarding “lessons learnt” if appropriate. Contact details of the ombudsman. If the patient remains dissatisfied with the way in which the complaint has been dealt with, then they can ask the Parliamentary and Health Service Ombudsman to review the case. The dentist should cooperate fully throughout this procedure; however unmeritorious a complaint may be. The case officer can decide to report matters to the GDC if they feel it necessary to do so. Keeping an open and positive approach to the investigation will limit the risk of further complaints being made.

Dental Complaints Service

The dental complaints service (DCS) is intended to provide a similar complaints service as that provided by NHS England. The GDC funds the service, its staff members are employed by them and it is accountable to the GDC Council. However, investigations are run independently of the GDC. That being said if the DCS do become aware of any issues regarding a practitioners behaviour or competency, then they will (like the NHS) refer the matter to the GDC fitness to practice team.

Again, complaints must be made within 12 months of treatment taking place or 12 months of the patient becoming aware of the issue. Initially patients are referred back to the practice to attempt to resolve matters internally. If this is not possible, then a complaints officer will be appointed and work with both sides to try and reach a resolution. If a resolution is not possible, then the matter is referred to the DCS panel; the final stage of the complaints process. The panel consists of two lay members and a dental professional. Both the patient and the dentist will be invited to attend a meeting. The parties will have an opportunity to put their side of the complaint, and to work towards reaching an amicable resolution. If no agreement is reached, then the panel will make a recommendation.

Feedback from users of the DCS is generally good. The last annual review of the service was in 2014, but this showed of the 1068 cases considered, 95% of patients who provided feedback were satisfied with the recommendations offered, compared with 64% of dentists. Whilst this may reflect a tendency by the organisation to prefer the accounts of patients, it may also reflect a willingness of dental professionals to refund dental fees as a business decision, as opposed to admission of liability, once the DCS gets involved.

This type of resolution, whilst frustrating, can be a much quicker and cheaper option than defending a clinical negligence claim.

If you have are concerned about an ongoing patient complaint contact our lawyers on This email address is being protected from spambots. You need JavaScript enabled to view it.

Julia Furley, Barrister

"Justice"by mag3737 is licensed under CC BY-NC-SA 2.0

Dental practices often receive requests to access dental records from people other than the patient.

One of the most common questions we are asked at JFH Law is whether a dental practice is obliged to disclose notes to officials, such as the police or social services. It is understandably hard to refuse to disclose patient notes to a police officer during the course of a missing person or criminal investigation. However, it is important to remember that data protection laws prevail and real consideration must be given to when and why notes are being disclosed.

Whilst GDPR is at the forefront of everyone’s minds right now, a practice also needs to consider professional duties of confidentiality, the common law duty to disclosure in the public interests and the rules contained within the Access to Health Records Act (1990).

In this article we clear up the confusion over who actually does has the right to access a patient’s records and in what circumstances, and how dental practices should respond to these requests?

Living Patient’s Records

If you receive a request from an external body, such as the police or social services, in respect of a living patient’s records, you must consider this carefully before disclosing anything. There is no automatic right to access, not even for the police.

Unless there is a specific court order for disclosure, you will need to consider whether the disclosure would be justified in the ‘public interest’. An example might be if either the patient or someone else was at risk of serious and imminent harm if the notes are not disclosed. You should try to seek informed consent first, but if this is not possible weigh up what is being requested against why it is needed to decide whether disclosure would be justified. Either way, make a clear record of why you have reached the decision you have reached, and why you believe it would be in the public interest to disclose any notes if you chose to do so.

GDPR would also apply in this situation. You could potentially rely on ‘protecting vital interests’ as the lawful basis for disclosing notes. However, this can only be relied on if you need to process personal data in order to protect someone’s life and they are not capable of giving consent. There are very few circumstances that this could be said to be the case for dental records.

If another dentist or health care professional requests the notes, then you will need to satisfy yourself that the patient has consented to disclosure to this third party, in accordance with GDPR and your professional duties of confidentiality. There is no such thing as “off the record” as such it is not lawful to send non-anonymised case records to other practitioners or specialists without the consent of the patient.

If the patient asks you for the records, whether in writing or verbally, but requests they be sent to another dentist then you must comply with this also. The only caveat is if you are concerned that the patient does not understand what the implications of the disclosure might be; you should explain what will be disclosed and check the patient is still happy to consent.

Deceased Patient’s Records

The duty of confidentiality extends beyond the death of a patient. This must be borne in mind when deciding if access to the records will be granted to anyone else. Ultimately, if the patient explicitly states whilst alive that they do not want their records disclosed on death, then this wish must be adhered to.  

The Access to Health Records Act (1990) allows access to records to two defined categories, namely:

1. The patient’s personal representative, namely the executor of the will or administrator of the estate;
2. Any person who may have a claim arising out of the patient’s death.

You do not need to provide access to all of the dental records when requested by the above, only information that is relevant to any claim being pursued. This may require you to obtain from the requester more information as to why the request is being made so you can determine what information should be provided.

You may also receive a request to access the notes of a deceased patient from a coroner (or procurator fiscal in Scotland). As they have a legal obligation placed on them to investigate the death, you must provide them with access to the records.

You may also be asked by the police to provide certain information to help identify a body. In these circumstances disclosure would be justified as being in the public interests.

Remember GDPR applies only to living data subjects and so would not be relevant here.

Practical Tips

Whenever you receive a request you should:

• Make sure you understand what is being requested and why;
• Satisfy yourself that the person making the requests, is who they say they are;
• Train staff to ensure they understand GDPR and patient confidentiality and can identify when a request for information is being made;
• Don’t be bullied by officials, who claim to have a right to access, but are unable to identify the lawful basis for disclosure;
• Where applicable try to seek the patient’s consent to the disclosure first;
• Always consider the wishes of the patient, whether living or deceased;
• Make a clear note on the file of any decisions made and why.

If you have any questions about the content of this article please feel free to email Laura Pearce on This email address is being protected from spambots. You need JavaScript enabled to view it. or telephone 0207 388 1658.

Laura Pearce

Senior Solicitor

Image by vjohns1580 from Pixabay

Dr Bawa-Garba and protecting public confidence

On 13^th August 2018 the Court of Appeal handed down its decision in the case of Dr Bawa-Garba v the General Medical Council. The GMC had successfully appealed against the decision of the original Medical Practitioners Tribunal not to erase Dr Bawa-Garba, but to suspend her from practicing for 12 months. The Court of Appeal upheld the original sanction, ruling that erasure was not appropriate in this tragic case.

Dr Bawa-Garba was convicted by a jury before the criminal courts of gross negligence manslaughter, for behaviour which the trial judge felt was so serious that it should be marked by a sentence of imprisonment, albeit suspended. Yet neither the MPT nor the Court of Appeal felt it necessary to erase her from the register. This left many wondering what would it take for public confidence in the profession to be damaged, if not gross negligence manslaughter?

Background

On 18^th February 2011 Dr Bawa-Garba was on duty at the Leicester Royal Infirmary Hospital. She had just returned from a period of maternity leave and had completed two shifts back to back.

Jack Adcock, a 6 year old boy, was admitted to the hospital at 10.15am that morning. When he attended he was unresponsive and limp. Jack presented with dehydration caused by vomiting and diarrhoea, his breathing was shallow and his lips slightly blue. Jack had a history of illnesses. He had been diagnosed with Downs Syndrome from birth. He also had a hole in his heart that required surgery. He was taking enalapril which meant he was more susceptible to coughs and colds.

Dr Bawa-Garba was the most senior junior doctor on duty and Jack was under her care for the next 8-9 hours. Dr Bawa-Garba was assisted by a nurse, Isabel Amaro and the ward sister, Theresa Taylor.

Jack was originally diagnosed as having gastro-enteritis and dehydration. After an x-ray it was determined that Jack in fact had pneumonia and was treated with anti-biotics. As a result of this not being picked up immediately, Jack’s body went into septic shock which caused his heart to fail. Despite attempts to resuscitate him, he died at 9.20pm. There was also a mistaken belief, perpetuated by Dr Bawa-Garba, that Jack had a ‘do not resuscitate’ in place, which hindered his care.

Criminal Proceedings

Initially Dr Bawa-Garba was informed that the Crown Prosecution Service would not prosecute. However, following the inquest into Jack’s death in 2013, the CPS reviewed its decision and in December 2014 she was informed she would be charged. Ms Amaro and Ms Taylor were also charged.

During this time Dr Bawa-Garba remained employed at the hospital.

At the hearing the prosecution advanced a number of failures by Dr Bawa-Garba, which it said led to her being grossly negligent. Dr Bawa-Garba’s defence was that Jack’s death was as a result of hospital computer failures, lack of staff and failures by others.

The trial judge directed the jury that the prosecution had to show that what Dr Bawa-Garba did was ‘truly exceptionally bad.’

On 4^th November 2015 Dr Bawa-Garba was convicted of gross negligence manslaughter. Ms Amaro was convicted of the same offence.

On 14^th December 2015 Dr Bawa-Garba was sentenced to two year’s imprisonment, suspended for two years. She was ordered to pay £25,000 in legal costs. The remarks of the judge when sentencing were ‘there was a limit to how far these issues could be explored in the trial, but there may be some force in the comment that yours was a responsibility that was shared with others’.

Fitness to Practice Proceedings

Under Fitness to Practice Rules a certificate of conviction is conclusive evidence of the offence committed and cannot be challenged. The role therefore of the Medical Practitioners Tribunal is to determine if fitness to practice is impaired and if so what sanction to apply.

On 20^th February 2017 a hearing was convened to assess whether Dr Bawa-Garba’s fitness to practice was impaired. Dr Bawa-Garba did not give evidence at that hearing. On 22^nd February 2017 the Medical Practitioners Tribunal held that Dr-Bawa-Garba’s fitness to practice was impaired. It found that she ‘fell far below the standards expected of a competent doctor’ at her level and that the conduct had brought the profession into disrepute. However, it went on to say that the clinical failures, although serious, were capable of being remedied and had been addressed.

On 12^th June 2017 the same panel reconvened to consider sanction. Again Dr Bawa-Garba did not give evidence; the panel commented ‘the Tribunal was unable to conclude that you had complete insight into your action as it did not hear from you directly’. On 13^th June 2017 it issued its decision to suspend Dr Bawa-Garba immediately for 12 months, subject to review. The panel confirmed that it had to bear in mind that the sanctions were not to be punitive but to protect patients and the public interest. The Medical Practitioners Tribunal weighed up the following factors:

The Medical Practitioners Tribunal said ‘whilst your actions fell far short of the standards expected and were a causative factor in the early death of Patient A, they took place in the context of wider failings.’

The GMC appealed the decision. The High Court overturned the Medical Practitioners Tribunal decision and replaced it with a sanction of erasure. In essence the judge felt that the panel had not taken into account the true force of the jury’s finding of ‘truly exceptionally bad’ behaviour on the part of Dr Bawa-Garba.

Dr Bawa-Garba appealed. Her grounds of appeal were that the court had erred:

1. By applying a presumption that a conviction of manslaughter by gross negligence should lead to erasure save in exceptional circumstances;
2. By failing to appreciate the distinct roles of the jury in a criminal trial and the Medical Practitioners Tribunal;
3. By unlawfully substituting its own judgment on the basis a suspension was not sufficient to maintain public confidence;
4. In concluding the Medical Practitioners Tribunal was precluded from taking into account evidence of systematic failures;
5. By reaching an irrational conclusion; no reasonable court could have concluded erasure was the only sanction.

The Court of Appeal confirmed that

The task of the jury was to decide on the guilt or absence of guilt of Dr Bawa-Garba having regard to her past conduct. The task of the Tribunal, looking to the future, was to decide what sanction would most appropriately meet the statutory objective of protecting the public pursuant to the over-arching objectives… to protect, promote and maintain the health and safety and well-being of the public.

As a result of this finding, the Court of Appeal held it was wrong of the court to presume a conviction of manslaughter should lead to erasure save in exceptional circumstances and to preclude evidence of systematic failures within the hospital at the time of the incident.

The Court of Appeal overturned the court’s decision and re-issued the 12 month suspension as the appropriate sanction in this case.

Conclusion

Having read the judgment it is clear Dr Bawa-Garba was well regarded amongst her peers; indeed a fund set up by junior doctors raised over £200,000 to go towards her legal fees. The incident itself  was deemed a one-off incident; a lapse in clinical judgment in an otherwise unblemished history. She had taken remedial action in respect of any issues. There were also failures on the part of others and the hospital itself.

If the public had all of this information, it would no doubt agree Dr Bawa-Garba’s sanction was fair.

If you need any advice or assistance in relation to fitness to practice proceedings, please contact Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it.

Laura Pearce, Senior Solicitor

Employed or self -employed?

On 13^th June 2018 the Supreme Court, the highest court in the UK, gave its long awaited judgment in the Pimlico Plumbers case.

Mr Smith was a self-employed plumber who had been dismissed after six years of service. He claimed he was a worker and therefore entitled to certain rights such as holiday pay.  The court found in his favour despite Mr Smith being registered as self-employed and benefiting from this status. He claimed tax relief on a home office and had his wife on the payroll of his company.

Sound familiar? Many associates are labelled as self-employed and benefit from this status for tax purposes. However, could they challenge their status in the employment tribunal and also benefit from basic employment rights?

In recent years the courts have been awash with cases in respect of worker status. With the rise of the gig economy, companies are taking advantage of those who want a more flexible way to work by offering ‘self-employed’ contracts. But is this being done at the expense of basic employment rights?

It is often the most vulnerable that are affected by the imbalance of power in such relationships. A prime example of this is in relation to a case involving a City Sprint courier. The courier took the firm to the employment tribunal claiming they were a worker and won. However, instead of changing all contracts to worker status the firm changed the contracts 'to simplify the language in these, further clarifying the rights and flexibilities available to self-employed couriers who provide their services to us'. It should be noted that in order to enforce worker rights, a claimant will need to issue a claim at the tribunal. This can involve time and money, which many in lower paid jobs do not have.

There has been a further case in the employment tribunal against Hermes, in which their couriers have also been found to be workers. Tim Roache, GMB general secretary, said: “This is yet another ruling that shows the gig economy for what it is – old fashioned exploitation under a shiny new facade. Bosses can’t just pick and choose which laws to obey"

Pimlico Plumbers Decision

Turning now to the case in hand, however, in which Mr Smith was paid highly for the work he completed, he was also able to add a 20% mark up on materials which he got for discount via the company, and he had a great deal of flexibility in his role. Is this really a vulnerable individual being taken advantage of?

Either way the Supreme Court has determined that Mr Smith was a worker and as such should benefit from the rights associated with this. As a result of another recent decision on worker status that we reported on, his claim for holiday pay could now date back to the start of his employment.

The two main issues for the court to determine were whether Mr Smith had to perform the services personally and whether Pimlico was Mr Smith’s client or customer.

Personal Service

If a person has to personally perform the services under the contract it is likely that they will be deemed a worker. Here the court looked at Mr Smith’s right to send a substitute to determine if he had to personally perform the services.

The employment tribunal held that whilst Mr Smith could send a substitute for any reason such as illness, holiday or other reason, he could only send another Pimlico plumber. This was seen as akin to employees swapping shifts. As a result of this limitation the Supreme Court held Mr Smith had to personally perform the services.

In assicoate contracts, there will often be a right to send a locum. However, is this right fettered? Does the Practice get the final say as to who can undertake the locum role? Or do they merely require a minimum qualification, DBS check and performer number? This could have a bearing on whether the associate is a worker or self-employed. 

Business Undertaking

The court looked at whether Mr Smith was an independent contractor not in a relationship of subordination with the person who receives the services.

Pimlico tried to argue that they were the client of Mr Smith and he was a business in his own right. They relied on his tax return, which put his annual gross profit at £131,000, costs of materials around £53,000 and his net pre-tax profit at £48,000. The court disagreed with this for the following reasons:

• Pimlico’s tight control of Mr Smith, including Mr Smith wearing branded clothing, driving a branded van and carrying an ID card;
• Mr Smith’s obligations to follow administrative instructions from the control room;
• The fact Pimlico placed a tracking device on Mr Smith’s van;
• The severe terms as to when and how much Mr Smith would be paid (he was paid 50% of the fees paid by the customer) meant he was not economically independent.

As such the Supreme Court found that Mr Smith was not truly independent as there was an element of subordination.

Whilst many associates have clinical freedom and would not be required to wear a uniform, they do have to follow Practice policies and Practices decide the fees to be charged and when payment will be made. 

Conclusion

This case does not suddenly change the status of self-employed associates. As stated above, someone needs to challenge their status in order to be afforded the necessary employment rights; until then the status quo will continue. Even then, simply because one associate does challenge their status this will not automatically affect other associates are affected. It must be borne in mind that dental practices come in many shapes and sizes. 

However, this case is a warning for those that employ self-employed contractors of any nature. Now is the time to review contracts and ensure they are truly self-employed. If they are not, you need to take steps to protect your position as the risk to you is much greater.

If you have any questions about this article or need a contract reviewing, please feel free to contact Laura Pearce on This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce

Senior Solicitor

HMRC has written to dental associates

On the 20^th April 2017 HMRC updated their ‘Internal Status Manual’ regarding the employment status of dentists. This made clear that where dentists are practicing as associates in premises owned and run by another dentist and are subject to a BDA or DPA approved associate contract, and the terms are followed, then the associates income will be assessed under ‘trading income rules’ and not as an employed income. In short, associates are self-employed and as such will be liable for Class 2/4 National Insurance, not Class 1 National Insurance. Despite changes bought into effect by the NHS General Dental Services Contract, which changed the way that dentists were paid, allowing for less fluctuation in income, HMRC were of the view that as long as associates continued to pay their share of laboratory fees and follow the terms of their associate agreements, then they will remain self-employed.

So what has changed?

Over the last 6 months there have been a number of landmark legal cases before the UK courts. Laura Pearce of JFH Law wrote in June last year that the tide was turning for dental associates following the Court of Appeal decisions in the cases of Pimlico Plumbers and City Sprint, which were hot on the heels of the earlier decision in the Uber in October 2016.

These cases all revolve around the ‘gig’ economy, where companies have traditionally relied upon casual or flexible labourers, who get paid for the work they do, rather than a weekly or monthly agreed salary. These people are often categorised as independent contractors, but the legally reality can be very different.

The Court of Appeal has ruled that despite the fact that the individual’s contracts defined them as self-employed, and certainly in the case of the Pimlico Plumber, they had benefitted financially from the arrangement for many years, they were in fact ‘workers’ not ‘self-employed contractors’. This means that they are entitled to the national living wage, holiday pay and statutory sick pay and the right to pension auto enrolment.

One of the key definers for whether an individual is a worker or self-employed is whether they have an unfettered right to send a substitute. If a dental associate is obliged to undertake the work personally, and can only send a substitute in the event that they are unavailable (for example when they are unwell or on maternity leave), or the right to send a substitute is dependent upon the consent of the practice owner, then it is highly likely that they will be defined as a worker by the employment tribunals. Pimlico Plumbers have appealed the judgement to the Supreme Court and judgement is currently reserved.

However, could an associate dentist go further and argue that they are an employee; thus obtaining all of the benefits of employment, including the right not to be unfairly dismissed? As no associate dentist has yet challenged the status quo within the Employment Tribunal it is not possible to answer this categorically. It will depend on the nature of the working relationship, the mutuality of the obligation between the parties; i.e. is the dentists obliged to offer work to the associate? Is the work done within fixed hours at a price fixed by the Principal? Finally, is the associate obliged to undertake that work themselves? If the answer is yes to all of these questions, the dentist could well be an employee.

What does this mean for tax purposes?

To date, if an individual is defined as a worker by the Employment Tribunal, that has not automatically affected their status as ‘self-employed’ for the purposes of paying their taxes. Indeed there have even been circumstances where the Tribunal has determined that an individual is employed for employment law circumstances, but self-employed for tax purposes. As such a ‘worker’ and an ‘employee’ can be exempt from PAYE and pay Class 2/4 NI contributions.

In 2017, HMRC had clearly taken the view that regardless of the personal nature of the services offered by dentists, they were content to allow them to continue as self-employed. However, the indications are that this is likely to change in the not too distant future. There is little benefit to HMRC under the current arrangement, and they are likely to see a change in associate dentist’s status as an opportunity to increase NI contribution and tax revenues. Furthermore, with the Government’s current focus on shifting responsibility of pension provision away from the state onto third party employers, it is likely that the writing is now on the wall for many associates self-employed status.

This has major implications for practice owners. Whilst any change in status for the purposes of HMRC is unlikely to be retrospective, bearing in mind their current guidance, this may open the floodgates for claims from associates against their principals before the Employment Tribunal. With the tax benefits of self-employed status gone, associates may think it’s worth arguing that they have been workers or employees for years. They can then claim back unpaid holiday since the commencement of their employment and demand enrolment in workplace pension schemes.

If you are concerned about your employment status or want to discuss the content of this dental bulletin contact Julia on This email address is being protected from spambots. You need JavaScript enabled to view it. or call us on 0207 388 1658.

Julia Furley, Barrister and Partner

On 29^th November 2017, the European Court of Justice (ECJ) handed down its decision in the case of King v Sash Windows. It is another case in a long line on holiday pay and has opened the flood gates for workers to claim unpaid holiday dating back 20 years.

Why is this relevant to dental practices?

At present most associates are working under a self-employed contract and as such will not be paid holiday pay. However, there is a risk, especially for those associates employed by a dental corporate, that in fact the reality is that associates are workers and therefore entitled to holiday pay.

Mr King’s case does not change the legal test for establishing who might be a worker. However, prior to this case, it was thought that workers could only claim up to two years back dated holiday pay. This meant the risk to dental practices if an associate was wrongly classified was fairly limited.

Now a dental practice is at risk of having to pay anyone found to be a worker unpaid holiday from the start of their contract or from 1998, when the Working Time Regulations came into effect, if the contract began before then.

Definition of a Worker

Before looking at this case in any detail, it is important to understand what the definition of a worker is. This is another area of employment law that has had a number of high profile cases in recent years. In essence the test is as follows:

1. Must the person personally provide the service or can they send a substitute?

            Most associate contracts contain a right to send a substitute. However, if the right is fettered this 

            could result in the associate being found to be a worker.

2. Is the company obliged to provide work and is the person obliged to accept it?

           If you have an NHS contract, you need to ensure that the associate meets their UDA targets. This 

           therefore could infer into the contract a mutuality of obligation. 

3. Was the status of the ‘employer’ under the contract that of a customer?

            No; the customer is the patient. The associate is providing their services for your customers.

Facts

Mr King was a self-employed window salesman. He began working for Sash Windows in 1998 and was paid on a commission only basis. He never asked for holiday pay and he never received it. On average Mr King took fewer holidays each year than a worker is entitled to. Just before his 65^th birthday Mr King’s contract was terminated on the platform of Victoria Station due to his age.

Mr King pursued various claims including unfair dismissal and age discrimination. Here we will just deal with his holiday pay claims, of which there were three, namely:

1. Claim 1 = holiday pay due on termination of employment, namely in the final year;
2. Claim 2 = holiday pay due in respect of days off taken but not paid for;
3. Claim 3 = holiday pay due for any days he did not take from the annual leave entitlement.

The employment tribunal found Mr King to be a worker and all three holiday claims were successful. He was awarded £27,257.96 in total for this element of the claim.

The case was appealed and there were cross appeals in relation to various aspects of the findings. The issue in relation to the holiday pay claim was ultimately referred by the Court of Appeal to the European Court of Justice. 

Holiday Pay Claim; Legal Arguments

Firstly, the only holiday pay claim subject to appeal was in respect of claim 3 – holiday pay due for any days not taken from the annual leave entitlement.

Sash Windows’ main argument was the ‘use it or lose it’ principal, which in essence states if a worker does not use his annual leave entitlement in the applicable holiday year he will lose it entirely. This is because there is no automatic right to carry holiday entitlement from one leave year to the next. They also suggested that a worker would have ‘double recovery’ if they received pay for holidays that they in fact worked and were paid for.

Mr King argued there were circumstances beyond his control that meant he could not take the annual leave and so it should roll over. In this case it was argued that the circumstances beyond his control were his employer’s intentional failure to pay him holiday pay.

Decision

The Working Time Directive was enacted to ensure the health and safety of workers; to allow employees sufficient time away from work to ‘recharge’.  Therefore workers should not be deterred from taking their annual leave entitlement. Given this underlying principle the ECJ found that:

An employer who does not allow a worker to exercise his right to paid annual leave must bear the consequences.

Therefore whilst there may be double recovery, that is a risk the employer takes in not granting a worker his paid annual leave.  The ECJ felt it was for the employer to correctly categorise staff and ensure they are given their employment rights, as workers are in a weaker bargaining position.

The case has been referred back to the domestic courts for a final decision. However, the Court of Appeal will no doubt follow the ECJ’s decision.

This means that an associate can continue to claim they are self-employed and then on termination seek to argue they were in fact a worker and claim back dated holiday pay. There would be no down-side for the associate, as employment tribunal fees have been abolished and there is no costs regime. Also as the test for employment status is different for HMRC and the tribunal, a retrospective change of status would have no bearing on this. The risk is therefore all on the dental practice.

Further, the definition of a worker under the Working Time Directive is wider than the UK law, which an associate may be able to rely on when pursuing their claim.

Practical Tips

First and foremost, make sure you correctly categorise your workforce from the outset and provide a contract that reflects the true basis of the relationship. Whilst this means front loading time and costs, it is likely to save you a hefty legal bill later down the line.

This decision only affects the 4 weeks annual leave granted by the Working Time Directive. Not the additional bank holidays given by UK legislation. Consider amending your contracts to state that UK bank holidays will be deemed to be taken last. You would not need to add this to associate contracts, but if it is in your employment contracts you will be able to rely on this as evidence should a claim be pursued against you.

When buying a practice do your due diligence on the workforce. Make sure the old practice is complying with the Working Time Regulations. Ensure the sale agreement contains indemnities in case staff have been wrongly categorised. Consider implementing your own contracts that are genuinely self-employed, time limits for presenting a claim against you would then start running from the date of the sale.

When selling a practice be careful what warranties you give to the buyer. You would not want to be liable for the entire claim, especially if the new practice has also continued with a contract that was not genuinely self-employed.

If you need advice or assistance in relation to employment status and protecting your position, please contact Laura Pearce on 020 7388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce

Senior Solicitor

The NHS are currently in the process of putting out to tender a number of specialist NHS dental contracts, including orthodontics. The NHS are advising practices who intend to re-tender or bid for the first time to seek advice in relation to TUPE (Transfer of Undertakings (Protection of Employment) before they do so. But why?

TUPE applies where an economic entity transfers from one business to another. This can be a whole business or part of one. It applies in a number of  situations, not just when a dentist is  buying or selling their practice. It can also apply when a business takes services back in-house or outsources services.

The Transfer of Undertaking Regulations, or TUPE for short, offers enhanced protection for employees who transfer from one business to another. It is an extremely complex and confusing piece of legislation. 

In this article we  set out the key principles to help dentists better understand when a TUPE situation may arise during the NHS tendering process and what their responsibilities are. 

What is TUPE?

TUPE requires a business that is buying another business to take on any employees connected with that business.

It applies in three situations:

1. Where one business buys the whole or part of another business;

2. Where a business decides to take services back in-house, for example they use an IT contractor but wish to start undertaking the services themselves;

3. Where a business decides to outsource a service, for example it tenders for cleaners to undertake the office cleaning or it re-tenders that contract.

Whilst it is obvious TUPE will apply when you buy a practice, the question of whether TUPE applies when you tender for an NHS contract is more complicated. The NHS is a business which is outsourcing its services. A move from one provider to another would normally come under point 3 above. On the face of it therefore TUPE would apply.

Business Entity

In order for TUPE to apply the business that is being sold must be an ‘economic entity’. This means:

– It is an economic entity with assets, employees, goodwill etc that is operating as a business;

– There is a transfer of that economic entity; and

– The economic entity retains its identity after the transfer.

Again when you buy a practice it will retain its economic identity as you are buying all the goodwill and assets of that business.

However, how does this apply to a tender for an NHS contract?

Unfortunately this is not an easy question to answer. It will very much depend on whether patients are transferring from the old practice to the new one. A group of NHS patients that moves with the NHS contract could be seen as an economic entity. Any employee who provides treatment to those patients for the majority of their time at work would therefore transfer with the contract. This could mean the nurses and support in a specialist practice that loses its NHS contract will be TUPE transferred to the practice that has won the contract.

Remember TUPE applies to employees only; not workers or those who are self-employed.

Enhanced Protection

Any employee automatically transfers from one business to another and their existing contract survives. In effect the new employer is stepping into the shoes of the old employer. There are very few rights that do not transfer, such as occupational pension schemes. Otherwise all other rights and liabilities will transfer. There are also very limited circumstances in which you can amend an employee’s contractual terms.

You will also need to inform and consult any employees who are affected by the transfer. This duty is on both the old and new employer.

In addition you cannot dismiss an employee as a result of the transfer unless you can show an Economical, Technical or Organisational (ETO) reason for doing so. For example, if you are a practice that wins a new NHS contract and has to take on new employees but you have sufficient employees for the work you tendered for, you may have an economical reason for dismissal, namely redundancy.

Due Diligence

If you are taking on employees from another business you need to make sure you do your due diligence. You will need to obtain information about those employees, including whether they have any outstanding grievance or disciplinary matters. As set out above, any liabilities pass to you and if you are not aware of an outstanding grievance you could have a claim issued against you.

You also need to ensure you have a well drafted transfer agreement, so that if the above were to happen, you will be indemnified by the old employer in respect of any claim issued against you.

That is a lot to think about!

TUPE is a complex area of law with many nuances. If you have any concerns about whether it applies, take legal advice and get proper agreements drawn up to protect you. The consequences of getting it wrong can be high.

If you need advice or assistance on TUPE, please contact Laura Pearce on 020 7388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Laura Pearce, Senior Solicitor

What is the GDPR?

The GDPR is a new set of rules which will apply to all organisations that collect or retain personal identifiable data from any European individual. The idea behind it is to standardise data privacy laws and mechanisms across industries, and to ensure that fundamental rights of individuals are protected in today’s increasingly data-driven digital economy.

6 Things you need to know now

It is extremely important that everyone in your dental practice is made aware of the rules surrounding the new data regulation. Preparing for the GDPR will require changes in the practice’s culture, which you should start to plan in advance of the May 2018 deadline. Keeping everyone informed will ensure that your practice follows the proper procedure, and the GDPR is handled with the utmost care.

Here are 6 steps that will help your practice prepare for the changes today.

1. Article 7 GDPR – Consent

Under the new regulation, dental practices will be required to keep a record of how and when the patient gives consent to store and use their personal data. Consent will need to be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. Consent cannot be inferred from silence or inactivity of the user.

Further requests for consent will need to be separate from other terms of engagement. In practical terms this means you will need to clearly explain to your patients what you are intending to do with their personal data.

It must be borne in mind that consent once given can be revoked, and it must be made equally easy to withdraw consent given.

The GDPR also introduces a requirement for parental consent. Where services are offered directly to a child, practices will need parental consent to process the data of under 16s.

To do list:

– Identify the categories of personal data processed within your practice.

– Consider the legal basis applicable to the processing of personal data within your practice, and make sure these grounds will still be complied with the GDPR.

– Where consent is relied on, check that it will be: freely given, specific, informed, and unambiguous.

– Consider introducing processes to promptly honour any withdrawals of consent.

– Make sure you keep a record of consents given to demonstrate compliance.

2. Articles 12-15 GDPR – Privacy notice

Aside from the need to obtain consent, your practice will be under an obligation to ensure that the processing of data is fair and lawful. Also, appropriate information must be given to your patients as to how their data is to be used. This is normally done in the form of a privacy notice. The GDPR has a mandatory list of the information which must be given to patients where data is obtained directly or indirectly from them. You will be expected to explain to your patients what data relating to them will be collected, how it will be used, the purposes for which it will be used and how their data may be shared.

To do list:

– Get to know your data. Consider what information is being collected, who is collecting it, how and why it is being collected.

– Consider how the information obtained will be used and who will it be shared with.

– Consider what possible effect the information obtained could have on the patients concerned.

– Consider building a data catalogue (if you haven’t got one in place) and drafting a meaningful privacy notice.

3. Article 30 GDPR – Records of Processing Activities

There will be a significant change to records of processing activities. The GDPR does not distinguish between internal and external records anymore. Dental practices will now require only one kind of record: an on-demand internal record. A practice will be required to maintain records of the entire practice’s processing activities internally. Moreover, these will need to be available to supervisory authorities upon request.

To do list:

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

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

4. Articles 37-39 GDPR – Data Protection Officer

You will be required to appoint a Data Protection Officer (DPO) if the dental practice is:

– A public authority (except for courts acting in their judicial capacity) (Art. 37(1)(a));

– Carrying out systematic monitoring of individuals on a large scale (Art.37(1)(b)); or

– Carrying out processing of special categories of data or data relating to criminal convictions and offences on a large scale (Art.37(1)(c)).

Dentists providing NHS care will be regarded as public authorities. Thus, even a small NHS practice will require a DPO. It is anticipated that the Clinical Commissioning Groups (CCGs) will be providing Data Protection Officers in primary care settings.

If you don’t want to recruit, it will be possible to appoint a single DPO to act for a group of practices, provided that a DPO is easily accessible from each establishment. Alternatively, you can contract the services out.

For those organisations to whom the requirements do not apply, they may still choose to appoint a DPO.

To do list:

– Assess whether your practice is obliged to appoint a DPO.

– Consider who will be your DPO.

– Consider whether your practice should appoint an internal or external DPO.

– Compile information on data processing activities within the practice.

– Ensure that those to whom you have designated responsibility, their duties do not lead to a conflict of interests of their own role.

5. Article 20 GDPR – Data Portability

The rights of individuals under GDPR are the same as those under the Data Protection Act 1998 with a significant enhancement of the right to data portability. Under the GDPR, patients will have the right to receive the personal data which they have previously provided in a ‘commonly used and machine readable format’, and have the right to transmit that data to another controller. This information will need to be provided free of charge, thus removing the previous £50 subject access fee for dental records. This will apply only to data processed by automatic means, and not to paper files.

To do list:

– Consider whether the technical capabilities of your practice will comply with data portability requests.

– Make your patients aware of their right to data portability. Does your company send out e-bulletins and/or newsletters? Let your subscribers know by including a short paragraph at the end of the article.

6. Article 84 GDPR – Penalties

Any practice in breach of GDPR can be fined up to 4% of annual global turnover (not profit) or €20 million – whichever is greater. This fine can be imposed for the most serious infringements, for example for not having sufficient customer consent to process data. The practice can also be fined 2% for not having their records in order, or for not notifying the supervising authority and data subject about a breach, or not conducting impact assessment. In the case of a breach, practices will be required to report the breach to relevant authorities within 72 hours. The practice will be obliged to give full details of the breach and offer proposals for mitigating its effects.

What next?

You should be preparing for the new requirements that will affect your practice. Considering the above steps in the context of your practice is the very first step you can take in order to prepare for the upcoming legal changes. Do not assume that you will be able to claim innocence through ignorance of the rules – the whole point of the GDPR is to keep your company better protected and able to deal with breaches in security. If preparation is approached in the right way, your practice will be well-prepared in time for the regulation coming into force, and your business will be secured for years to come.

We will be running a workshop on 22nd February aimed at dental practices to help them prepare for the new GDPR requirements.

It has long been recognised that dentistry is a stressful profession. It has long appeared in the list of “top ten” most stressful jobs, along with teaching, prison officer and working in the emergency services. But now it is official; the British Dental Association has conducted research into stress levels in the profession. They have found that a shocking 39 per cent of community dentists surveyed and almost half of GDPs reported high levels of stress. This is compared to an average of around 15 per cent for all British workers. 

High levels of stress can have a very negative impact on the running of any dental practice. Ensuring staff are happy and relatively stress free, will lead to better productivity and higher morale in your workforce. However, there are additional pitfalls to ignoring staff stress levels as work related stress can lead to a claim being issued against the practice for damages. 

Managing work place stress

The BDA’s Evidence to the Review Body on Doctors’ and Dentists’ Remuneration for 2017/18  found that 51% of the dental profession would not recommend a career in dentistry. The same report found that both practice owners and associates considered their morale to be ‘low’ or ‘very low’ at 29 per cent and 32 per cent respectively.

In response the BDA is undertaking research on dentists’ well-being at work and why they experience ‘burnout’, but this does not help you tackle the problem in your practice now.

What is Stress?

According to the Government stress is a reaction to a person’s circumstances and surroundings. It is not an illness of itself but often causes other illnesses. Its effects are shown in a number of different ways, both physical and mental. For example, lack of concentration, sleeplessness, low mood, susceptibility to colds/flu, skin irritations, the list goes on.

It is important to remember that there is a difference between pressure and stress. Pressure at work can be healthy, as can some level of stress. However, too much pressure can cause stress to become harmful to health and employees will react differently to the pressures they face.

What duty does a practice principal owe to their workforce?

Employers have a common law duty to take reasonable care of the health and safety of their employees. If an employer breaches that duty, and that breach causes the employee a personal injury, the employee can bring a claim for damages.

A personal injury can include stress. However, the injury must be a medically recognisable psychiatric injury. Therefore, not all cases of work related stress will give rise to a claim for damages.

In order to succeed in such a claim, an employee will need to prove the following:

1.      That the employer breached the duty of care;

2.      That the breach caused the employee injury;

3.      That the injury was foreseeable.

It should be noted that whilst we have used the phrase ‘employee’ above, the protection will extend to workers and could even extend to a self-employed associate, if they can show that they are owed a duty of care by the practice.

Easton v B&Q [2015]

Hatton v Sutherland is the leading case in personal injury claims relating to stress at work. The court re-visited the test in Easton v B&Q and also gave some practical advice in dealing with such cases.

Mr Easton was a manager at a B&Q store. Prior to this he had worked as a manager for 10 years at a large supermarket chain. Mr Easton alleged that as a result of B&Q’s breaches of the duty of care he had suffered work related stress. Mr Easton further claimed that the way his return to work was handled, following a period of stress related ill health, caused a relapse of his condition.

There was no dispute from B&Q that Mr Easton had suffered a psychiatric illness. The issue in this case was whether the injury was foreseeable.

The key findings of the court were as follows:

1. Lack of promotion

The court recognised that Mr Easton’s condition affected his perception of the events that had taken place. However, the court found Mr Easton had persuaded himself that a promotion was in line and this could not therefore be a breach of duty. The court commented that employees should try to look at events objectively.

Tip: employers who can show they have acted fairly and in line with any policies are unlikely to be in breach of the duty of care. If an employee has taken exception to a decision you have made, try sitting them down and clarifying why it is needed, rather than saying ‘I am the boss, my decision is final’.

2. Removal of night time staff

The court found that the effects of this were not as dramatic as Mr Easton made out and that Mr Easton failed to make any complaints about this to his employer at the time.

Tip: An employer cannot be expected to foresee an injury if it is not aware of the concerns the employee has to begin with. However, if a member of staff raises any complaints with you, you should take them seriously and deal with them accordingly, even if that means explaining to the employee why their concerns are invalid.

 3. Rejection of a grievance

Although not in fact argued by Mr Easton, the Court took the opportunity to clarify that when an employer rejects a grievance, as long as a proper procedure was followed, this cannot be a breach of duty simply because the employee does not feel justice has been served.

Tip: this is often an issue for employers. Employees not agreeing with a grievance outcome and feeling they have been dealt an injustice. However, as long as you have properly investigated the issues and provided a reasoned response to the same, it is unlikely you will be criticised.

4. No knowledge of stress

The court found that B&Q had no knowledge that Mr Easton was suffering from stress. The court took into account Mr Easton’s previous role as manager for a large supermarket chain and concluded that he was therefore capable of doing the role. In the absence of Mr Easton informing B&Q of his concerns, B&Q were not on notice of any issues.

Tip: An employer is entitled to take what his employee tells him at face value, unless there is good reason to think to the contrary. Therefore unless an employee reports to you they are feeling stressed, you do not need to take action. However, if they do you should take heed and ensure you have dealt with any concerns the employee raises.

Conclusion

Whilst work related stress should be taken seriously, employees need to show that the employer did know, or should have known, that their actions would cause an injury (the foreseeability test) in order to succeed in a claim. Most claims fail on this basis, as it is a high threshold.  A common misunderstanding by employees when arguing a claim for personal injury is that simply because they have suffered from work related stress, that the employer must be liable.

Irrespective of this, as an employer you will want to ensure your staff are as happy and stress free as possible. There are a number of ways you can do this:

1.       Appraisal process;

2.       Having an ‘open door’ culture so employees feel safe talking to you;

3.       Undertaking staff meetings so staff feel part of the practice;

4.       Ensuring changes to procedures are properly explained before they are implemented, to help staff understand the reasons for them.

Also remember that whilst an employee may not have a stress at work claim, they may be able to bring claims for disability discrimination or harassment, unfair or constrictive dismissal or breaches of health and safety requirements.

If you have queries regarding the content of this article please contact Laura Pearce, Senior Solicitor, on 020 7388 1658 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

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

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

Accusations against Dr Bates

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

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

Barclays’ vicarious liability

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

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

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

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

When is a relationship “akin to employment”?

When the following criteria are satisfied:

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

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

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

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

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

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

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

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

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

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

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

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

Tort closely connected with the employment

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

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

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

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

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

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

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

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

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

Refusing to treat a patient

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

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

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

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

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

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

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

Patient’s freedom of choice

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

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

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

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

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

Laura Pearce, Senior Solicitor

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

But how is this relevant to the dental profession?

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

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

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

Definition of worker

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

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

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

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

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

Recent decisions

Pimlico Plumbers – sending a substitute

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

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

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

The Court of Appeal recognised three types of relationship:

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

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

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

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

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

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

CitySprint – controlling performance

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

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

Not too dissimilar from terms found in many associate contracts.

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

If you need advice on the status of anyone in your workforce or need assistance with re-drafting contracts or documents to ensure associates are truly self-employed, please contact Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laura Pearce, Senior Solicitor

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

The Commitments

The Conservative Party: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Labour Party:

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

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

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

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

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

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

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

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

9.       High quality and personalised end of life care.

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

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

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

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

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

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

The Liberal Democrats:

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

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

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

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

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

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

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

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

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

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

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

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

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

14.   Introduce a minimum unit pricing for alcohol.

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

What will these pledges cost?

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

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

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

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

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

Julia Furley, Barrister, JFH Law LLP

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

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

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

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

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

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

The Test

The test the PCC applies is twofold;

1.       Has misconduct taken place?

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

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

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

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

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

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

The Sanctions

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

·         Reprimand;

·         Conditions;

·         Suspension;

·         Erasure.

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

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

Stage 1 – Case Assessment

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

You will be asked to provide:

1.       Evidence of your indemnity insurance cover;

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

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

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

Stage 2 – Case Examiner

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

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

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

Stage 3 – Hearing

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

·         What evidence do you need to rebut the allegations?

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

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

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

·         What mitigating circumstances are there?

·         What sanctions should be imposed?

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

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

If someone makes a criminal allegation against you, whether true or false, you will be subject to a police investigation. This will no doubt be a daunting experience for you. In this article we guide you through the process and give you some important advice to help you protect your registration as a dentist.

At the police station:

It is a fallacy that only those who have done something wrong need to seek the advice of a lawyer. If you are facing criminal allegations the first thing you should do is seek legal advice from a criminal defence specialist solicitor. Good representation at an early stage will ensure your rights are protected, and can in some circumstances even prevent criminal charges being pursued. Facing a criminal allegation can be one of the most stressful events of your life, you do not need to face it alone.

The police can choose to either conduct an interview following arrest, or on a voluntary basis – commonly referred to as “caution plus three”. An interview after arrest means that you will be detained at the police station and are not at liberty to leave until the police or courts allow it. Under “caution plus three” is less draconian, and means that you are free to leave at any time as you will not be arrested. Everyone who attends for a police interview, whether, voluntary or under arrest, has the right to free and independent legal advice.

Can I choose my own solicitor?

Yes, if you are given notice of the interview it is important to research and identify an appropriately qualified lawyer.  However, if you are arrested unexpectedly and are not able to request your own lawyer, you will be offered the assistance of a “duty solicitor”. There is a duty solicitor on call at all times to provide assistance in the police station.

When you are arrested, and again at the beginning of your interview, you will be read the police caution:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

There may be circumstances when it is appropriate to answer “no comment” to questions being asked by the police officer. For example, where there is in fact limited evidence that you were present or have participated in a crime and the police are essentially “fishing” for incriminating information. Alternatively, if you do not feel comfortable or confident in answering all questions put to you, it is possible to provide a prepared statement setting out the terms of your defence. If this is done properly then it is unlikely a jury would be invited to draw an adverse inference as a result of your failure to answer all questions put.

Whilst legal advice and assistance is free and available to everyone in a police station, regardless of their means, you can choose to instruct a solicitor on a private paying basis, if for example you wish to have a consultation with them in advance of the interview.

It is very important that you make clear to your solicitor that you are a dentist, and that any police action against you could have serious consequences on your registration with the GDC. You must bear in mind that what you say to the police may be used in any later fitness to practice hearing. It can be a difficult balance to strike in providing information that offers a defence to a criminal allegation, but will not inadvertently leave you open to disciplinary action with the GDC. A defence of innocent incompetence to an allegation of fraud for example, may amount to a breach of the GDC Standards for the Dental Team.

If you did use the duty solicitor at the police station but were not happy with their service you are not obliged to continue to be represented by them.

Court Proceedings

Low level offending, such as common assault, shop lifting and traffic offences are all dealt with at the magistrates’ court. Your case will be heard by either 3 magistrates (lay people) or a District Judge. There is unfortunately very limited rights to anonymity before the criminal courts, and your name will appear on the court lists regardless of whether you are found guilty or not guilty.

Legal aid is available in the magistrates’ court, but it is both means and merits tested. The threshold for automatic financial eligibility is income under £12,475 per annum, as such most dentists will not be eligible for legal aid. When paying privately, it is important to bear in mind that even if you are found not guilty you will not be reimbursed for all your legal costs. Any reimbursement is at the legal aid rate, which is very low, and is dependent on you having applied for and been refused legal aid at the outset. Some insurance policies will cover criminal allegations, particularly where they are related to professional misconduct charges. It is always worth speaking to your insurers to find out what they will cover at the outset and remember you have the freedom to choose your own solicitor to represent you under such cover, you do not need to rely on the solicitors appointed by the insurers.

In the magistrates court you can be represented by either a solicitor or a barrister. It is worth considering very carefully the trial experience of the person who is going to represent you. Do not be afraid to ask what their experience is and whether they have dealt with similar cases in the past.

More serious offences are dealt with at the Crown Court. Legal aid is technically available for everyone who appears before the Crown Court, however, applicants have to make a contribution towards their legal costs of up to £900 per month, which is capped dependent upon the seriousness of the offence. For more serious offences you are likely to have the benefit of both a solicitor and an advocate representing you; this can be either a barrister or solicitor advocate.   Your solicitor should discuss their choice of advocate with you before they are instructed to ensure that you are happy with their choice of representative.

If I have been arrested but not charged with any criminal offence should I notify the GDC?

If you are arrested but not charged with any offence there is no obligation to inform the GDC. However, if you are charged, but not yet convicted, of an offence anywhere in the world, you will need to inform the GDC. Similarly, if you are given a formal ‘police caution’ (not the same as the caution above, but a warning from the police regarding behaviour following an admission of guilt), or accept a penalty notice for disorderly behaviour, then you will need to let the GDC know.

If you receive a fixed penalty notice for a driving offence or antisocial behaviour order, you will not need to inform the GDC.

When do I need to inform the GDC of criminal convictions/cautions?

Generally dental care professionals do need to inform the GDC immediately if they are convicted of a criminal offence. However, if you are registering with the GDC you do not need to inform them of a conviction if it is considered “protected”.

• This means it is not a “listed offence” under S2A(5) of the Rehabilitation of Offenders Act 1974 (amended)
• A custodial sentence was not imposed
• The individual has no other convictions
• It was received either when the individual was under 18 and at least 5 years and 6 months has passed, or it was committed when the individual was over 18 and at least 11 years has passed.
• If you have a police caution that does not relate to a listed offence, and was given either when the individual was under 18 and at least 2 years has passed, or it was committed when the individual was over 18 and at least 6 years has passed.

If I am convicted of a criminal offence will I automatically face fitness to practice proceedings?

All criminal convictions and cautions will be referred to the GDC Fitness Practice department for consideration. The GDC will then consider whether the offence committed involved a departure from the high standards required of dental professionals and whether it impacts on their fitness to practice. Consideration will also be given to the dentist’s character and conduct since the commission of the offence. The GDC will assess the level of risk that the conviction or caution will have on protecting the public and maintaining confidence in the profession.

Do I have to declare my conviction to future employers?

Whether you need to declare your convictions to your employers will depend on whether it is considered ‘spent’. The rules are complicated and vary depending upon the type of conviction you have and the reason you are being asked to provide the information. For instance, an enhanced criminal records check is usually required for all jobs that involve working with children, so any convictions, including those that are ‘spent’, will usually have to be declared. If in doubt, ask an expert!

If you or someone you know has been contacted by the police, or faces criminal charges, call our criminal team on 020 7388 1658. Our dental experts work in conjunction with our criminal lawyers to ensure you have the best possible representation to protect both your personal, but also your professional life.

Julia Furley, Barrister

Our society has become more litigious over the years; patients are quick to complain to see if they can get a ‘quick buck’ and dentists fear such complaints being escalated to the GDC.

Litigation can be a costly game. For example, it has come to light that the legal costs for the recent 9 day fitness to practice hearing against D’Mello was an average of £10,437 per day. Given the allegations were undefended by Mr D’Mello, who chose not to attend the hearing, this has left many dentists questioning the use of their registration fees and asking why the costs were so high. [ see GDPUK news report].

If a dentist is faced with either a patient complaint or an investigation by the GDC, the traditional course of action has always been to approach their defence union; you pay subscriptions and therefore expect to be represented. However, is the defence union the best and only option to fund a case? What are the advantages/disadvantages with the various funding options?

When deciding whether or not to pursue or defend a claim, determining how you will fund the case will be one of the biggest factors to take into account. Knowing what options are available will make you better informed and can help you with this difficult decision. Here we consider those options and the pros and cons of each. 

Pay Privately. You may choose to pay privately for the legal costs. However, this is often the most expensive way to fund a claim, as it is likely you will be paying the solicitor on an hourly rate basis for all work done to prepare the case, unless you are able to negotiate a fixed fee agreement. The benefit of this is that you can pick an expert in the field and someone you can trust to do the best for your case. The old adage that you get what you pay for is particularly true here. The down side is that due to the very nature of litigation it can be hard to say from the outset the likely fees, as this can change depending on how the case progresses. A solicitor should however be able to give you a ball park figure and may agree to cap costs for you based on this or in respect of various stages to help you manage funds.

If the claim is in the civil courts, you may be able to recover some of your legal costs if you succeed. However, if you lose you could be liable for the other side’s legal costs. Unfortunately, in relation to fitness to practice hearings, you cannot recover your legal costs. Similarly, in the Employment Tribunal you can only recover costs in very limited circumstances and as such it is rare that costs are recovered.

‘No win, no fee’. These agreements are more normally found when one is pursuing a claim rather than defending it. The benefit to you is that there are no solicitor’s costs unless you win; this usually means a solicitor will be confident in the prospects of success of the claim, as otherwise they could do a considerable amount of work for no money. The down side is that as a result of you not paying up front, the solicitor will take a success fee from your compensation if you win.  Also check the terms of any agreement before signing, as there may be hidden costs if you lose or in other situations, which may mean you do have to pay some costs even if you do not recover any monies.

Legal Expenses Insurance Policy. Such policies are normally attached to other insurance policies such as employer’s liability or home contents insurance. The downside to legal expenses insurance is that you often have to meet certain criteria before funding is agreed. They also normally only apply once a dispute has arisen, and do not provide legal assistance to help you resolve a matter before getting to this stage.  The benefit is if funding is approved for your claim your legal costs and disbursements are covered, and often that of the other party’s should the case not succeed. There are different types of legal expenses insurance and it is often worth shopping around to find one that suits you; for example some will cover your legal costs no matter what and some will cover any compensation payable if you lose. Obviously such policies are likely to attract a higher premium. Remember, if you have legal expenses insurance, you have the freedom to choose your own solicitor and do not have to use the panel solicitors instructed by your insurance company.

Defence Union. If you are part of a defence union you will have access to a number of services including legal representation. However, the defence union are not obliged to follow your instructions, and can decide, due to commercial reasons, to settle a claim that you do not what to settle. This can leave you with a sense of injustice and frustration. Another consideration when choosing a defence union over standard indemnity insurance is that you will have no freedom of choice when it comes to choosing the solicitor or barrister that you want. Non-discretionary insurance policies are legally obliged to give freedom of choice in this regard.

After the Event Insurance. As the name suggests this is insurance you purchase after the dispute has arisen. It will normally cover your disbursements and the other side’s disbursements and legal costs should your claim fail. The policy therefore does not provide cover for your legal costs, which you will still need to fund. However, if your claim is in the civil costs and you succeed then you will recover some of your legal costs and disbursements from the losing party.

Do it yourself. There is always the option of representing yourself in proceedings. The benefit is you have complete control over your case and you do not have any legal costs. Beware; if the claim is in the civil courts and you lose you could have to pay the winning party’s legal costs. If you do represent yourself, remember to take a step back from the case; it is all too easy to get caught up in proving every wrong or to throw every allegation into the mix, which can often detract from the strengths in the case. You can consider instructing a solicitor to give you an initial advice so you know what direction to head in. You can also seek advice from a solicitor on an ad hoc basis to help you at various stages which can help keep the cost of litigation down.

How you fund a claim will depend on the type of claim being pursued. A solicitor has a duty to provide you with advice on your funding options, not just their fees, so you can ask them to explain the options available to you. Also make sure you understand any potential costs consequences of losing a claim, as you may want to seek insurance to cover such costs.

Laura Pearce, Senior Solicitor

At the start of 2017, we thought we would take a look back at one of the major events of the past year, and the dramatic effect it has had on both us and …the World.

When the team at the JFH Law’s offices were asked for their views on what this should be, everyone was in agreement that ‘Mug Gate’ was that very event.

‘Mug Gate?’ we hear you all asking, ‘how did I miss that?!’

Fear not; in this blog we will set out the issues surrounding the controversial ‘Mug Gate’ and how you can prevent it happening at your practice. 

It all began on 14^th December 2016, when John Howey, Partner at JFH Law, announced he had broken a J mug washing up. ‘The handle just came off when I was washing out the inside’ he confirmed. At first we all laughed and there was some light hearted banter about Mr Howey not knowing his own strength; but things then took a turn for the worst.

Julia Furley, Partner at JFH Law, recalls:

At first it was all a bit of fun. We were laughing away, but then I looked around the room and noticed that everyone was drinking from a J mug. It became immediately clear to me that John couldn’t have broken a J mug. I therefore made the management decision to investigate further, attending the kitchen and conducting an audit of the firm’s J, F and H mugs.”

After Ms Furley had completed the stock-take it was discovered that all of the F mugs had mysteriously disappeared. It might be helpful at this point for the reader to note that we have a variety of mugs with the letters J, F and H on them. With the F mugs all gone, we no longer had our identity!

On 15^th December 2016 Ms Furley vigorously interrogated all the staff as to their movements over the previous year and whether they had had any accidents involving an F Mug. Everyone denied having broken a mug. The plot thickened.

Anges Biel, paralegal, was tasked with making enquires with the cleaner, after completing her investigations she confirmed ‘the cleaner is denying any breakages but I have my doubts. I found out his name is Franz Ferdinand’. We were certainly suspicious. Could it be that Mr Ferdinand supplementing his own collection of mugs with our Fs?  

Whilst we now have the expense of re-stocking our kitchen with F mugs, we are also left wondering; what if M&S no longer stock lettered mugs?

Everyone at the office has been left unsettled by these unfolding events. Jigna Verakia, solicitor, provide us with this quote:

I just don’t know why someone would want to take all of our F mugs. We are a close team but I am now left suspicious of those around me. I have my own mug and I now take this home to protect it. I just don’t know what I would do if anything happened to it.

The mystery continues here at JFH Law but what lessons can your dental practice learn from Mug Gate?

Laura Pearce, employment solicitor at JFH Law, advises:

The morale of this story is; don’t trust your staff. Theft is theft is theft. Make sure all surgery property is under lock and key and only the managers can access it. Have a signing in and out form for each time staff members want to use a mug or a pen. Search bags as staff are leaving and undertake random stripe searches. If you find that anyone has taken anything, shout very loudly ‘you’re fired’ and escort them off the premises.

We also spoke to Duncan Roberts, criminal solicitor, to get his take on the situation:

Don’t bother phoning the police; deal with it yourself. An eye for an eye, a tooth for a tooth has always been my motto.

If you need any advice about marching staff of your premises or medieval punishments, please do not hesitate to contact us for assistance. And if anyone sees any of our F mugs, please let us know immediately; there will be a reward for anyone who helps in their safe return.

How to deal with gross misconduct

On a more serious note, dealing with gross misconduct can be difficult; when you work in a small practice, if a member of staff has taken something that does not belong to them, trust can break down and emotions may run high.

Before you jump the gun and start firing staff, take a step back and follow this simple 3 step process to help you avoid landing in hot water.

Step 1 – Investigate

Call the employee into a meeting and question them about the incident. This should be informal and a meeting to gather information not make allegations. You do not need to write to the employee beforehand inviting them to the meeting. They do not have any right to a representative at the investigatory meeting.

After the meeting, consider whether you need to suspend the employee. This should be a last resort and not an automatic response to allegations of misconduct.

If someone else reported the incident, obtain a statement from them too. Is there any other evidence you can obtain to help you make a decision?

At the end of this process gather together the information you have and decide whether there is sufficient evidence to take the matter via a formal route.

It is at this point you can weigh up the seriousness of the allegation and decide whether an informal chat with the employee would be enough to rectify the behaviour. Some companies take a hard line and consider any theft amounts to gross misconduct, whilst others may view the theft of a pen as less serious and give a simple ‘slap on the wrist’ warning not to do it again. Remember whatever line you take make sure you treat all employees the same.

Step 2 – Disciplinary Meeting

If you consider the allegation is serious enough to take formal action, write to the employee and invite them to a disciplinary meeting. The letter needs to clearly set out the allegations and state that if found prove it could result in summary dismissal. At this meeting, the employee is entitled to be represented by either a trade union representation or work colleague, and you should remind them of this in the letter. Finally, make sure all evidence you have obtained is sent to the employee so they can comment on it.

You should give the employee time to prepare for the disciplinary meeting; how much time you give will depend on how much information there is. 

At the meeting put the allegations to the employee and give them a chance to respond.

We would recommend adjourning the hearing to make your decision. If you do this and carry out any further investigations, you will need to re-convene the hearing and give the employee a chance to comment on any new information that comes to light.

Write to the employee with the outcome. Set out in detail why you have come to your decision. If you do dismiss the employee, offer the right of appeal.

Step 3 – Appeal

If the employee appeals the decision, you should invite them to an appeal meeting. This should be heard by someone different to the disciplinary hearing and more senior if possible.

Again the employee is entitled to be accompanied at this meeting.

Hold the meeting and let the employee put forward their grounds of appeal. Following the meeting, write to the employee with the final outcome.

The above three step process is based on the ACAS code of practice, which you should always look to follow. You should also consider what your own policies say and try to follow them where possible.

If you need advice or assistance on dealing with a disciplinary procedure, please contract Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Uber drivers scored a massive victory against their bosses last week, by challenging the company’s assertion that they are self-employed. However, the London Central Employment Tribunal were not determining whether Uber drivers were employees or self-employed, but rather whether they were somewhere in the middle; were they in fact “workers” for employment law purposes. And the answer was yes.

Uber now faces mass litigation as drivers are being advised to issue claims.  Deliveroo staff are jumping on the band wagon too; they are taking legal steps to unionise and gain worker status. And these are not the only companies that are likely to have claims issued against them. With an ever expanding GIG economy the Uber case is of huge importance.

It also highlights the importance of categorising staff correctly from the outset of any contractual relationship and ensuring contracts are not drafted by lawyers to merely try to avoid claims but are drafted to reflect the reality of the situation.

The distinction between employees, workers and the self-employed is particularly relevant within dentistry. Dentists engaged as associates have traditionally been labelled self-employed, however, the contractual reality is often very different. Practices must now review their contracts and ask themselves what it is they want to achieve from their working relationships. As a practice owner, if you do not want to be liable for employment rights such as sick or holiday pay, now is the time to act. Some simple changes in the way you run your business will make all the difference.  As for associates, it is now worth considering your status to see whether you have been missing out on some of the paid benefits that come from being a worker.

Remember; simply because an associate has signed a ‘self-employed’ contract without complaint for a number of years, does not prevent future claims being issued against your practice.  

This decision is also likely to have a massive impact on the dental community and in particular the classification of associates, especially with the rise of corporates. Here we look at why.  

Decision

On 28^th October 2016 the London Central Employment Tribunal sent out its long awaited judgment in the case of Aslam & ors v (1) Uber BV (2) Uber London Limited and (3) Uber Britannia Limited.  The Tribunal held that Uber drivers should be considered workers, as opposed to self-employed contractors.

Uber has already confirmed its intentions to appeal the decision, and the case is expected to go all the way to the Supreme Court given the huge ramifications of the decision, and the implications on a number of business models based on a similar ethos to Uber.

Legal Definition of Worker

Firstly, it should be noted that the Uber drivers were only seeking to establish themselves as workers; not employees. As such we are only considering this category here. For detailed guidance on employment status you can read our October 2016 blog here.

Workers lie in between employees and self-employed contractors, gaining some rights afford to employees but not all of them. This table steps out the rights of each.

To determine worker status, the Tribunal will ask:

• Personal service: Did the individual undertake under the contract to personally perform work or services?
• Business undertaking: Was the status of the ‘employer’ under the contract that of a customer of a business undertaking carried on by the individual?
• Mutuality of obligation: was there mutuality of obligation between the individual and the ‘employer’?

The courts have made it clear that ‘the question in every case is…what was the true agreement between the parties.’ It is therefore the reality of the situation that is analysed in line with the above three questions, not just the contractual documents.

Key Findings

• Personal Service. It was not disputed that the drivers undertook to do the work personally. In any event the Tribunal found that the essential bargain between the parties was that, for a reward, the driver makes himself available to carry passengers of Uber to their destinations.

How is this relevant to dentists?

This is similar to a contract between associate and dental practice, in that the associate must make himself available at agreed times, and for a fee, to treat the patients of the practice.

• Business Undertaking. Uber argued that it was not in business as a supplier of transportation services. It was merely a platform which connected passengers to drivers. Uber claimed to be a a customer of the drivers, as drivers paid a fee to use the platform. However, the Tribunal disagreed. It found that Uber offers a range of services, UberX, UberXL, UberEXEC, UberTAXI and UberWAV. Whereas the drivers only offer one of the services. Crucially, Uber marketed itself as offering a range of transport services, not as a platform service. This was for its benefit; not the benefit of the individual drivers. The Tribunal therefore held that Uber is a transportation service and not a customer of the drivers. Interestingly this is a similar argument Uber put forward before the North California District Court, namely that it was a technology company and not a transportation services. This argument was resoundingly rejected by that court too.

How is this relevant to dentists?

Dental practices are not a conduit by which patients access their dentists. Instead they market themselves as the end supplier of a range of services, such as hygienists and therapists or specialists and dentists with specialist interests, whereas not all staff will be providing those services.

• Mutuality of obligation. Once an individual becomes a driver, they have access to the App, which sends passenger requests to available drivers. A driver is not required to turn the App on but when they do there are certain requirements that the driver must adhere to, including the number of cancellations they can make, the number of fares they reject when online and in terms of their ratings. The Tribunal found this meant the drivers were required to work for Uber when online and that Uber had an element of control over the work the drivers carried out.

How is this relevant to dentists?

Dental practices must have associates in place to undertake dental treatment on the patients booked into the surgery. As such the practice requires the dentist to be available during surgery opening hours. This is even more applicable in relation to practices with NHS contracts, where the practice will require associates to complete a minimum number UDAs per annum. Associates also must comply with the practices policies and procedures.

• Reality of the relationship. The contract and agreements between Uber and the Drivers referred to Uber providing platform services to connect customers with drivers. Of this the Tribunal said ‘the notion that Uber in London is a mosaic of 30,000 small business linked by a common ‘platform’ is to our minds faintly ridiculous…Ms Bertram spoke of Uber assisting drivers to ‘grow’ their businesses, but no driver is in a position to do anything of the kind, unless growing his business simply means spending more hours at the wheel. The Tribunal went on to state how Uber do not supply leads for drivers, as drivers are not free to negotiate a deal with the customer.

How is this relevant to dentists?

Often Dental Practices set the rates for the dental treatment offered and dentists are not free to negotiate those prices.  Also dental practices will often promote the services they offer as a whole and the associate is therefore not free to grow their own business. However, if an associate has their own client list, sets their own hours and/or is able to send a locum in their stead without restrictions, then the reality of the relationship is something different.

We feel that the tide is turning against the broad brush approach to defining ‘self-employment’ and the Tribunals and HMRC will be considering how to crack down on employers seeking to avoid their duties. In a nut shell, in order to protect your practice from costly litigation, make sure your contracts reflect the true relationship of the parties and if you are not sure, then seek advice from an expert.

Laura Pearce, Senior Solicitor

The question of employment status regularly crops up amongst the dental community. Most consider associates to be self-employed because that is the industry norm and how HMRC view associates. However, that may not always be the case.

It is a common misconception that because a contract states it is ‘self-employed’ that will be the end of the matter. However, from an Employment Tribunal perspective the question is a question of fact; not just what is set out in the documents; meaning your contract may not be worth the paper it’s written on.

Given the vast amount of employment rights that employees have, getting this wrong can be a costly mistake to make.  

In addition to ensuring you get it right from the outset, in a modern society people want more flexibility in how they work; as a result hygienists, technicians and therapist are seeking self-employed opportunities. Being able to offer such roles could make you more appealing as an employer, helping you attract and retain the best possible talent for your business.

In this blog we take a look at the legal test of employment status for the purpose of an Employment Tribunal, the common pitfalls and how to avoid them.

The question of employment status is a minefield.  It is therefore not surprising that this issue regularly pops up before Employment Tribunals. There is no hard and fast rule that can be used as the issue is always case sensitive. Judges have tried to give guidance and here we set out the points you should ask when considering the position within your practice. 

It should be noted that the test for employment status for the purposes of employment rights is different to the test that HMRC use. In addition, HMRC allow some professions, such a dentistry, to utilise self-employment status, even if the Tribunals may not agree with this. This article only deals with the question of employment status for the purposes of employment rights.

Types of Employment Status

There are three types of employment status:

1.      Employee:

2.      Worker;

3.      Self-employed.

Employees have the best employment protection, workers have some protection, and those who are self-employed have very little protection. However, those who are self-employed have much more freedom as to how and when they work, compared with employees. As such there are pros and cons with each category, and which is right for you will depend on individual/business circumstances.

You can find out what rights workers and employees have here.

Identifying Status

When looking at whether the individual is an employee, Tribunals will ask:

1. Must the person personally provide the service or can they send a substitute?
2. Is the company obliged to provide work and is the person obliged to accept it?
3. How much control does the company have over the individual?
4. Who has the risk in relation to the business?
5. Who provides and maintains the tools?
6. What degree of management does the individual have in the business?
7. Does the individual profit from performance?
8. How is the individual paid?
9. Does the individual receive holiday and sick pay?

This is not an exhaustive list and the Tribunal does not approach it as a tick box exercise. They consider all the facts and then determine the point. This is why following the industry norm may not always be the best approach, especially with the introduction of corporates and chains.

For worker status there are just three questions:

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

There is no definition of a self-employed person. They are simply anyone who doesn’t fit into either of the above two categories.

In Issue 12 of JFH Law's Dental Bulletin we highlighted the case of the Hospital Medical Group Limited v Westwood [2012] EWCA Civ 1005 in which the Court of Appeal held that a GP working as a self-employed independent contractor for a private clinic was a worker, even though they had two other positions elsewhere. In our opinion, this case has a lot of similarities to dentists and highlights the dangers of getting it wrong.

Avoiding the Pitfalls

First and foremost make sure the contract reflects the true position of the relationship between the practice and the individual. If you try to avoid the question and/or use pro-forma contracts, the Tribunal will see through this and will scrutinise the matter in detail, potentially leaving you with a hefty legal bill and a payment of compensation to make. Many pro-forma associate contracts try to deal with all eventualities and refer to both NHs and private work. Remember one size does not fit all.

And vice versa; if you have spent money on a contract to reflect a self-employment relationship, make sure what is said in the contract is actually being carried out. If your contract states the individual can send a substitute then you must allow this. Whether this right should be unfettered is likely to depend on how the clause is worded. Given your duties as a dental practice, you will need some assurances as to who the substitute is. If you can avoid a clause that allows you to vet any locums but states a minimum standard of substitute this will give you less control and will make the contract less likely to be deemed an employment one.

As a dental practice you will no doubt have a number of policies and procedures in place for running your business. Make sure you distinguish the ones that apply to employees (mostly likely all of them) and the ones that apply to those who are workers or self-employed. This may mean having a separate set of documents for those who are self-employed in certain areas, such as conduct or performance. However, overall the cost of amending policies compared to the cost of litigation will be worth it.  

If you want advice on the status of anyone in your workforce or need assistance with re-drafting contracts or documents, please contact Laura Pearce on 0207 388 1658 or email her at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Image by Caitlin Childs under CC licence.

Who do you currently carry out DBS checks on? How often do you do this? Do your contracts and policies ensure staff have an ongoing duty to update you?

It is a CQC requirement that anyone employed by a dental practice is suitably qualified to perform the role they are undertaking. You also have a duty to safeguard the public. Therefore to ensure you are employing the right calibre of staff, you should carry out DBS checks before making any offer of employment final.

However, beware; you need to ensure you undertake the right level of check for the right role or you could be in hot water. The law also protects job applicants and employees in certain situations in relation to information obtained about their criminal convictions. Failing to comply with the law could result in you ending up in an Employment Tribunal.

In this blog we set out who you need to carry out checks on, the different types of checks available and give some practical tips to help you comply with your duties. 

Background

A DBS check, formerly a CRB check, is a check carried out on an individual before they take up new employment.  It provides certain information about that person in relation to their criminal record and whether they are on either the adult or child barring list, which means they are barred from working with these groups.

However, a DBS check is not a routine check an employer can make on any of its job applicants. It is only if one of the exceptions applies that an employer can make a request for such information. There are also different levels of checks depending on the nature of the role.

Dentistry is one of the exceptions in which a DBS check can be obtained.

Who?

The first thing you need to consider is which members of staff do you need to undertake checks on.

·         Dentists and Dental Care Professionals. You need to undertake an enhanced DBS check with barred list check on all dentists and dental care professionals. 

·         Receptionists. This will depend on the type of practice you run and the duties of your receptionist as to which check you need to carry out. The more contact that they have with patients on their own, the more likely they are to require a check.

·         Office staff. The CQC states that there is no requirement on non-clinical staff to have DBS checks. However, we would recommend seeking voluntary disclosure.

·         Practice managers. Given the nature of the role and their responsibilities we would recommend carrying out a standard DBS check, unless they will be in contact with vulnerable adults and children, then the enhanced check with barred list check should be carried out.

Types of Checks

The types of checks that can be undertaken are:

·         Voluntary disclosure. This is where you ask the job applicant to provide information about their criminal record voluntarily. However, there are limits on what you can ask for and what information you can use.

·         Basic DBS check. This contains information in relation to a person’s unspent criminal convictions, conditional and unconditional cautions or that there are none.

·         Standard DBS check. This contains information about a person’s spent and unspent convictions and cautions, as well as police warnings and reprimands.

·         Enhanced DBS check. This will contain information about a person’s spent and unspent convictions and cautions, police warnings and reprimands, and relevant police information. If the enhanced DBS check includes a barring list check then information as to whether the person is unsuitable to work with children or vulnerable adults will also be provided.

How?

The basic DBS check can be obtained by the individual themselves, without the need to be countersigned by the employer. However, the standard or enhanced DBS checks require the individual to make an application, which is countersigned by a registered person confirming their entitlement to apply for the certificate.

There is now also an online service that individuals can register with and keep their checks up to date, so if they move between similar jobs, employers can access this information more easily.

When?

All DBS checks should be carried out on staff once an offer of employment has been made. If the staff member is working with children or vulnerable adults, this will need to be done before they start that role.

If the dentist is on the NHS performers list you can write to the NHS to seek their confirmation that the dentists has passed the relevant DBS checks, to avoid having to go through the application process. If you do this you must ensure that you can evidence that you have satisfied yourself the dentist is fit to work.

What are the consequences of getting it wrong?

Given that it is a CQC requirement to ensure that staff are suitably qualified, a failure to do so could result in you failing an inspection.

What weight you attach to the contents of a DBS check or voluntary disclosure will clearly depend on the role being offered, whether the convictions are spent or unspent and whether the applicant is on either barring list.

Refusing to employ a job applicant because they have a spent conviction, unless there is a legal obligation placed on you not to employ, is not allowed. However, the reality is that, there is little a job applicant can do in these circumstances as there are no penalties for a breach of this legislation.

If you later find out someone has lied about their criminal convictions, then this is likely to be seen as an act of gross misconduct and you should take the necessary action. You should also consider if you have a duty to report the person to the GDC.

However, if you find out that an applicant did not disclose a spent conviction, unless you would not have been allowed to employ them at all as a result of this, you cannot dismiss them for not disclosing this information. Whilst this has not been tested in the tribunals, given the wording of the legislation this is likely to be seen as an automatically unfair reason for dismissal.

Practical Tips

·         Offer letters. When you offer an applicant a position you should state in the letter that the offer is subject to references and the relevant DBS checks.

·         Contract of employment. Make sure your contract places a positive duty on employees and associates to notify you should their circumstances change.

·         New circumstances. If during the course of employment, an employee is cautioned or convicted of an offence, do not have a knee-jerk reaction to this. You need to weigh up the position held, the nature of the offence and your own policies. Again you will need to consider if you need to report this to the GDC.

If you would like to discuss any part of this article or need any assistance with safeguarding issues, please contact Laura Pearce on 0207 388 1658 or at This email address is being protected from spambots. You need JavaScript enabled to view it.. 

The GDC Specialist Lists were introduced in the UK in 1998 as a result of developments in European Legislation. As of October 2015 of the 40,953 registered dentists there were 4342 registered specialists; an increase of 31 on the previous year. A significant number of patients require specialist dental treatment each year; in 2012/13 approximately 3.5% of all NHS outpatient appointments were in a dental speciality clinic. There is no precise data as to the number of private treatments being carried out by specialists each year, but it is likely to be in the millions.

Whilst the state of the nation’s teeth used to be a cause for international mirth, over the last decade our love affair with cosmetic dentistry has blossomed. Implants are so popular that there are now calls for implant dentistry to be added to the already voluminous list of dental specialities; the UK has more recognised specialities than any other European country. On the face of it specialist dentistry is big business, but for who? Is it the practitioners themselves, or those who provide and regulate the training?

Becoming a Specialist:

One thing is clear, it is hard work. To be entitled to enter onto one of the specialist lists the dentist has to complete a recognised training programme, ranging from three to five years, have a National Training Number (NTN) and to hold the agreed qualification awarded by one of the Royal Colleges. In total there are in the region of 500 specialist trainees each academic year; many of whom do sadly not complete or meet the programme requirements.

It is the GDC who set the standards required for specialist training, approving the curricula and quality assurance. The Joint Committee for Postgraduate Training in Dentistry (JCPTD), through the Royal Colleges and the Specialist Advisory Committees (SACs), is responsible for the development of curricula, devising assessments and examinations and making recommendations to the GDC on specialty training.  The GDC embarked upon a review of the regulation of specialists in 2015; our dental bulletin considering this review can be found here. The second stage of the review began in 2016, and the first results are expected in the autumn. They propose creating a generic template that will serve the basis for all the speciality curricula, bringing a uniformity of language and structure.

The alternative “assessed route” is also under consideration by the GDC. This is where an applicant is required to illustrate to the GDC Specialist List Assessment Team that they have the knowledge and experience derived through academic or research work which they might reasonably be expected to acquire had they completed the specialist training. However, there is limited guidance from the GDC as to what this actually means, the approach to assessments lacks continuity, and applications are routinely returned having been deemed incomplete. Many applicants feel that the only way to ensure success is to seek legal assistance. What is clear is that clinical experience is not evidence of equivalence.

The decision of the GDC not to include clinical experience as admissible evidence is a frustrating one for many, particularly bearing in mind that many dentists were effectively passported onto the lists under the “grandfathering” scheme. This allowed experienced practitioners entrance to their chosen list where they could illustrate that they have the requisite knowledge and experience, wherever acquired. The scheme remained open for two years after the formation of each list. As such it is possible for dentists with no postgraduate qualifications and having passed no exit examination, such as the MRD or equivalent mono specialist exam, to hold the title of specialist.

Is this fair?

Patient safety must be paramount in this argument. The assessment of specialist trainees is so rigorous that members of the public can generally be satisfied that they are receiving treatment from an appropriately qualified dentist.  For those “assessed” or “grandfathered”, there is less clarity as the assessment criteria appears to be reasonably subjective, and dependent upon the assessors view of a paper application rather than any face to face assessment over time.

There are also a limited number of training posts available; and recent attempts by universities outside of the “Big Three”, KCL, The Eastman and Queen Mary’s, to increase supply has been met with some resistance.  The lack of available NTN’s has also frustrated many applicants hoping to enter onto a training post. The Dentists Gold Guide (June 2016) states that the purpose of NTNs is for “Education planning and management” enabling Postgraduate Deans to keep track of trainees and “Workforce information”, to document within each country and speciality how many trainees are in each programme and to provide information as to when training is likely to be completed. There is anecdotal evidence that some dentists working in hospitals and universities can wait years for a training number to become available. Whilst there is a clear advantage to requiring a minimum number of placements to ensure there are sufficient specialists available, it is hard to justify a cap on the maximum. A large number of specialists do not practice in the NHS, and commercial interests will inevitably dominate private practice. An increase in the number of specialists would allow greater freedom of choice and drive down costs for patients. Why not simply maintain competitive entry onto programmes and keep a register of all specialist trainees, doing away with the NTN system in its entirety. Thus removing the lottery of when a number may come up.

The inequality of the playing field for those entering training is another problem. A three to five year, expensive training programme and a limited number of NTNs inevitably means that established practitioners, particularly practice owners, can rarely afford to take the time or money out of running their businesses to undertake the programme. Many of these individuals have been honing particular specialist skills in practice for a decade and simply don’t require extensive clinical training; indeed it is not unheard of for dentists who have limited their practice to a particular area teaching on Masters programmes in their chosen field. They missed the grandfathering window, and can’t afford to have a three year career break, but they can’t rely on their considerable clinical experience to show that they are already practicing at the level of a specialist.

A further disparity arises in relation to European dentists registered in the UK. At present a broader test is applied to European Citizens than is applied to UK dentists, who are assessed on the basis of all their experience, including clinical. So whilst an extremely experienced Spanish endodontist may rely on the number of treatments she has completed in practice, her English equivalent cannot. Although the rules were designed to give individuals coming from European countries, that follow different training pathways and recognise different specialities, an equal playing field, they have arguably ended up allowing European applicants an easier ride. Of course, post Brexit, this may all change.

Looking to the future, what could the GDC do to improve the current position?

1.       They could scrap the assessed route in its entirety. This would ensure uniformity across the specialisms and create a clear quality control of all specialists.

2.       Alternatively they could include clinical experience as a factor in the current assessment process, applying the same equivalence rules to all practitioners, regardless of their origin. This would open up the lists to a vast number of practitioners and has the potential to drive up competition in the fields. However this process would be open to criticism as the assessment process is hugely subjective, and there is no hands-on assessment required.

3.       I would propose a third option. The GDC could create a more structured assessed process; mapping an individual’s experience, both academic, research and clinical, against the specialist training programme, require a minimum number of years PQE and the successful completion of the relevant exit exam for each speciality. There would remain an element of subjectivity of course, but considerably reduced, and a candidate’s ability would be appropriately tested through the examination. 

The GDCs 2015 review talked about “tightening up” the assessed access, but gave no guidance as to how this would be done. They also considered doing away with it in its entirety. That in my view would be a mistake. The assessed route allows diversity and experience that would be lost should all specialists follow the prescribed training programme. It would also unfairly discriminate against older applicants who would not have the years of practice ahead of them to recuperate the considerable costs involved. We wait in anticipation of the results of the next stage of the review, and can only hope that good sense prevails and a fit for purpose assessment route is unveiled.  

Julia Furley is a barrister with a special interest in dentistry. She has assisted and represented a large number of dentists at both the application and appeal stages of their specialist list applications and has an extremely good record of success. If you are interested in applying for entry onto the GDC specialist list you can email Julia on This email address is being protected from spambots. You need JavaScript enabled to view it., or call us on 020 7388 1658.

In this blog we look at two recent cases, one before the Fitness to Practice Committee of the GDC and one before the Health, Education and Social Care first tier Tribunal (‘HESC Tribunal’), and consider what lessons dental practitioners can learn from them.

Darfoor –Fitness to Practice Hearing  

Dr Darfoor, a dentist, was before the Professional Conduct Committee (PCC) on 18^th January 2016. The allegations against him concerned the treatment of three patients during the period 2011 to 2014. The charges against Dr Darfoor ran over three pages of the judgment and included allegations of failing to adequately explain and/or record explaining to the patients the treatment they were to receive and thus failing to obtain consent.

The most serious allegation against Dr Darfoor was an allegation that he had failed to obtain consent and was dishonest in his failure to do so. It is this allegation we are going to focus on in this article.  

Dr Darfoor was carrying out treatment on Patient C for composite restorations and bone grafting. Dr Darfoor informed Patient C that the bone would be “synthetic”. In fact the bone was xenograft, which as you all know is bovine derived. Dr Darfoor had made the same assertion to Patient B, however, what made this allegation against Patient C more serious was the dishonesty element. Patient C had informed Dr Darfoor on a couple of occasions that he was a vegetarian and would not want animal products to be used on him.

Dr Darfoor denied knowing Patient C was a vegetarian but the Fitness to Practice Committee found that he did know this but went ahead with the procedure using xenograft in any event. The allegation of dishonestly failing to obtain consent was therefore found to be proven.

On 22^nd April 2016 the Fitness to Practice Committee was reconvened to consider if Dr Darfoor’s fitness to practice was impaired as a result of his dishonesty. Dr Darfoor had previously been before the GDC before in relation to allegations of failing to obtain consent and this factor was taken into account. The Fitness to Practice Committee determined that Dr Darfoor’s fitness to practice was impaired and he was suspended for 12 months.

Every dentist knows the importance of obtaining consent from a patient. In Issue 5 of our Dental Bulletin we set out the legal issues surrounding consent.  Essentially, in order for consent to be valid it must be given voluntarily and freely, by an informed person and by a person who has capacity to give consent. In the recent case of Montgomery the court put a greater burden on dentists when obtaining consent in that it held a medical professional will need to look at what a reasonable person in the patient’s position would consider was a material risk and this places a duty on the medical professional to advise on that material risk. Therefore if the dentist has knowledge of a patient’s wishes or beliefs he must take this into account when providing information as to the procedure that is being undertaken.

Dr Darfoor had also failed to provide Patient C with other information about his treatment. However, it was the knowledge of Patient C’s vegetarianism and his failure to inform the patient he was using animal material that made his actions dishonest.

This case highlights the importance of ensuring you have an open and frank discussion with patients about the treatment you are providing. Make sure you listen to any concerns or queries raised by the patient, as this could affect the information you provide to them. Dr Darfoor also failed to keep adequate notes. Therefore, if a patient does raise an issue, make sure this is in your notes along with any advice you have provided in response and the patient’s final decision. 

If you would like to read the judgment in full you can find it here.

Mr Corney and Mrs Webb v CQC

This is an interesting case, in which the CQC’s decision to cancel registration was challenged at the HESC Tribunal. It highlights that the CQC’s decision is not final and can be reviewed by an independent body.

However, we would not recommend following the path of Mr Corney and Mrs Webb when deciding if you should challenge the findings of an inspection report.

The couple purchased a care home in 1994 and described their philosophy of care as being based on the ‘European Style’, which they say meant living in the home with the residents and caring for them as if they were their relatives.

The home registered with the CQC in October 2010. Between January 2013 and April 2015 there were six inspections carried out. Each recorded a finding of ‘inadequate.’ In fact on the last visit by the CQC the couple and staff refused to speak to the inspector or show him any documentation; his visit lasted 17 minutes! If only all inspections were that quick. In August 2015 the CQC issued a notice of proposal to cancel registration.

In addition to the action taken by the CQC, in November 2013 Dorset County Council ceased to commission the care home due to safeguarding concerns they had with the home.

Mr Corney gave evidence on behalf of the couple. He was adamant that the findings of the CQC were wrong but produced no additional or expert evidence to support his case. He maintained throughout that the CQC and the local council were working together to shut his business down. The couple failed to make any changes to their practices or procedures despite having clear recommendations from the CQC.

The HESC Tribunal found that the couple were unwilling to change and to keep up to date with current standards and regulation. They went so far as to say ‘Mr Corney also has an unmoveable conviction that he is right.’ The cancellation of registration was therefore upheld. The full judgment can be found here.

We consider this is a rare case; most providers when issued with an inadequate report will do all they can to improve standards. Not wait for a further five inspections to take place. However, what it does highlight is that if you can challenge the CQC’s findings, with say additional or expert evidence, you can pursue the matter via the HESC Tribunal.

It also shows the importance of accepting where errors may have been made and looking to improve on standards or change procedures. Mr Corney clearly did not like change and we consider this factor and his failure to work with the CQC played a part in the removal of the couple’s registration.

We would comment that with the new regime for inspection that came into force last year for dentists, there is less of a focus on a ‘tick box’ exercise.  Inspectors have five key questions to consider and should be taking into account all relevant factors when assessing if the regulations have been met. 

Image credit -Tori Rector under CC licence - 

Every dental practice knows that it can take years to build up a loyal patient following but a matter of days for this to be destroyed by an ex-associate. Normally, a practice seeks to protect its goodwill by adding restrictive covenants into an associate, or even an employee, contract.

However, will your covenants stand up in court if you need to enforce them further down the line?

Most practice owners are under the impression that if a covenant is in the contract and the ex-associate breaches that covenant then they will be able to enforce the agreement. However, this is simply not the case.

Enforceability 

In order for a restrictive covenant to be enforceable you must show that:

1. You have a legitimate business interest that needs protecting; and
2. The protection is no more than necessary in all the circumstances.

A patient base is more than likely to be a legitimate business interest, as it provides the main income for any dental practice. However, you must remember patients are free to choose who treats them and so you cannot completely restrict an associate from treating those patients.

When determining if a covenant is necessary a court will consider the reasonableness of it taking into account factors such as; the duration; the geographical area covered; the patients it refers to and the seniority of the person who is subject to it. This is not an exhaustive list. Given that the courts will consider each case on its own merit, it is difficult to provide specific advice in this article on each of these points.

The courts are very wary when it comes to enforcing restrictive covenants, as they do not want to restrain trade and prevent a person from being able to earn a living. Therefore, if a clause is drafted too widely, without consideration for the business interest you are seeking to protect, it is unlikely that it will be enforceable.  

It should be noted that a court will not amend a clause to make it more reasonable and therefore enforceable; they will simply reject it altogether, leaving you totally unprotected.

You therefore need to carefully consider which covenants are required to protect your business interest, and that the scope of those covenants are neither too wide nor too narrow. 

Types of Covenants

The main types of restrictive covenants are:

Non-solicitation. This prevents a positive act by the associate of contacting former patients of the practice, or making an initial approach, with a view to obtaining their business. Merely informing a patient that they are leaving, and even providing their new address, is unlikely to be seen as solicitation.

Non-compete. This prevents an associate working for a direct competitor. Such clauses are harder to enforce than non-solicitation clauses, given the courts reluctance to restrain trade. However, one must bear in mind the skills of a dentist and the time it takes to build up the goodwill of a practice. We would therefore recommend adding such a clause to a contract, providing it is well drafted.

Non-dealing. This prevents an employee dealing with any customer or potential customer of a business. Given that a patient is free to choose who treats them such a clause is likely to be unenforceable in an associate contract.

Non-poaching. This prevents an associate from taking staff with them to a new practice. The idea behind this covenant is to ensure a stable workforce. In the dental industry, a practice will want to ensure that Specialist Dentists are not enticed to a new practice by a member of staff who is leaving.

You can use just one restriction or you can use a combination, depending on the business interest you are trying to protect.

Practical Tips
The most important piece of advice we can give you is not to use standard clauses for all staff members no matter what their position and situation; this is giving no consideration to the test ‘necessary in all the circumstances’.

You can create standard clauses for each level of staff, but you also must ensure that when you offer a new contract to a new employee or associate you consider whether the covenants are reasonable in their circumstances. For example, if you know an employee cannot drive and you live in a small town with no public transport, stating that this employee cannot work in that town is unlikely to be reasonable; especially if a non-solicitation clause could be used in the alternative.

You need to be able to explain why the covenants are for a certain period, cover a specific geographical area or are in relation to a set of patients. It is also worth periodically reviewing the covenants to ensure they are still fit for purpose (although see below in relation to seeking to amend a contract whilst it is still in force).

Normally, restrictive covenants will be contained within the contract. This means an associate has to agree to them in order to secure work. Consider instead having a separate document containing the covenants and paying for the associate to obtain legal advice on them. If an associate has been advised as to the effect of the clauses and signs to confirm their agreement, this is likely to make them more enforceable. However, you will still need to bear in mind the above tests and ensure the covenants are necessary; this will not give you carte blanche to insert anything into the contract.

If you seek to change the covenants part way through employment, recent case law has confirmed that unless you give some consideration to the other party for signing the new covenants, such as a pay rise, the covenants may not be enforceable even if signed.

No article can ever replace legal advice, and this is even more true in the case of restrictive covenants, which are highly specific to the facts and circumstances at hand. If you are considering using restrictive covenants, we strongly recommend that you seek legal advice.  As the text above demonstrates, merely having them in place will not necessarily protect you.

In recent years, Dental Practices have noted a rise in the number of requests for patient records being received, especially from legal services. It is probably no coincidence that this rise has corresponded with an increase in adverts for ‘no win no fee’ solicitors encouraging patients to come forward if they have received what they perceive to be poor dental treatment.

In this blog I set out the legal framework in relation to keeping and disclosing dental records and provide some practical tips on how to respond to requests for the same.

Record Keeping

As you all know, whether you work in a private or NHS practice, the Standards for the Dental Team, Standard 4.1 applies.  It states:

‘You must make and keep contemporaneous, complete and accurate patient records’.

Furthermore, various pieces of legislation also require dentists to keep records, including Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which is monitored by the CQC.

Those who work in an NHS practice will know that the NHS contract has a contractual requirement for dentists to keep patient records.

However, there is no hard and fast rule for how long you should keep the records before destroying them.

The NHS contract only requires you to keep patient records for two years. Given that a claim for clinical negligence can be issued within three years of the date of knowledge of the injury, a claim for breach of contract within six years of the breach and a claim for defective products within ten years of the defect, two years will be insufficient should you need to rely on such documents to defend a potential claim. The dental records may be the only evidence of what was discussed during a consultation and what consent was provided by the patient; they are therefore crucial in helping you to prepare a defence.  

The Department of Health’s ‘Record Management’ code recommends community records are kept for a minimum of 11 years after the date of the last entry. For children, it is 11 years or up to their 25^th birthday, which ever period is longer. For hospital records the recommendation is a minimum of eight years. The maximum recommended length for retention is 30 years, unless otherwise required by law or some other circumstance.

If you have received any complaints or there has been an adverse incident with a patient, we would recommend keeping the records indefinitely, even if the complaint was resolved satisfactorily. Whilst there are time limits for bringing claims, the courts have the power to extend those limits. This does leave a dark cloud hanging over you; never knowing what might come through the post. However, being prepared with ‘contemporaneous, complete and accurate’ records will help ease the stress of dealing with any complaint or claim.

Please note that if a patient has a disability as a result of an ‘unsound mind’ the normal time limits for record retention do not apply. In these cases, the records should be held indefinitely.

On top of your professional duties, dental practices will also be covered by the Data Protection Act 1998. This requires anyone who holds sensitive personal data about an individual to ensure that the data is accurately created and carefully and securely maintained. Ensuring records are kept securely includes keeping them confidential. The Data Protection Act also states that data should be retained for no longer than necessary. You can find further guidance about your duties under the Data Protection Act in this helpful guide for businesses produced by the Information Commissioner’s Office.

Disclosing Records

Both the Data Protection Act and Access to Health Records Act provide patients with the right to see their dental records.

If you receive a written request from a patient for their dental records, this must be dealt with as quickly as possible but in any event within 40 days. We have set out below under ‘practical tips’ the fees you can charge for providing the documents and what to do if the request is from a third party.

The request must be to the person who controls the data, and it must contain information such that the data controller can be satisfied as to the identity of the person making the request and provide information as to the data sought.

You cannot refuse a patient access to their records unless one of the following applies:

1.       Disclosure would be likely to cause serious harm to mental or physical health of the patient or any other person;

2.    Disclosure would require you to provide information about a third party (other than the dental team providing the treatment) unless the third party consent’s to the disclosure. (Please note that if you can easily redact such information you should do so, rather than refusing the request.)

Once you have received a request you must provide the patient with a copy of all the information you hold about that patient.

If you have destroyed records and a patient subsequently asks to see their record, under the Data Protection Act it is reasonable to say that it was destroyed because it was no longer necessary to be kept.

Breaches of data protection laws can result in criminal as well as civil liability (not to mention adverse publicity, which is increasingly the likely result of non-compliance) so it is not advisable to ignore requests for personal data.

Practical Tips

Identity. You must ensure that the identity of the patient is correct and that you are sending them their patient records. If you are in any doubt ask the patient for more information to help identify them. If you send the wrong records you will be in breach of the Data Protection Act and, as stated above, this could result in criminal or civil action against you.

Consent. If the request is from a solicitor, ensure that the patient has consented to the records being sent to the solicitor and that they understand why the records are being sought. Most solicitors will use a standard form, because it sets out all the relevant information, but there is no requirement to do so.

Fees. The fees that can be charges for copying records are as follows:

Please note that the fees are the maximum you can charge and you should be able to justify them. They are meant to cover your costs for reproducing the records. For example if the patient only has around 10 pages held manually, charging £50 for administration and copying charges is unlikely to be deemed reasonable.

X-rays and scans can be transferred onto a CD and then disclosed rather than copying them onto film.

Opinions. A legal representative may also seek your opinion on the patient’s treatment and prognosis. Unless you are being asked to provide an expert witness report for court purposes (which you would only be able to do if you had never treated the patient in question) we would recommend that you avoid providing any comments. Any comments could later be used against you in respect of a claim.

If you do provide an opinion, you can seek a separate fee for this, as this is a report and therefore not covered by the Data Protection Act.

Potential Claims. If you receive a request from a legal representative, we would not recommend seeking clarification as to the reasons for the request, simply respond to the request and notify your indemnity insurer or defence union, so they are on notice should anything arise in the future. Providing the medical records may be enough to show there is no claim and nothing further may come of it.

Spring is finally here, but with it comes the first wave of new UK legislation for 2016.

So what key changes do you and your practice need to be aware of?

National Living Wage. From 1^st April 2016 any worker who is 25 years old or above will be entitled to the National Living Wage, which is initially set at £7.20 per hour. The National Minimum Wage will continue to apply to workers under the age of 25. In addition, the penalty for employers who fail to pay the minimum amounts to workers has doubled from 100% of the underpayment to 200%. This, along with the introduction of Pension Auto Enrolment (which for many practices is due to take effect this year), will mean further increases in the cost of running your business. There is therefore little comfort in the 1% pay rise announced by the DDRB (for more on this see below).

Apprenticeships. As part of the Government’s drive to create more apprenticeships for young people, they have abolished the requirement on employers to pay NIC for apprentices under 25. This comes into effect from 6^th April 2016. In addition, although not yet in force, the Government wants to ban organisations from using the term ‘apprenticeship’ unless it is a statutory apprenticeship. In order to be a statutory apprenticeship, there are certain legal requirements that must be met.

Zero Hour Contracts. It is unlikely that these contracts are common within in the dental community. However, if you do employ staff on a zero hours contract, for example bank nurses, if those contracts contain an exclusivity clause, stating the employee can only work for you, the employee can now seek redress against unfair dismissal and detrimental treatment following a breach of such a clause. 

Hazadous Waste. From 1st April 2016 dentists in England, who produce or store waste of 500kg or more per year, will no longer have to register with the Environment Agency. Dentists in Wales still need to register with Natural Resources Wales. This will mean slighlty less adminsitrative paperwork for dentists in England. 

Immigration. From April 2016 tier 2 skilled workers from outside the EU who have been in the UK for 5 years or more must be earning £35,000 or above to remain in the UK. This will not affect workers on the Shortage Occupation List, such as nurses, but could affect teachers and IT workers. 

Pension. From April 2016 there will be a new flat rate pension; as opposed to the lower basic rate pension and secondary and additional payments. 

Capacity

In our last blog we considered the importance of patient consent. One of the key elements of valid consent is the patient’s capacity to give that consent and the Mental Health Act 2005, which came into force in October 2007, deals with all issues surrounding mental capacity.

First and foremost the Act imposes a duty on all healthcare professionals to have regard to the Mental Capacity Code of Conduct. It is therefore important to read and understand this document when considering whether a patient has capacity to provide consent.

Capacity  
 
A person lacks capacity if:

1. They have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works; and
2. That impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.

It is very important to note that capacity is to be assessed at the time the specific decision is required. Therefore, a patient may have capacity to consent to some treatment but not to others, or may have capacity at some times but not others.

Under the Act you must assume the patient has capacity unless you can establish that they do not. And simply because a patient’s decision to refuse treatment is unreasonable does not mean they lack capacity.

Assisting Those Who May Lack Capacity

If you are unsure whether a patient does lack capacity, all practical and appropriate steps should be taken to assist the patient in making the decision before you determine they actually do lack capacity. This will mean changing the way you provide information to the patient; giving the patient all alternatives to treatment; considering whether there is a time in the day they have more understanding to make the decision.

Best Interests of the Patient

Under English Law no one is able to give consent to the examination or treatment of an adult who lacks the capacity to give consent, even parents, relatives and healthcare professionals. The exceptions to this are where there is a Lasting Power of Attorney or a court appointed deputy.

However, the Act protects healthcare professionals from civil and criminal legal liability if treatment is provided in the patient’s best interests. The Act states that you must take the following steps before acting in the patient's best interests:

1. Consider whether the person is likely to regain capacity and if so whether the decision can wait:
2. Involve the person as fully as possible in the decision that is being made on their behalf;
3. As far as possible, consider:

• the person’s past and present wishes and feelings (in particular if they have been written down).
• any beliefs and values (eg religious, cultural or moral) that would be likely to influence the decision in question, and any other relevant factors.
• the other factors that the person would be likely to consider if they were able to do so.

         4. As far as possible, consult other people if it is appropriate to do so and take into account their views as to what would be in the best                         interests of the person lacking capacity, especially:

• anyone previously named by the person lacking capacity as someone to be consulted.
• anyone engaging in caring for or interested in the person’s welfare.
• any attorney appointed under a Lasting Power of Attorney.
• any deputy appointed by the Court of Protection to make decisions for the person.

      5. For decisions about serious medical treatment, where there is no one appropriate other than paid staff, healthcare professionals have to              instruct an Independent Mental Capacity Adviser

      6. If the decision concerns the provision or withdrawal of life-sustaining treatment, the person making the best interests decision must not be            motivated by a desire to bring about the person’s death.

Assessing whether a patient has capacity will be a balancing act. You will also need to bear in mind your duties to treat patients with dignity. This may therefore lead to difficult situations; remember to take notes of any decisions made as this will later assist if any queries are raised.   

Every dentist knows how important it is to obtain consent from a patient before conducting any physical examination or undertaking treatment on a patient. In this blog we look at the legal issues surrounding consent, namely the definition and the consequences of not obtaining it.

Valid Consent

There is no statute setting out the definition of consent; the principles for consent have developed through case law.

For consent to be valid it must:

1.       Be given voluntarily and freely; 

2.       By an informed person; and

3.       By a person who has the capacity to give consent.

Voluntarily and freely means the person giving consent must not be put under any undue pressure or influence to either accept or reject treatment. Such pressure may come from partners or family members. If you have concerns about this, you should see the patient alone in order to obtain valid consent.
 
A dentist must provide the patient with all the necessary information about the treatment so the patient understands the nature and purpose of it. If it is alleged by a patient that proper informed consent was not obtained, the Courts will consider whether the dentist has taken reasonable care to ensure the patient is aware of the material risks of the treatment and of the reasonable alternatives to the treatment. The Courts look at what a reasonable person in the patient’s position would consider was a material risk, by looking at whether a reasonable person in the patient’s position would attach significance to it. The Courts will also consider whether the dentist had knowledge, or should reasonably be aware that their patient would be likely to attach significance to the risk.

This test follows the decision handed down by the Supreme Court on 11^th March 2015 in the case of Montgomery v Lanarkshire Health Board, which has been a feature in a recent forum discussion on GDPUK.com. As pointed out by many of you, the discussion in Montgomery simply re-iterates what best practice is, as advised by the GDC.

Prior to this the leading case on consent was Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital or, as it is referred to, the Bolam test. The decision said it was a matter for clinicians to judge how much information was to be disclosed to a patient. Provided the doctor explained the risks of a given treatment, to the extent that it accorded with a responsible body of medical opinion, liability would not attach.

However, Judges had been moving away from the Bolam test in any event, but these cases had not reached the highest court in England, so they did not overturn the Sideway’s decision.  

Given the decision in Montgomery, it is now advisable for dentists to give information to patients about all possible outcomes and make a record of the information given. Furthermore to engage in an open dialogue with their patients regarding any treatment offered.

Other Issues Surrounding Consent

Consent obviously needs to be obtained before treatment is performed. When the treatment is intrusive the consent should be obtained well in advance to give the patient time to ask questions and you to provide the information.

There is no set form in which consent must be obtained, but it is always advisable to have the consent confirmed in writing, usually by signing a consent form, as this can be used as evidence should any questions arise.

Consent will normally last indefinitely, unless new information comes to light that could affect the patient’s decision or the patient’s health has changed such that the risks have changed. A patient can withdraw consent at any time, even part way through treatment. In these circumstances, the dentist should stop treatment to see what concerns the patient has and should only continue if consent is re-established. Unless to stop the treatment would cause the patient greater harm.

Legal Consequences

There are two potential legal avenues a patient could take if consent is not obtained or not obtained properly.

Firstly, touching a patient without consent can constitute both the civil and criminal offence of battery, namely unlawful physical contact.

Secondly, if a healthcare professional fails to obtain proper consent and the patient later suffers harm as a result of any treatment, the patient may have a claim for negligence.

It should be noted that informing people of the nature and purpose of treatment is likely to be sufficient to defend a claim of battery. However, a failure to provide all necessary information about the treatment could lead to a claim for negligence.

Remember, alongside these legal principles, there are also ethical principles surrounding consent. Whilst there will be some overlap between the two, you should refer to the GDC guidance highlighted above for more information. As you all know, failing to follow the Standards for Dental Professionals may result in an investigation by the GDC in relation to fitness to practice.

Image credit -Quinn Dombrowski under CC licence - not modified. 

There is a genuine concern amongst the dental community, including within the GDPUK forum, that the Practice Committees are not acting fairly or with common sense when conducting disciplinary proceedings. In December 2015 of the 46 cases heard, 4 dentists were erased, 17 were suspended, 4 were reprimanded and 15 were issued with conditions.

I am sure you all remember the Professional Conduct Committee’s damning comments of the GDC’s conduct during the Fitness to Practice investigation of Dr Singh on 11^th May 2015. If not, you can read about it here. Because of the appalling conduct of the GDC in that case, the hearing was abandoned as a result of an application by Dr Singh’s legal representative. The purpose of the legal application made was to stop the unfair process, and to allow a fairer more transparent hearing to follow. However, the case is still yet to be re-listed for hearing.  

Although a positive result for Dr Singh in the short term, it did not bring an end to the matter for him. The question now is has he just delayed the inevitable?

So what steps can you take if you disagree with the decision of the Fitness to Practice committee?

Appeals

Any appeal against a decision of the Practice Committee must be made within 28 days of the original decision to the High Court. The grounds on which you can appeal the decision are:

1.       That the decision was wrong;

2.       That there was a procedural or other irregularity.

You can also appeal decisions of the Interim Orders Committee on one of the above grounds; again any appeal must be within 28 days.

The High Court is completely independent of the GDC; it is therefore not afraid to overturn the Practice Committee’s decisions.

The High Court has made it clear in a number of judgments that the purpose of Fitness to Practice hearings is not to punish the practitioner for past misgivings but to protect the public. In the decision of the High Court in the case of Cohen v. General Medical Council (2008), the judge stated it was not inherent that every case of misconduct must automatically mean the practitioner’s fitness to practice is impaired. However, it appears from recent decisions that perhaps the Practice Committees are losing sight of this principle.

In the recent case of Professional Standards Authority (PSA) v (1) General Medical Council (2) Uppal [2015], the GMC decided not to impose a sanction on Dr Uppal even though she had accepted the allegation of dishonesty. The PSA appealed the decision on the basis it was too lenient. They argued that dishonesty must automatically amount to impairment. The court disagreed and accepted the GMC’s findings that this was an isolated incident and therefore there was no impairment of Dr Uppal’s fitness to practice.

If you think you have been treated unfairly at a hearing, or that the punishment laid down by the Practice Committee far outweighs the “crime” that has been committed, then it is well worth seeking to appeal.

However, it is essential that you act promptly, as although the High Court does have the power to extend the 28 day time limit, this will only be done in exceptional circumstances.

Judicial Review

A practitioner could also consider seeking a judicial review of the Practice Committee’s decision or an order from the Interim Orders Committee. A judicial review is where a Judge reviews the decision or action of a Public Body.  Any application for judicial review must be made within three months of the decision. The grounds on which a judicial review can be made are:

1.       Illegality;

2.       Irrationality;

3.       Procedural unfairness;

4.       Legitimate expectation.

There is some overlap in the above with the grounds on which a decision can be appealed. However, the court will not consider an application for judicial review until all other avenues have been exhausted.   

Bear in mind that irrationality means that the decision of the GDC was so unreasonable that no reasonable public body would have come to it; an extremely difficult test to overcome. Legitimate expectation is where the public body, by its own acts or statements, is required to act in a certain way.

You cannot appeal an Investigating Committee’s decision to refer a complaint to the Practice Committees. However, you can seek a judicial review of that decision if one of the above applies. This may be a better course of action if you can satisfy the relevant test, as it could prevent the matter progressing to the Practice Committees entirely.

So in conclusion there is some light at the end of the tunnel. Whilst it is clearly a stressful and daunting experience having a complaint raised against you, the decisions of the GDC can be challenged in the courts.

Indemnity and insurance companies should fund an appeal subject to meeting the terms of the policy and some may provide funding for an application for judicial review. Remember you do not need to use the ‘panel’ solicitor appointed for you; you have freedom of choice as to your representative.

In October 2012 a positive duty was placed on all employers to automatically enrol ‘eligible job holders’ in to a qualifying pension scheme. For most Dental Practices the relevant date for complying is likely to be early next year. If your Practice has not been given the relevant date yet, then you should expect notification imminently. A failure to comply with this duty can result in a penalty notice with a fine or enforcement action being taken against you. Enforcement action can consist of inspections being carried out on premises, which is yet another layer of bureaucracy for Dental Practices to comply with.

In this Blog we take a look at who is eligible for auto enrolment; what is a qualifying pension scheme; and what you must do to comply with the auto enrolment requirements. We also explain the continuing duty placed on employers to re-enrol eligible job holders.

Who must comply?

All UK employers must comply with the auto enrolment requirements, even if you employ just one eligible job holder. The only exception to this is if the eligible job holder is already in a qualifying pension scheme.

If you currently do not employ anyone but offer an eligible job holder a position following your relevant date, you will have an obligation to enrol them into a qualifying pension scheme from the start of their contract.  

Who is an Eligible Job Holder?

An eligible job holder is a worker who:

•       Is working under a contract;

•       Aged at least 22 and under State Retirement Age;

•       Earns at least £10,000 (in 2015/2016);

Therefore it’s not just employees who must be enrolled; it is workers, agency staff, apprentices, and could even extend to some self-employed contractors. It will also cover permanent and temporary staff and those on fixed term contracts.

Given this is a relatively new scheme, there is limited legal guidance as to what an eligible job holder, or worker, will be for the purposes of the Pensions Act 2008. However, the definition is similar to that found within the Employment Rights Act 1996. As such, we can look to existing case law to assist with the definition of a ‘worker’ under the new act.

Interestingly, in the case of The Hospital Medical Group Limited v Westwood [2012] EWCA Civ 1005 the Court of Appeal held that a GP working as a self-employed independent contractor for a private clinic was a worker.

Dr Westwood held three positions. He was contracted by the Hospital Medical Group Ltd to perform hair loss surgery for its clients; he was referred to in marketing material as ‘one of our surgeons’. He also had his own medical practice which he worked at, and finally, he had a contract to provide advice on transgender issues with another separate clinic.

When asked to determine whether he was a ‘worker’ at the HMG Ltd, the Court of Appeal held that there is a distinction between those who market their services independently to the world in general and those who are recruited by the principal to work as an integral part of the principal's operations. Whilst there was no requirement for the clinic to provide work and for Dr Westwood to accept it, the HMG Ltd had engaged Dr Westwood because of his skills. The patients were clients of the clinic not Dr Westwood. He was therefore recruited by the principal as an integral part of the principal’s operations. He was therefore considered to be a worker despite the flexibility of his role and the terms of his written contract stating he was a self-employed independent contractor.

The parallels between Dr Westwood’s position and that of most self-employed Associate dentists are clear. As such it seems extremely likely that for the purposes of pension enrolment legislation, Associate dentists will be considered an eligible job holder working under a contract. As such they will need to be included in Practice’s qualifying pension scheme, unless of course they choose to opt out. 

Practices will also need to consider their company structure when considering who is eligible for auto-enrolment. In the case of Clyde & Co LLP and another v van Winklehof [2014] UKSC 32 the Supreme Court held that a member of a Limited Liability Partnership was a ‘worker’ for the purposes of whistleblowing legislation. In this case Ms Bates van Winklehof was an equity partner receiving a profit-related element of remuneration and a guaranteed level of remuneration. Ms Bates van Winklehof made a complaint that a managing director had accepted brides. She was subsequently removed as a partner of Clyde & Co. Ms Bates Van Winklehof alleged this removal was due to a protected disclosure, a claim a worker is entitled to bring.

The Court’s reasoning for finding that Ms Bates van Winklehof was a worker was because she could not market her services for anyone other than Clyde & Co and she was an integral part of their business. 

The result of this judgment means Limited Liability Partnerships will need to enrol their members into a qualifying pension scheme if they meet the other requirements, including the minimum qualifying earnings. If the member received drawings based on the company’s profits there is a question as to whether these would be classed as ‘earnings’. Although the definition of earnings is wide and we would recommend automatically enrolling members in any event to avoid litigation.

The position would be different for partners in a traditional Partnership Agreement, as a partner cannot employ themselves and would therefore not been deemed a worker.

As most Dental Practices are Limited companies, it is worth bearing in mind that a Director of a company is a worker only if he is also employed by the company under a contract of employment and there is at least one other person employed by the same company under a contract of employment.

Exceptions

There are some exceptions to the requirement to auto enrolling eligible job holders and these are:

•       Job holders in their notice period within six weeks of the enrolment date;

•       Job holders who have cancelled their membership after being contractually enrolled;

•       Job holders who are receiving a benefit from a lifetime allowance;

•       Job holders who have received a winding up lump sum.

What is a Qualifying Pension Scheme?

A qualifying pension scheme is an occupational or personal pension scheme or a registered pension scheme that satisfies the quality requirements. You should talk to your current or proposed pension provider to get advice on this or you can find out further information here.

The Government’s ‘NEST’ scheme is an automatic enrolment scheme, as is the NHS pension scheme. However, if the eligible job holder is not able to register in the NHS pension scheme then employers are under an obligation to find another qualifying pension scheme for them. An example of this would be someone who has retired, but later decides to return to work. If they are an eligible job holder still they will need to be enrolled into a qualifying pension scheme.  

Non-Eligible Job Holders and Entitled Workers

A non-eligible job holder is:

•       Aged between 16 and 21 or State Retirement Age and 74 and earnings in excess of £10,000; OR

•       Aged between 16 and 74 with earnings between £5,824 and £10,000

Although they are not eligible for auto-enrolment, they must be made aware of the scheme and have the right to opt-in. If a non-eligible job holder opts into a qualify pension scheme the employer must make the minimum pension contribution, which at present is 2% of which the employer pays 1%.

Finally, there are entitled workers who are:

•          Aged between 16  and 74 and has earnings under £5,824

Similarly, these workers must be made aware of the pension scheme and their right to join. However, there is no obligation for an employer to make the minimum contributions for this class of worker.

What Next?

Once a practice owner is informed of their relevant staging date they will need to:

·         Find an appropriate qualifying pension scheme;

·         Provide workers with information about the pension auto enrolment before it takes place; and

·         Enrol any eligible job holder into a qualifying pension scheme if they do not opt out.

To find your relevant staging date, click on this link.

It has been suggested that the process can take up to 12 months to complete so we recommend preparing early.

You need to write to employees within 6 weeks of the staging date. For an example letter to send to eligible job holders and an opt out form, click on this link.

Ongoing Duty

There is an ongoing duty to auto enrol. Even after your staging date has passed you will need to be aware of the following re-enrolment dates:

• As soon as a job holder becomes eligible the employer must auto enrol. You have one month to make the necessary arrangements;
• After three years the employer must auto enrol any job holders who previously opted out;
• If a scheme no longer qualifies as a relevant scheme the employer must enrol the job holder into a relevant scheme.

Employment Protection Safeguards

The Pensions Act contains specific duties for employers to safeguard their workers’ rights in connection with auto-enrolment. It should be noted that these safeguards apply regardless of whether you have reached your staging date yet, and will apply to current and potential job holders. Below is a brief outline of the employment protection safeguards currently in place; a more detailed look at these can be found here.

Prohibited Recruitment Conduct. Employers must not ask questions or make statements as part of the recruitment process that indicate that an individual's application may depend on whether or not they opt out of auto-enrolment. This is enforced by the Pensions Regulator; it does not give rise to a separate claim in the Employment Tribunal by the individual.

Inducements. This is any action which has the sole or main purpose of inducing a job holder to either opt out or leave a pension scheme, or inducing an entitled worker to leave a pension scheme. An example of this would be re-negotiating contractual terms at a lesser rate if the sole or main purpose is to take into account the cost of implementing pension auto-enrolment for that individual. Again this is enforced by the Pensions Regulator; it does not give rise to a separate claim by the individual.

Right not to Suffer a Detriment.  A worker has the right not to suffer a detriment by their employer on the grounds that:

• any action was taken, or was proposed to be taken, with a view to enforcing a requirement under the auto-enrolment regime in favour of the worker; or
• the employer was prosecuted for an offence under section 45 of the PA 2008 as a result of action taken for the purpose of enforcing a requirement of the auto-enrolment regime in favour of the worker; or
• any requirement of the auto-enrolment regime applies to the worker, or will or might apply.

If a worker does suffer a detriment then this will give rise to a claim that can be pursued in the Employment Tribunal. As above, re-negotiating terms could be seen as detrimental treatment. Alternatively, offering new workers lower rates to take into account the direct cost of pension auto-enrolment for that individual could be seen as a detriment.

The situation may be different if pension auto enrolment causes your Practice financial hardship; this could potentially be seen as a valid reason to re-negotiate contracts. However, this will be fact sensitive depending on the circumstances of your business, so if you are planning to take direct action then you should seek specific legal advice.  

Automatic Unfair Dismissal. If you dismiss an employee and the main or principal reason for that dismissal is one of the three points highlighted above under ‘right not to suffer a detriment’ then that dismissal will be deemed automatically unfair and the employee can pursue an Employment Tribunal claim. This right only applies to employees; not workers.

Whistleblowing. Workers are already protected from detrimental treatment as a result of blowing the whistle on their employer. If a worker makes a complaint to the Pensions Regulator and suffers a detriment as a result of such a complaint, then they will have protection under whistleblowing legislation. In the case of a worker this could include their contract being terminated; so whilst they may not have a right to claim unfair dismissal they may have a claim for whistleblowing.

This is yet another financial burden being placed on small businesses. However, given the consequences of not complying with the law, it is important to know what you must do and when; ensuring you are prepared in advance will help take the stress out of implementing pension auto enrolment and help you plan for the future.

Pension Auto Enrolment is a vast area of law and as such this Blog gives an overview of your duties. For more detailed information you can visit the Pensions Regulator website here. 

This month is Mouth Cancer Action Month, a charity campaign set up by the British Dental Health Foundation (BDHF) to raise public awareness of mouth cancer. The campaign has been long running; spearheaded by the late Richard Horner, founder of Scope Group and well known among the dental media and trade, in 1998. He retired in 2003 and handed over the project to the BDHF, who have done much work to raise awareness of mouth cancer;  pushing through changes in legislation in relation to the tobacco industry, including a direct marketing ban and the smoking ban.

Over the last year concerns over the Nation’s oral health have hit the headlines; from concerns over children’s oral hygiene, the effect of sugar and proposals for a ‘sugar tax’, and more recently revelations regarding the poor state of professional footballers’ teeth. This article will consider the nations awakening interest in all things oral health, and what impact this has on the fight against mouth cancer.

Children’s Oral Hygiene

In 2013 the Health and Social Care Information Centre commissioned a survey in relation to Children’s Dental Health. This survey has taken place every 10 years since 1973 to track changes in the oral hygiene of children.  The results were published in early 2015 and found the following:

·         The nearly a half (46%) of 15 year olds and a third (34%) of 12 year olds had “obvious decay experience” in their permanent teeth. This was a reduction from 2003, when the comparable figures were 56% and 43% respectively.

·         The proportions of children with some untreated decay into dentine5 in permanent teeth have also reduced, from 32% to 21% of 15 year olds and from 29% to 19% of 12 year olds.

·         In 2013, nearly a third (31%) of 5 year olds and nearly a half (46%) of 8 year olds had obvious decay experience in their primary teeth6. Untreated decay into dentine in primary teeth was found in 28% of 5 year olds and 39% of 8 year olds.

·         In 5 year olds, the average number of primary teeth with obvious decay experience (dmft) was 0.9. Among 5 year olds with such decay, the average number of teeth affected was 3.0.

·         In 12 year olds, the mean (average) number of permanent teeth affected by obvious decay experience (DMFT) was 0.8. Among 12 year olds with any such decay, the mean number of teeth affected was 2.5.

The survey also looked at lower income families by assessing the oral health of children who had free school meals. The findings for this group were as follows:

·         A fifth (21%) of the 5 year olds who were eligible for free school meals had severe or extensive tooth decay, compared to 11% of 5 year olds who were not eligible for free school meals.

·         A quarter (26%) of the 15 year olds who were eligible for free school meals had severe or extensive tooth decay, compared to 12% of 15 year olds who were not eligible for free school meals

Around this time the Faculty of Dental Surgery at the Royal College of Surgeons of England (RCS) also published a report in relation to the state of children’s oral health. The RCS was seriously concerned about the state of oral hygiene in children and noted the regional inequalities in the results. The report confirmed that in 2013-14 approximately 46,500 children under the age of 19 were admitted to hospital with a primary diagnosis of dental caries.  The RCS estimated that 90% of dental caries are preventable.

Sugary drinks have been blamed for the poor oral hygiene in children, with many seeing sugar as the new tobacco. We reported on this in Issue 4 of our Dental Bulletin, at which time Tesco had banned sugary drinks from its shelves and Coca-Cola had funded research which down-played the effect of sugary drinks on teeth.

Since that Dental Bulletin the Government has come under increasing pressure to implement a sugar tax and for the food industry to have clearer packaging as to the amount of sugar in their products.

Jamie Oliver has been a campaigner for the sugar tax for a while, even implementing the tax in his own restaurants. He has a ‘five point sugar manifesto’, which includes the sugar tax and banning advertisements for junk food before 9pm. On 19^th October 2015 he also appeared before a committee of MPs to discuss the sugar tax, in which he asked David Cameron to ‘frankly, act like a parent’ with the food industry.

Meanwhile, Jeremy Hunt was accused of delaying Public Health England’s (PHE) report on the subject, which was meant to be published in July 2015. The report was finally published on the Government website on 22^nd October 2015; it appears his hand was forced after Dr Alison Tedstone, director of diet and obesity at PHE, went public with details of the report.

The highlights from the report are:

·         Treating obesity and its consequences alone currently costs the NHS £5.1bn every year;

·         Reducing the Nation’s sugar intake in the next 10 years to the recommended 5% (or 30g per day) could save the NHS £484m a year;

·         The influencers to buying sugary products include:

o   Advertising:

o   Food retail price promotions. Foods with higher sugar content are among the highest food retail price promotions on offer in stores:

o   Taxation on products:

·         Evidence shows lowering sugar in foods will help reduce consumption. This has a proven track record in relation to the reduction of salt in foods;

·         The report recognises that one single action will not be effective and a combination of changes will be needed to reduce the sugar intake of the Nation. Eight changes are recommended and these include:

o   A price increase of  a minimum of 10-20% on high sugar foods:

o   Reduce and rebalance price promotions;

o   Reduce opportunities to market and advertise.

What is evident from reading all the reports above is that children from lower income families are amongst the worst affected. Yet the Government is still reluctant to take action against the food industry. This is surprising as greater public awareness of the risks of sugar will surely help increase calls for change, hopefully resulting in similar action being taken against the food industry as has been achieved with the tobacco industry. 

Professional Footballers

On the opposite end of the spectrum, recent research has shown that wealthy professional footballers are amongst the worst culprits for bad oral hygiene.

Research carried out by University College London and published in the British Journal of Sports Medicine, found that nearly 4 out of 10 professional footballers have ongoing tooth decay; 57% have tooth erosion; and 8 out of 10 have gum disease, which in some cases was irreversible. Compare this with the national average, where 3 out of 10 adults suffer from tooth decay.

So why is it that professional footballers have such bad oral hygiene? Again, sugary drinks may be to blame, with the footballers drinking sports drinks during training sessions and games to help maintain energy levels. However, with appropriate oral hygiene, it has not been proven that drinking such drinks would harm teeth.

Similar research was carried out by the same study author, Professor Ian Needleman, on professional athletes during the London Olympics in 2012 and this report had similar findings in relation to the state of the athletes’ oral health.

Many people may be surprised at how oral hygiene can have an impact on one’s health and well-being in general. 7% of professional footballers and 18% of professional athletes said bad oral health had affected their training.

Dr Claudio Peru is a specialist endodontist and the principle at Chiswell Green Dental Centre.  CGDC have been working with Watford FC for the last two years, during their rise to the football Premier League. Dr Peru is responsible for the dental health for the players. His view on the importance of dental health in elite sports people is as follows:

“The importance of ensuring optimal dental health for professional athletes, including footballers, cannot be understated. By ensuring the dental health of players, they are able to train and perform during matches without being impaired by acute or chronic dental problems. There is an obvious economic advantage to the club. In particular we find that by addressing occlusal imbalances we are able to optimize neuro-muscular coordination and the postural balances. This is particularly important for the competitive performance of athletes.”

The studies did not give any conclusions as to why these professionals had such poor oral hygiene; many saying they visited a dentist regularly. With access to the best dentists and products surely there is no excuse for this.

Mouth Cancer Action Month

Mouth cancer is one of the few remaining cancers that is likely to increase in numbers in the coming years; the disease has already increased by a third in the last decade. In the UK last year 6,767 people were diagnosed with mouth cancer.

Mouth Cancer Action Month hopes to raise awareness of the symptoms of mouth cancer and the benefits of taking action early on.  The key message from this campaign is that early detection is key and it encourages the public to regularly visit their dentist.

The British Dental Association (BDA) has published an article highlighting the vital work dentists and their teams have in making the public aware of mouth cancer and early detection. It confirms that if detected early there is a 90% survival rate; compared with 50% where diagnosis is delayed. 

The BDA is also supporting HVP Action’s campaign for the HVP vaccination given to girls to be extended to adolescent boys (rather than just those between 16 and 40 who are having sex with men as recommended by the Joint Committee on Vaccination and Immunisation). It is thought that the HVP virus is likely to rival tobacco as the number one cause for mouth cancer in the coming years; the rate of mouth cancer is expected to double between 1995 and 2025.

If you want to get involved in Mouth Cancer Action Month you can visit their website here. We will be doing our part to raise awareness; look out for JFH Law’s #bluelipselfie.

Laura Pearce, Senior Solicitor

The Care Quality Commission (CQC) began operating on the 1^st April 2009 and was created to regulate and inspect health and social care services. Since its inception a number of additional services have come under its umbrella, including Primary Dental Care Services as of 1^st April 2011.

In recent months the CQC has come under fire from the Medical Profession, with reports such as:

Delegates at the British Medical Association (BMA) conference in June 2015 voting in favour of a motion stating the current CQC regime was "unfit for purpose". After the conference GPC chairman Dr Chaand Nagpaul said it was ‘clear that the CQC has lost the confidence of the profession’ and that it needs to ‘urgently address the fundamental problems within its inspections regime’.

This was shortly followed by the Royal College of GPs (RCGP) calling for an immediate suspension on the process of routine inspections. Research by the RCGP found a GP could gain an additional 120 hours a year in practice, if the Government slashed the administration burden of the CQC inspections.

The British Dental Association (BDA) has been relatively quiet about the CQC inspection regime. In October 2015 the BDA posted on its website that it welcomed the report from the CQC that Dental Practices were ‘low risk’ to patient safety.

However, the BDA’s silence on the matter does not reflect the feeling amongst the dental community generally. On forums such as GDPUK.com, the old CQC inspection regime is viewed as over cumbersome and bureaucratic, time consuming, expensive and inflexible.

In addition to the lack of confidence in the CQC inspection regime, is the dental community’s frustration and mistrust of their regulating body, the General Dental Council (GDC). This year alone we have seen the Professional Conduct Committee make some damning criticisms of those who investigate fitness to practice on behalf of the GDC. The Professional Standards Authority reported that the GDC was the worst regulatory body, with only two of the ten ‘Standards of Good Regulation’ being met. Finally the BDA asked ‘Will the GDC ever learn?’ in their article on the 24^th June 2015 in response to the Professional Conduct Committee’s comments and MPs querying the GDCs hike in the Annual Retention Fee.

However, unlike the GDC, the CQC has recognised its failures and has accepted that the old inspection regime was not fit for purpose. As such, from 1^st April 2015 the CQC has implemented a new format for inspections. Are we now entering a new era for the CQC inspection process?

Life before CQC

Prior to the CQC taking over the regulation of Primary Care Dental Services, NHS Dental Practices would be assessed by Dental Reference Officers (DRO). This often involved the DROs observing a dentist at work. The advantage of this system was that as DROs were qualified dentists, they had a good understanding of the required standards to be met in terms of treatment.

In addition to the above, all Dental Practices were governed by the GDC and were expected to meet the standards set by them. There was no on-site inspection process by the GDC; dentists, as professionals, were left to ensure they maintained those standards and the majority did in order to maintain their business and reputation.

There was no obvious need for overhauling the system. There was no public outcry regarding the quality of dental practices, and no high profile cases of errant dental practices. However, as with many areas of life, the Government took the view that this additional layer of regulation would benefit the public, in principle creating a more effective and standardised regulation of Primary Care Dental Services. 

CQC - The Beginning

From 1^St April 2011 the CQC was tasked with the regulation of Primary Care Dental Services.

The first hurdle of the old regime was for Providers of Primary Care Dental Services to register with the CQC.  Each Provider had to show from the outset in the application form that it was meeting the ‘essential standards’. The application form ran to 42 pages, setting out each Regulation and asking the Practice to state whether or not they were compliant and, if they were not, how they would become compliant. Guidance was provided on how to meet the essential standards, which comprised 174 pages. On top of the registration form each Provider had to have a ‘Statement of Purpose’. Needless to say the registration process alone was both complex and time consuming.

After the registration process, nearly all Providers underwent an inspection. This involved further preparation and time to ensure the ‘essential standards’ were being met. The plan was that follow up inspections would then take place every two years thereafter to ensure continued compliance. However, the CQC grossly underestimated its workload and it took up to April 2015 just to carry out the initial inspections and even then the task was still incomplete!

The concern with this inspection regime was that it was a ‘tick box’ exercise, undertaken by non-professionals. Whilst on the face of it a few underperforming practices may have improved, questions were raised as to whether it improved the overall quality of care; for example did it prevent injury and were patients safer? The general feeling amongst dentists is that no, overall it did not and instead placed huge administrative burdens on them, that took them away from the practice of dentistry.

Whether a mark of successful regulation or not, the GDC and NHS England have reported an increase in the number of complaints about dental professionals. Given that the aim of the CQC inspection process was to focus on a patient’s experiences and ensure they were being treated fairly, it suggests a change was indeed needed.

A New Era?

In its report, a fresh start for the regulation of primary care dental services, the CQC acknowledges that when it started regulating dentists it did not get the model right. The report confirmed that the CQC had inspected nearly all of the 10,102 dental practices registered. One in eight was not meeting the regulations compared with one in five in adult social care. Furthermore, in the majority of cases where inspectors re-visited practices, the concerns raised had been addressed. The CQC therefore identified that the dental profession presented a lower risk to patient safety compared with other areas inspected by the CQC.

Following a review of the inspection regime, on 1^st April 2015 two Regulations came into force which created new ‘fundamental standards’. These fundamental standards are applicable to all regulated activity; not just Primary Care Dental Services. You can find guidance on the new standards at this link.

As a result of the new standards and the review of the existing inspection process, on 5^th April 2015 the CQC implemented a new system for regulating Primary Care Dental Services.

The key changes are:

·         The removal of the rating system for Primary Care Dental Services;

·         The introduction of five questions about the service. Are they safe? Effective? Caring? Responsive to people’s needs? Well-led? These will be used to ensure the fundamental standards are being met;

·         In order to answer these five questions, inspectors will use ‘key lines of enquiry’ (KLOE) and prompts. These KLOE and prompts, along with examples of how they can be met, can be found in the Provider Handbook;

·         As before, there are two types of inspection, but these have been re-labelled ‘Comprehensive’ and ‘Focused’ inspections. A Comprehensive inspection will be carried out at 10% of registered Providers in 2015/2016 and will usually look at the Practice as a whole. A Focused inspection will either be a follow up or be responding to a particular concern or issue;

·         Clinicians will be involved where necessary with the inspection process.

In addition to the Provider Handbook, you can download our CQC Inspection Guidance here, which gives examples of the documents that may help you meet the five questions and fundamental standards.

The new regime has only been in place for six months. Having reviewed the Provider Handbook, there does appear to be more flexibility in the process. Under the section ‘Making judgements’ it states:

These examples of what we would expect to see in demonstration that the characteristics of each key question, and fundamental standards, are being met. The KLOE’s and examples of evidence are not an exhaustive list, or a ‘checklist’. We will take into account the context of the Practice when we look for evidence.

Therefore, the KLOEs and prompts do not need to be followed to the letter. It seems as long as the registered Provider can show the five questions and fundamental standards are being met, they should be free to run their Practice as they see fit.

The Handbook is much more user friendly; the five questions each have the relevant KLOEs set out and examples of how to demonstrate these have been met. The relevant Regulations are referred to under each question, but the document does not set out the Regulation and avoids legal jargon. Having in place good Practice policies and procedures, having regard to patient satisfaction,  ensuring legal documentation is completed and training and managing staff effectively will greatly assist when preparing for a CQC inspection; all the elements needed to run a successful business in any event.

If you have prepared in line with the old inspection regime, then the reality is that you should meet the requirements of the new regime. The Regulations are very similar; they both focus on patient safety, legal requirements and managing staff/the business.

The new Regulations add a ‘duty of candour’, which requires a Provider to notify a patient if something unexpected happens, so this will need to be considered when preparing for your next inspection. 

Only time will tell if this new system does in fact ease the bureaucratic burden on Registered Providers, freeing up your time to concentrate on dentistry.   

Fees

In addition to the changes made to the inspection regime, in October 2014 the CQC began consultation on a proposed increase to registration fees. The proposal was to raise fees for all registered Providers, except Dental Services. The rationale for this was that the CQC did not envisage the cost of regulating dentists would increase. The proposed increase for other registered Providers was 9%. This came into effect on 1^st April 2015 and, as proposed, registration fees for dentists this year remained the same.

On 2^nd November 2015 the CQC announced a further consultation on increases to registration fees. The good news for dentists is that it is proposed registration fees for 2016/17 should again remain the same and for 2017/18 they should be decreased and then frozen until 2019/2020.

Unfortunately for GP practices, they will see registration fees nearly double year on year for the next four years.

To find out what your annual registration fee is you can use this handy calculator from the CQC website:

http://www.cqc.org.uk/content/fees-calculator

Laura Pearce, Senior Solicitor

This Blog is by Julia Furley, Barrister, at JFH Law.  

In 2015 the debate over the inequality of the sexes has raged. Ironically it hasn’t taken an earth shattering event to incite anger, instead it is the existence of what has been labelled “everyday sexism” that has tipped the balance; tolerance of inequality, particularly in the workplace, has finally run out.

Protests against perceived sexism have punctuated the news this year:

In June Sir Tim Hunt, the Nobel Award winning biochemist, was lambasted across the press and social media for his ill-conceived jokes about the pitfalls of women working in laboratories, made during a speech to the World Conference of Science Journalists in Seoul, South Korea. His comments caused international uproar, although the reaction to his comments divided both the scientific community and many commentators. Nevertheless they resulted in his resignation from UCL, the European Research Council and the Royal Society’s Biological Sciences Awards Committee.

The fire was stoked again on the 7^th September when barrister Charlotte Proudman publicly shamed a senior male solicitor, Alexander Carter-Silk, for complimenting her physical appearance following their connection on a business networking site. She was offended that Mr Carter-Silk felt it appropriate to comment on her “stunning profile picture”. Again, the reaction to the story divided opinion, with some suggesting that Ms Proudman should not have gone public and should learn to take a compliment with good grace, whereas many questioned why any woman should be subject to a physical appraisal on a site dedicated to business networking.

Just days later, a relatively unknown figure outside the legal profession made national headlines with his comments about equal representation of women in the upper echelons of the legal profession. Lord Sumption, a Supreme Court Judge, told the Evening Standard that rushing to achieve gender equality in the judiciary could have “appalling consequences” if achieved through positive discrimination, and suggested that society should wait a further 50 years for gender equality to be achieved naturally. Most controversially he blamed the lack of equal representation on “life style choices” made by women, who are “unwilling to tolerate long hours and poor working conditions”. At present just one of the twelve justices of the Supreme Court is a woman, there are no ethnic minorities, and just twenty one of the one hundred and six members of the Court of Appeal are women.

One can only assume that by lifestyle choices, he meant the inconvenience of giving birth. It should be born in mind that Lord Sumption’s rise to the top did not require years sitting as a judge in the lower courts like most, but instead direct promotion from the practicing bar. An honour never before afforded to a woman.

The outrage from women and men in the legal profession has been palpable, and unintentionally it seems, Lord Sumption has fuelled the debate regarding equality in the 21^st Century.

But sexism is not the sole domain of the scientific and legal communities; But sexism is not the sole domain of the scientific and legal communities; on the 1st October The Telegraph published an article, quoting Jyoti Shah, a consultant urological surgeon at Burton Hospitals NHS Foundation Trust, who had blogged about the sexist “gang culture” prevailing in operating theatres across the UK. She claims that the operating room was male dominated, and was often hostile to females; she cited incidents of being asked to make the tea for her male colleagues and, even more extreme, an incident of a female colleague being subjected to a sexual assault.   Figures revealed that women make up only 11% of the total number of surgical consultants in the UK.

And thus came, with perfect timing, the film Suffragette. The film received its UK premier on the 7thOctober, telling the story of the militant campaign in support of women’s voting rights in the UK one hundred years ago.

The film’s ensemble female cast, including Meryl Streep and Carey Mulligan, later highlighted the high levels of inequality in the arts, entertainment, sports and media industry, in the US, where in 2014 women working full time in the industry earned on average 85% of their male counterparts pay (although one should bear in mind this is quite good when compared with the average across all sectors in the US, where women earn on average 82.5%  of their male counterparts).

It seems that regardless of legislation designed to ensure equality in the work place, and numerous legal cases ensuring that women are paid the same as their male counterparts, there is still a mountain to climb for women in the workplace; particularly in their fight to reach the top of the Professions.

However, notable in the absence of any complaint was the dental profession.

What about equality in 2015: can dentistry hold its head high?  There have been no audible complaints from female dentists, and no exposés in the press of horribly sexist behaviour by senior dentists. Does this mean there is no underlying problem, or just that no one is yet willing to put their head above the parapet?

Since 2007 the GDC have published figures regarding registration in the UK of dental professionals.

In 2007, 35,419 dentists were registered with the GDC. There was quite a significant gender gap; with 61% (21,596) of those registered male and 39% (13,823) female. However, of the 2359 dentists added to the register that year, slightly more than 50% were women.

When looking at dental care professionals (nurses, therapists, hygienists and technicians), an even more significant gender divide opens up. In 2007, 20,219 of all registrants were women, with just 1,508 men registering.

Unfortunately, the GDC do not provide the gender breakdown of those registered on the specialist lists for 2007.

Fast forward to the latest 2015 figures, and how are the numbers looking?

In October 2015, 40,953 dentists were registered with the GDC, and a massive 66,009 dental care professionals.

The good news is that the numbers of female dentists are catching up with men; 53% (21,775) being men and 47% (19,177) being women.

Dental care professionals have however gone even further the other way, with 91% (60,388) women and just 9% (5,711) men.

What does this tell us? In accordance with the numbers of women currently studying for their BDS degrees, the balance of male/female registered dentists is likely to be equal, if not tipping marginally in favour of women over the next 10 years.

What it does not assist us with is how well those women perform in the profession overall, how many achieve senior roles in hospitals and how many become NHS contract holders or practice owners.

Anecdotal evidence tends to suggest that women are quite positive about the profession, finding that the flexibility of associate positions can work well with child care responsibilities; which still tend to fall to women to resolve.

Perhaps more worrying is the male/female ratio of dental care professionals. The vast majority of dental nurses in the UK are women; reflecting the general breakdown for the “caring” occupations such as medical nursing, carers and nursery education. The reason it is worrying is that dental nursing remains relatively low paid and insecure, with many nurses being employed on the now notorious “zero-hour contracts”. The upshot is that women find themselves undertaking work that men would traditionally not be willing to do, largely due to the pay and conditions associated with it. Again anecdotally, there also appears to be reluctance on the behalf of dentists to employ male nurses, as there is an expectation from the patient that nurses will be women.

For dentists, things take a negative turn when one considers the gender of specialists. The GDC have provided statistics in relation to the specialist lists for October 2015, which show that the divide opens up quite dramatically.

Looking at the most “popular” specialisms; orthodontics, endodontics, periodontics, restorative dentistry, oral surgery and prosthodontics there is a significant gender divide:

Of 1373 orthodontists, 52% (720) are men and 48% (653) are women.

Of 277 endodontists, 77% (212) were men and 23% (65) are women.

Of 368 periodontists, 67% (247) are men and 33% (121) are women.

Of 317 restorative dentists, 76% (240) are men and 24% (77) are women.

Of 754 oral surgeons, 72% (544) are men and 28% (210) (are women.

Of 450 prosthodontists 78% (349) are men 22% (101) are women.

Of the 13 specialities, only in dental public health (55 v 62 registrants), oral microbiology (3 v 5 registrants), paediatric dentistry (62 v 182 registrants) and special care dentistry (104 v 218 registrants) did women outnumber the men. All, dare I say it, the more typically “caring” side of the profession.

So why are women so woefully underrepresented in the specialities? One argument again relates to “lifestyle choices”. At a stage in their profession where postgraduate training may appeal to some, many women will also be considering starting a family and will not have either the time or resources available to pursue a speciality. However there is also the question of the decision makers at the competitive entry stage of postgraduate training. Very few “heads of department” positions are currently held by women; could this be affecting the way in which recruitment is undertaken?

Whatever the reason, dentistry like all other professions must give careful consideration as to how we can ensure true equality within our professions. It can no longer be acceptable to suggest that any woman must choose between having children and fulfilling her career potential. More should be done by the Universities, the GDC and the RCS to ensure that women are actively encouraged to undertaken postgraduate training, and that facilities, such as funded crèches on site,  are made available to all those, men and women, who have child care responsibilities.

The author, Julia Furley, is a barrister and partner at JFH Law. Julia has a special interest in dentistry, and currently advises both dental practices and individual dentists on both legal and regulatory obligations.

JFH Law LLP Tel: 020 7388 1658 7b Bayham Street, London, NW1 0EY DX 57064 Camden Town www.jfhlaw.co.uk Follow us on Twitter: @jfhlaw

In this blog we summarise some important changes in UK legislation, which may have an impact on you and your Practice.

From 1^st October 2015 the following legal changes have come into force:

·         The National Minimum Wage: this will increase from £6.50 to £6.70 for those over 21 years of age; for employees who are aged 18 to 21 the rate will increase from £5.13 to £5.50; Employees under 18 will see an increase in their hourly rate from £3.79 to £3.87; and finally the apprentice rate will increase from £2.73 to £3.30. In relation to apprentices, please note that this rate only applies if the apprentice is under 19 years of age or in their first year of apprenticeship. This means that salaries and all other associated benefits, such as holiday and sick pay must be amended from this date. Failure to do so could result in a claim by an employee for unauthorised deduction from wages;

·         The Consumer Rights Act 2015: the Act aims to consolidate existing UK consumer legislation but will also introduce new provisions relating to statutory remedies for defective goods and services. See below for our full analysis on how the changes will effect dentists;

·         Businesses, including Partnerships, with a turnover of £36 million will be required to publish a slavery and human trafficking statement every year. Whilst this will not directly affect small to medium sizes businesses, we consider there may be an indirect effect on them. Our detailed analysis of the requirements can be found in JFH Law's September 2015 E-Alert;

·         The right for Sikhs to wear a turban instead of a safety helmet will be extended to all work places, with some exceptions applying in relation to military and emergency services. Prior to these changes, Sikhs were exempt from wearing head protection in the construction industry but, because of legal loophole, they were not in less dangerous occupations such as factories. This meant Sikhs could face disciplinary action or dismissal for refusing to wear a safety helmet. In terms of medical treatments, there is no reason why a turban cannot be worn, if covered by a surgical head cover in the normal way it poses no health and safety risk.

Consumer Rights Act 2015

The Consumer Rights Act 2015 (CRA) aims to consolidate existing legislation in relation to consumer rights, whilst introducing new provisions which will come into force from 1^st October 2015. The key reforms are to improve consumer rights and remedies in respect of goods, services and consumer notices, but also to stop the inclusion of unfair terms in consumer contracts.

Under new consumer rights legislation a “trader” is defined as a person acting for purposes relating to their trade, business or profession; whether personally or through others acting in their name. This will include dentists, and their support staff, who provide treatments to a patient. Patients will therefore be deemed “consumers”. As such, patients have ‘consumer rights’ when they enter into an agreement with their dentist.

The following terms are implied into that contract:

1. That the services will be provided with reasonable skill and care;
2. The services will be performed in line with the information provided about the service and in line with information provided about the dentist;
3. That a reasonable price will be paid for the service.
4. That the services will be performed in a reasonable time.

This is broadly similar to the position on consumer rights prior to the CRA.

However, important changes relate to the provision of information to consumers.   Any information said to or written down for the patient, and which the patient relies on when entering into the contract, will be contractually binding; even if it is not in any contract signed by the parties.

Dentists will therefore need to be increasingly careful when a) agreeing timescales to provide treatment, and b) in how they express the likely outcomes of any treatment. Of course it is always advisable to prepare a clear written treatment plan for all patients, but dentists also now need to ensure that conversations had between reception staff, practice managers and treatment coordinators are all properly recorded and documented. If in doubt, make a note and follow up sales consultations with an email or letter summarising what has been said as these discussions are likely to form part of any contract if patients rely upon them.

JFH Law will keep these changes under review and will endeavour to advice on how these changes will work in practice in both the dental and medical professions.

The CRA also has a number of controls on excluding and restricting liability. Perhaps unsurprisingly, a term that excludes the trader’s liability for failure to perform a service with reasonable care and skill will not be binding. But also it will not be possible to attempt to restrict liability when timeframes are not met. Indeed the CRA makes provision for a reduction in price where work is not done within a reasonable time.

The CRA also provides new statutory remedies, namely the right to repeat performance and the right to a reduced price where work is not done to the correct standard or the agreed timeframe. The patient may also have remedies for breach of contract in the normal way, such as damages or specific performance.

Much of these changes will not dramatically alter the way in which dentists operate, as most already have in place excellent record keeping and performance levels in accordance with the requirements of their professional regulations. This is however another level of bureaucracy that dentists and their teams should be aware to avoid unnecessary litigation.

The Trading Standards Institute has produced this very helpful guide for traders in relation to contracts for the supply of services:

http://www.businesscompanion.info/en/quick-guides/services/the-supply-of-services-from-1-october-2015

* picture from Creative Commons

The GDC specialist lists were established in 1998; the most recent, Special Care Dentistry, being added in 2008. The UK has more recognised areas of specialism than any other European country.  There are currently 4261 registered specialists across the 13 disciplines. The GDC are not obliged to have specialist lists, but are empowered to do so by various pieces of European and domestic legislation and regulation. If they wanted to dispose of the lists it would not require legislative change, but would need a compelling policy reason and would require a significant amount of regulatory change.

There is no comprehensive data about the total number of patients treated by Specialists each year; although there were 2.7 million outpatient appointments within dental speciality clinics and a further 320,000 consultant episodes in 2012/13 according to NHS data. This of course does not account for private patients.

The GDC recently undertook a review of the way in which the specialist lists are regulated. The aim was to determine what the benefit of regulation was when it comes to patient protection and whether the lists did in fact help patients make a more informed choice about their dental treatment.

The first phase of the review began in January 2014; whereby information was obtained from both the public (with a representative sample of 500 adults) and the profession regarding their experiences (there were 68 responses from the profession, including 25 from individual specialists and 5 from GDPs).

Background

Registration

The most common way to obtain entry onto a specialist list is to undertake a recognised training programme. Approximately 500 students per year attempt this route. Alternatively, candidates can seek to illustrate equivalence in “knowledge and experience gained through academic or research work”; commonly known as mediated entry.

European registrants with qualifications in Oral Surgery or Orthodontics are automatically recognised.

In 2011 there were 175 additions to the list, in 2012 245 and in 2013 231.

Title

Only a registered specialist can use the title. This is also true for the use of the “ist”; endodontist, periodontist etc. It is not permissible to use the phrase “specialising in” if you are not registered on a specialist list. The only permissible terms are “special interest in”, “experienced in” and “practice limited to”. Using an incorrect term can lead to professional disciplinary proceedings and/or a conviction and fine.

Cost

The cost of registering on a specialist list are relatively low; just £345 for initial registration and £72 per year thereafter.  

The GDC have calculated that the cost of regulating the specialist lists in 2014 was £339,000, which income is forecast to exceed by 6%. There does not appear to be any comparison with earlier years, and as such it is not known whether this is a constant figure. However, this cost also includes the cost of the review so is likely to be much higher than previous years.

Conclusions of the Review

Does specialist regulation bring any benefits in terms of patient and public protection?

The reality is that public awareness of the specialisms is extremely low; shockingly more than half of those surveyed did not know ANY specialism existed. Only 1% was aware of periodontists and restorative specialist, only 2% of prosthodontics and only 3% of endodontists. The highest recognised term was “cosmetic dentist” at 22%, closely followed by orthodontist at 19%. Worryingly 10% believed implantologist to be a recognised speciality. However, most people felt that it was important that specialists were properly regulated. Unfortunately, only a third of those questioned had even heard of the GDC (and this was when prompted!).

It is useful for specialists and practice owners to bear in mind that when choosing a specialist most of those who did recognise specialisms relied on their dentist’s referral rather than their own research. What is abundantly clear is that dental specialists are not effectively marketing their existence, and by implication their value.  

Of those in the profession who responded, the general view was that regulation should not be decreased and that deregulation risked those not properly qualified attempting procedures outside their capability. However others pointed out the lack of evidence that regulation does in fact improve patient care. Concern was raised re the lack of regulation of specialists post-entry. At present CPD requirements are the same for both GDPs and Specialists.

Is regulation proportionate to the risks posed by dentists providing complex treatments?

Perhaps understandably specialists were more supportive of the lists than GDPs. Some respondents felt that the fees charged were disproportionate. However this is surprising bearing in mind the amount of administration required in certain cases. £345 may seem a lot for someone who has been awarded the CCST, but is a small reflection of the cost of mediated entrance. It is curious that a more diverse fee structure has not been recommended and that practitioners are not being asked to fund appeal hearings, particularly if unsuccessful.

Many respondents questioned the need for the number of specialist lists. However the review concluded that they were necessary due to the number of complex procedures undertaken.

Are the specialist lists the appropriate mechanism for helping patients make more informed choices about care seen as falling outside the remit of a GDP?

74% of patients who had visited a Specialist had been referred by their GPD. Only 4% of those questioned said that they would check the details of their Specialist with a regulator. Although the majority responded that it was important that the information was there if they did want to check.

GDPs and Specialists generally agreed that the lists do assist in making appropriate referrals.

In reality although specialist lists are available on the GDC website, the public a) doesn’t know about the GDC website and b) doesn’t understand the terminology used and significance of qualifications recorded. It would appear that it is the GDC who are failing in the provision of information to patients.

Should the GDC be the body to regulate the specialities?  

It was generally agreed that the GDC are the appropriate body to regulate, however it was pointed out the GDC was reliant on the Royal Colleges to provide guidance on the skills, knowledge and behaviour of specialists. Nor does it quality assure specialist training or have a separate revalidation process in place.

The review made for possible proposals for the future:

1.       Strengthen the GDC’s approach to regulation. The GDC are developing a “work programme” to achieve this and intends to give a clearer definition as to the meaning of specialist, ensuring the lists are correct, “tightening up” mediated access or removing this route entirely, quality assuring specialist training and providing information to patients.

It appears that the only rational for proposing the removal of mediated entry is to reduce costs. Surely a fairer and more sensible approach would be to charge applicants appropriately.

2.       Explore alternative models of regulation:

If the Council is of the view that the current regulation does not offer significant benefits to either the public or patients; is not proportionate; or that resources could be more properly focussed on key regulatory functions; then there would be no further policy changes and instead possible alternatives to statutory regulation would be explored. This could include investigating the possibility of removing all specialist lists save Oral Surgery and Orthodontics:

3.       Continue to regulate the Specialties, but not make any significant policy changes. Although it is still suggested that the mediated entry route would be reduced.

4.       Further analysis of the evidence of improved patient outcomes.

Overall the review has uncovered the alarming lack of understanding by the public regarding Dental Specialists and the Lists. However, on a more positive note, appears to suggest that those within the profession believe that the lists are both necessary and helpful. Of the proposals, only one thing is clear that dentists can expect an attack on the mediated entry route over the coming years; although there seems little justification for this save on costs grounds.

**Blog image from Creative Commons

***This blog has been written for Rumpole of the Surgery by Julia Furley of JFH Law