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.

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

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.

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

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 - 

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.   

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 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