This paper discusses the work of a mutual dental defence organization in assisting its members who request support in relation to professional difficulties. Various cases are discussed in terms of help and support provided, including an explanation of the outcome and how, where adverse, this could have potentially been prevented by the member.
The Medical and Dental Defence Union of Scotland (MDDUS), established in 1902, is an independent mutual defence organization providing access to expert dento-legal advice and professional indemnity for members who encounter professional difficulties.
It is both an ethical and legal requirement that all General Dental Council (GDC) Registrants hold adequate and appropriate indemnity or insurance reflective of their sphere of practice.1 From July 2016, all registrants renewing registration must declare that appropriate indemnity arrangements are in place.
Members of the MDDUS may request assistance on a variety of professional matters, including general dental practice governance issues, complaints, disciplinary investigations, probity/fraud investigations, Coroner's Inquests/Fatal Accident Inquiries, employment issues (dependent on membership status), civil claims in negligence and General Dental Council Fitness to Practise Investigations.
This article seeks to assist the dental profession's understanding of the work of a dental defence organization illustrating, by example, member requests for assistance. Relevant cases will be analysed with outcomes clearly described, thus providing an insight and key learning points for all the dental team.
Members may seek advice on a variety of professional matters. Common requests include the timeframe for the retention of dental records and clarification of current best practice guidance, as well as seeking to establish contact and advice in relation to how to manage, in the first instance, complaints/claims/regulatory matters. Dependent on the query, the MDDUS may request disclosure of certain documentation, facilitating case allocation to an appropriate Adviser who will then engage with the member and provide appropriate support and assistance.
Other common requests include professional and legal obligations in relation to:
In July 2016, NICE made a small, but extremely important, change to Clinical Guidance 64.2 Previous Guidance stated ‘antibiotic prophylaxis against infective endocarditis is not recommended for people undergoing dental procedures.’ This has now been amended to ‘antibiotic prophylaxis against infective endocarditis is not recommended routinely (my emphasis) for people undergoing dental procedures.’ The addition of the word ‘routinely’ is of considerable importance.
Dentists must also take into account the recent ‘Montgomery’ case,3 where it was ruled that consent is considered to be valid if the patient has been presented with all the information necessary for that patient to make a fully informed choice about his/her care, based upon the patient's view of material risks. The test of materiality is whether, in the circumstances of a particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the clinician is, or should reasonably be, aware that the particular patient would be likely to attach significance to it.
A complaint, made orally or in writing, is defined in the Scottish Public Services Ombudsman Model Complaint Handling Guidance as, ‘an expression of dissatisfaction about an action or lack of action or standard of care provided.’4 All complaints should be taken seriously. Registrants should be encouraged to engage with the Complainant and, if appropriate, resolve concerns verbally, subject to the time-limits for informal resolution provided within the relevant National Health Service (NHS) legislation. Should Complainants be dissatisfied with attempts at resolution, they should be invited to intimate their concerns in writing. Various guidance documents are available to assist the Registrant managing complaints.5,6,7
Complaints may relate to attitude, communication, systems error, waiting times/availability, stress and anxiety, unrealistic expectations, lack of knowledge, breach of confidentiality, consent, poor treatment outcomes or the overall management displayed by the registrant or dental team.
It is essential that the practice has an identified Complaints Manager and a Practice Complaints Policy in place. Although timeframes for response do vary between jurisdictions, it is generally accepted that the complaint should be acknowledged within 3 days and a detailed response provided within 20 days. Individual practitioners may vary the timeframe for the detailed response. Attempted early local resolution is very important. It is important that the patient is kept informed of any delays in the detailed response being provided.
Dentist A contacted the MDDUS for assistance in responding to a patient complaint about an identified disease requiring care. Patient B attended Dentist A and, following detailed clinical and radiographic examination, a treatment plan, including the restoration of six adult molar teeth was compiled. The patient opted for cosmetic restorations and appropriate costings were provided. Patient B was unhappy with this plan and attended Dentist C on an NHS basis who identified one tooth requiring restoration. Patient B submitted a letter of complaint to Dentist A. Dentist A contacted the MDDUS by telephone in the first instance and the Adviser requested that he/she submit the letter of complaint, the dental records including radiographs, and his/her thoughts on the criticisms.
A Dental Adviser reviewed the digital radiographs and, although the MDDUS is not an arbiter of clinical opinion, the Adviser agreed with the dentist that disease had been correctly identified in the six molar teeth and that invasive treatment was justified. A response was drafted for review by the member who made no amendments and this was ultimately sent to the patient. The patient contacted the practice, thanking the dentist for his response and requesting that a further appointment be arranged for provision of dental care.
Practitioners working within the NHS submit claims for payment. In the UK, different systems of dentists' remuneration currently operate, with the most significant change occurring in England in 2006, when NHS dentistry moved away from the ‘item of service’ payment style, to one using ‘units of dental activity’ and a ‘banded charging system’. All NHS dentists are expected to comply with their Terms of Service, irrespective of the NHS Regulations that apply.
Practitioners submitting claims that differ significantly from colleagues working within the same post code, and treating a similar cohort of patients, may raise concerns within Practitioner Services Division (PSD)8/Business Services Authority (BSA)9/Business Services Organization (BSO)10, whereupon the practitioner may be invited to submit a sample of records for payment verification. The practitioner may contact his/her defence organization for advice.
The MDDUS would advise any member to comply appropriately with the request. Upon receipt of the records, a payment verification review will take place which may result in closure or, alternatively, a further disclosure request may be received. All practitioners should be fully aware of, and be familiar with, guidance assisting them in making and submitting appropriate claims. For dentists working outwith England, and referring to the existing relevant Statement of Dental Remuneration,11 they must be familiar with the ‘interpretation’, the ‘narrative’ and the ‘proviso’ pertaining to each item. Irrespective of the remuneration system, the dental records must clearly reflect the care that was provided to support the claim and be in line with current guidance (Faculty of General Dental Practice).12
In many instances where members have requested support from the MDDUS in relation to probity investigations, had the dental records been accurate, complete and contemporaneous, an enhanced defence would have been available to the member. Ultimately, if a misclaim has been made and it is accepted by the practitioner, then a refund of monies will be actioned. It is important that the practitioner reflects on how this happened and makes appropriate changes to prevent further errors occurring.
Members may contact the MDDUS for assistance in dealing with a request for information relating to a Fatal Accident Inquiry or Coroner's Inquest. In Scotland, FAIs relating to deaths as a result of dental treatment are rare, the last one being in 2000. The MDDUS dental members in England and Wales have requested assistance with investigation of patient deaths as a result of: excessive bleeding following dental extractions; septicaemia following tooth extraction; choking on food due to a lower denture being inserted upside down; and where the medical cause of death was recorded as: (i) inter-cerebral haemorrhage; and (ii) warfarin/miconazole treatment.
Dentist F contacted the MDDUS for advice, support and assistance in dealing with a Coroner's Inquest. The deceased died from inter-cerebral haemorrhage, the effects of which may have been contributed to by concurrent use of warfarin and miconazole medications; the miconazole medication having been prescribed by the dentist. The Inquest heard evidence from various experts, including a pharmacology expert and a retired GP expert (Dr S), who sympathized with the dentist, saying that he understood that the British National Formulary (BNF) is difficult to use and whilst he, as a retired GP, had become conversant with it through regular use over many years, he would not expect such a level of competency from a dentist.
The significant learning point in this example is that dentists should be conversant with guidance available, particularly relating to drug interactions, and be familiar with the common medications taken by patients and how these may interact with drugs prescribed as part of dental treatment. All practitioners should ensure that patients' medical histories are regularly updated and should be familiar with risk-assessing patients, particularly in relation to age and co-morbidities.
MDDUS members, both employed and self-employed contractors, may request assistance in relation to disciplinary matters. For NHS self-employed contractors, discipline regulations dependent on jurisdiction provide a framework for protection for all parties. For those individuals who are employed, Maintaining High Professional Standards13 provides a framework as well as the individual employing the authority's own capability and conduct policies. The MDDUS has seen a significant increase in investigations by Local Area Teams (LAT) of their Performer's/Provider's performance, following the dentist's statutory notification to the LAT of a GDC investigation. These investigations may run in parallel with the GDC investigation and therefore it is important that the member is adequately supported at all times. MDDUS members are invited to seek assistance at the earliest opportunity.
Dentist Q requested assistance from the MDDUS in relation to a Performance Advisory Group (PAG) investigation. Submission of dental records, and subsequent review by the Dental Practice Adviser, revealed significant concerns about the quality of care provided, as well as administration and record-keeping. The LAT contacted the Performer's previous LAT and, following exchange of correspondence, additional concerns were raised. Dentist Q was suspended for a period of 6 weeks and, following an Oral Hearing, was allowed to return to work, subject to undertakings. At a further review, and subject to very supportive reports from a Workplace Supervisor, the undertakings were relaxed. However, despite supportive reports, further record review by the Dental Practice Adviser highlighted ongoing concerns that had not been addressed by Dentist Q. These included probity issues relating to the submission for payment of forms where care was not complete. Dentist Q, with support from an MDDUS Adviser, admitted these mistakes and guaranteed that this would not happen again. Dentist Q continued to work subject to undertakings. At a subsequent Oral Hearing, and following the submission of a fluid Personal Development Plan (PDP), appropriate Continuing Professional Development (CPD), good quality audits, detailed reflective learning notes and weekly supportive Workplace Supervisor Reports, undertakings were modified. At a further 3-month review the undertakings were removed.
It is important that all NHS dentists comply with their Terms of Service and seek appropriate early advice to ensure compliance with guidance and disciplinary frameworks.
The receipt of a solicitor's letter intimating a civil claim in negligence against a registrant is extremely alarming. The MDDUS would encourage all members to seek early advice and support to ensure that timeframes are complied with and expert evidence appropriately requested.
Dentist S saw Patient X for an examination. Patient X had not attended for approximately 15 years. A detailed extra-oral and intra-oral examination was carried out as well as exposing two bitewing radiographs. These revealed the presence of caries in several posterior teeth. Patient X attended for routine treatment together with the uncomplicated extraction of his lower left third molar tooth. Patient X developed an infected socket that required routine management in conjunction with a minor surgical procedure for the removal of a bony spicule. Six weeks post-extraction, Patient X attended another dentist complaining of ongoing pain and swelling. A referral was made to a local District General Hospital where a specialist practitioner noted a left-sided sub-mandibular swelling. Following appropriate investigations, it was decided to remove the left sub-mandibular gland.
Six months post-extraction, Patient X re-attended the local hospital complaining of paraesthesia on the left side of his tongue, the left side of his lower lip and some discomfort. At a review appointment one year later, Patient X complained of ongoing paraesthesia and loss of taste. Patient X reported that he bit the left side of his tongue on eating and noticed that the tongue was more towards the left when he stuck out his tongue. Patient X indicated that these symptoms were all present prior to removal of the sub-mandibular gland and that he now wished to receive compensation from his dentist. Dentist S received a covering letter and intimation of claim from Patient X's instructed solicitors and sought appropriate advice from the MDDUS. Following appropriate investigation and having obtained expert evidence, the MDDUS was of the view that this claim should be defended and proceeded to arrange appropriate representation for Dentist S for the forthcoming Sheriff Court Proof.
Both Dentist S and Patient X gave evidence before the Sheriff, as well as both the Pursuer's Counsel and the Defendant's Counsel calling expert witnesses to support their case. One of the experts for the patient, a retired general dental practitioner, was criticized by the Sheriff in his Determination in that he did not understand the test, referring to the reasonable practitioner, in terms of Hunter v Hanley.14 The Sheriff was impressed with both specialist experts for the Patient and the Defendant. Although the Sheriff noted that the Patient's specialist expert did not carry out vigorous testing to support his view, he accepted that his evidence was credible. Nevertheless, the Sheriff, in conclusion, found that the extraction by Dentist S of Patient X's lower left third molar did not cause any loss, injury or damage.
This claim was robustly defended by the MDDUS due to supportive expert opinion. Although Dentist S admitted some failings in the standard of record-keeping, this did not materially affect the case.
The receipt by any Registrant of correspondence from his/her regulatory body, advising them that their fitness to practise is under investigation, is extremely stressful. The raising of a concern can arise from a variety of sources, including patients, fellow registrants, anonymous complaints, LAT/Territorial Boards, Care Quality Commission, police and the GDC. The General Dental Council, from 1 November 2016, significantly changed its approach in the way it investigates complaints against registrants.
The initial correspondence from the General Dental Council will include a letter of introduction from the Caseworker, details of Employment and Indemnity Insurance paperwork that will require completion, possible complaint documentation, as well as General Dental Council fitness to practise literature. Completed documentation plus indemnity details and original dental records, where appropriate, require submission usually within two weeks of the date of the correspondence. The MDDUS advises all members to make swift contact should such correspondence be received.
Initial triaging by the GDC will close a significant number of complaints. Upon disclosure of the above documents, a Clinical Advice Report may be commissioned that will form part of the formal assessment. At this stage, the investigation may be concluded, an outcome that is invariably welcomed by the Registrant. If not, the registrant will receive details of Allegations of Impaired Fitness to Practice, both in terms of care provided and record-keeping (if a clinical matter), as well as GDC Standards alleged to have been contravened.
A detailed response will be submitted, with the member's input and approval, admitting or denying the allegations. A PDP and appropriate remedial CPD should be completed as well as Reflective Learning Notes that clearly identify the relevance of the CPD undertaken, what was learnt as a result and, very importantly, what aspect(s) of the Registrant's practice have been changed. Audits may also be useful.
Should the General Dental Council feel that Registrants pose a risk to themselves, the public at large, and/or the confidence the public has in the profession of dentistry, an Interim Orders Committee may be convened, usually at short notice, to decide if a sanction should be applied to the Registrant's registration in the interim period.
Options for disposal to the Case Examiners are varied. However, the profession has welcomed the introduction of the Case Examiners and their right to invite the Registrant to agree to undertakings and thus, hopefully, preventing a significant number of Registrants having to go forward to a formal Conduct/Performance Hearing. Committee Hearings are extremely stressful, costly and time consuming. However, in a significant number of cases, Registrants exit the process with no sanction whatsoever on their registration.
MDDUS members are advised to contact the Dental Division for help and support from the outset at this understandably stressful time. It would be fair to say that a General Dental Council investigation requires a significant amount of pastoral support as many Registrants feel that their career is in jeopardy.
The work of a defence organization is both varied and rewarding. The MDDUS consistently endeavours to provide the quality of service expected by its members. Patients are increasingly demanding, both in terms of the quality of care they are expecting, the environment within which that care is provided and their overall management. Patients are also increasingly misinformed, often through their use of the internet. It is therefore important that open communication channels are maintained at all times between the treating clinician and the patient thus, hopefully, preventing a concern escalating with a more serious outcome.
