As a result of the pandemic, and the anxiety about attending dental practices, members have found themselves in difficult positions where patients have been unwilling to attend appointments. As the clinician, patients might ask you to post their aligners and you need to carefully consider whether this is a sensible and safe approach to take; is this truly in the patient’s best interests or being done merely to satisfy a patient’s preference to proceed with treatment without having to attend?

The risks from providing aligners without being able to directly check any progress with previous aligners, tooth movement and fit would need to be taken into account and balanced against whether it may be safer at this time for the patient to simply continue with the current set of aligners to retain the tooth position. As the longevity of the restrictions on practice are currently unknown, it may become necessary to revisit this decision and how best to manage patient care in the longer term.

In the event there is clear justification that posting aligners is necessary and in the patient’s interests, the clinician would need to consider the best approach for assessing the fit of the aligners and these in turn are not risking any harm to the patient. A clear record would be needed to justify why it was felt appropriate and that the patient fully understood the potential risks of going down this route.

At a time when the majority of dental consultations are undertaken remotely, we are receiving an increasing number of enquiries about whether recording consultations is appropriate.

Firstly, any visual or audio recording would fall within the definition of data under the GDPR, as it contains details about an identifiable living person. Furthermore, it will inevitably contain details about their medical and dental health and is therefore classed as special category data which heightens the justification for its processing. Under GDPR, consent to audio and visual recording must not simply be assumed but must be obtained beforehand and documented, following a clear explanation as to its purpose.

These points are not to say recordings should not be made but they must be very carefully managed to avoid the situation where the interaction gets off on the wrong foot right from the very start.

There are several other things you need to consider relating to recordings. As data, they must be stored securely, and it is the right of patients to request copies. This may cause portability issues in providing copies in an accessible format.

Needless to say, any recording(s) would form part of the patient’s clinical record and therefore subject to the usual minimum retention periods and disclosure requirements such as in a claim or regulatory proceedings.

In summary, recordings can be made with appropriate consent, however we would advise members to proceed cautiously.

There will always be instances where patients feel that the need for more extensive treatment is on account of some fault on the part of the dentist, particularly if there has been a delay in treatment being provided.  
When any complaint or claim arises the circumstances having a bearing on the treatment provided in individual cases obviously need to be considered.

Against the background of the pandemic, the wider issues of public health measures and patient safety decisions would form part of the context and the clinician’s actions would be viewed in light of this. Obviously, a delay in operative treatment due to wider circumstances beyond the control of the clinician is a factor which would assist in defending against such a complaint.

Dental Protection does not issue clinical guidance and nor are we the arbiter of clinical opinion. Our role is to help members reduce their dento-legal risk by ensuring that members are aware of the relevant guidance and that this is taken into account when clinical decisions are made.

The current guidance applicable in Ireland in relation to the provision of routine dental care – including AGPs -  is contained within the updated guidance relating to dental care issued by the Health Protection Surveillance Centre. 
(Guidance on Managing Infection Related Risks in Dental Services V1.1 15.05.2020)    

Routine dental care is now permitted in Ireland subject to compliance with this guidance. 

In general terms guidance is guidance, not law, and whether or not a clinician follows guidance is a matter for their own judgment. It is however always advisable to have a clear rationale for any departure from the guidance as should any issue arise, not complying with guidance can present difficulties for defending a case. 

The situation with regard to the current HPSC guidance at this time however is much stricter.  As compliance with this is explicitly referred to as the appropriate standard by the Dental Council, it is essentially a required professional standard of the regulator and as such, following the guidance is not an optional choice.

The guidance has been issued in updated versions in past weeks and is likely to change again in due course.  Members are encouraged to ensure they are practising in compliance with the most up-to-date version.

Now that the restriction on the provision of routine dental care has been lifted, there is no reason that patients cannot be scheduled to have hygiene visits. 

You can return to seeing patients but there will be changes to how practices will need to manage “the patient journey” so to start with, it may not seem that normal. 

The provision of routine dental care is now permitted subject to the requirement that registrants work in accordance with the newly updated guidance issued by the Health Protection Surveillance Centre (HPSC) on 15 May 2020.

There are no specific restrictions on what dental procedures can be carried out but it is expected that the appropriate steps to minimise risk to patients and members of the dental team, as detailed in the HPSC guidance, are taken. This is to ensure that dental care is provided safely both for those receiving care and those involved in delivering it.

In short, the answer is that a return to providing routine care, including the full range of hygienist treatment, is permitted, provided that there is due regard to appropriate safety measures.

Dentists are free to decide on the fees they charge their private patients and for their approach to pricing levels in general but there is currently no official provision under the DTSS contract to accommodate the increased costs of PPE when treatment is carried out under the contract. 

It is a requirement of the Dental Council that dentists must inform patients of the fees for treatment as part of obtaining consent prior to treatment.  The charges for specific treatments must be available on their published schedule of fees. If a dentist wishes to make an additional specific charge to cover the additional costs of PPE necessary to carry out the treatment this must be listed as an item on the displayed price list. The additional cost of this should be made clear to the patient prior to treatment. Alternatively, a dentist is free to simply increase charges across the board to cover the increase in costs, as long as the new fees for treatment are clear. 

The Dental Council's Code of Practice regarding the Display of Private Fees stipulates that the fee notice must be prominently displayed in the practice where patients can see it before the consultation.

The Code of Practice regarding the Display of Private Fees is here: 
http://www.dentalcouncil.ie/displayoffees.php

Dental Protection would not recommend to members that patients be asked to sign any sort of disclaimer in relation to the risk of COVID-19. 

The reason for this is that dental professionals owe patients a duty of care as a matter of law. It is not possible to try to limit the extent of this duty by means of a contract or any other means as the duty is imposed by common law. 

The best defence members that members can put in place in relation to this is evidence of compliance with the current guidance as it relates to dental practice. 

In order for a claim against a dentist to be successfully pursued it will need to be established that there was a breach of duty.  Clear evidence that the relevant  guidance at the time was being followed will help provide a strong defence should an issue later arise.

Dentists must remember that a patient does not need their permission to record a consultation. The consultation is about their health and as they are only processing their own personal information this is exempt from data protection principles. 
A patient is within their rights to record a consultation and if they insist on doing do, the request cannot be declined. 

Covertly recording a consultation may not in fact be associated with any particular agenda but may simply be a manifestation of the widespread culture of recording even small events in everyday life. It can also suggest a lack of trust which understandably will affect the dentist-patient relationship. 

It is however important not to be defensive as this may serve to aggravate the situation. If a consultation is carried out professionally, recording this should not create any dentolegal issues and may even protect the dentist by providing an accurate record of the information and advice provided to the patient.