Ask Dental Protection

We actively encourage members to contact us for advice to provide peace of mind and to help prevent a concern or problem escalating.

MPS does not use the number of requests for advice as part of its risk assessment of a member. This includes determining their membership subscription.

In exceptional cases, where a request for advice involves facts or circumstances of a highly unusual or unique nature it might trigger a general review of an individual’s risk profile. However, we stress that this would be very unusual.

So, if you want to discuss a dento-legal issue or need advice on how to prevent a concern or problem escalating, please do let us know - we are only a phone call away.

Digital technology can make life easier for the dental professional provided basic steps are taken to allow for data protection requirements. The image captured in the process of taking the shade of a patient’s tooth is personal data and forms part of their dental record, so before sharing this data with a dental laboratory there must be a registered data controller at the laboratory as well as within the practice.

The image of the teeth alone will not be easily identifiable; so provided you have sought the patients’ agreement to sharing their data with a dental laboratory in this way, you can go ahead.

Before sharing the image with the laboratory, it should be uploaded to the patient’s record on the practice computer system prior to deleting the file from your phone. The picture can then be securely emailed from the practice computer with any other details required by the laboratory. The security of the patient data on your practice computer is already subject to the precautions required by the Data Protection Act 1998 (DPA). The same legislation applies to the dental technician’s laboratory.

If you happen to share data with your other devices using the Cloud you will need to turn off this storage system before taking the patient’s picture or eliminate the file from those linked locations.

Key points

• Offer the patient this method of shade taking, outlining the process and note the conversation and their consent in the dental records
• Turn off any online storage system associated with the mobile phone
• Save the image to the patient’s record on the practice computer
• Check to see that the laboratory you are using is compliant with the Data Protection Act. ( Advice from Information Commissioner (ICO) below)
• Email the image to the laboratory in an identifiable anonymised form from the practice computer
• Delete all original images from your smartphone and any associated shared locations
• Record your final protocol in a written practice policy.

The following is taken from the ICO summary following review of dental practice and dated September 2015:

• Choose a data processor providing sufficient guarantees regarding information security
• Take reasonable steps to ensure compliance with those measures; and 
• Have a contract in place, in writing, specifying that:
• The data processor is to act only on instructions from the data controller; and
• The data processor must comply with information security measures comparable to those in the DPA.

From a risk management perspective, you should look for ease of printing all relevant patient record information, ideally with a single click. Many current computer systems do not easily print out the whole record. It is also important to be able to print out historical information, such as earlier dental charts and periodontal records.

Many systems currently only print out the most recent chart. As well as the accurate chronological reproducibility of the complete patient record you might also want to consider the ability to print out individual patient treatment plan summaries and pricing that can be offered to the patient to sign at the time of the initial examination.

In addition the system needs to back up to a remote site to ensure data can be restored following an unexpected system failure or service interruption.

It seems to be a common misconception that the clinician should avoid giving a refund to a patient. However, in certain circumstances dentists can give patients a refund which can resolve a difficult situation and eliminate further hassle.

The refund should be given with a clear indication, preferably in writing, that it is ‘purely as a gesture of goodwill and with no admission of liability’. The refund does not increase the likelihood of any further action, nor does it provide the patient any additional grounds on which to base a claim.

Dental Protection’s module on handling complaints can be downloaded for free.

It is not unusual to receive a request for work experience from a school pupil. Observing in a dental practice can enhance the pupil’s understanding of dentistry and can assist them in deciding whether or not dentistry is the career for them. Not only that, but some dental schools prefer applicants to have undertaken some type of relevant work experience.

So what does a practice owner have to consider before agreeing to such a request?

Health and safety

Under health and safety law, a work experience student is considered to be your employee. You treat them no differently to other young people you employ. A young person is defined as anyone under the age of 18.

As an employer you will already have carried out a risk assessment. Under Health and Safety law you must assess the risks to young people under the age of 18 before they start work experience and tell them what the risks are. Young workers may be particularly at risk from work place hazards because of their lack of awareness of existing potential risks, immaturity or inexperience.

Health and Safety legislation addresses the protection of young persons at work in detail, and you should consider your obligations in this regard. The Health and Safety Executive guide, Young people and work experience: A brief guide to health and safety for employers, contains helpful information about these obligations.

Assess the risk

Before the young person can start work experience, the practice owner must carry out a risk assessment to identify any specific risks which they might face. The assessment must take into account the following:

• The inexperience and immaturity of young persons.
• Their lack of awareness of risks to their health and safety.
• The fitting and layout of the practice and surgery.
• The nature, degree and duration of any exposure to biological, chemical or physical agents.
• The form, range, use and handling of work equipment.
• The way in which processes and activities are organised.
• Any health and safety training given.

You should keep a record of the main findings of the risk assessment. This is good practice and it is a legal requirement if you have five or more employees (including young people on work experience). The risk assessment and any control measures taken should be shared with the parents of the work experience student. See the Health and Safety Executive's FAQs for more information.

Once the young person is ready to commence their work experience it is important that you check that they have undergone and understood training which covers, for example:

• The hazards and risks in the work place.
• The control measures put in place to protect their health and safety.
• A basic introduction to Health and Safety, for example, first aid and fire and evacuation procedures.

In addition to this you may wish to check that your employer’s liability insurance and public liability insurance cover includes work experience students.

Confidentiality

Confidentiality is crucial and a clear induction is of paramount importance, as is the need to check the young person understanding of the subject. Confidentiality extends not only to the patient’s treatment, but also to the fact that someone is a patient of the practice. This might include some of the young person’s peers or teachers!

Issues of confidentiality also extend to access to the dental records and to the appointment book and you would need to ensure that the student is fully aware of your confidentiality protocols.

It would certainly be appropriate to check with each individual patient that they are happy to have a work experience student observing their dental treatment, and to emphasise that the patient can change their mind at any time.

The Working Time Regulations 1998 apply to work experience students and you may wish to consult with the school concerning the hours which they wish the work experience student to attend your dental practice.

Can I have a go?

The days of work experience students mixing materials and assisting at the chairside are long gone! It is appropriate to manage the work experience student’s expectations so that they are fully aware of that their experience, whilst being very worthwhile, will be limited to observing.

The information used in promotional material must be legal, decent, honest and truthful. The content must not mislead patients and other members of the public in any way, or suggest any degree of pre-eminence over other members of the profession.

You are perfectly entitled to include the qualification associated with your Master’s degree on your practice stationery, but for obvious reasons you do need to make sure it is accurate. Generally speaking, each degree that is awarded will have a shortened version that the relevant graduates are permitted to use after their name. You may like to contact the course organisers to be sure you are using the appropriate version. Any variations on that shortened version could be regarded as misleading, and therefore lead to a complaint against you.

Web pages will be scrutinised both by patients and members of the dental profession. The General Dental Council receives a considerable number of complaints every year in relation to website content. Generally speaking, those complaints arise from poorly chosen wording that could lead the reader to think that the dentist’s name is included on one of the GDC’s Specialist Registers when in fact this is not the case. You should ensure that the website complies with the criteria set out in the GDC document Ethical Advertising Guidance.

Sometimes you may be concerned that patient safety is (or may be) seriously compromised by issues related to inadequate premises, equipment or other resources, or about the systems, policies or protocols you are asked to work to.

Paragraph 8.1.1 of the GDC guidance advises that you must raise any concern that patients might be at risk ‘due to any aspect of the environment where treatment is provided’. This might include poor decontamination processes in your surgery or failure to maintain essential dental surgery equipment in good working order. Your first duty is always to act in the patients’ best interests and this means that you are under an obligation to take appropriate action which was initially to alert the practice owner. If the response is delayed, you could follow up the initial request, to get the equipment fixed, with an email or letter expressing your concern at the delay.

These situations are always difficult for all concerned. It can seem counterintuitive to take steps that may cause your practice to close, affecting your own livelihood. Health issues are challenging for all concerned - the best advice is to talk to one of our experienced advisory team who can listen to your concerns and help you balance your professional obligations with your own personal interests. If there is another dentist in the practice it might be helpful to talk to them as they may be able to seek practical support from their Local Dental Committee and perhaps the local PASS (Practitioner Advice and Support Scheme).

In any case, where concerns are to be raised outside the practice, you would be wise to think about the following points to ensure you are not vulnerable to criticism during any ensuing investigation:

• What is the real background to this episode, Is there a 'back story' that has not (yet) been disclosed, and about which you may be unaware?
• Is there anything in my relationship with this person/the practice that might support an allegation that this concern was raised to gain a competitive advantage?
• Could a reasonable and neutral observer detect any personal motive associated with raising your concerns?
• Is there any objective evidence available to support and justify the concerns?

Everyone has the right to request information from a public body under the provisions of the Freedom of Information Act and the individual making the request does not need to provide a reason why the information is being requested or how it will be subsequently used.

Since your practice provides care to NHS patients, then for the purposes of the Freedom of Information Act you would be classed as a public authority. You may be aware that you should already have a publication scheme available to ensure individuals can access relevant information and this would include access to your practice complaints procedure.

Should your practice have a website that includes your practice complaints procedure, you could direct the enquirer to this to obtain the information. Alternatively, you might prefer to provide a hard copy. 

Information regarding the number of complaints received by the practice is likely to be seen to be information that should be provided under an FOI request. This information should also have been provided to your Clinical Commissioning Group under the terms of your contract and the enquirer may also request information regarding practice complaints from your CCG. You may wish to consider advising them of this fact.

When responding to a FOI request, it’s important to check the nature of the information being requested and ensure that when complying with any request, no personal information relating to individual patients or members of staff would be included; personal information is protected under the provisions of the Data Protection Act.

Under the provisions of the Freedom of Information Act, a request for information should be responded to within 20 working days; the first day of this timescale being seen as the first working day after the request was received. If further information is required in order to comply with a FOI request, this timescale would commence once the additional information has been provided.

In the event a request for information is not responded to, or a practice declines to provide information, the individual making the request may then ask the Information Commissioner’s office to review the request and to consider how appropriate the response was.

You can read more about the freedom of information here

You can obtain model templates to create an FOI publication scheme from the office of the Information Commissioner here

The GDC Standards guidance at 8.2.2 confirms that you should not have to prove your concern for it to be investigated and that the fact that you raised the concern should not be held against you as long as you were justified in raising the concern.

Nevertheless, it can be extremely hard to whistleblow, even in the most obvious of circumstances. It is understandable that there may be a genuine fear and risk that you, as the whistleblower, will subsequently be scrutinised yourself, particularly if the case against the first clinician cannot be proved.

The Public Interest Disclosure Act 1998 (PIDA) gives protection to registrants who raise genuine concerns about potentially illegal or dangerous practices in the workplace.

PIDA applies to all employed dental professionals working within the NHS or the private sector, and to self-employed dental professionals contracted to provide NHS services.

Concerns you raise with the GDC, or with any other professional regulatory organisation, will be protected under PIDA if the concerns are about:

• crime
• someone breaking a legal obligation
• a miscarriage of justice
• danger to health and safety or the environment;
• or a cover-up of any of the above

This protection applies as long as you:

• are acting in good faith
• honestly and reasonably believe that the information and any allegation in it are substantially true
• are not raising concerns mainly for the purpose of personal gain, and
• have taken steps to raise concerns first with the employing or contracting authority (unless you reasonably believe that you would be victimised if you did so, or you reasonably believe a cover-up is likely or the matter is very serious

You do not have to prove your concerns, as long as you make them in good faith.

The GDC prefers that, when you report concerns, you give your name. This is because it is harder to investigate concerns if people cannot ask follow-up questions. It is also easier for you to get protection under PIDA if you raise your concerns openly. If you are concerned about revealing your name when raising a concern, give your name but ask that it is not revealed more widely without your consent.

If you are anxious that there may be related professional issues that mean that you may find yourself vulnerable to criticism during an investigation, discuss the matter with one of our dentolegal advsiers.