Ask Dental Protection

In general terms a barring out clause, as long as it is reasonable, is considered to be an enforceable part of the contract. The reasonableness of the clause will be determined to some extent on whether the current practice is set in a rural or urban area; it would be considered to be unreasonable, say, for a six-mile barring out clause if the dentist worked in a small town. 

This is a business matter and you might like to take advice from your representative body or a solicitor. You may also wish to consider discussing this move with your current practice principal to perhaps come to some agreement.

A complaint that is spoken is just as valid as one in written form and should be treated in the same way unless it fits one of the two exemptions described in paragraph 8 of the Local Authority Social Services & NHS Complaints (England) Regulations 2009:

(a) a complaint which is made orally and is resolved to the complainant’s satisfaction not later than the next working day after the day on which the complaint was made

(b) a complaint which has previously been investigated

This can have the effect of speeding up and simplifying the complaints procedure, particularly if a practice has a nominated complaints manager who is known to the patients and who is easily available and accessible to them.

Very often, taking the time to sit down and listen to a patient goes a long way to resolving their concerns. For this to be successful, the complaints procedure should be well publicised, the team has to be fully aware of the procedures, and the complaints manager should be available during normal surgery hours.

There is a common misconception that giving a refund to a patient should be avoided because it implies there has been a problem. However, in certain circumstances where the patient is disappointed with the look or the comfort of the final result (e.g. dentures that the patient cannot wear or the degree of whiteness achieved with bleaching), the dentist can give the patient a refund. This can often resolve difficult situations and avoid further hassle.

Provided the refund is given with a clear indication, preferably in writing, that it is ‘a gesture of goodwill with no admission of liability’, it is unlikely to increase the risk of any further action and does not provide any additional grounds on which the patient might base a claim.

Members might like to explore this further by downloading the Risk Management Module 9 on complaint handling from the library here

An apology is not an admission of guilt but is simply an expression of regret; for example, ‘I am sorry you had so much pain after the extraction.’ This does not mean the dentist has done anything wrong but is more an expression of sympathy/empathy and an understanding of the difficulty the patient faced. An apology coupled with an explanation can provide reassurance to a complainant and is often all the patient is looking for.

It is particularly important where a patient has been avoidably harmed; the lack of an apology in these situations is one of the many reasons why patients take complaints further. 

Members can explore this further by downloading the risk management module on complaint handling from the library here

Paragraph 15 of Local Authority Social Services & NHS Complaints (England) Regulations 2009 states:

1. Any communication which is required by these Regulations to be made to a complainant may be sent to the complainant electronically where the complainant

(a) has consented in writing or electronically; and

(b) has not withdrawn such consent in writing or electronically

2. Any requirement in these Regulations for a document to be signed by a person is satisfied, in the case of a document which is sent electronically in accordance with these Regulations, by the individual who is authorised to sign the document typing their name or producing their name using a computer or other electronic means.

Many patients have access to email, so when the email is acknowledged check with them to see that they are happy to receive further email correspondence about this subject before allowing the nominated complaints handler in the practice to respond to the complaint in any detail. If the patient is amenable for you to proceed in this way, it may expedite matters.

However, care should be taken to ensure that any correspondence is sent in an appropriate format by the designated complaints handler for the practice. There is sometimes the temptation for a well-meaning instant response to be provided, which it later transpires is incomplete or inappropriate in some way.

It can also be tempting, in order to strengthen the response, to copy the email to another party such as Dental Protection – but this can sometimes be counter-productive. Appropriate care should be taken in relation to the confidentiality of any response sent by email; some email addresses are more public than others.

You can read more about the new NHS complaints regulations here [internal to page on Complaints Regulations 2009].

A normal DFU/DFN dentist grade subscription with Dental Protection provides access to indemnity for all aspects of general dental practice, including the use of techniques such as Invisalign. There is therefore no need for you to obtain any additional indemnity or limit the type of treatment you provide in this respect. Your membership certificate displays your current subscription grade.

For details of UK membership categories, click here

There can be a period of several weeks between the two events and indemnity would be needed if she is to be able to work. What would you advise? 

The General Dental Council regards DCPs as being either ‘in training or registered’; there is no third category. It follows therefore that when a therapist qualifies, one could regard the training period as being at an end. If there is a delay before full registration as an orthodontic therapist is reached, it is an interesting argument as to whether they are in a position to practise and to what extent.

The GDC understands that as part of their training, orthodontic therapy students are set a work plan treating patients as prescribed by the supervising dentist that would continue after the official end of their training. As a consequence, orthodontic therapy students are regarded as being ‘in training’ during the interim period while their application for full registration is considered.

This means they can continue to work as student orthodontic therapists as long as they are suitably indemnified and work within their training and competency. Most of these individuals will previously have registered with the GDC (usually as dental nurses) and their re-registration is often simply a formality unless of course the students have disclosed some form of health or character issue to the GDC that might delay things.

If she has access to indemnity as a dental member of MPS whilst, a student orthodontic therapist, or as a student on a recognised student outreach programme which has appropriate indemnity, then her indemnity will continue, although upon registration she will move to a first-year qualified grade.

If the orthodontic therapist is indemnified by another company or insurance policy, it will be necessary for her to check with them to ensure that any indemnity continues.

You are not responsible for the standard of work undertaken by your locum. Every dentist is responsible for their own acts and omissions and they should be indemnified accordingly. You should therefore take a moment to ensure that your locum is suitably indemnified.

Your entitlement to indemnity as a dental member does not cover any claim in negligence which might be made against your locum. Your locum must have their own indemnity arrangements which should cover them for all acts and omissions whilst working at your practice. Some dentists decide for whatever reason not to become members of a defence organisation but take out an individual insurance policy. If this is the case with your locum, it is important to ensure that suitable arrangements for ‘run-off cover’ will be in place if and when he or she stops paying their insurance premium.

As a practice owner you will be required to maintain access to indemnity throughout your current Dental Protection subscription. This will provide you with protection in your role as a partner in a practice should any claims be made against the practice even when you are not working on the premises. You may also wish to maintain the indemnity arrangements provided for any dental nurses who are included within your own membership.

One of the reasons practice owners subscribe to Dental Protection Xtra is to provide access to indemnity for their dental nurses both for clinical negligence and to represent their interests at a General Dental Council hearing. 

Discover more about Dental Protection Xtra the practice programme that rewards a commitment to good practice and a team approach to risk management with lower subscriptions.

Clinical dental technicians are permitted to provide certain types of treatment for patients who have implants, provided that treatment is within their training and competency and the clinician is in possession of a treatment plan that has been written by a dentist following an examination.

In this respect the General Dental Council would normally expect a CDT to confine their clinical activities to the provision of an implant-retained denture and not to become involved in treatment of implant-retained crown and bridgework of any type, irrespective of their training as a dental technician or their past experience. Clinical dental technicians do not normally become involved with crown and bridgework other than its repair outside of the mouth. In that situation you would be acting as a dental technician, not a CDT.

Read more about the flexibility of the indemnity arrangements that are available to clinical dental technicians through Dental Protection.

It's not clear whether you intend to maintain your practice as a going concern; say by having it run by an associate or locum. If so, you would be well advised to maintain the indemnity arrangements that you currently have as a practice owner. However, if you decide to close down your practice, you will not require any continuing indemnity as your dental membership allows you to seek assistance for any incident which arose while you were paying a subscription. In other words, you do not need to continue paying a subscription once you decide to retire from both the business and practise of dentistry.

Meanwhile it is important that your patients’ records are kept safely since the storage of these records continues to be governed by the Data Protection Act and your ethical responsibility to protect patients’ confidential information.

As the retiring dentist, you should have access to the original records and radiographs just in case any issues are raised by a patient about an earlier treatment provided before your retirement. Your protection society will always be in a much better position to assist you in any type of investigation if you have the original records.

Dental Protection’s advice is that clinical records should be maintained for a period of 11 years after the last time the patient attended, or in the case of a child (under the age of 16) for 11 years or up to the age of 25, whichever is the longer.