Ask Dental Protection

I've received a letter from the GDC advising that my name has been removed from the register for non-payment of my annual retention fee. I have been working without realising that my registration had lapsed and I have now requested a restoration form – is it okay to continue working in the meantime?

It is imperative that until your name has been restored to the Dentists Register you do not carry out either the practise of dentistry or the business of dentistry. 

In addition to this, you need to be aware that while your name is not included in the Dentists Register, you cannot be indemnified. However, should a claim arise in relation to the advice and treatment you provided during the time when you were practising without being registered, you may apply to Dental Protection for assistance (needing approval from the Board of Directors).

In the meantime you should ensure you have made the appropriate arrangements for the care of your patients. It is also important that you take all steps to have your name restored to the Dentists Register as soon as possible. This is not an automatic process and the application form requires you to enclose a letter setting out the reason why you were working as a dentist during the time you were not registered with the GDC. You should contact Dental Protection for assistance in relation to this.

Being unaware of lapsed registration is no excuse in the eyes of the GDC and the Law. The longer a dentist has been practising unregistered, the less likely the GDC is to take a favourable view. Past experience has shown that a dentist who has had previous periods of non-registration is more likely to experience difficulties in having their name restored to the Register.

Although the nature of this patient’s medical condition is not described, some patients trawl the internet seeking a remedy for what they consider to be an untreatable chronic condition.

Historically, amalgam has been considered to be a safe restoration although there have been developments of global plans to control mercury pollution that could see amalgam being phased out over the next few years.

When deciding how to respond, you obviously have to advise her on what is considered current best practice and to offer her treatment which would be considered to be in her best interests.

There would clearly be a dilemma for the patient if there was no improvement whatsoever in her medical condition after you removed the tooth. Even if you did insist on this patient signing a disclaimer, it would be of little help should she decide to make a claim in negligence against you unless there was a cogent reason for you acceding to her request. You could also be asked to justify the reason for the extraction if an adverse incident occurred when extracting the tooth.

You may wish to consider obtaining a second opinion from a Specialist in Oral Medicine or Oral Surgery, and if necessary with the patient’s permission, to liaise with her general medical practitioner before carrying out any irreversible treatment. It may also be worth discussing your concerns with this patient on the efficacy of the treatment she suggests and perhaps trying to persuade her to have the amalgam removed (which in itself can be a source of morbidity), and to restore the tooth on a temporary or semi-permanent basis to see whether it does have any effect on her underlying medical condition.

Further information is available in Dental Protection’s Risk Management Module on Amalgam-free Practice.

What happens to the records when a practice is sold? Who is responsible for the continuing safe storage and final disposal of the records? If the selling dentist stays on as a part-time associate, who is responsible for the records of the new cases started – the associate or the principal?

It is neither logical nor legal for either the vendor or the purchaser to destroy the records when the practice is sold. Apart from the obvious clinical benefits, there are two reasons why the retention of clinical records is important.

First, patients have a statutory right to see the records made about their dental care. Whilst the patient is alive, this right devolves from the Data Protection Act. If the patient is dead, the right passes to those who may have a claim against their estate under the Access to Health Records Act.

The second reason for keeping records is for reference in the event of patient dissatisfaction leading to a future claim or complaint. Without reference to contemporaneous records, a dentist may be heavily disadvantaged in defending any allegations or responding to a complaint.

The clinical records are normally considered to be the property of the practice. It is prudent to include a clause in a contract of sale to protect the vendor, stipulating that the new owner undertakes to safeguard the records on behalf of the vendor and agrees to disclose copies to the vendor or the vendor’s indemnity provider if requested to do so in the future. Patients also have the right to be told where their clinical records are being held and who is responsible for them.

A situation occasionally arises where the incumbent dentist retires without the intention of selling the practice as a going concern. In this case the retiring practitioner may wish to transfer the records to another local practice with the intention that it will offer ongoing care. The original practitioner would be advised to write to the patients concerned to inform them of the proposed transfer of their records and allow them the opportunity to object to this action should they wish to do so.

However, there is no requirement to keep clinical records indefinitely which is helpful as in most cases a point will be reached where there are limitations on the available space in which to store the records. Both Data Protection legislation and guidance issued by the Department of Health stipulate that clinical records (or indeed any personal data) should not be stored for any longer than is absolutely necessary.

Find out more about for the rules on record keeping

Any decision with regards to the secure disposal of clinical records that have exceeded the minimum retention period would need to be agreed between the parties prior to the sale of the practice.

Dental Protection together with Smile-on has produced an interactive CD-ROM on clinical record keeping

We will always do our best to look after any member irrespective of their membership status or the subscription they pay. Advice is provided on an individual basis and where a potential conflict of interest occurs, steps are always taken to ensure that advice is given to each clinician quite independently of the other.

Dental Protection has a large team of advisers spread over three offices and therefore there is no difficulty in maintaining complete confidentiality, with each individual clinician having their own adviser.

Certainly where two clinicians have the misfortune to appear at the GDC and both are dental members, there would be two entirely separate legal teams. This is of course quite costly but is absolutely fundamental to the assistance Dental Protection offers.

The frequency of the assessment review will depend on the findings of the original risk assessment. Provided that you have:

• had a suitable legionella risk assessment carried out by a third party,
• implemented any recommendations,
• have a written scheme of action and appropriate control measures in place,

You should be able review the assessment in line with the document published by the Health and Safety Executive.

Legionnaires’ disease
The control of legionella bacteria in water systems: Approved Code of Practice and guidance on regulations, it can be found here

The guidance previously suggested at least two years as a review period but the wording has since been replaced to read regularly. The guidance now states at para 47;

The record of the assessment is a living document that must be reviewed to ensure it remains up-to-date. Arrange to review the assessment regularly and specifically whenever there is reason to suspect it is no longer valid.

An indication of when to review the assessment and what to consider should be recorded. This may result from, eg:

(a) changes to the water system or its use;
(b) changes to the use of the building in which the water system is installed;
(c) the availability of new information about risks or control measures;
(d) the results of checks indicating that control measures are no longer effective;
(e) changes to key personnel;
(f) a case of legionnaires' disease / legionellosis associated with the system.

It would be considered a breach of the NHS Regulations to charge a patient an additional fee to the statutory fee charged for an NHS root treatment. Any dentist charging an additional fee leaves themselves open to disciplinary action from the health body to which they are contracted and a possible referral to the General Dental Council. Both are likely to consider such action to be unethical because patients are being misled and being overcharged for the treatment. 

Patients are entitled to all care and treatment under the NHS which is clinically necessary and which they are willing to undergo. Dentists working under the NHS must not mislead patients into the availability of treatment under the NHS nor denigrate the quality of treatment which is available.

The use of rotary files can add a financial burden to the practice and dentists wishing to offer private endodontics as an option using rotary files must be extremely careful that patients are not misled into the quality of treatment available using normal endodontic instruments.

It is not uncommon for some dentists to administer local anaesthetic to a patient and then send them into the waiting room (where they may not be supervised or observed) whilst waiting for the local anaesthetic to take effect. Similarly some dentists work between two surgeries and may leave the patient in the chair either alone or with a dental nurse.

There are a couple of potential problems which could arise as a result of this type of practice. From a clinical point of view, any patient may have an immediate or delayed reaction to the local anaesthetic and it is obviously important that the dentist is alerted and that if the patient is accompanied by a dental nurse, the nurse is able to at least start to deal with an adverse clinical scenario.

The other issue is whether the dental nurse’s position could possibly be compromised because there was not a third party to act as a chaperone. The General Dental Council’s guidance advises dentists that a third party should normally be present when carrying out treatment.

The main concern is why this dentist appears to be acting in this way on a reasonably regular basis. From a practice management point of view you may wish to set protocols within your practice to ensure patients are provided with a high standard of service and care and you therefore may wish to advise your associate that you would wish him to sit with the patient unless there were other acceptable reasons for leaving the surgery. You may need to take further advice if he fails to comply with your wishes.

Should a patient develop an adverse reaction while the dentist was not present, the dentist would have to provide a cogent reason why he or she believed it was in the patient’s best interests to leave them with the dental nurse. The training and experience of the dental nurse will also have a bearing on any decision made by the dentist. If a dental nurse feels the patient could be at risk because of their own particular level of experience, it is very responsible of them to have brought this to your attention.

The list would include any other national Dental Council or Board that acts as a professional regulator and the General Medical Council. This list would not include CQC as they do not investigate FTP issues.

If you are disparaging about someone or something, or make disparaging comments about them, you are effectively undermining their credibility by expressing a poor opinion about them.

This Standards guidance is designed to raise the awareness of professionalism in the dental team and any remark designed to undermine the patient’s confidence in another member of the dental team (in your practice or elsewhere) will be seen as reducing the standing of the profession in the patient’s eyes, and liable to criticism.

This standard links with 1.3.1 (acting with honesty and integrity) and 1.3.2 (not bringing the profession into disrepute)

A disparaging remark might refer to an individual’s demeanor or attitude at work or it might refer to the quality of dental care the patient has received prior to seeing you. In these circumstances you need to be mindful of 1.7.1 (put patient’s interests first at all times).

When describing a patient’s current condition, particularly at a new patient consultation, whether you are a dentist or DCP, you must ensure that any remarks explaining the condition of their dental tissues are neutral, accurate, factual and dispassionate.

It would be helpful to document in the records, or in a letter to the patient enclosing a treatment plan, a concise summary of the current condition of the mouth in layman’s language for the patient. In particular, it is often helpful to note the questions the patient might have asked you, and an indication of your response.

Deciding what to do when you have concerns about a colleague’s behaviour is always uncomfortable. Your duty to raise any concerns you have, however, overrides any personal and professional loyalty.

The guidance makes it clear that the safety of patients must come first at all times. This means that any dental professional who has concerns that a colleague may not be fit to practise must take prompt and appropriate action. You should explain your concerns clearly and honestly to an appropriate person from your contracting body or employer.

Salaried employee
If you are working as an employed dental professional, any specific local procedures should be followed (your contract may well define them). You should expect that your employer will promote and support a culture of openness and that you should be made aware of the local processes to follow. Your employer must support you if you need to raise a concern and take your concerns seriously, creating a culture where you should not fear reprisal.

In such circumstances it would also be prudent to seek advice from Dental Protection about how to raise your concerns, to ensure that your own position is protected. Make sure that you keep a record of your concern and the steps you have taken to try to remedy the situation.

Self-employed
For those who are self-employed, if the dental professional is not appropriately receptive to constructive criticism or is not able to improve performance to a level that removes any risk to patients, paragraph 8.2.5 of the GDC’s guidance makes it clear that you must act on your concerns promptly.

If local procedures have not resolved the problems, or the person to whom you would normally report your concerns is part of the reason you are concerned, you should refer your concern to the GDC.

If you need to contact the GDC for this reason, it would be wise to contact Dental Protection and speak to a dento-legal adviser about how to take the matter further. To facilitate that conversation it would be helpful to have available a record of your concerns and the steps you have already taken to try to remedy matters.

Although the decision to raise concerns is entirely personal and is not one that any other clinician can make for you, it is best to speak with one of our dento-legal advisers and ask for their guidance. Every case will be different and there is no one answer that will fit every occasion. If there are related professional issues that you think could leave you vulnerable to criticism during an investigation, Dental Protection will know how best to assist and support you. Doing nothing, however, in a situation where you have concerns about patient safety is not an option. Failing to act in such circumstances may put your own registration at risk.

In summary, if in doubt, always raise a concern. Try to raise concerns locally first. If you have already done that, and no action has been taken, you must act on your concerns promptly. You should not be asked to prove your concerns although you might need to explain your decision.