The Data Protection Act (DPA) makes provisions for regulating the processing of information about living individuals, including obtaining, recording, holding, using, disclosing, adapting, organising, retrieving and destroying information. The DPA recognises the rights of an individual to be told what information is being processed about them and have copies disclosed.

The DPA is based on 8 data protection principles, which can be summarised as follows.

The information:

• Must be processed fairly and lawfully;
• Shall only be obtained and used for one or more specified person purpose and shall not be excessive to that purpose;
• Shall be accurate and kept up to date;
• Shall not be kept for longer than necessary;
• Shall only be processed in accordance with the data subject rights; and
• Shall be kept safe and secure and not transferred beyond the European Economic Area, except to countries with a similar level of the asset protection.

Personal data is defined as information which relates to a living individual, who can be identified from the data either alone or in conjunction with other information held by the data controller.

Dental records are likely to fall within the definition of sensitive personal data under the terms of the DPA. The processing of sensitive personal data must comply with specific conditions set out in Schedule 3 of the Act. If you have explicit consent from the patient to hold and process their data the conditions of Schedule 3 will be met.

How do I know if the patient has provided consent?

A patient in receipt of NHS care must complete form HSC 45 and, in doing so, would authorise disclosure of their records to the HSC Board for the purposes listed below. Where no HSC 45 exists (perhaps lost or missing), then the onus would be on the practice to obtain consent from the patient, or to justify disclosure. The DPA only applies to living subjects, however disclosure of deceased patient records would not present a problem as consent would have been given as above.

The HSC Board is not entitled to see private treatment records, and private records should therefore be redacted.

Disclosure to the HSC Board of records which contain patient identifiable information, may take place lawfully where:

• The HSC Board is investigating and ensuring the quality and provision of the standard of care provided that it is for example in response to a complaint made by or on behalf of the patient;
• The information is needed in relation to the management of dental services;
• The HSC Board considers that there is a serious risk to patient health or safety; and
• Investigations of suspected fraud or any other potential criminal activity take place.

If you have been asked to provide records and you are uncertain whether the patient has provided consent or whether the HSC Board requires the records for a lawful reason, always seek advice before disclosing the records. You should consult one of our dento-legal advisers if you are unsure. 

Members will be aware that in order to provide private treatment to patients, registration with the RQIA is essential. 

Should the RQIA become aware that a dentist has appeared before the Professional Conduct Committee of the GDC and the outcome is the dentist’s suspension from the GDC Register, the RQIA will assess whether a dentist can continue to satisfy and adhere to the requirements of various pieces of legislation, which govern the provision of private treatment by dentists.

By way of explanation, under Article 15 (1) of The Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (‘the 2003 Order), the RQIA may at any time cancel the registration of a person in respect of an establishment or agency, 'on the ground that the establishment agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements.'

The requirements, detailed in the Independent Health Care Regulations (Northern Ireland) 2005 (2005 Regulations), states that:

• Person is not fit to carry on an establishment or agency, otherwise than in partnership with others;
• He satisfies the requirement that he is of integrity and good character; and
• In accordance with Schedule 2, paragraph 7, of the 2005 Order, which requires that the details of the registration of a health care professional are available / provided to the RQIA for the regulation of the profession.

The RQIA may argue that the mere fact of suspension means that a dentist is unable to fulfil the above criteria. The RQIA would also consider whether the matter giving rise to suspension raises issues regarding a dentist’s 'integrity or good character'.

In addition to imposing a period of suspension at the conclusion of the case, the General Dental Council can, in certain circumstances, suspend a dentist on an interim basis during the course of an investigation. An Interim Order of Suspension would not, in itself, call into question a dentist’s integrity and good character as an Interim Order does not involve any findings of fact. The RQIA may, however, take the view that the mere fact of suspension (even on an interim basis) precludes a dentist from meeting the requirements of the 2005 Regulations.  Should this scenario arise, advice would be required based on the individual circumstances of each case and we would recommend that you seek advice from one of our dento-legal advisers.

Should the RQIA consider the above criteria are no longer met, they may issue a Notice of Proposal to cancel the registration of the dentist as a registered person. They will notify the dentist by way of letter, which will advise that the RQIA intends to issue the Notice of Proposal to cancel the registration of the registered person. A meeting will  be offered so that the dentist’s view/ position may be heard, usually scheduled promptly after this letter. 

The RQIA are likely to have two members of the RQIA Board, the Chief Executive and the Director of Regulation present at the meeting. During the course of the meeting, both the RQIA and the dentist, who may be accompanied, will have the opportunity to advance their respective positions.

Following the meeting, a further letter will be sent with the outcome. If the intention remains to continue to cancel registration, the RQIA will give the dentist notice of that, under Article 18 of the Health and Personal Social Services (Quality Improvement and Regulation) (Northern Ireland) Order 2003, and a copy of the Notice of Proposal will be attached to the letter.

Under Article 19 of the 2003 Order, the dentist will have the right to make written representations to the Chief Executive within 28 days of service of the Notice. The RQIA will then consider any written representations / submissions before deciding whether, or not, to implement the proposal and the dentist will be informed of the formal decision. In line with the RQIA’s enforcement policy and procedures, a Notice of Decision, under the 2003 Order, would be issued simultaneously.

Whilst this is not an entirely black and white scenario, if the RQIA do not consider a dentist who is registered with them to be of 'integrity and good character' or that the dentist cannot provide details of their registration with the GDC, it is likely that the outcome will be that the dentist’s registration will be cancelled. Whilst the individual circumstances of each dentist should be considered, on a case to case basis, it is difficult to identify a scenario where the RQIA would perceive that a suspension by the GDC (meaning that no GDC registration details can be provided to the RQIA, irrespective of good character) would mean that their registration with the RQIA could continue.

Despite this seemingly bleak picture, however, it is still worth making both personal and legal arguments to try to manoeuvre around the complicated legislation, which was not designed for dental practices or dentists in the first place! In addition, given that suspension is a temporary sanction only, a dentist should still make representations/ submissions, as in order to become re-registered these may be taken into consideration.  If the reason for the suspension could be said not to impact on a dentist’s integrity or good character, for example, potentially, a health issue, the RQIA may refer to these submissions when considering re-registration.

Dentists should contact us in order to establish whether their membership will cover assistance with regard to this process. 

Part VI of the Order states that any Minimum Standards prepared and published by the Department of Health, Social Services and Public Safety shall be taken into account in the making of any decision by the RQIA in relation to decisions about:

• Registration or cancellation of registration
• The variation, removal or imposition of conditions
• Any application for urgent cancellation of registration
• Any proceedings for offences listed in Part III of the Order

An Improvement Notice will be issued where there is a failure to meet the Minimum Standards. Should the recipient fail to comply with the Improvement Notice then, after being afforded an opportunity to make representations to the RQIA, the matter can be pursued either by (a) prosecution or (b) the issue of a Notice of Proposal to cancel registration or impose conditions on registration.

A Notice of Proposal under Article 18, Paragraph 4 of the Order may be issued by the RQIA at any time in respect of an establishment or agency to:

• Cancel registration
• Vary or remove any condition
• Impose any additional condition in relation to registration

Should there still be failure to comply, a Notice of Determination will issue. There is a right of appeal to the Care Tribunal in relation to a Notice of Determination.

The Cancellation of Registration under Article 15, Paragraph 1 of the Order may additionally be commenced at any time on the following grounds:

1. That the Registered Person has been convicted of a relevant offence
2. That any other person has been convicted of such an offence in relation to the establishment or agency
3. That the establishment or agency is being or has at any time been carried on otherwise than in accordance with the relevant requirements
4. On any ground specified by the regulations

There is also a process for an urgent procedure for cancellation via the Court under Article 21 if the RQIA believes there is serious risk to the life, health and well-being of any service user and urgent action is required. This step can be taken at any time and without any prior notice to the registered provider or persons. It is difficult to envisage circumstances in which this would be readily applicable to dental services, save perhaps for issues surrounding IV sedation. 

Prosecutions can be undertaken against the individual or individuals who are the registered providers or registered managers of the establishment. Any imposition of conditions on registration would, however, affect the practice or establishment as a whole.

If, therefore, problems arose on the part of solely one principal dentist in an establishment, this would pose a threat to the registration of the entire practice and one may have to consider dissolution of the partnership in a worst-case scenario. That said, if any problems are confined to only one dentist, this is a factor that could be included in representations to the RQIA and it may be possible to tailor conditions that would not unfairly penalise any practitioner uninvolved in any breach.

The provision of any item of private dental treatment will be a requirement for registration with RQIA.

Not as yet. In Northern Ireland, there were historically Memoranda of Understanding between the General Dental Council and the four legacy Health and Social Services Boards as to who would take lead responsibility for the investigation of concerns.

As yet, no Memorandum of Understanding has been put in place with RQIA, although it can be anticipated that one will be developed in due course. There is a Memorandum of Understanding between the GDC and the Care Quality Commission and it is probable that a similar one will be adopted for the RQIA.
Incidentally, we are aware that the Health & Social Care Board is also proposing to establish a Memorandum of Understanding with RQIA. We believe this will primarily deal with the use of information gained by the RQIA during Inspection Visits.

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