Eleven local authorities in Scotland will move into the highest Covid-19 protection level at 6pm on Friday, 20 November, as part of the effort to suppress the incidence of the virus before Christmas.
The National Clinical Director (NCD) has set out the changes expected for practices with one of the 11 level four areas in a letter to independent providers, including private dental practices, registered with Health Improvement Scotland (HIS).
It is our role is to ensure that MDDUS members are signposted towards the relevant guidance, to assist them in making an informed decision about their work. It is not our role to approve or disapprove of any particular course of action or business decision. We appreciates that this latest restriction will be an additional pressure in already challenging times.
The GDC position
The GDC published its latest advice on 6 November:“Expert advice on the clinical aspects of COVID-19 will continue to come from the health authorities of the four nations and we will continue to signpost to this guidance as and when it is updated. But that guidance will inevitably not cover every potential scenario, and therefore, dental professionals will need to continue exercising their professional judgement and weigh the risks in any given situation. They will also need to continue to assess whether they are trained, competent and indemnified to carry out the activity in question.
"However, in the joint statement from the healthcare regulators we said that we understand that in highly challenging circumstances, professionals may need to depart from established procedures to care for patients and that should concerns be raised, relevant environmental and human factors would be taken into account.”
Legal advice to MDDUS
MDDUS sought legal advice from leading counsel experienced in healthcare law before preparing this advice to members.
Executive summary of the advice
- The NCD/CDO letter is addressed only to private dentists who are registered with HIS. It can only therefore be intended to apply to them. Accordingly, it does not apply to dentists who do NHS work or private work from an NHS practice.
- The letter contains advice only. Specifically, this includes advice that for those practising in level fpur areas, no aesthetic procedures should be carried out or elective treatments undertaken. Furthermore, in level four areas the focus of care should be restricted to essential or urgent treatment of clinically diagnosed conditions where no treatment would have a significant adverse impact on the wellbeing of the patient. This advice is not mandatory.
- Notwithstanding those conclusions, it would be prudent for all dentists to familiarise themselves with the terms of the letter. That is because the GDC has made clear that in terms of their professional obligations, dentists are expected to have regard to advice given by the CDO.
- It is hard to envisage how a dentist could face any penalty if a patient travelled to make an appointment from another area that has a travel restriction in place. That is because attending for dental treatment is recognised as a “reasonable excuse” so as to permit travel notwithstanding the general restriction.
- What constitutes “essential or urgent” treatment should be approached with common sense. In all but the most obvious of cases, it would be prudent for a dentist to record why she considered treatment to be essential or urgent (or why it went ahead despite being neither).
- All practicing dentists should ensure that they comply with all applicable public health and Covid-19 related regulations. In particular they should pay close attention to the most up to date rules and regulations regarding PPE, workplace safety and Covid-19. The dentist should inform him or herself of the applicable rules.
Private practitioners registered with HIS
All practitioners will need to take account of the letter from the NCD published on 17 November 2020. This letter calls for changes to the type of treatments that can be offered to patients and practices subject to level four restrictions. The letter asks that “aesthetic and elective procedures” are not provided in level four areas and that the “focus of care should be limited to essential or urgent treatment of clinically diagnosed conditions where no treatment would have a significant adverse impact upon the wellbeing of the patient.”
MDDUS is advised that there is no statutory basis for this request to restrict clinical practice. This means that compliance is not mandatory. However, practitioners will need to bear in mind the GDC’s expectations that this type of advice and guidance must be considered carefully when determining the treatment that is offered to patients, and they must be prepared to justify each decision. It would be good practice to capture that justification for the particular patient in the records for future reference.
MDDUS is also advised that practitioners working in entirely private practices that are registered with HIS are not bound by the CDO’s directions as to the treatment they may or may not provide, although, as explained above, they will be well advised to take the CDO’s position into account when deciding how to proceed.
Practitioners should only offer face to face treatment to the extent that they can do so safely and in accordance with adequate infection control measures after carrying out a proper risk assessment, which needs to be recorded. The consequences of treating patients without adequate infection control measures are potentially very severe. Members will necessarily be subject to obligations towards their staff - in particular under Health and Safety legislation.
These practices will need to comply with any requests for information or directions (including any enforcement action) made by HIS, which are designed to protect patients and staff.
Mixed NHS and private practice (in a practice that is inspected by a health board)
Mixed practices must treat NHS patients in accordance with the guidance from the CDO and Health Boards, ensuring that they have the necessary equipment and an appropriate Standard Operating Procedure (SOP) in place to maintain staff and patient safety at all times.
Patients may be seen for private dental treatment face to face care as described above. In communicating with patients about the choices available to them, there must be clarity about the financial arrangements made for care mindful of the GDC Standards for the Dental Team guidance Sections 1,2 and 9. MDDUS recognises that some NHS patients may choose to have certain items of care provided under private contract. In these circumstances, the choices offered to the patient must be clearly captured in the notes and provided to the patient in a written estimate.
MDDUS is advised that the NCD’s letter of 17 November does not apply to practices inspected by Health Boards. Further, we are advised that the CDO has no statutory authority over private patient care in these circumstances either. However practitioners will need to bear in mind the CDO’s advice when considering the provision of private treatment and be prepared to justify any decision to provide private care, mindful of the GDC’s published advice to registrants.
MDDUS members are advised to review the professional guidance which is available from organisations such as the British Dental Association, the Faculty of General Dental Practice and the Scottish Dental Clinical Effectiveness Programme and to be alert to updates. These authoritative bodies provide appropriate guidance concerning returning to work, risk assessments, definitions of emergency care and analgesic and antibiotic prescribing.
MDDUS’ advice remains that members who work in practices providing care for NHS patients, must follow the guidance issued by the Chief Dental Officer (CDO) in Scotland. This guidance has been issued in the context of the public health emergency caused by the Coronavirus. Members will appreciate that this is a rapidly changing situation and are therefore advised to pay close attention to all new guidance published, especially that sent out by the CDO and Health Boards, notably the national SOP.
All mixed and NHS practices will need to comply with any requests for information or directions (including any enforcement action) made by the HB in relation to NHS work which are designed to protect patients and staff.
Levels 3 and 4 travel restrictions
Travel restrictions have been introduced by an amendment to Health Protection (Coronavirus)(Restrictions and Requirements)(Local Levels)(Scotland) Regulations 2020. The regulations state that it will be an offence to breach the travel ban without reasonable excuse. Travel to provide or obtain medical assistance including dental services is considered in the regulations to be a reasonable excuse or defence.
Indemnity for clinical practice is provided as a member benefit. It is not conditional on members following one particular set of guidelines or another. So if a claim, complaint or investigation arises from the care of a patient during this time, members can look to MDDUS for support and assistance in the usual way.
Members must appreciate however, that if departing from the guidance issued by the NCD and CDO the ability to provide a meaningful defence when challenged by a third party, will be limited, given the GDC’s advice.
We hope that the above clarifies the current understanding of the Dental Advisory Team. Should you be an MDDUS member and have any queries, then please contact us on email@example.com or call the Dental Advisory line.
Dental Advisory Team
Updated – 20.11.20