Call log

These cases are based on actual calls made to MDDUS advisers and are published here to highlight common challenges within dental practice. Details have been changed to maintain confidentiality.

  • Date: 24 May 2021

Sudden death request

Q Our practice (based in Scotland) has had a request from the procurator fiscal for access to dental records following the sudden death of a patient. I know the duty of confidentiality extends beyond death – am I allowed to disclose the records?

The short answer is yes. If you are satisfied that this is a legitimate request, then you are obliged to disclose records requested by a procurator fiscal. (The same obligation exists in England and Wales for requests from a coroner.) The identification of a dead body can usually be justified as being in the public interest and so would meet the threshold for disclosure without consent. Before disclosing, double check you have the correct patient details and only disclose what is necessary to satisfy the request. Note that the fiscal has the power to ask for an unredacted copy of the records.

SAR timing

Q We are considering creating an online form for patients to request access to their records. Would this affect the one-month time limit for responding? Does the clock start when the request is submitted, or once we have verified the person’s right to make the request?

Under the General Data Protection Regulation (GDPR), the time limit for subject access requests (SARs) begins when the request is made and not once it has been assessed and verified. This would apply whether the request was made via an online form or by other valid means. Unfortunately, the term “one month” is not otherwise defined within the regulations at the moment, and therefore it would be prudent to take the strictest interpretation of this as indicating 28 days. Should additional information be required before copies can be released, then the 28-day time period would start as soon as the additional information has been provided.

Cross-border POA

Q Our practice in Scotland has recently registered a patient from England who has dementia. He has a health and welfare power of attorney (POA) established under English law. Is this recognised in Scotland?

Assuming that the POA was officially validated in England, then it will be automatically valid in Scotland. The Office of the Public Guardian in Scotland has created a certificate confirming this, and stating that there is no need for that person to go through any kind of formal process to be endorsed for use in Scotland.

Colleague concern

Q A fellow practice GDP has been behaving erratically in recent months and has been making mistakes with his work. We’ve tried discussing the issue with him and offered various means of support but he won’t engage. We’re concerned one of his errors might jeopardise patient safety. What should we do?

This is a difficult situation but the General Dental Council (GDC) is very clear in Principle 8 of Standards for the dental team: “You must raise any concern that patients might be at risk due to the health, behaviour or professional performance of a colleague”. It also emphasises that the duty to raise concerns overrides personal and professional loyalties or concerns (for example, seeming disloyal). The GDC advises that you should raise concerns first with your employer or manager if possible. Should this not be appropriate (maybe they are the subject of your concern) or if they fail to act on your concern, you can raise the matter with your local commissioner of health or with the Care Quality Commission (England), Healthcare Inspectorate Wales, the Regulation and Quality Improvement Authority (NI) or Healthcare Improvement Scotland. Should you feel that all other avenues have been exhausted and that the threshold has been met for the public/patients needing protection from a registered dental professional, then it may become necessary to contact the GDC.

Teenager wanting tooth whitening

Q We have a 15-year-old patient with badly discoloured teeth. Her mother is very concerned, as this has led to bullying at school and mental health issues, including depression. Can we offer tooth whitening treatment to the girl for her psychological wellbeing?

Current regulations permit dentists and other DCPs to carry out tooth whitening in adults (subject to the appropriate prescription) using up to 6 per cent hydrogen peroxide. However, for under-18s the concentration of hydrogen peroxide allowed is only 0.1 per cent, which would be ineffective. The General Dental Council has stated that they would not raise any fitness to practise concerns against a registrant where the tooth whitening provided was “wholly for the purpose of treating or preventing disease”. The GDC is not able to make exceptions to the regulations, nor is this tacit approval any defence if a dentist is challenged by a criminal action brought by Trading Standards. Unfortunately the regulations are clear, and there are no circumstances where the treatment of a child with tooth whitening products greater than 0.1 per cent hydrogen peroxide can be legal. It follows that the child and the parent cannot give consent to a criminal act such as this. Naturally this position is very disappointing for all concerned.

Medical form refusal

Q We had a patient in our practice recently who refused to fill in a medical history form, complaining that it was intrusive and violated his data protection rights. Practice policy is to ask patients to complete a form at every exam appointment. Our dental principal explained the importance of the form but the patient still refused to complete it, and no examination or other treatment was offered. Were we right not to treat him in the circumstances?

A patient refusing to provide up-to-date medical information could significantly impact on the provision of dental care and their own health. Therefore, you were correct in the decision to not offer treatment. The GDC's Standards for the Dental Team, states: “You must make and keep complete and accurate patient records, including an up-to-date medical history, each time that you treat patients”. The FGDP in its Clinical Examination and Record Keeping, Good Practice Guidelines also provides detailed guidance in relation to the importance of having an up-to-date medical history and that this should be checked (but not necessarily recorded) at each appointment where invasive treatment is to be carried out. Any changes should be noted, dated and initialled. It is impossible to be confident that your treatment is in the best interests of the patient without up-to-date knowledge of the patient’s medical history and current medication.

Mentoring query

Q I am an experienced dental implantologist and have taught a postgraduate course in the subject. A GDP on my course recently asked if I would mentor her in the provision and placement of implants. Would I need a written agreement setting out responsibilities and fees per case, and who would be liable for any claims?

MDDUS would suggest that you formalise some sort of written agreement regarding both of your responsibilities and fees. There are textbooks and other guidance on mentoring, including Coaching and Mentoring at Work by Mary Conner and Julia Pokora. Should a problem arise during treatment then clearly it would need to be carefully determined how this happened, and this is where accurate, complete and contemporaneous dental records will be of significance. A clinical issue arising as a result of the mentee carrying out a task suggested by you would indeed require acceptance of a certain degree of responsibility for your actions and thus liability. However, such cases are rare.

Unrealistic expectations

Q A prospective patient has been in discussion with one of our practice orthodontists in regard to Invisalign treatment. He has had numerous visits to the practice and done extensive research online comparing our treatment plan and costs with those offered by other orthodontists. He is demanding single arch treatment to save on costs, despite having an obvious malocclusion with crossbite, and is dismissive of clinical opinion. His manner and communication suggest that he will be a very demanding patient, with high and potentially unrealistic expectations. Is it reasonable to suggest that the patient attend another practice for his treatment?

You are under no obligation to pursue a treatment plan that you do not feel is in a patient’s best interests. Should you be unable to convince this particular patient of the need for aligners covering the entire biting surfaces of the upper and lower teeth then it is reasonable to withdraw your offer of care. A letter to the patient should explain that the practice is not confident in providing the desired treatment to meet his expectations, and that this is not a sound basis for a therapeutic alliance. You might add that the decision was taken reluctantly and after careful consideration.

Indemnity for facial aesthetics

Q I am a dentist currently undertaking training in facial aesthetics. In future I plan to offer patients Botox treatment and dermal fillers for lips, nasolabial folds and marionette lines. Do I need extended indemnity cover for this service?

MDDUS members working as GDPs have access to indemnity for earnings up to £15,000 gross income for the provision of certain minor cosmetic facial procedures. This applies to members paying MDDUS a subscription in a “third year” GDP grade or higher. Above this earning level a supplement will apply. The procedures must be performed personally by the member and include treatment with botulinum toxin and non-permanent dermal fillers in the treatment of facial wrinkles and/or lip enhancement. All fillers must be manufactured to CE standards and consist of highly purified bovine or human collagen, hyaluronic acid gel, calcium hydroxylapatite or Poly-L-lactic acid (PLLA). These procedures can only be carried out in the immediate peri-oral area, nasal labial folds and elsewhere on the face. The neck is explicitly excluded. Members are no longer required to be registered with TYCT (Treatments You Can Trust), but to qualify you must be able to demonstrate at least two years post-graduation experience in dentistry and competence to provide the treatments performed, along with management of anaphylaxis and resuscitation. This must include certification of attendance at relevant courses and CPD on a regular basis. MDDUS does not require documents to be sent to us, but the dentist must be able to provide evidence in the event of a claim or other incident. Dentists must also ensure that appropriate protocols are in place for patient assessment, consent and the monitoring of treatment provided, in line with accepted current practice. Premises must offer an appropriate clinical environment and be registered with the CQC or equivalent national body (if required by law), and afford immediate access to equipment and drugs necessary for the treatment of anaphylaxis and for resuscitation.

Practice merger

Q We have been considering merging with another practice so that we can offer a more comprehensive service to patients. I have heard that we need to harmonise all terms and conditions, which the practice is unable to afford. Is this correct?

The short answer here is no. Terms and conditions can be changed if they are unconnected to the transfer or if there is an economic, technical or organisational (ETO) reason to do so that entails a change in the workforce. ‘Entailing a change in the workforce’ means that any ETO reason also needs to include a change in job function or a reduction in headcount. TUPE (Transfer of Undertakings (Protection of Employment)) regulations do not provide a definition of an ETO reason but examples might include cost savings (to reduce overstaffing), a required increase in the use of digital technology, or a move to a new location. Practices should seek guidance on the process, as failure to comply with the requirements can lead to a maximum of 13 weeks gross being paid to each affected employee. Such compensation will be the joint responsibility of the old and new employers so agreements relating to the transfer or service provision change should state how liability will be shared. Permitted changes to transferred workers’ contracts after one year come with the caveat that this can only be done through collective agreement. There is no specified time limit to the protection afforded by TUPE. Workers with over two years’ service may raise an unfair dismissal claim and compensation could be up to a year’s salary per employee. Remember that a dismissal will be automatically unfair if the sole or principal reason for it is the transfer. There must be an ETO reason entailing changes in the workforce.

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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