DDU Guide

Risk management advice

for the dental team
 Guide.
Support.
Defend.
We have developed this guide to support you
through some of the more common challenges
you may face in your role as a dental
professional. Our most up-to-date advice can
be found at theddu.com

If you need to speak to a dento-legal adviser,

call 0800 374 626 (8.30am to 6.00pm
Monday to Friday).

Advice from the DDU† is available 24 hours

a day, 365 days a year for dento-legal
emergencies or urgent queries.
 Contents

1 Communication 02 6 Complaints 44
1.1 Verbal communication with patients 03 6.1 Complaints – general observations 45
1.2 Written communication with patients 04 6.2 Effective complaint handling 47
1.3 Communication with colleagues 06 6.3 The NHS and social care complaints
Member call: I want to promote my practice 07 procedure – an introduction 48
6.4 The NHS and social care complaints
2 Confidentiality 08 procedure – local resolution 50
2.1 Your obligations 09 6.5 How to set out a written response 52
2.2 Releasing confidential information 10 6.6 The NHS and social care complaints
2.3 Disclosing records to third parties 12 procedure – the parliamentary and health
service ombudsman 54
3 Consent 14 6.7 Private complaints 55
3.1 Competent adults 15
3.2 Valid consent 16 7 Negligence and claims 56
3.3 Risk and the Bolam test 17 7.1 What to do if you receive a claim 57
3.4 Obtaining consent 18 7.2 Documentation 58
3.5 When consent is withheld 19 7.3 Proving clinical negligence 59
3.6 Assessing mental capacity 20 7.4 Informal resolution: the pre-action stage
3.7 Making decisions on behalf of adults of a claim 60
lacking capacity 21 7.5 Formal resolution: court proceedings 62
3.8 The right to dental treatment 23 7.6 Working with expert witnesses 64
3.9 Consent and children aged 16-18 24 7.7 Defend or settle? 65
3.10 Consent and children under 16 25 7.8 The emotional impact of a claim 66
3.11 When consent to treat a child is refused 27 Member story: my patient has accused
3.12 Children in care 28 me of negligent treatment 67
Member story: it was alleged I failed to
obtain adequate consent 29 8 Patient safety and quality 68
assurance
4 Dental records 30 8.1 Patient safety and quality assurance
4.1 Keeping good records 31 in dental practice 69
4.2 Computer-held records 32 8.2 Patient safety and risk management 70
4.3 Data protection legislation 33 8.3 Listening to patients and staff 72
4.4 Retaining and destroying records 34 8.4 Clinical audit, peer review and CPD 73
4.5 Patient rights 35 Member story: an administrative error 75
4.6 Record disclosure 36
Member call: can I alter the records? 37 9 Team working 76
9.1 The regulatory environment 77
5 Reports and court 9.2 Working in teams 78
appearances 38 9.3 Leading teams 80
5.1 The professional witness 39 Member call: should I report a colleague? 81
5.2 The expert witness 40
5.3 Records and other documentation 41
5.4 Professional witness dental reports 42
5.5 Court appearances 43

DDU Guide 01
1
Communication
Effective communication is
one of the nine principles of
good practice in the GDC’s
Dental professionals should
be prepared to reflect on
their verbal and written
Standards for the Dental communication skills and
Team (2013). This makes take steps to improve them
business sense. Being able to where necessary.
establish a good professional
relationship with patients
not only means they are
more likely to comply with
oral health advice but also
increases the likelihood they
will recommend your dental
practice to others.

02 DDU Guide
 1.1
Verbal communication with patients

Communication is a two-way process. Listening to patients and Our advice

understanding their wishes and expectations is as important as talking Dental professionals need to check that
to them about their care and treatment. the patient’s expectations of what can
be achieved are realistic. Breakdowns
Effective dialogue will help dental professionals ensure they are on the same in communication over this point are a
wavelength as patients or carers, helping reduce the likelihood of a complaint or common factor reported by members.
claim. And if a patient is dissatisfied with their treatment, listening carefully and It is important to note the consent
sympathetically to their concerns is the essential first step towards resolving the discussion fully and to check the
complaint at an early stage. patient’s understanding. If possible, give
further information to take away and
Key points allow a cooling-off period before an
1. Good communication starts from your first consultation. Dental professionals extensive course of elective treatment.
should introduce themselves to patients and explain their role in providing care. Communication can present particular
2. Be an active listener. Make eye contact, nod or say “I understand” occasionally to challenges when the patient has
acknowledge the patient but try not to interrupt or put words into their mouth. hearing, language or learning difficulties
or if they are particularly anxious. It
3. Ask questions to check the patient’s understanding, especially when advising may be necessary to make special
them about complex treatment plans. arrangements, such as allowing extra
4. Avoid jargon such as technical terms and large amounts of clinical information time, using an interpreter or perhaps
when explaining treatment options. Instead, use the same language as the involving a relative or carer, with the
patient e.g. ‘tingling’ sensation rather than paraesthesia. patient’s consent.

5. Look out for signs that a patient might be anxious or confused about treatment.
Offer them reassurance or a further explanation.
6. If patients have particular communication needs, for example they do not speak Checklist
fluent English, take reasonable steps to help, such as suggesting they bring
someone who can interpret for them. • Do you use surveys to ask patients
about communication e.g.
7. If a patient is clearly unhappy with an aspect of their treatment, be polite and approachability of dental
professional and try not to act defensively. Be prepared to apologise if things professionals providing their care,
have gone wrong. (See section 6 Complaints). whether they understand the
8. Be clear about the possible costs when explaining the different treatment information provided or whether
options and whether treatment will be provided under the NHS or privately. they feel the dental professionals are
Many complaints about fees are the result of a breakdown in communication. listening to them?
9. The GDC expects dental professionals to tell patients if treatment is guaranteed, • Do you offer patients the
under what circumstances and for how long. However, we would advise against opportunity to ask questions and
offering a guarantee or warranty, which have specific legal meanings. It is provide a cooling-off period before
acceptable to give an undertaking to refund fees or to repeat treatment free starting treatment plans?
of charge if the treatment fails within a specified period. • Do you tell patients how to contact
you by their preferred method and
explain who to contact in an out-of-
hours emergency?
• Do you have a system to identify
patients with particular
communication difficulties and
ensure your practice makes
reasonable arrangments to help,
such as an interpreter or an
induction loop for those with
hearing aids?

DDU Guide 03
1.2
Written communication with patients

The way that a practice communicates with patients through its website, Our advice
marketing literature and other written information needs to make Practice written communication is
a positive impression. It should also help patients make an informed likely to be read by many patients and
potential patients. It is important that
decision and not be misleading. it is accurate, clear and not open to
misinterpretation.
Key points
It may be much harder to communicate
1. Patients do not always remember what their dentist has said, so consider
effectively with a patient if their
providing information leaflets that they can refer to or recommend useful
expectations have been raised to
websites.
unrealistic levels by promotional claims.
2. The GDC requires dental professionals to give patients a written treatment This may result in a complaint if the
plan before treatment begins and ask them to sign it. The plan should include patient later feels the practice has
the proposed treatment, the estimated cost and which (if any) elements of the failed to deliver what they thought they
treatment will be provided under the NHS and which privately. If the treatment had been promised. The GDC has also
plan has to be revised, an amended plan should be issued in writing, including a investigated the fitness to practise
cost estimate. of dental professionals following
complaints from other registrants about
3. Clearly display the following information, ideally on the practice reception/waiting
advertising material.
room notice board:
• a list of dental fees We recommend that any written material
• the members of the dental team (including their GDC registration number which is intended for publication,
where appropriate) including online, is checked to ensure
• the GDC’s nine core ethical principles. that it meets relevant ethical and legal
standards. It’s better to do this before
4. Practice literature should be regularly reviewed to ensure it is up to date.
publication than to waste money on
5. When promoting your practice, ensure that the information is current and something which has to be withdrawn.
accurate, your GDC registration number is displayed and that the language used We can help if you have queries about
is clear. the dento-legal aspects of advertising,
while the Committee of Advertising
6. The GDC says practice websites should include the following.
Practice can advise you whether your
• The practice name and address, email address and telephone number.
advert complies with the CAP Code.
• The GDC’s contact details or a link to the GDC website.
Visit www.cap.org.uk
• Details of the complaints procedure and who patients can contact if they are
not satisfied with the response.
• The date the website was last updated.
Under EU rules, websites should also show: Checklist
• practitioners’ qualifications
• the country where which they were awarded • Do you have a practice notice board
• their GDC registration number. in your reception or waiting area to
7. Avoid making any statements or claims in advertising material which could lead display information required by the
to unfulfilled expectations from patients. (See opposite: Ethical advertising). GDC?
• Is someone at your practice
responsible for checking that your
website is up to date and meets the
GDC’s requirements?
• Do you check all your
advertisements before publication
to ensure they comply with the GDC
and other relevant regulations?
• Do you have a range of written
information and advice leaflets
about common conditions and
treatments, which patients can take
away to review?

04 DDU Guide
Ethical advertising
Dental professionals must advertise in line with the Committee of Advertising
Practice (CAP) Code which requires adverts to be ‘legal, decent, honest and truthful’.
The ASA has the power to remove any advert (including online advertising) if found
to contravene the Code and can refer persistent offenders to the Office of Fair
Trading (or Trading Standards Services from April 2014).
The GDC has also produced Principles of Ethical Advertising (2012), which
emphasises the need to provide ‘balanced, factual information enabling (patients) to
make an informed choice about their treatment.’
Dental professionals are responsible for ensuring any advertisement which mentions
their name includes accurate information; uses clear language that patients are likely
to understand; backs up claims with facts; and avoids claims which are intended or
are likely to create unjustified expectations about the achievable results. (See I want
to promote my practice, page 7).
The term ‘specialist’ should only be used to describe a dental professional who is on
the relevant GDC specialist list. This also applies to titles that imply specialist status
such as endodontist although terms such as ‘experienced in…’ or ‘special interest
in…’ are acceptable.
Avoid comparisons and unsubstantiated claims, such as the practice is ‘the best’
for whitening procedures. Other dental professionals may believe their practice has
been denigrated by implication.

DDU Guide 05
1.3
Communication with colleagues

Developments such as direct access to hygienists and therapists mean Our advice
patients are more likely to receive care from other members of the dental To ensure the best quality of care
team. This puts increased emphasis on the interpersonal skills of dental for patients, members of the dental
team must communicate clearly and
professionals. effectively with each other, especially
when delegating treatment, referring
Key points a patient to a specialist, or ordering
1. Dental professionals should have a clear understanding of what they want to dental appliances from a laboratory.
achieve and how it is to be done before discussing tasks with others. (See When you ask someone else to carry
section 9.2 Working in teams). out treatment, provide them with the
information they need, make it easy for
2. The GDC expects dental professionals to treat colleagues ‘fairly and with respect,
them to raise any queries, and check
in all situations and all forms of interaction and communication’. (Standards for
they have understood your request, as
the Dental Team, 2013, paragraph 6.1.2).
appropriate.
3. When making a referral ensure the referral letter and any records, casts, stents
Dental professionals should make every
or radiographs include all the relevant information, such as the patient’s medical,
effort to be approachable and open
dental, and social histories, clinical findings and diagnosis, and treatment plan.
so that colleagues are comfortable
Ensure that you specify the precise nature of the work and the expected
discussing a patient’s treatment and are
outcome.
able to address concerns.
4. When ordering a dental appliance from a laboratory for the first time, or if the
Finally, reflect on adverse incidents
order is quite complicated, it’s sensible to check the order has been received and
which were caused by a failure in
is understood.
communication with a colleague.
5. If the details of a referral letter are unclear, contact the referring dental Attending a communications skills
professional for clarification. course could help you to learn different
techniques, to build a rapport with
6. When using social media sites or other public media, the GDC says that dental colleagues and get your message
professionals ‘must not make personal, inaccurate or derogatory comments across. (See theddu.com for our latest
about patients or colleagues’. (Standards for the Dental Team, 2013, CPD courses).
paragraph 9.1.3).

Checklist
• Do you have a practice protocol
so that relevant information is
documented clearly when patients
are referred?
• Have you asked colleagues to
assess your communication skills
and taken steps to address areas
in need of improvement e.g.
attending professional training
courses?
• Does your practice have an
anti-bullying policy to ensure all
members of the team are treated
with respect?

06 DDU Guide
 Member call
I want to promote my practice
I have a great deal of experience in
cosmetic dentistry, and would like to
refer to this in an advert in the local
paper. What do I need to consider?
Our response
All advertisements for dental
practices or for specific treatments
should follow the GDC’s guidelines
set out in Standards for the Dental
Team (2013). This states that dental
professionals must make sure that
any advertising, promotional material
or other information that you produce
is accurate and not misleading and
complies with the GDC’s guidance on
ethical advertising (Standard 1.3.3).
In their Guidance on advertising (2013),
the GDC also states that advertising
material ‘should be legal, decent,
honest and truthful. Your advertising
can be a source of information to help
patients make informed choices about
their dental care. Advertising that is
false, misleading or has the potential to
mislead, is unprofessional, may lead to
a fitness to practise investigation and
can be a criminal offence’.
We advise that all publicity,
advertisements and promotional
material relating to a given practice
should include the name of at least
one dentist who practises there. You
should also bear in mind that you
cannot claim in print or other media
that you are a specialist unless your
name is entered on a GDC specialist
list. If you concentrate on a particular
area of treatment – for example, in your
case, cosmetic dentistry – but have no
specific specialist qualification, your
advertising material may only say that
the practice is wholly or mainly devoted
to that type of treatment. Printed
advertising material should also comply
with the Advertising Standards Authority
code of practice1.
Advertising cosmetic treatments
The GDC’s guidance on advertising
states that adverts must ‘back up claims
with facts’ and ‘avoid statements or
claims intended or likely to create an
unjustified expectation about the results
you can achieve.’2
Dentists who want to offer services
which their training as a dental professional
does not qualify them to provide (e.g.
providing botulinum toxin injections)
should “make it clear (they) have
undertaken extra training to achieve
competence.” If in doubt, contact us.
Be aware that it is a criminal offence to
advertise prescription-only medicines
(POMs), such as proprietary botulinum
toxin brands (Botox® is a brand name),
directly to the public3. The Medicines
and Healthcare products Regulatory
Agency (MHRA) advises practitioners
that when advertising on a website, the
home page should refer to the service
being offered and not to the products.
Pages behind the home page, which the
patient chooses to access, may contain
information on specific medicines
provided this is presented in the context
of an overview of the treatment options.
Finally, you should consider the effect
that your promotional material may
have on your local colleagues. Many
complaints about advertising come
from fellow professionals rather than
members of the public.
References
1
www.cap.org.uk/Advertising-Codes.aspx
2
Guidance on advertising, GDC, 30 September 2013
3
The Medicines (Advertising) Regulations 1994 No. 1932
4
The Blue Guide, Advertising and promotion of medicines
in the UK, MHRA, August 2012
DDU Guide 07
07
2
Confidentiality
Confidentiality is central to
the relationship and trust
between you and your
patients.
All information about
patients acquired by any
member of the dental team
in their professional capacity
is confidential and should be
protected from unauthorised
disclosure.
08 DDU Guide
In general, this means that
unless a patient gives their
consent:
• the patient relationship
must not be discussed
with a third party
• records of the relationship
must not be released to a
third party.
Specific and exceptional
circumstances to these rules
can be found within this
section.
 2.1
Your obligations

As a dental professional you have a professional, legal and contractual Our advice
responsibility to protect your patients’ confidentiality. The fact Information relating to a patient must
that someone is your patient is confidential. Your duty to respect be kept secure at all times. Written
records should be stored in locked
confidentiality continues after a patient’s death. cabinets. Computer screens with patient
information should not be visible to
Key points anyone other than authorised personnel.
1. The General Dental Council (GDC) states in its Standards for the Dental Team
Reception areas and surgeries
(2013) Standard 4.2 that all dental professionals must ‘Protect the confidentiality
should be planned in such a way that
of patients’ information and only use it for the purpose for which it was given’.
conversations about confidential matters
A breach of confidentiality may result in a finding of impaired fitness to practise
cannot be overheard by a third party.
and removal from the relevant GDC register.
This applies both to telephone calls and
2. All patients have a right to confidentiality. If a patient alleges a breach of face-to-face conversations.
confidentiality, they may be able to claim damages in a civil court.
3. The Data Protection Act 1998 (DPA) regulates the collection, processing, use
and disclosure of personal data. Personal data is defined as data which relates to
a living individual who can be identified from that data, or from a combination of
Checklist
that data and other information in the possession of the data controller. The data • Do members of your dental team
controller is the person who determines the purposes for which, and the manner
have an appropriate clause in their
in which, personal data is processed.
employment contract stating their
4. Health records, whether in computer or manual form, or a mixture of both, obligation to respect and actively
comprise data which are covered by the DPA. Health records are defined as any protect patient confidentiality?
record which consists of information relating to the physical or mental health
• Have you considered outlining in
or condition of an individual, made by or on behalf of a dental professional in
your practice literature the patients’
connection with the care of that individual. The DPA recognises an individual’s
rights to know what information is being processed about them and to restrict its right to confidentiality and the
disclosure. A breach of the DPA can result in civil or criminal proceedings. (See practice’s duty to protect it?
section 4.3 Data protection legislation). • Does your practice induction
The DPA is intended to protect against unauthorised processing or disclosure of programme include the importance
personal data. of patient confidentiality? Is
on-going training provided?
5. The Access to Medical Reports Act 1988 (as amended by DPA) also applies
to reports about dental patients. A purpose of this Act is to enable individuals
to see reports written about them, for employment or insurance purposes, by a
registered dentist whom they usually see in a ‘normal’ dentist/patient capacity.
The patient can ask you not to send a report.
6. The Access to Health Records Act 1990 Section 3 (1) states that where
a patient has died, an application for access to a health record, or to any part
of a health record, may be made to the record holder by the patient’s personal
representative and anyone who may have a claim arising out of the patient’s
death.
7. In paragraph 4.2.2 of its Standards for the Dental Team (2013), the GDC states
that ‘You must ensure that non-registered members of the dental team are
aware of the importance of confidentiality and that they keep patient information
confidential at all times’. This also includes the use of social media. Paragraph
4.2.3 states: ‘You must not post any information or comments about patients
on social networking or blogging sites. If you use professional social media to
discuss anonymised cases for the purpose of discussing best practice you must
be careful that the patient or patients cannot be identified.’
If a member of the dental team breaches the confidentiality of an NHS patient,
they may be disciplined by the primary care organisation (PCO) or hospital
trust.

DDU Guide 09
2.2
Releasing confidential information

Before releasing information about a patient to a third party, you must Our advice
obtain the patient’s permission, save in exceptional circumstances. Although the confidentiality of Gillick-
Permission should preferably be given in writing, although oral consent competent children should be respected,
you should encourage them to involve
is also valid and should be recorded in the patient’s notes. parents or guardians in their decisions,
particularly if the treatment proposed is
Key points extensive or costly.
1. Competent patients may give or withhold permission to disclose information
If a school seeks confirmation that a
about them. If you want to use patient information for any other reason, you
pupil has booked or attended a dental
must explain and check the patient understands:
appointment, information should not
• who the information will be released to be given without the permission of
• what information you will be releasing the patient, or person with parental
• how it will be used authority in the case of a non-Gillick
• why you will be releasing it competent child. On the request of a
• the likely consequences of you releasing the information. Gillick-competent child or adult with
appropriate parental authority, you
You should only release the minimum information required for the purpose and
may sign a child’s appointment card to
ensure the patient remains anonymous if it is not necessary to identify them. You
confirm their attendance. However, in
should also ensure that third parties receiving information know it is confidential.
general it is up to schools to confirm
Patients must be given the opportunity to withhold their permission and be told
that a child has booked or attended a
they can withdraw it at any time.
dental appointment with someone who
2. A patient’s refusal should be respected unless there is an overriding public has parental authority for the child,
interest such as when not releasing information would put the patient’s safety rather than the dental practice.
or that of others at serious risk. It is usually necessary to have consent of a
patient to involve social services, but it may sometimes be necessary to share
information with social services without consent e.g. if a person who can give
or withhold consent is a victim of abuse. (See section 3.5 When consent is Checklist
withheld).
• Have you obtained permission
3. If you believe it is in the public or patient’s interest to release information, you
to release information, ideally in
should still encourage the patient to give their permission, unless seeking
permission would undermine the purpose of disclosure. You must document the writing, from the patient? If oral
efforts you have made to get consent in the patient’s notes. If they still refuse, consent is obtained, have you
call our advisory helpline before releasing the information. recorded this in the patient’s records?
• Have you explained to the patient
4. Adults with parental responsibility under the provisions of the Children what information you will be
Act 1989 and Adoption and Children Act 2002 can give authority for
releasing and why, who the
disclosure for children under 16 who are not Gillick-competent. The overriding
information will be released to, and
consideration, however, must be what is in the child’s best interests. (See
section 3.10 Consent and children under 16). the likely consequences?
• If it is necessary to release
5. It would be unusual to release information on the authority of a person with information about an adult without
parental responsibility in relation to a competent child who objects to disclosure. capacity, are you sure that good,
In the event of such a conflict, you should be able to resolve the matter through contemporaneous notes have been
discussion with the child and parents or others with parental responsibility. made in the records detailing why it
6. Patients with a learning disability or mental disorder, even if detained under the is necessary and in the patient’s best
Mental Health Act 1983, may still have capacity to consent to or refuse the interest, and how you reached your
release of information. decision?

10 DDU Guide
7. In assessing whether the patient has capacity, the following criteria apply.
• The patient is able to understand information relevant to the decision to
disclose. Relevant information should be presented to the person in a way
that is appropriate to their circumstances.
• The patient must be able to retain this information for long enough to make
the decision.
• The patient must be able to use, or weigh up, the information as part of the
process of making the decision.
• The patient must be able to communicate their decision.
The Mental Capacity Act 2005 (MCA) states that everyone must be assumed
to have capacity unless it is established that they lack it.
8. In the case of patients aged16 or over who lack capacity to authorise the
release of information, decisions on disclosure of information should be made in
the patient’s best interests, applying the principles in the MCA. This includes
seeking the views of family and carers. (See section 3.7 Making decisions on
behalf of adults lacking capacity).
9. If you wish to release a dead patient’s records, you will need to obtain authority
from an executor of the estate or the patient’s personal representative. Anyone
with a claim arising out of a patient’s death may also be entitled to see the
patient’s dental records under the Access to Health Records Act 1990.

Reference
1
Gillick v West Norfolk and Wisbech AHA (1985) 3 All ER
402-437

DDU Guide 11
2.3
Disclosing records to third parties

There are many third parties who may request confidential patient Our advice
information from dental professionals or with whom you may wish to Record fully any decision to share
share such information. Each case needs its own consideration. information in your patient’s notes. Be
prepared to explain and justify your
Key points decisions and actions. If in doubt, call
our advisory helpline before releasing
1. Relatives and carers You may share information with those helping to care for any information.
a patient with the patient’s permission. If the patient is unable to give permission,
then you may share such information as is necessary, provided it is in the
patient’s best interests.
2. Other healthcare workers Patients should understand why and when Checklist
information about them might be shared with others involved in their clinical
care. You should only share information on a “need-to-know” basis, and you must • Are you clear about the legal, clinical
respect a patient’s objections to such information-sharing. and ethical grounds of information-
sharing where a request to release
3. NHS bodies Primary care organisations or the NHS Business Services
information has been made?
Authority (Dental Practice Board in Scotland; Central Services Agency in
Northern Ireland) have certain rights to see NHS General Dental Services • Where a decision to release
records for purposes such as verification and audit. Dentists should comply with information has been agreed or
their lawful requests, but only subject to patient consent. Some NHS claim forms made, have you ensured that only
include an authority to disclosure of records to the relevant NHS authorities. the minimum information necessary
4. The General Dental Council (GDC) may require a dental professional to is disclosed?
produce patient records as part of its fitness to practise procedures. However, • Are the names of other patients
patient consent to such disclosure should still be sought. blanked out when diaries and
appointment books are being
5. The Care Quality Commission, the health and social care regulator for
England, and the Welsh Assembly Government have legal powers to require disclosed?
NHS healthcare professionals to provide relevant information, including personal • Have all documents for your
records. Anyone not complying may face a fine. financial audit and administration
been anonymised?
6. Insurance companies and private dental funding schemes When asked
to submit reports to employers or insurers, you should seek permission and
check if the patient wishes to see the report before it is sent. You should explain
to the patient the extent of the information to be disclosed and the fact that
relevant information cannot be concealed or omitted.
7. Social services Consent is usually required before disclosing information
to social services. However, there may be occasions when it is necessary to
disclose information about a patient without consent, either because the patient
lacks capacity and it is in the patient’s best interests or is otherwise in the
public interest. You should do everything you can to inform your patient when
information about them is shared.
8. The police do not have a right to information about patients. They have no
power to secure dental records using a search warrant or a production order
from a court. However, there are specific provisions which require disclosure e.g.
S172 of the Road Traffic Act 1988 and S38B of the Terrorism Act 2000.
Information may be released to the police if it is in the public interest. If you have
information that a patient is or could be at risk of significant harm, or you suspect
they are a victim of abuse, you should ordinarily inform the appropriate social
care agencies or the police. See the GDC website for further guidance.

12 DDU Guide
9. Solicitors Disclosure to solicitors (other than those acting for the patient)
requires the patient’s specific consent, unless the solicitors provide proof of a
court order requiring disclosure.
10. Courts, tribunals and coroners A judge and presiding officers at tribunals
can make an order to produce confidential documents. The coroner has a right of
access to a deceased patient’s records.
11. Inland Revenue Tax inspectors have legal powers to obtain documents under
the Finance Act 2008, Schedule 36, Part 1. They may request any information
or documents it is reasonable for them to have to assist them in checking a
taxpayer’s position. They must give notice in writing of the information they
require. The dental professional would need to be satisfied that such information
is reasonably required as Section 19 of the Schedule places limits on the
disclosure of personal (i.e. medical) information.
12. Publication, research and audit Personal information cannot be published
without a patient’s consent. Data for research must be anonymised, unless a
patient has given consent. Documents for financial audit and administration
should be anonymised and kept separate from clinical records.
13. Appointment books and diaries Disclosure of information contained in
appointment books and diaries risks breaching the confidentiality of other
patients.

DDU Guide 13
3
Consent
It is a fundamental principle
of good dental practice that
patient consent or proper
authority is obtained before adequate information and
any treatment starts or
information about a patient
is disclosed.
Consent is important
because any investigation or
treatment, or even deliberate
touching, carried out without • other appropriate options
a patient’s consent or proper
authority may be regarded as
battery and could result in: • the health implications of
• an action for damages
• a finding of impaired
fitness to practise by the
GDC
• criminal proceedings.
Adults with capacity
Consent is the expressed
or implied permission
of a patient to undergo
a dental examination,
14 DDU Guide
investigation or treatment.
It is essential that consent
is given freely and with
understanding of:
• the condition to be treated
• the procedure or
treatment, why it’s
necessary and the risks
and benefits
for treatment, and their
risks and benefits
giving and withholding
consent.
Children and adults
without capacity
In the case of children and
adults without capacity,
seeking authority for their
treatment has additional
considerations.
 3.1
Competent adults

It is exceptional for an adult to be considered unable to consent to dental Our advice

treatment. The tests for capacity and the ability of a patient to make Ensure your patient understands the
decisions is set out in the Mental Capacity Act 2005 (MCA), and are information you have provided to them.
Check that they are able to make a
supported by the Code of Practice established under the Act, which dental decision based on that information and
professionals are expected to follow. document that they have understood the
information you have given.
Key points
1. Competent adults can consent to dental treatment. A competent adult is a
person aged 18 or over who has the capacity to make their own decisions
about treatment. Checklist
2. A person lacks capacity when they are unable to make a decision in relation to • Have you assessed the patient to
a given matter because of an impairment of or a disturbance in the functioning of find out if they have the capacity to
the mind or brain. consent to treatment?
3. To be able to make a decision a patient should be able to: • Can the patient retain the
• understand the information relevant to the decision information long enough to be able
• retain that information to make a decision?
• use or weigh up that information as part of the process of making the • Have you recorded in the patient’s
decision notes the discussions you have had
• communicate the decision by any means. with them about the treatment
4. If a patient has a mental disorder or learning difficulties, you should options and their risks and benefits?
not assume they cannot give consent. They may fulfil all the capacity criteria • Have you checked and documented
necessary to make a decision about treatment. (See section 3.6 Assessing that the patient understands the
mental capacity). information given?

DDU Guide 15
 3.2
Valid consent

Certain criteria must be fulfilled for consent from a patient with capacity Our advice
to be considered satisfactory. It can be a good idea to obtain consent
at an earlier date than that of treatment,
Key points allowing a ‘cooling off’ period in which
a patient can think over their decision
1. Consent must be sought before any investigation or treatment.
and/or take advice.
2. The way consent is obtained must be tailored to suit the patient’s needs. For
It is best to re-confirm consent with a
example, encourage patients with communication difficulties to have a friend,
patient immediately before treatment.
relative or carer with them to help.
3. Paragraph 3.1.3 of Standards for the Dental Team (2013) describes the
information that patients might want to know before they consent, including:
• options for treatment, and their risks and benefits, and why you think a Checklist
particular treatment is necessary and appropriate for them
• the consequences, risks and benefits of the treatment you propose • Have you explained all the relevant
(See section 3.3 Risk and the Bolam test) facts to the patient and established
• the prognosis and what might happen if the treatment is not given that they understand them?
• whether the treatment is guaranteed, how long for and any exclusions • Have you given the patient time to
that apply. consider all relevant information
Failure to give correct or sufficient information when obtaining consent may before making a decision?
breach your duty of care. A patient may be entitled to compensation if it is proved • Are you confident the patient is
there was a negligent failure to inform and, as a direct result, they suffered not under any coercion or pressure
harm. The patient must be given a reasonable amount of time to consider the to give (or withhold) consent?
information to make a decision. • Have you retained all written
4. The cost of any examination, investigation or treatment should also be consent documents with the
explained before it starts, including whether treatment is being carried out on the patient’s records, and made a
NHS, privately or on some other payment basis. Note that a patient who agrees contemporaneous note in the
to pay the bill has not necessarily consented to treatment. record of the discussions with the
patient?
5. If a patient’s condition alters significantly between initial consultation and
treatment, causing a change in the nature, purpose or risks of the procedure,
you must explain the changes and obtain consent again. A change in the cost of
treatment should be reviewed with the patient.
6. Duress of any form, including the undue influence of relatives or others, may
invalidate consent.

16 DDU Guide
 3.3
Risk and the Bolam test

The treatment proposed to a patient may carry risks. For consent to be Our advice
valid, the patient must be warned of those risks and understand their Ensure that the patient is provided with
implications. enough information about the risks and
benefits of all treatment options
Key points before treatment starts.

1. In considering what, and how much, to tell a patient about the treatment or Patients have a right to information and
process, and the likelihood and seriousness of potential risks, you should their questions should be answered
consider the patient’s: truthfully and fully.
• ability to understand Confirm with the patient that they still
• physical and emotional state understand the risks and benefits at
• possible questions and your responses every appointment during the course of
• stated wish to have information. treatment.
2. Patients should be given information that would, in the circumstances, be
considered reasonable by a responsible body of dental opinion.
(See The Bolam test below).
Checklist
• Have you given the patient an
opportunity to ask questions, and
have you answered them all fully?
• Have you provided the patient with
The Bolam test
adequate information about the
The courts apply the Bolam test1 in cases of alleged clinical negligence where it risks of each treatment procedure,
is maintained that no, or insufficient, warning was given that a particular treatment and of not proceeding with
carried known risks. treatment?
Mr Bolam suffered fractures as a result of electro-convulsive therapy (ECT), during • Have you recorded all
which he was neither restrained nor given muscle relaxants. He alleged negligence conversations about the risks and
on the grounds that he had not been warned of the risks of ECT and so had no benefits of treatment options in
chance to refuse treatment. Expert evidence maintained that a ‘responsible body the patient’s notes?
of practitioners’ would not have warned of the risks. The Bolam test states that a
doctor who ‘acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art is not negligent if he is acting in
accordance with such a practice, merely because there is a body of opinion which
takes a contrary view’.
However, in the case of Sidaway2, the House of Lords modified the Bolam test,
adding that the courts also have the right to find that a responsible body of medical
opinion may be unreasonable in failing to warn, and therefore negligent.
The cases have two main implications for dental professionals in England and Wales:
• a case of alleged negligence would not ordinarily be proved in court if it was
established that a responsible body of reasonable professional opinion would
not have mentioned the risks.
• it is necessary to answer patients’ questions truthfully and fully.

References
1
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582
2
Sidaway v Board of Governors of Bethlem Royal and the
Maudsley Hospital [1985] 2 WLR 480

DDU Guide 17
 3.4
Obtaining consent

It is a general, legal and ethical principle that all members of the Our advice
dental team providing treatment should obtain consent before starting When a patient has given oral consent
treatment. Where this is not practicable, another appropriately qualified to treatment, you should enter in the
patient’s clinical records the advice
dental professional who is familiar with the proposed treatment should given, including any warnings, and the
obtain consent. You should make sure the other professional understands fact that the patient has understood and
the risks and follows the GDC’s guidance on consent. consented. This is particularly important
where treatment is significant and not
Key points routine.
1. All members of the dental team have a responsibility to verify that consent has Although a consent form may not
been properly obtained before starting treatment. always be necessary, you may wish to
consider using one as it can help serve
2. Consent to dental examinations is implied when, having been told what is as documentary evidence should a
planned and properly advised, the patient voluntarily sits in the dental chair and dispute over consent arise later.
opens their mouth.
3. For procedures other than dental examinations, including radiographs, the
patient’s express consent, oral or written, is required.
4. For treatment under sedation (intravenous or inhalation), a patient’s written
Checklist
consent is required1. The GDC states in its guidance Standards for the Dental
• Have you made a
Team (2013) paragraph 3.1.6 that written consent must be obtained where
contemporaneous note in the
treatment involves general anaesthetic or conscious sedation.
records of the discussions with
5. A patient’s signature on a treatment plan or consent form is of secondary the patient relating to the consent
significance to the quality of explanation and information given to (and process and retained all written
understood by) the patient. However, a signature on a treatment plan or consent consent documentation with the
form is evidence that consent has been obtained. In general, the required entries patient’s records?
in the clinical records, detailing the discussions with and warnings given to the
patient are equally important. • If you have made changes to a
planned procedure, have you fully
6. A consent form should not be altered after a patient has signed it. discussed the changes with the
7. During treatment, you should only carry out procedures to which a patient has patient and, if necessary, had a
expressly consented. The only exception is emergency treatment necessary to new consent form signed?
prevent serious harm or to safeguard a patient’s life.

Reference
1
Conscious sedation in the provision of dental care.
Report of an Expert Group on Sedation for Dentistry,
DoH, Standing Dental Advisory Committee (18/11/2003)

18 DDU Guide
 3.5
When consent is withheld

Patients may give consent. They may also refuse or restrict it. Our advice
The model consent form1 issued by the
Key points Department of Health allows patients to
1. Competent adults have an absolute right to withhold their consent to treatment specify which procedures they do not
for any reason – or for no reason at all. This is the case even if their refusal wish to be carried out. You might want
appears unreasonable and not in their own best interests. to consider using it routinely in your
practice.
2. When obtaining consent, dental professionals should take into account the
patient’s religious, cultural and other beliefs. These may lead them to refuse
treatment, or specific aspects of treatment e.g. a blood transfusion.
3. The difficulties caused by restricted consent do not alter your legal and ethical Checklist
responsibilities towards the patient, or their right to receive reasonable and
proper care. • Are you confident you know which
aspects of treatment the patient
4. Refusing one aspect of treatment does not give the patient the right to
has agreed to and which they have
alternative treatment not normally available to other patients.
not?
5. When a patient refuses to consent to an element of the treatment plan and this • Have you confirmed at each
threatens the outcome of other elements, you must explain the consequences
appointment that the patient is
of their decision. The original treatment plan may have to be revised or
happy to proceed with treatment?
abandoned if the patient’s wishes mean it is no longer appropriate and in the
patient’s best interest.
6. Consent may be withdrawn at any time, even during treatment. A request to
stop treatment should be complied with immediately, unless the patient’s capacity
to make a decision is impaired at that moment to the extent that they are no
longer competent to consent to treatment. You should still take the request into
account in assessing the patient’s best interest. You should weigh up whether
it is in the patient’s best interest to stop treatment, including whether the harm
caused by stopping treatment outweighs the risk of continuing. If stopping
treatment would be dangerous to the patient and they are unable to appreciate
this, it may be possible to continue under the protection of the Mental Capacity
Act 2005 and/or common law.

Reference
1
http://bit.ly/modelconsentform

DDU Guide 19
 3.6
Assessing mental capacity

Adults with capacity aged 18 and over are competent to make decisions Our advice
about their own treatment. You should assume that all adult
patients have the capacity to consent
For people aged 16 and over who lack capacity, the Mental Capacity Act 2005
to treatment unless you determine
(MCA) provides a legal framework (England and Wales only). Among other things,
they lack that capacity. If you decide an
the Act establishes several overarching principles, including that an act done on
adult lacks the capacity to consent, you
behalf of an adult who lacks capacity must be done in their best interests. The Act
should then decide if it is in the patient’s
is supplemented by a detailed Code of Practice, with which dental professionals are
best interests to proceed with treatment.
expected to comply.
When assessing whether treatment
In Scotland, the relevant legislation is the Adults with Incapacity (Scotland) Act
is in the patient’s best interests, you
2000.
should consider whether the patient
The following points relate to the position in England and Wales. might regain capacity later. If a patient
has fluctuating capacity, it would be
Key points very unusual for dental treatment to
be appropriate while the patient lacks
1. The fact that a person has a mental disorder or learning difficulties is not,
capacity, when it could be left until
on its own, grounds for deciding that person does not have capacity.
the patient regains capacity and can
2. Capacity is assumed unless it is established otherwise. You should not assume, consent.
by making judgments from a patient’s behaviour or appearance, that the patient
lacks capacity.
3. You should take all steps practicable to help patients make decisions about
their treatment before concluding that they lack capacity.
Checklist
4. If a patient appears to make an unwise or irrational decision, this is not • Have you made sure that the patient
sufficient reason to treat a patient as lacking capacity. has all the information they need to
5. In relation to assessment of the ability to make a decision, the MCA says the make a decision about treatment?
patient must be able to: • Is the information presented in a
• understand the information relevant to the decision. This includes way that is easier for the patient
information about the reasonably foreseeable consequences of deciding to understand e.g. by using simple
one way or another, or failing to make a decision language or visual aids?
• retain that information
• Have you recorded in the clinical
• use or weigh up that information as part of the process of making the
notes the processes you went
decision
• communicate their decision. This may be by talking, using sign language or
through in determining capacity?
other means of communication. • If the patient lacks capacity, have
you recorded in the notes the basis
6. A patient’s capacity may vary depending on the complexity of the decision to be
on which a decision to treat, or
made and may fluctuate with time.
not treat, was in the patient’s best
7. If an adult patient lacks capacity, and you are faced with providing treatment interests and the steps taken to
without consent, you should take into account the views of relatives establish that?
and/or carers and/or anyone named by the patient and the patient’s present
and previously expressed wishes in helping to determine if the treatment is in
the patient’s best interests (see in section 3.7 Best interests).

20 DDU Guide
 3.7
Making decisions on behalf of adults
lacking capacity

Dental professionals need to be aware of a number of factors before Our advice

making decisions on behalf of adults lacking capacity. Decide what constitutes a patient’s best
interests by taking into account factors
Key points other than just their dental condition.
Consider consulting with others,
1. Any treatment or decision must be made in the patient’s best interests. (See
including getting a second opinion
overleaf: Best interests).
from a colleague, before proceeding
2. Before a treatment starts, or a decision is made, you should consider whether with treatment.
the purpose of the decision or treatment can be achieved just as effectively in a
way which is less restrictive of the patient’s rights and freedom of action.
3. A patient who now lacks capacity may have made an advance decision at a time
when they had capacity, to refuse or limit treatment. If you are aware of such
Checklist
a decision and you can establish that it is valid and applies to the treatment
• Have you recorded in the clinical
proposed, you must follow it.
notes the process by which you
4. In England and Wales, patients can appoint an attorney under a Lasting Power worked out the patient’s capacity or
of Attorney (LPA) who may authorise dental decisions on their behalf. lack of it, and their best interests?
5. LPAs cannot give attorneys the power to demand specific forms of dental Have you set out how the decisions
treatment if dental professionals do not believe they are necessary or were reached, the reasons, who was
appropriate to the patient’s condition. consulted and the factors taken into
account?
The MCA Code of Practice1 provides helpful guidance and examples regarding
the assessment of a patient’s best interests. It makes clear that the concept • Have you considered alternative
of best interests extends beyond purely clinical issues. You need to take into treatments which may be more
account relevant factors such as the patient’s values and preferences when appropriate for the patient? The
competent, their psychological health, well being, quality of life, relationships with treatment you provide should be
family or other carers, spiritual and religious welfare and their financial interests. that which is the least restrictive of
6. Where the patient has no one close to represent them, you may need to seek the patient’s rights and freedoms.
the views of an Independent Mental Capacity Advocate (IMCA) in deciding
the patient’s best interests in certain circumstances where ‘serious medical
treatment’ is proposed. These circumstances include situations where there is a
fine balance between the likely benefits and burdens/risks of treatment.
7. In Scotland, under the Adults with Incapacity (Scotland) Act 2000, a
competent adult can nominate a welfare attorney or proxy to make medical
decisions on their behalf should they lose the capacity to make those decisions
for themselves.
8. In Scotland, the law also provides for a general power to treat a patient who
is unable to give consent. The dental professional primarily responsible for
treatment must have completed a certificate of incapacity before any
treatment is undertaken, other than in an emergency.

Reference
1
Mental Capacity Act 2005, Code of Practice, Chapter 5

DDU Guide 21
Best interests
A key principle of the Mental Capacity Act 2005 (MCA) is that all steps and
decisions taken for someone without capacity must be taken in the person’s best
interests. In determining this, you should consider all the relevant circumstances,
including:
• the patient’s past and present wishes and feelings, in particular any relevant
written statement made when the patient had capacity
• the beliefs and values likely to influence a decision if the patient had capacity
• other factors they would be likely to consider if they were able to do so.
If possible, take into account the views of those named by the patient as someone
to be consulted as to their best interests. If no one has been named, these matters
ought to be considered with a patient’s close relative and/or friend or their carer.
Section 4 of the MCA deals specifically with the best interests of a patient.
You should not determine a patient’s best interests on the basis of their age,
appearance, condition or behaviour.
Dental professionals involved in the care of someone who lacks capacity are
advised1 to keep a record in the clinical notes of how they established the patient’s
best interests.

Reference
1
Reference Guide to Consent for Examination or
Treatment, DoH, 2009

22 DDU Guide
 3.8
The right to dental treatment

Patients without capacity to consent are entitled to proper dental Our advice
treatment. Ensure you provide all appropriate
treatment for patients who lack the
Key points capacity to consent. Remember that
this treatment must be in the individual
1. Where a patient lacks capacity to give or express consent, either temporarily or
patient’s best interests.
permanently, then treatment necessary to preserve the life, health or well being
of the patient may be given where it would be lawful under the terms of the
Mental Capacity Act 2005 (MCA).
2. As a dental professional you must provide a standard of care that would be Checklist
consistent with that of a responsible body of your professional peers. This is the
Bolam1 standard (see section 3.3 Risk and the Bolam test). You are expected • Have you formulated an appropriate
to act in accordance with a responsible body of relevant and reasonable treatment plan?
professional opinion. • Have you consulted with others
3. The proper care of patients with mental incapacity includes operations and before finalising your treatment
substantial overall treatment, and also routine dental treatment. plan?
4. The MCA Code of Practice guidance means you should involve others e.g. • Would your treatment plan be
relatives, carers and specialists, in the decision-making process to determine the regarded as appropriate by a
best interests of a patient who lacks capacity. responsible body of opinion i.e. does
it meet the Bolam standard?
5. It is unlikely in dental treatment that you will have to apply to the court to
determine the capacity or best interests of a patient. However, it may be
appropriate to do so where there is dispute with or between, relatives or those
caring for the patient. You may find it helpful in such circumstances to get a
second opinion from another appropriate professional.

Reference
1
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582

DDU Guide 23
 3.9
Consent and children aged 16-18

The age at which children are deemed capable of giving consent for dental Our advice
treatment in England and Wales1, Scotland2, and Northern Ireland3 is 16. Although there is no legal requirement
to do so, if a 16 or 17-year old needs
Key points to undergo major or hazardous elective
surgery, you may wish to discuss the
1. In England and Wales, while children remain minors until they are 18, once a
treatment with the parents, subject to
child reaches the age of 16, they are deemed to be capable of consenting to
the patient’s permission.
treatment as if an adult.
2. In all cases, treatment should only be given if it is in a child’s best interests.
3. Valid consent of a child over 16 cannot be overridden by a refusal from those
with parental responsibility. However, in some cases a refusal of consent by a Checklist
child over 16 can be overridden by a child’s parents or guardians or by the court.
(See section 3.10 Consent and children under 16). If a child is aged 16 or 17 have you:
• obtained informed consent from
the patient?
• asked for permission to discuss
their treatment with a parent
or someone with parental
responsibility if you believe such a
discussion is appropriate?
• recorded their permission and your
discussions in your notes?

References
1
Family Law Reform Act 1969, section 8
2
Age of Legal Capacity (Scotland) Act 1991
3
Age of Majority Act (Northern Ireland) 1969, section 4(1)

24 DDU Guide
 3.10
Consent and children under 16

Children under 16 can give valid consent to treatment if they are Our advice
competent. This was confirmed by the House of Lords in the 1985 Gillick Even in the case of Gillick-competent
judgment1. children, you may wish to encourage
children to discuss decisions concerning
Key points their health with their parents or carers.

1. The ability to give valid consent will depend on a child’s maturity and ability to
understand what the treatment involves. To be Gillick-competent, a child must:
• understand the nature of the proposed treatment, its consequences and the
alternatives, including no treatment
Checklist
• retain that information
• If your patient is under 16 years of
• use or weigh up that information in making a decision
age, have you considered whether
• communicate that decision.
they are Gillick-competent?
2. If a child is not Gillick-competent, authority to treat may be given by someone • If you assess the child as
with parental responsibility under the Children Act 1989. (See overleaf:
competent, have you asked the
Parental responsibility).
patient’s permission to discuss
3. You should not delay emergency treatment required to save life or prevent their treatment with a parent?
serious harm if you are unable to get authority from an adult with parental • Do you know who has parental
responsibility.
responsibility?
4. In deciding whether to treat, your overriding consideration must always be what is • If you assess the child is not
in the best interests of the child. Gillick-competent, have you
5. If one person with parental responsibility authorises treatment, it is not usually obtained authority to treat the
necessary to obtain the authority of another person with such responsibility. In patient from someone who has
non-urgent cases, where there is a dispute, it would be wise to seek a resolution parental responsibility?
that is in the child’s best interests. If the parents are separated or divorced,
and the child is not yet competent to authorise disclosure, information may be
disclosed to either parent if it is in the child’s best interests, unless the court has
removed parental responsibility from the parent.

Reference
1
Gillick v West Norfolk and Wisbech AHA (1985) 3 All ER
402-437

DDU Guide 25
Parental responsibility*
Births registered in England and Wales
A child’s natural parents both have parental responsibility if they were married at
the time of the birth or marry later.
A father who is named on the birth certificate will usually have parental
responsibility if the child was born on or after 1 December 2003.
If a child was born prior to December 2003, and the parents were unmarried, then
only the mother has automatic parental responsibility. However, under Section 4 of
the Children Act 1989, if the child’s father is not married to the mother he may
acquire parental responsibility if he becomes registered as the child’s father, or
makes an agreement with the mother (including by marriage), or by a court order.
Section 4A of the Act, provides for step-parents to acquire parental responsibility
in certain circumstances.
Births registered in Scotland
A father has parental responsibility if he is married to the mother when the child
is conceived, or marries her at any point afterwards. An unmarried father has
parental responsibility if he is named on the child’s birth certificate (if the child was
born on or after 4 May 2006).
Births registered in Northern Ireland
A father has parental responsibility if he is married to the mother at the time of the
child’s birth. If a father marries the mother after the child’s birth, he has parental
responsibility if he lives in Northern Ireland at the time of the marriage.
An unmarried father has parental responsibility if he is named, or becomes named,
on the child’s birth certificate (if the child was born on or after 15 April 2002).
Same- sex parents
• Civil partners: same-sex parents who were civil partners at the time of the
treatment will both have parental responsibility.
• Non-civil partners: for same-sex parents who aren’t civil partners, the second
parent can either:
- apply for parental responsibility if a parental agreement was made
- become a civil partner of the other parent and make a parental
responsibility agreement or jointly register the birth.
Reference
*www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility

26 DDU Guide
 3.11
When consent to treat a child
is refused

Occasionally, a Gillick-competent child or an adult with parental Our advice

authority may refuse to consent to or authorise treatment. Where parents’ wishes conflict with
reasonable clinical practice and are
Key points not in the best interests of a child, you
ought not to proceed with treatment. A
1. Children aged 16 and 17, or a Gillick-competent child, do not have an absolute
second opinion is strongly advised, and
right to refuse treatment. Their refusal will not override authorisation by someone
you may need to make an application to
who has parental responsibility for the child, or the court. (See section 3.10
the court.
Consent and children under 16).
You should consider all significant
In deciding whether or not to treat a child in such circumstances, your
factors when assessing a child’s best
assessment of whether it is in the child’s best interests to treat against their
interests, including the appropriateness
wishes should include:
and availability of alternative measures.
• the age and emotional development of the child
• the nature and consequences to the child of the proposed treatment
• the effect on the child of imposing treatment against their wishes
• the nature of the condition and the consequences to the child if untreated.
Checklist
2. It may be unlawful for a dental professional to treat a child who is not
considered Gillick-competent against the wishes of a parent or guardian. • If a child under 16 presents for
3. If failure to treat immediately would result in death or permanent injury, examination without an adult, or
you may conclude that treatment is justified and in the child’s best interests, with an adult who does not have
in spite of a refusal to consent. You should consider the possibility of obtaining parental responsibility, is the child
a court order. Gillick - competent and should
4. An application can be made for a specific issue order to carry out treatment you seek the parent or guardian’s
without parental authority under Section 8(1) of the Children Act 1989. authority to proceed?
Generally, a court asked to override parental authority will proceed cautiously. • Have you kept a record of the
If you find yourself in this situation, call us. assessment and the decision in the
patient’s clinical notes?

DDU Guide 27
3.12
Children in care

The Children Act 1989 makes a clear distinction between children who Our advice
are the subject of a care order and those who are being looked after on a When considering major treatment on a
voluntary basis. child who is the subject of a care order,
it may be wise to seek the authority of
Key points others with parental responsibility, as
well as the local authority. In any event,
1. When a child is the subject of a care order, the local authority has parental you should seek the child’s consent
responsibility and can authorise treatment on the child’s behalf. However, the when they are capable of giving it.
order does not deprive the child’s parents of responsibility or ability to authorise
treatment.
2. Where the local authority and parents both have parental responsibility, the local
authority can decide the extent to which a parent or guardian may exercise Checklist
their responsibility. The local authority’s responsibility may override that of the
parents, where this is necessary for the child’s welfare. • If examining or treating a child in
care, do you know who has parental
3. When major procedures are being considered for a child who is the subject of responsibility?
a care order, the local authority is likely to involve the parents in the decision.
4. The local authority does not have parental responsibility over children who are
being looked after on a voluntary basis. You should seek consent from the
child under 16, if Gillick-competent, or authority from someone with parental
responsibility for the child, before starting non-emergency work.

28 DDU Guide
 Member story
It was alleged
I failed to obtain adequate consent
I provided an emergency consultation
to a new patient complaining of severe
pain in the upper right quadrant of her
mouth.
After examination I found the UR8
acutely tender to percussion. The other
teeth looked sound. I took bitewing and
periapical radiographs which revealed a
large carious lesion in UR8. I diagnosed
acute apical periodontitis and offered
the patient the option of a root filling
and restoration. The patient requested
extraction, which I carried out under
local anaesthetic.
The following Saturday afternooon, the
patient requested another emergency
consultation. I agreed to see her
privately without charge.
In the surgery the patient complained
of localised pain in the right side of her
mouth that responded to hot and cold.
I examined her and found that none
of the upper or lower teeth was tender
to percussion but the UR6 responded
positively to an ice stick, with lingering
pain. A fracture line was clinically
visible in this tooth and the evidence
of a pulpitis suggested that this
communicated with the pulp. As before,
I gave a choice of root canal filling and
restoration at a future time, but the
patient chose to have an extraction.
A year later, solicitors acting for the
patient began pursuing a claim for
compensation. They alleged that I failed
to properly assess the cause of pain
on the second visit and the UR6 was
extracted inappropriately. They also
alleged I failed to obtain valid consent
to this extraction as no alternative
treatment options were discussed.
The solicitors asserted that the most
likely cause of the patient’s pain at
the second visit was post-operative
inflammation following the UR8
extraction. They said that application
of an ice stick did not support a
diagnosis of irreversible pulpitis and
the radiographic evidence did not
suggest a fracture line.
The patient contended that if she had
been aware that root canal treatment
was an option, she would have chosen
this to avoid losing another tooth.
How we helped
We sought expert clinical advice. This
confirmed that hypersensitivity to
cold remaining after the stimulus was
withdrawn was a classic presentation
of irreversible pulpitis that would
require either root canal treatment or
extraction of the tooth. It was unlikely to
be associated with a nearby extraction
socket.
Our expert noted that the member had
recorded within his contemporaneous
notes his observation of a fracture and
that this was consistent with a moderate
occlusal amalgam restoration previously
in UR6. Our expert also confirmed
that a fracture line in a molar tooth is
almost never in the plane of an x-ray
beam and so a radiograph would not be
diagnostic on its own. The ice stick test
together with the previous radiographs
and clinical observation adequately
confirmed the member’s diagnosis.
While the member failed to specifically
record that root canal treatment was an
option for UR6, he maintained that the
patient had been made aware of this
option. In our assessment of the case,
we considered that even if a court found
that the option had not been discussed,
it was unlikely that the patient would
have chosen this treatment option.
She was apparently not in a position
to fund ongoing private treatment and
her pain was sufficient for her to seek
an emergency private consultation on a
Saturday afternoon.
We also noted that the patient had
previously lost LL6 and UL6.
With the member’s agreement, we
strongly denied liability. The solicitors for
the patient subsequently confirmed that
they would not be pursuing the matter.
DDU Guide 29
4
Dental records
Dental records are an
essential clinical tool for the
dental professional.
The purpose of records is to
provide:
• an accurate picture of
A patient’s records may patient treatment and
include: care which can be used at
• clinical notes every consultation
• radiographs • a means of professional
• consent forms communication e.g.
• photographs between the various
• study casts members of the dental
• audio or visual recordings team, and between
of consultations members of the dental
• laboratory prescriptions team and other healthcare
• statements of conformity professionals.
• referral correspondence
• investigation reports
• NHS forms.

30 DDU Guide
 4.1
Keeping good records

Records are an essential part of patient care and can provide evidence if Our advice
your standard of care is called into question. Try to avoid the use of abbreviations
as far as possible as they may be
Key points misinterpreted or misunderstood.
1. Good patient records follow the four Cs.
Use one system of dental charting
a. Contemporaneous - records should be made at, or very close to, the time of
(Palmer notation, FDI notation or
the examination, treatment, observation or discussion, and they should be
another) consistently throughout the
dated and signed legibly.
records.
b. Clear - records should be written carefully, so that they can be understood by
anyone who may need to read and interpret them. Check dictated and typed notes, or
c. Concise - records should be just long enough to convey the essential notes made by somebody else on your
information. behalf e.g. notes by a dental nurse on
d. Complete - all aspects of a patient’s visit should be recorded. This includes: behalf of a dentist. Any errors on paper
- presenting complaints records should be crossed out with a
- histories (medical, dental and social) single line and the correction hand-
- dental charting written alongside the error. The notes
- findings on examination, including negative findings (e.g. no teeth tender to should be dated and signed legibly by
percussion) the dental professional who dictated
- diagnosis them.
- discussions about treatment options and risks
- agreed treatment plan
- consent to treatment
- treatment given Checklist
- mishaps and complications.
2. Request forms, such as those for pathology reports or radiographs, should be • Is your handwriting, including your
completed clearly with adequate detail, dated and signed legibly. signature, legible?
• Are all notes, including all
3. All reports should be seen, evaluated and initialled before being filed, with any
amendments to the notes and
abnormal results noted in the clinical record and any action recorded.
contributions from others, signed
and dated?
• Have all contributions from third
parties, including reports, been
evaluated and initialled before being
filed?

DDU Guide 31
 4.2
Computer-held records

The same dento-legal requirements apply to digital records as to Our advice

manual records. Check that the specification of a
computer system or software allows you
The ‘four Cs’ – that notes are contemporaneous, clear, concise and complete –
to fulfil your data protection obligations
remain essential requirements of a computer-held record. (See section 4.1 Keeping
before using or purchasing it.
good records).
For dento-legal purposes, your computer software should be capable of producing a
hard copy of records and radiographs. It also needs to be capable of producing a full
audit trail of record creation and modification. Checklist
Key points • Is your IT system adequately
1. Extra care needs to be taken when completing, or making modifications to, protected from unauthorised access
electronic records to ensure the author, e.g. the dentist, locum or dental care e.g. is it protected with the use of
professional, is clearly identified. strong passwords and is the data
encrypted?
2. Every time a record is created or an existing record is modified the date must be
recorded on the system. • Is your software dento-legally
compliant e.g. does it allow you to
3. Computer-held records must be robustly protected against unauthorised produce hard copies of records?
or unlawful access. They should also be protected against accidental loss,
including corruption, damage or destruction through regular backups. If sending • Does your system provide a full audit
confidential information, a secure method should be used. trail?
• Do you regularly back up your
4. The storage of patient identifiable data on personal mobile devices should be
electronic records and check that
avoided. The Department of Health has said that ‘the movement of unencrypted
data held in electronic format should not be allowed in the NHS’ and ‘wherever your back-up is working correctly
possible, person identifiable data should always be stored on a secure server.’ and you are able to retrieve/restore
records if necessary?
5. Familiarise yourself with your workplace information security policy, including
• Do you hold a back-up of your
the name of the person in charge of data security and follow practice or trust
procedures, for example, on the use of laptops and portable data storage. electronic files in secure off-site
premises?
6. Computer-held records may be difficult to delete completely from a hard drive
and appropriate IT advice should be sought about data destruction before
disposing of computer hardware.

32 DDU Guide
4.3
Data protection legislation

The Data Protection Act 1998 (DPA) applies to dental records and Our advice
dental professionals must abide by its principles. Dental professionals should publish
key points about the uses of patient
The DPA states that it is important that records are:
information and give information about
• accurately created
patients’ rights under the DPA in their
• carefully and securely maintained
practice information material.
• disposed of appropriately.
The DPA also gives patients a right to access their records, both paper and
computer, including stored radiographs. Dental professionals can only limit or deny
access if, in their view, disclosure would: Checklist
• be ‘likely to cause serious harm to the physical or mental health or
condition of the data subject or any other person’ • Is a patient’s right of access to their
• give information about a third party, other than healthcare professionals involved records outlined in your practice
in the treatment, unless that other person consents. literature?
If a patient asks to see their records, under Section 7 of the DPA they have a right to • Are all members of the dental
access personal data held about them. team trained in relation to their
professional and legal obligations
Dental professionals who control patient records are obliged to disclose a patient’s
dental record to that patient. Before doing so, they must have the patient’s written concerning clinical records?
request or have satisfied themselves of the authority of any person making a • When disclosing records to a
request, if that person is not the patient. patient, have all named third
parties, other than healthcare
Disclosure must take place as quickly as possible or in any event within 40 days
of receipt of the request. If the patient (or an authorised representative) wishes to professionals involved in the
have copies, a fee can be charged – currently up to £50 for hard copy records (or patient’s treatment, consented to
a combination of hard copy and electronic) or £10 for electronic records to cover the disclosure?
reasonable copying charges.

Key points
1. Patients must be told of, and consent to, information being recorded about
them, including visual and audio recordings.
2. If a patient observes you making a note and co-operates with you to provide
information, that can be taken as implied consent but it is unlikely to be sufficient
for wider information sharing.
3. Patients should be told what will happen to the data you hold about them,
including when and how it is destroyed.
4. Patients and their authorised representatives have a right to access their
records.
5. There is a statutory 40-day disclosure period.
6. Hurt feelings or simple anxiety are not sufficient reasons to deny patient access
to the records.
7. You can charge for providing copies of patient records.

DDU Guide 33
 4.4
Retaining and destroying records

Complaints and claims for clinical negligence can arise many years after Our advice
treatment and, in the absence of records, it may be difficult or impossible We recommend that you retain patient
to defend an allegation successfully. records longer than two years and
ideally, indefinitely. This includes
The NHS General Dental Services contract (Schedule 3, part 5 paragraph 32) radiographs, photographs, study casts,
requires the contractor to keep patient records for up to two years after a course of referral correspondence, investigation
treatment has finished. reports and NHS forms.
Holding on to patient records for longer than two years may prove a vital part of your If you do need to destroy records, be
defence should you receive a claim under the Consumer Protection Act 1998. sure that they are no longer needed for
This Act allows claims in respect of defective products for up to 10 years and claims dento-legal purposes. We recommend
in contract for up to six years. that you indefinitely retain records
where there has been any adverse
Key points incident or complaint, even if it was
1. As an absolute minimum, NHS and private clinical records1 should be retained satisfactorily resolved at the time.
for: Electronic records can be especially
a. 11 years after the last entry for adults difficult to destroy and we recommend
b. 11 years after the last entry for children or until they reach age 25 years, that you seek specialist IT advice.
whichever is the longer.
2. The way in which you store your records should comply with a patient’s legal right
to confidentiality and your professional obligation to respect confidentiality. Checklist
The GDC’s guidance Standards for the Dental Team (2013) paragraph 4.5.1
states: ‘You must not leave records where they can be seen by other patients, • Have you a safe and secure method
unauthorised staff or members or the public.’ (See section 2.1 Your obligations). of storing your clinical records for
3. Record disposal should only be carried out in a way that protects patient lengthy periods of time?
confidentiality e.g. shredding paper records. • Have you reviewed all records you
intend to destroy and kept those
involving any adverse incident,
complication or complaint?

Reference
1
Records Management, NHS Code of Practice, Part 2 -
DoH (January 2009)

34 DDU Guide
 4.5
Patient rights

Patients have a right to access their records under the Data Protection Our advice
Act 1998 (DPA). If a patient insists on removing a
radiograph from the records, they
Ownership should be advised that they are then
NHS hospital and community dental service records are the property of the responsible for the radiograph’s safe-
appropriate trust or health board. keeping. They should be informed that
if they lose it, any dentist treating them
NHS General Dental Services (GDS) records are arguably the property of the
in the future will not have the clinical
individual contractor and/or primary care organisation. NHS authorities have certain
benefits of access to it. The fact that the
rights of access to these records under NHS regulations.
patient has taken the radiograph should
Dental records for private patients are the property of the individual dental be recorded in the notes.
professional or practice. The legal position of the ownership of private patients’
Any disagreement over factual matters
radiographs is, however, uncertain. It can be argued the patient has paid for the
in the records should be noted, signed
report or opinion from the radiograph, and not for the film itself. But patients may
and dated in the records.
claim that as they have been charged, the film is their property, even though the
dental professional may retain it with all the other elements of that patient’s records.

Access and accuracy

Patients have a right to access their records under the DPA. They are also entitled
Checklist
to challenge the validity of records and to have factual errors corrected. (See section • Is patients’ right of access to their
4.3 Data protection legislation). records outlined in your practice
literature?
Key points
1. Patient records, both private and NHS, are not the patient’s property. Patients are
not entitled to take possession of the originals.
2. Patients have a right under the DPA to view their original records and to have
copies of them.
3. A patient cannot stipulate the content of their records.
4. Dental professionals do not have to agree to requests for amendments or
deletions, except to correct a factual error.
5. An entry in the patient’s records should not be amended simply because the
patient does not like it.

DDU Guide 35
 4.6
Record disclosure

Seeking patient consent to disclose any information about them is part of Our advice
a dental professional’s legal and professional duty of confidentiality, and If information about a patient is to be
important to the relationship of trust with the patient. disclosed against their wishes, the
patient should be informed of this before
Consent disclosure, unless this increases the risk
If a patient’s identifiable personal data is to be disclosed, you must obtain their of serious harm or death to the patient or
express consent, preferably in writing, unless disclosure falls within one of the legal others. Before releasing information, call
exemptions where disclosure can be made without consent. our dento-legal advice line.
Public interest If a school asks for confirmation that
If a patient withholds consent to disclosure, is not competent to give or withhold a pupil has booked or attended dental
consent, or it is difficult to obtain, information may only be disclosed if it can be appointments, you should not disclose
justified as being in the public interest or the best interest of the patient e.g. where this information without the appropriate
the patient is at risk of significant harm. Dental professionals should document their consent of the patient or parental
efforts to obtain consent and their reasons for disclosing information, which should authority in the case of children who
be the minimum needed for the purpose. are not Gillick-competent.
Children If disclosure is considered necessary to
Children aged 16 and over enjoy the same rights of confidentiality as adults. The protect the patient or members of the
confidentiality of Gillick-competent1 children, who are capable of understanding the public from a risk of serious harm or
significance of disclosure of their records, should also be respected, though they death, you should consider the possible
should be encouraged to involve parents or guardians. (See section 3.10 Consent harm to the patient, and patient-dentist
and children under 16). relationship, against the benefit of
Deceased patients releasing the information.
The duty to respect patient confidentiality extends beyond a patient’s death.
Information, such as dental chartings and radiographs, can normally be disclosed to
help identify a deceased patient as this would be justified as in the public interest.
Otherwise, authority will need to be obtained from an executor of the patient’s will, Checklist
personal representative or next-of-kin. Anyone with a claim arising out of a patient’s
death may be entitled to see the patient’s dental records under the Access to • Before disclosing any confidential
Health Records Act 1990. (See section 2.1 Your obligations). information, do you have the
patient’s consent to disclosure,
Third parties
preferably in writing?
Dental professionals may be asked to disclose a patient’s dental records, and/or
submit a formal written report (see section 5.4 Professional witness dental reports)
to certain individuals and authorities. These include relatives and carers, other
healthcare workers, NHS bodies, social services, the police, solicitors, the courts
and other tribunals. The principles of patient confidentiality apply and generally
the patient will need to give consent. (See section 2.2 Releasing confidential
information).

Key points
1. Full, and preferably written, consent is required for all disclosures of identifiable
personal data unless disclosure is in the public interest or the best interest of the
patient.
2. For consent to disclosure of records to be valid, the patient must understand:
a. to whom the information will be disclosed
b. precisely what information will be disclosed
c. the purpose of the disclosure
d. the significant foreseeable consequences
e. that relevant information cannot be concealed or withheld, except in
exceptional circumstances.
f. children aged 16 and over, and Gillick-competent children, enjoy the same
rights of confidentiality as adults
g. the duty to respect patient confidentiality extends to deceased patients.
Reference
1
Gillick v West Norfolk and Wisbech AHA (1985) 3 All ER
402-437

36 DDU Guide
 Member call
Can I alter the records?
I have taken over the patient list
of a retired dentist at my practice.
One of my new patients has asked
me to delete an entry in his dental
record. The entry says the patient
has not been following the dentist’s
instructions but the patient says this
is not true. What should I do?
Our response
A patient is entitled to challenge the
accuracy of records and to have any
factual errors corrected under the
Data Protection Act 1998 (DPA).
However, you are not obliged to
amend an entry simply because a
patient does not like it.
In this case, you are not in a position to When factual errors do need to be
know the circumstances that led your corrected in paper dental records,
predecessor to make this entry in the strike through the entry with a single
records or to assess the nature of the line and insert the correct information
dentist-patient relationship. It would be a alongside. This should then be dated and
good idea to discuss with the patient why signed legibly. Due to the variability of
he feels the entry requires amendment computerised record systems, we would
but you should exercise extreme caution recommend making an entirely new entry,
before agreeing to make any alteration to correcting the previous one.
a record.
In general, it would be inappropriate to
alter an entry made by a colleague. You
can however offer to include the patient’s
comments alongside the entry. Make it
clear to the patient what you can and
cannot do and ensure you keep a note of
the discussion for the record.
DDU Guide 37
5
Reports and court
appearances
As a dental professional, This request to be a witness
you may be asked to be a may be:
professional witness. In • for a written report or
this capacity, you provide statement
evidence about a patient • as a witness before a court
who may be someone you or tribunal.
have treated recently or
some time ago.
Alternatively, you may be
asked to act as an expert
witness and to provide
advice, and possibly give
evidence, about someone
with whom you have had
no previous professional
relationship.

38 DDU Guide
 5.1
The professional witness

As a dental professional you may be asked to be a professional witness Our advice

for one of your patients. This is also called a witness to fact. The Fees for acting as a professional
role involves reporting the facts of your professional dealings with the witness for a patient or their solicitor
should be agreed in advance, preferably
patient. in writing.
Those who might request you to be a professional witness include:
Always seek our advice if you need to
• patients
write a report or give evidence on your
• patients’ representatives, such as solicitors
own behalf.
• other dental professionals or their representatives
• the police
• insurance companies
• employers
• the General Dental Council (GDC).
Checklist
In some circumstances you have the choice whether or not to comply whilst in other • Do you understand the basis on which
circumstances you may be legally obliged to comply. For advice on your individual you are acting as a professional
circumstances please call our dento-legal advice line. witness?
• If you have received a court
Key points summons, have you called our
1. A dental professional who is served with a court witness summons to appear in advice line to check that it has been
court as a professional witness is legally obliged to comply with the summons. properly served?
2. In court, professional witnesses usually attend to give their evidence only and do
not listen to the evidence of other witnesses.
3. A professional witness has a professional and ethical duty to provide a factual
report on any involvement with the patient concerned. (See section 5.4
Professional witness dental reports).
4. If the report is requested by a patient or their solicitor, you are entitled to seek a
reasonable fee for preparing the report.
5. Where reports are requested by the police, or anyone other than the patient
or the patient’s solicitor with the patient’s consent, it is important to ensure
that it is appropriate to disclose the information and to consider whether the
patient’s consent is needed. If the report is requested by the police, as a witness
statement or in connection with criminal proceedings, no fee is usually payable,
though expenses for attending court are paid.
6. If a professional witness is compelled to give a report they are usually paid a
standard, non-negotiable fee.

DDU Guide 39
 5.2
The expert witness

Expert witnesses assist the court on matters that require particular Our advice
expertise. They are typically asked to give opinions on facts provided by We recommend that you do not act as
others and are expected to be entirely independent and impartial. They an expert witness in the same case
in which you are, or might be called
should never have treated the patient in the past and should not treat upon to be, a professional witness. We
them in the future. recommend that you do not agree to act
Those who might request you to act as an expert witness include: as an expert witness if you have ever
• patients treated the patient.
• patients’ representatives, such as solicitors You should not accept a patient for
• other dental professionals or their representatives treatment if you are acting as an expert
• the police witness in a case involving that patient.
• insurance companies
• employers Seek our advice if you need to write a
• the General Dental Council (GDC). report or give evidence.

Key points
1. A dental professional becomes an expert witness by request from a third party Checklist
and by choice, and must be independent.
2. There is no obligation to act as an expert but, once instructions have been • Are you clear about the basis of
accepted, there is a duty to act until the case is concluded. your instructions? Are you being
approached as a witness to fact or an
3. The expert witness may be asked to give an opinion in written or oral form, expert witness?
based on the facts of the case, on questions of:
a. current condition and prognosis • What is the legal basis upon which
b. breach of duty (in negligence cases) questions of breach of duty and
c. causation i.e. whether or not an alleged injury, loss or damage was caused causation are determined?
by the event about which the patient is complaining. • Do you have sufficient experience
This may involve examining the patient and/or reviewing the dental records made so that you are properly qualified to
by other dental professionals. speak about the particular area of
dental practice on which you have
4. The expert’s duty to the court overrides the contractual obligation to the
been asked to give evidence?
person instructing them.
• Have you checked that you do
5. In a court hearing, expert witnesses may listen to the evidence of other not have a conflict of interest in
witnesses before giving evidence themselves. providing a report e.g. have you been
6. The Criminal Procedure Rules, (Part 33)1 sets out the requirements for those instructed by another party, or has
giving expert evidence in criminal cases. the patient been treated at your
7. Witnesses in civil cases should be familiar with the requirements of the civil practice, even by a colleague?
procedure rules affecting experts in England and Wales. See The Civil Procedure • Are you sure you can comply with
Rules Part 35 (Experts and assessors)2 and the Practice Direction - Experts and the deadlines requested? A delay in
Assessors Part 353. reporting may prejudice a case and
may leave you open to criticism from
the court and/or the GDC.

References
1
http://bit.ly/procedurerules
2
http://bit.ly/Part35
3
http://bit.ly/practicedirection35

40 DDU Guide
 5.3
Records and other documentation

Records can be critical in establishing the facts in a court case. Our advice
We suggest you call our advice line
Key points before disclosing confidential patient
1. Unless you have been ordered by the court to disclose a patient’s clinical records, information.
or other information, you will need to seek the patient’s consent to release their Reports and statements obtained
records. (See section 2.2 Releasing confidential information). for the purposes of litigation and
2. When a court or solicitor requests access to a patient’s dental records, all the associated correspondence concerning
documents must be disclosed in their entirety, not just those considered them should be kept separately from
relevant. You must ensure that you do not release third party confidential a patient’s dental records to prevent
information or any information that may harm the patient. If you decide not to accidental disclosure.
disclose such information, you will need to make it clear that it has been withheld
and explain why.
3. If, as a result of your involvement in a case as a witness or expert, you have
received reports and statements obtained for the purposes of litigation and
Checklist
associated correspondence, they are covered by legal privilege. They may not be • Do you have appropriate consent to
disclosed, other than to the parties to the proceedings.
disclose the records?
4. If you have received dento-legal reports concerning a case in which you are not • If you are disclosing records, have
acting as witness, you are entitled to accept the reports as being sent to you for you ensured you are disclosing them
your information as the treating dentist. They may be filed with the patient’s
in their entirety e.g. radiographs
records.
and reports?
• Have you checked that no
correspondence concerning your
report and statement has been
mistakenly included in the patient’s
records which are to be disclosed?

DDU Guide 41
 5.4
Professional witness dental reports

A dento-legal report is more complex than a clinical report. Writing it Our advice
correctly may minimise any requests to you for clarification. If a report Make sure your report is as detailed
clearly and logically describes your total involvement with the patient, as possible. Avoid using jargon as your
report will almost certainly be read by
you are less likely to be called upon to have your evidence tested in court. people who are not dental professionals.
If you have to use jargon, explain the
Key points terms used so that a lay person will
1. The report should include, as appropriate: understand them. Check your report
• the patient’s complaints on presentation carefully before you send it.
• the patient’s histories (medical, dental and social)
• examination findings, including any special tests
• diagnosis and treatment plan
• treatment given, including any mishaps or complications Checklist
• details of costs
• any further treatment proposed and the cost. • Have you identified yourself on the
2. Your report must be based on first-hand evidence. The emphasis must be on report, using your full name and
your findings or discussions with the patient, rather than on their history. writing out your professional dental
qualifications in full?
3. The report should specify which details are based on memory, which on
• Have you specified the nature of
contemporaneous notes, and which describe your ‘usual practice’. Just provide
the relevant information. It is not necessary to reproduce the clinical notes of your professional relationship with
each and every consultation. the patient e.g. private or NHS,
clinical or forensic or a combination
4. It is important to include negative information i.e. not only what you found but of both?
also what you looked for but did not find.
• Have you stated who requested the
5. State whether the patient was seen alone or accompanied by another individual report, naming the individual or
during each consultation. Give the name and status of the other individual. organisation concerned?
6. Be as thorough as possible. Include all your relevant personal information and • Unless you are under a court order,
background details to the report. List all documents used or relied on. If a drug have you sought and obtained the
is mentioned, say what type it is, give its full generic name, dosage and route patient’s consent when providing a
of administration and avoid abbreviations. Do not assume the reader has any report or disclosing their notes?
background knowledge of the case – or even of dentistry.
• Have you taken care not to breach
7. Write in the first person. The reader needs to be clear who did what, why, when, the confidentiality of third parties?
to whom, and how you know what occurred. Use the active voice i.e. “I examined
the patient” rather than “the patient was examined”.
8. Be professional. Your report should be typed, ideally on headed paper, with full
postal address and work telephone number.

42 DDU Guide
 5.5
Court appearances

Many dental professionals are called to give evidence in court. This may Our advice
be in the criminal or civil courts, or sometimes the coroner’s court. It is Where a patient has not provided
more common to be called as a professional witness (witness to fact). consent for your attendance at court
to give evidence about them, then
Key points unless some exception to the general
obligation of confidentiality applies,
1. A professional witness can be compelled by a court witness summons to give you should insist upon a court witness
evidence in court. summons and inform the requesting
2. For a summons to be valid, it needs to be properly issued and to be solicitor or police officer accordingly.
accompanied by ‘conduct money’ (travel costs). It can be sent through the post. If asked a question in court which risks
Sometimes, solicitors will send you a copy of their application for a summons a breach of confidentiality, explain this
to the court. This is not the same thing as a summons and does not necessarily to the coroner, presiding magistrate,
indicate that a summons has been granted. Distinguishing between the two judge or chairman of the tribunal. Only if
can be difficult and if in any doubt, call for our advice. the presiding officer of the court directs
3. If attending voluntarily, there is no need to be summoned. Volunteering the breach of confidentiality, can you
to attend may give greater flexibility in negotiating a suitable date and time. disclose confidential information without
However, you may prefer to be summoned. consent from the patient.

4. Take the original contemporaneous paper records, or a print-out of electronic Listen carefully to the questions and
records to court. The court will probably allow you to consult these records think before replying. It is important to
when you are in the witness stand. tell the court if something is beyond
your level of experience or area of
5. If you are giving oral evidence in a criminal matter, the court will probably not expertise.
allow you to look at any non-contemporaneous report, including reports prepared
at the request of the patient’s solicitor. However, you can consult a copy of the
report just before entering the witness stand.
6. In civil cases in England and Wales it is usual for witnesses to have access to Checklist
their reports when giving evidence.
• Do you understand the reason why
7. Even when giving evidence under oath in court, you have an ethical duty to you are making an appearance at
maintain patient confidentiality. You can only breach this if directed to do so court?
by the court.
• Have you received patient consent
8. Give the court only relevant information that explains your understanding and for information to be disclosed to
interpretation. The court is most interested in hearing first-hand evidence – the court?
that is, professional observations and understanding of a case, rather than what
the patient said word-for-word.
9. Any evidence provided may be challenged. Be prepared to explain not only
what you found, but also what you asked, and what you looked for but did not
find. If you have not made a note of this ‘negative information’, it is acceptable to
quote from memory or to state what your ‘usual’ or ‘normal’ practice would have
been in the circumstances, making it clear you are speaking on that basis.
10. Giving evidence can be a daunting experience. However, you should strive to:
a. maintain your professional composure
b. answer only the question asked
c. keep answers concise and to the point (‘yes’ and ‘no’ can suffice)
d. address your answers to the presiding officer, judge, tribunal or jury.

DDU Guide 43
6
Complaints
Even the most careful
and competent dental
professional is likely to
It is also important to learn
from complaints in order
to prevent or minimise the
receive a complaint about risk of similar problems
the quality of the service, happening again.
care or treatment they have
provided, at some point in
their career.
The GDC expects dental
professionals to have a clear
and effective complaints
procedure so that patients
who complain receive a
prompt and constructive
response.

44 DDU Guide
 6.1
Complaints - general observations

Most dental professionals will receive a complaint from a patient at some Our advice
time in their career. Keep patients informed at all times
about mishaps or complications
Key points that arise during treatment, about
appointments running late and any other
1. Our experience suggests there are two main underlying causes for most
aspects of treatment or service that may
complaints:
lead to dissatisfaction. A prompt and
a. the patient is dissatisfied with some aspect of treatment or service
frank explanation is also advisable.
b. there has been a failure to meet the patient’s needs or expectations.
Offer a genuine apology to any patient
2. Factors that can trigger a complaint may include:
who has had the misfortune to suffer
a. the attitude of the treating dental professional or another member of the
through an error of whatever nature.
dental team
Saying sorry is not an admission of
b. time-keeping for surgery appointments
liability and may be all the patient wants.
c. the standard of treatment provided
d. the basis on which treatment was provided (NHS or private) was unclear
e. fees and charges.
3. Patients who complain often want one or more of the following: Checklist
a. an explanation of what has happened and why
b. an assurance that it won’t happen again, to them or anybody else • Do you have a written in-house
c. an apology - a sincere expression of regret and empathy complaints procedure?
d. remedial treatment, either by the dental professional or by referral to an • Are all members of the dental team
appropriate colleague inside or outside the practice
familiar with the practice complaints
e. an ex-gratia payment or goodwill gesture e.g. waiving or refunding the
procedure and their role in helping
fees paid.
to address complaints?
4. Clear communication between dental professionals and patients, and between • Is the complaints procedure
members of the dental team, can often help to avoid complaints or resolve them
displayed within the practice?
at an early stage.
• Does your practice have in place
5. If the complaint relates to NHS treatment in England, it should be addressed processes to ensure that all
through the NHS and social care complaints procedure. (See section 6.3
complaints are analysed?
The NHS and social care complaints procedure – an introduction).
• Is there a process to ensure that the
6. If the complaint relates to private treatment, or a mixture of NHS and private practice takes all practicable steps
treatment, the practice should seek to resolve it through its in-house complaints to reduce the risk of complaints
procedure. If the patient is not satisfied, they can then complain to the
recurring?
parliamentary and health service ombudsman about the NHS part of the
treatment and to the Dental Complaints Service about the private element.
(See section 6.7 Private complaints).
7. Every member of the dental team can learn something from a complaint. (See
overleaf: Learning from complaints).

DDU Guide 45
Learning from complaints
Dental practices should consider analysing all complaints as part of their adverse
incident reporting procedure and take steps to prevent or reduce the risk of a
similar incident happening again.
Sensitive, prompt and careful handling of a complaint can increase the prospects
of early resolution.
For complaints that are more complex, perhaps involving more than one member
of the dental team, the practice could hold a significant event meeting to:
• discuss the complaint in detail
• analyse what went wrong, if anything, and make any changes necessary
• share details of action taken with the dental team to ensure the problem is not
repeated.
This process is also helpful in encouraging the practice as a whole to adopt a
positive and open approach to complaints.

46 DDU Guide
 6.2
Effective complaint handling

There are many steps you can take to resolve a complaint as quickly and Our advice
efficiently as possible. Often speed, sympathy and a willingness to listen Ensure your response addresses all the
are all that are necessary to resolve concerns. significant points raised in a complaint
and also offers a suitable solution for
Key points each one.

1. Do not react defensively to complaints. They should be dealt with calmly and If a complainant is seeking financial
constructively, in line with the local complaints procedure. compensation, contact us for advice.

2. If a patient makes a verbal complaint, spend a few minutes discussing it there

and then. If other patients are waiting, arrange a further appointment.
3. Patients are entitled to make their complaint orally, when a written record of it Checklist
should be made by the member of staff receiving the complaint. They should
not be asked to put their complaint in writing, which only risks escalating the • Have you offered the patient
complaint. an initial discussion to plan the
investigation?
4. If a patient phones the surgery to complain, try to arrange a face-to-face
meeting to discuss the matter. Answering a complaint over the phone may • Have you confirmed the agreed
prove difficult. arrangement?
5. If a patient makes a complaint in person, it’s important to: • Have you provided a full detailed
a. encourage them to speak openly about their concerns response to the patient?
b. reassure them that whatever they say will be treated sensitively and in • Has the complaint been signed by
confidence, and will not prejudice their future care. the responsible person, or someone
6. All oral complaints not resolved within 24 hours and all written complaints should with delegated authority?
be acknowledged straight away and investigated promptly. • Have you recorded the action taken
in responding to a complaint?
7. As far as is reasonably practicable, help complainants to understand the
complaints procedure or advise them where they may obtain assistance e.g. from • Are your responses to complaints
the Patient Advice and Liaison Service (PALS). The GDC expects the practice timely, professional, measured and
complaints procedure to be clearly written and be easy for patients to understand sympathetic in tone?
and follow (paragraph 5.1.5, Standards for the Dental Team, 2013).
8. Practices must keep a written record of a complaint. File complaint
correspondence and documentation separately from clinical records.
9. A carefully-worded response can often help prevent the complaint
progressing further. (See section 6.5 How to set out a written response). We
can help draft or check responses.
10. When responding to a complaint, consider what outcome the patient wants. If in
any doubt, ask them to specify the outcome they are seeking.
Where the complaint concerns dissatisfaction with some aspect of treatment,
dental professionals may choose, as a gesture of goodwill, to:
a. waive or refund the fee, particularly if the treatment outcome has been less
than satisfactory
b. offer remedial treatment free of charge. Such an offer should not prejudice
the dental professional’s position in the event of a claim for clinical
negligence, and may well help to resolve the complaint.
11. The parliamentary and health service ombudsman, in the booklet Principles of
Good Complaint Handling (2009), sets out six key principles central to good
complaints handling. They are:
a. getting it right
b. being customer focused
c. being open and accountable
d. acting fairly and proportionately
e. putting things right
f. seeking continuous improvement.

DDU Guide 47
 6.3
The NHS and social care complaints
procedure – an introduction

The NHS and social care complaints procedure was introduced in Our advice
April 2009 and applies to all NHS bodies1 in England. In the regulations, If it is possible to resolve simple oral
all providers of NHS healthcare (including commissioning bodies and complaints within one working day, then
they do not fall within the complaints
primary care providers) and independent providers, including dental procedure. If an oral complaint is
bodies, are identified as ‘responsible bodies’. resolved in this way, you should make a
The purpose of the complaints procedure is to address complainants’ concerns in note of the complaint and your response
order to resolve complaints and to identify changes that may be needed to improve to it, and keep this in a complaints file,
the care provided. separate from the clinical records.
You are required to inform patients
Key points about your complaints procedure.
1. The complaints procedure has two stages.
a. Local resolution (see section 6.4 The NHS and social care complaints
procedure – local resolution).
b. The parliamentary and health service ombudsman (see section 6.6 Checklist
The NHS and social care complaints procedure – the parliamentary and
health service ombudsman). • Does your practice publicise the
complaints procedure by displaying
2. Both the NHS regulations and the GDC’s Standards for the Dental Team (2013) it in the practice where patients
require all dental practices providing NHS services to publicise their complaints
can see it, on the practice website,
procedures and to make sure that patients know how they can complain.
and including it in the practice
3. All staff working in the practice must have a good understanding of the information leaflet? Do patients
complaints procedure and know how to handle and respond to complaints and know how to get more information?
concerns.
• Is the whole team familiar with the
4. The practice must have clear arrangements in place to provide leadership and complaints procedure?
a clear line of accountability for responding to complaints. The practice must • Does your practice have a
have a responsible person, often a senior partner, who is required to ensure
responsible person and a complaints
the practice complies with the procedure. There must also be a complaints
manager (who may be the same
manager who is accessible to the public.
person)?
5. The complaints procedure places a great deal of emphasis on resolving • Does your practice have formal
complaints as quickly as possible. Oral complaints that can be resolved
arrangements to review all
satisfactorily within one working day do not fall within the regulations that govern
complaints and analyse them to
the procedure and, although they need to be recorded, are not included in the
practice’s annual report on complaints. identify any learning points?

6. The complaints procedure does not have a disciplinary function, but

a complaint can result in disciplinary action. Where disciplinary action is
contemplated against a dental professional who is also the subject of a
complaint, the two processes should be treated entirely separately.

Reference
1
The Local Authority Social Services and National Health
Service Complaints (England) Regulations 2009

48 DDU Guide
7. The regulations do not require a complaint to be stopped if there is a claim
for negligence. In many cases, it could be appropriate to continue with the
complaint investigation. Members in this situation are advised to contact us.
8. All practices are required to have formal mechanisms in place to allow complaints
to drive learning and improvement.
9. Practices must send a copy of their annual report on complaints to their local
commissioning group. It must contain the numbers of complaints:
a. received
b. that were considered well-founded
c. referred to the Ombudsman.
It should also contain:
a. a summary of the subject matter of complaints. This should exclude
confidential information and be confined to details of the nature of the
complaint
b. any matters of general importance arising from the complaints (such as
lessons learnt) or from the way in which they were handled
c. improvements to services made as a result of the complaint.

DDU Guide 49
 6.4
The NHS and social care complaints
procedure – local resolution

The NHS and social care complaints procedure applies to all NHS health Our advice
providers in England, including dental practices1. Never assume that someone complaining
on behalf of a patient has the authority
It provides a two stage complaints procedure. The first stage is local resolution - the
to do so.
quickest and most efficient way to resolve a complaint. The second stage is the
parliamentary and health service ombudsman. It can be helpful to offer the complainant
a meeting to discuss the concerns
Key points raised. Some meetings can occasionally
benefit from the presence of a
1. Complaints can be made to either the organisation providing care, for example, a
conciliator, if the patient agrees.
dental practice, or direct to a primary care provider or the commissioning group.
Once a complainant has chosen who to complain to, they cannot later choose an Apologise where appropriate. A genuine
alternative route. and sincere apology is not an admission
of liability and can often defuse a
2. A complaint should be made within 12 months from the date on which the
complaint.
matter occurred, or from when the complainant first knew about it, unless the
complainant has a good reason for not making a complaint within that limit.
We advise members to consider complaints made outside the time limit if it is
possible to investigate them.
Checklist
3. Current or former patients aged 16 and over should normally complain
themselves. However, they may nominate a representative, for example, a • If a complaint is from the patient’s
relative or solicitor. Children under 16 who are competent to do so may also representative, have you ensured the
make their own complaint. If the complaint is on behalf of an adult or child who patient has consented to disclose
lacks capacity, the practice must be satisfied that the complainant is acting in the clinical and other confidential
patient’s best interests. information?
4. All complaints, other than oral complaints resolved within 24 hours (see section • Have you recorded, in writing, all
6.3 The NHS and social care complaints procedure – an introduction), must be actions taken in responding to a
acknowledged within three working days of receipt. complaint and listed the name of the
5. The complaints manager must make a written record of the date it was complainant, the subject matter and
received and provide the complainant with a written record of the complaint, even the relevant dates?
if it was made verbally or electronically. • Are your complaints records kept
6. The practice should invite the complainant to discuss the complaint and to agree separately from the patient’s clinical
an approach. The practice needs to write to confirm the details of how the records?
complaint will be handled, for example, by explaining how it will be investigated • Are you keeping a record of all
and suggesting timescales for the response. the information you need about
7. Practices are required to complete a thorough investigation and keep the complaints and learning points, in
complainant informed about progress. order to provide NHS England or
your local commissioning body with
an annual complaints report?

Reference
1
The Local Authority Social Services and National Health
Service Complaints (England) Regulations 2009

50 DDU Guide
8. If a complaint is received, it’s important to acknowledge the complaint as soon
as possible. Most complaints can be resolved quite quickly and the GDC’s
Standards for the Dental Team (2013) advises dental professionals ‘to respond to
complaints within the time limits set out in your complaints procedure’ (paragraph
5.3.4). In paragraphs 5.3.5 and 5.3.6, the GDC continues: ‘If you need more time
to investigate a complaint, you should tell the patient when you will respond’ and
‘If there are exceptional circumstances which mean that the complaint cannot be
resolved within the usual timescale, you should give the patient regular updates
(at least every 10 days) on progress’.
9. We can help draft and check responses. The response should:
a. contain an explanation of how the complaint was investigated
b. detail any conclusions reached
c. identify any matters that need remedial action
d. explain whether any action is planned or has already taken place
e. explain the complainant’s right to take the matter to the Ombudsman within
12 months if still dissatisfied. (See section 6.6 The NHS and social care
complaints procedure – the parliamentary and health service ombudsman).
10. The responsible person, or someone with delegated authority to do so, must sign
all complaint responses.

DDU Guide 51
 6.5
How to set out a written response

A complaint response takes time and careful thought. A thorough and Our advice
detailed first response should help to minimise further correspondence Write responses to complaints (or
from the complainant. It should also help to avoid dento-legal report on the facts for anyone else who
is drafting a response to a complaint)
complications, such as a complaint or a claim to the GDC. with care. In the unlikely event that
If a written or oral complaint suggests the patient may also claim for clinical the complaint becomes a claim, any
negligence, refer the matter to us immediately. Once we have gathered all necessary report may be disclosed to the patient’s
background information, we will notify the patient, or patient’s representative, that representative.
we are acting on your behalf and will handle all future correspondence in relation to
It is rarely appropriate to express an
the claim. Most complaints are resolved satisfactorily in-house and do not become a
opinion on the acts and omissions
claim.
of a colleague, unless under direct
supervision, even with their consent. For
Key points complaints that involve care provided by
1. Type the response to a complaint on headed paper. more than one clinician, the complaints
manager may decide to provide a joint
2. If a complainant’s oral complaint cannot be resolved within one working day, we
response that covers all concerns raised
suggest that you consider writing to the patient to clarify or confirm the concerns
in respect of each person involved.
that need to be addressed, enclosing a copy of the written record made at the
time the complaint was registered. Only correspond with a patient’s
representative if the patient has given
3. Identify yourself with your full name and make clear your relationship with the
consent, preferably in writing.
patient (e.g. registered dentist, assistant, locum, dental hygienist, etc).
We can provide you with advice on a
4. When drafting the response make sure it does not use jargon and is clear and
draft letter of response to a complaint.
understandable to a lay person. Do not assume the reader has any background
knowledge of the case, or dentistry.
5. Give a factual description of events in the order they happened. Describe Checklist
every relevant consultation, telephone or other contact and refer to clinical notes
as appropriate. Include: • Have you fully identified yourself in
a. the patient’s complaints on each occasion they attended the practice your response to a complaint?
b. relevant medical and dental histories • Have you given a full chronology of
c. findings on examination, diagnosis and treatment plan
events?
d. all explanations, advice and treatment provided, together with details of any
mishaps or complications encountered • Have you responded to every issue
e. whether the patient was seen alone or accompanied by another person. (Give raised by the complainant?
the name and status of the other person e.g. spouse, mother, etc.)
6. Respond to each significant concern raised by the complainant, as far as
possible, including any opinion on what happened. You could do this by setting
out the chronology of events, but it is often better to deal with the chronology and
specific concerns separately. Many complaints arise from a misunderstanding
and if you provide a detailed description of the dentistry involved that may clear
up any misunderstanding. In some cases it may be helpful to refer to accepted
teaching and practice.

52 DDU Guide
7. Avoid dental abbreviations or technical terms. Use language that the
complainant will understand, but include all details that would enable a dentally
qualified third person to understand the clinical sequence. It is important to say
not only what was found, but also what was looked for but not found.
8. Specify which details are based on memory, which on contemporaneous
notes and which on your ‘usual’ or ‘normal’ practice. No one expects dental
professionals to remember every detail of a consultation which, at the time,
appeared to be routine. It is acceptable to quote from memory, but if you cannot
recall the details, then state what your ‘usual’ or ‘normal’ practice would have
been in similar circumstances.
9. Write in the first person. The reader must have a clear picture of who did what,
why, when and to whom. Use the active voice and be specific. For example, “I re-
examined you the next day and this is confirmed in my clinical notes,” rather than
“You were examined again the next day.”
10. Include details of any offer made to the patient to resolve the complaint. This
may be an offer to refund or waive the fee as a gesture of goodwill, or an offer
of remedial treatment, either personally, or by referral to a colleague, within or
outside the practice.
11. Many complaints arise because of a breakdown in communication and perceived
rudeness. If appropriate, apologise.
12. Never alter original records. It can lead to more serious trouble than the original
complaint.

DDU Guide 53
 6.6
The NHS and social care complaints procedure
– the parliamentary and health service ombudsman

The NHS and social care complaints procedure applies to all NHS health Our advice
providers, including dental practices in England1. It provides a two-stage The Ombudsman has published a
complaints process: local resolution and the parliamentary and health booklet, Principles of good complaint
handling (2009). The principles outlined
service ombudsman. in the booklet offer a framework for
good complaint handling.
Key points
If the Ombudsman decides not
1. Complainants who are not satisfied with the initial response to their complaint
to investigate a complaint, the
can refer it for investigation by the parliamentary and health service ombudsman.
Ombudsman’s office will write to the
2. The Ombudsman can also consider complaints brought by the subject complainant setting out the reasons for
of the complaint e.g. a dentist who is not satisfied with NHS England or a the decision.
commissioning body’s response.
If an investigation goes ahead, a
3. Grievances about the administration of the complaints procedure itself can professional ‘friend’ may accompany
also be considered. a dental professional to the interview.
We advise that you seek our advice
4. A complaint must be referred to the Ombudsman within 12 months of the final
in advance of the meeting. In some
correspondence at completion of local resolution. This will usually be 12 months
situations, it may be beneficial for one
from receipt of the final response letter relating to the original complaint.
of our dento-legal advisers to attend the
The Ombudsman has discretion as to whether or not to investigate a complaint meeting with you, while in other cases
and considers each case on its merits. The Ombudsman has said that where it may be more appropriate to attend
the complaint meets some basic tests, her office will begin an investigation alone or with a colleague.
immediately and inform those involved2.
5. The Ombudsman has access to all the paperwork generated by local resolution
and has powers to compel disclosure of documents and the attendance of
witnesses, if necessary. The Ombudsman’s office may also obtain independent
Checklist
professional advice and is assisted by specialist assessors for all matters
• Have you checked the accuracy of
involving clinical judgment. If an investigation goes ahead, the practical aspects
the Ombudsman’s report?
are usually undertaken by the Ombudsman’s representative, who will interview all
those involved. • Have you adopted the
recommendations contained in the
6. A confidential draft report is prepared for the complainant and dental
Ombudsman’s final report?
professional to check for accuracy. The final report is sent to all interested
parties including the Secretary of State, and is published, in anonymised form, on
the Ombudsman’s website.
7. If the Ombudsman’s office finds the dental professional to be at fault, it may
recommend changes to their work, or that the dental professional apologises or
offers the patient financial redress.
8. Although compliance with recommendations cannot be enforced, in practice,
dental professionals usually adopt recommendations.

References
1
The Local Authority Social Services and National Health
Service Complaints (England) Regulations, 2009
2
http://bit.ly/moreinvestigationsformorepeople

54 DDU Guide
 6.7
Private complaints

For complaints about care, treatment or service in the independent Our advice
healthcare sector there is more than one channel through which patients Set up and publicise an in-house
can make their complaints. complaints procedure to address
complaints about private treatment.
Key points You should address complaints from
NHS and private patients in the same
1. As with NHS patients, it is vital to make every reasonable effort to resolve way through the practice.
complaints about private treatment at practice level i.e. local resolution. (See
section 6.2 Effective complaint handling and 6.5 How to set out a written The DCS is strongly in favour of local
response). resolution and refers almost three
quarters of complaints back to dental
2. Patients who have not succeeded in resolving a complaint about an aspect of practices. Most of these are resolved
their private dental treatment, care or service with the practice itself can refer satisfactorily by the practice and fewer
their complaint to the Dental Complaints Service (DCS). than one-fifth are returned to the DCS.
3. DCS advisers try to resolve all complaints impartially, fairly, efficiently, At present, dental professionals are not
transparently and quickly, encouraging dental professionals and patients to permitted to have a DDU representative
restore their relationship. at a DCS panel hearing. We do not
4. If informal resolution is impossible, the DCS can refer complaints to a meeting agree with this rule but, fortunately, very
facilitated by a panel comprising three trained volunteers – two lay and one few complaints reach panel hearings.
dental professional.
5. The DCS was set up and funded by the GDC and is intended to be independent
of it. However, the DCS could refer a dental professional who fails to co-operate Checklist
with it to the GDC’s fitness to practise procedure.
6. Separate to the complaints procedure, any patient who is dissatisfied with • Do you have a complaints procedure
treatment, whether NHS or private, may complain directly to the GDC. They can in place?
allege that the matter raises questions about the dental professional’s fitness • Is information about your
to practise, raise concerns with a regulator (the Care Quality Commission or complaints procedure readily
its equivalents) or pursue the matter through legal proceedings for clinical accessible to patients?
negligence, or all of the above.
• Have you tried to resolve the
complaint using the practice’s
in-house complaints procedure?

DDU Guide 55
7
Negligence and claims

Every dental professional, Although clinical standards

however skilful, may are high, patients’
experience an adverse expectations have increased,
incident that could result as has their readiness to
in a claim for clinical resort to litigation.
negligence.
Clinical negligence occurs
when a dental professional’s
clinical management or
performance falls below
the standard expected of
a reasonably competent
professional acting in
a manner considered
appropriate for their area of
expertise and acceptable by a
responsible body of dentists
or relevant group of dental
care professionals (DCPs).

56 DDU Guide
 7.1
What to do if you receive a claim

A claim for clinical negligence often comes without warning and can be Our advice
an unpleasant shock. The first notification may take different forms. It All documents linked to the claim should
is usually by way of a letter, either from the patient or a solicitor, and it be sent to us as soon as possible, with
the original envelope or packaging.
may include a request for a copy of the patient’s dental records.
If it has been a while since the incident
Solicitors’ letters may be written in a forceful and occasionally threatening style. The
happened and it is difficult to remember
claims made will be based largely on what their client has told them and may not
everything that went on, you should
seem fair or reasonable to you, and may even appear to change what happened.
comment on your clinical management
Don’t take the tone or contents of the letter personally, or reply to it directly. It is our
based on what you would usually do,
role to act on your behalf throughout the claim process.
and from looking at your notes that you
When you receive a claim, you need to act quickly. Strict timetables are set in law made at the time of the alleged incident.
and you need to tell us immediately, so we have plenty of time to prepare your
defence. It is important to keep in mind that even with the stress and upset you may
feel because of one unhappy patient, many of your patients value your help and Checklist
expertise and are thankful for the treatment you provide.
• Have you given a full description and
Key points timetable of events in your factual
1. When you are aware of a claim, call and speak to one of our dento-legal advisers account?
on 0800 374 626. Our advisory team is available between 8.30am and 6pm, • Have you included in your factual
Monday to Friday. Advice is available 24 hours a day, 365 days a year for account details of any witnesses who
dento-legal emergencies or urgent queries. can support your account or provide
2. We will tell you how to put together the essential paperwork and documents that further evidence?
you need to send to us. (See section 7.2 Documentation).
3. We will then usually write to the patient (known as the claimant) or their solicitors,
telling them that we have received their letter/claim form and to confirm that we
will be looking after you.
4. We will ask you to give a full, typed factual account of the events in question,
with reference to your clinical notes. One of our dento-legal advisers and/or any
expert we instruct on your behalf (see section 7.6 Working with expert witnesses)
will look at your point of view with the patient’s clinical records and use it as the
starting point for your defence if the case proceeds to court.
5. You will be told of any key developments. This may include telling you that we
believe there is no reasonable chance of the claim proceeding or that it has
become time-barred. (See key point 1 in section 7.4 Informal Resolution: the
pre-action stage of a claim). We will continue to liaise with you throughout the
claim and will discuss all decisions with you that may affect your professional
position, including any decision regarding a proposed settlement.
You can call us at any time to check on the progress of your claim, or ask us to
contact you regularly, even if we have nothing to report.

DDU Guide 57
 7.2
Documentation

We need to see all the papers and records you have that relate to the claim.
You need to send us everything we ask for. Do not withhold anything. Our advice
Documents must not be changed or amended in any way. If, after you have looked Send the original documents, together
at the records, you think that you need to give us more information, or you want to with the original envelope or packaging,
make a correction, you need to give this to us in a separate note. We will scan the to us as soon as possible. The
records you send us and return them to you. documents must not be changed in any
way. This is important, no matter how
Key points brief, scruffy, abbreviated or hurriedly
written they are.
1. You need to give us:
a. a signed letter/note, from you, asking for assistance, and giving your
consent for us to act on your behalf Checklist
b. the original solicitors’ letter or request for compensation or court documents
and/or standard form of request for disclosure of records, together with a • Have you sent the original, unaltered
note of the date on which you received it patient notes?
c. your consent for us to show the records to the patient or the patient’s • Have you included a separate typed
representative as and when we need to and a statement confirming that you
record of the patient’s notes?
have sent all the records you have
d. a full clinical report, in date order, of your own advice, care and treatment, • Is it clear on the record exactly who
together with the full name(s) and contact details of any other dental is responsible for each entry in
professional(s) or persons involved in the treatment the clinical notes e.g. by using the
e. your detailed comments on the allegations initials of the staff involved?
f. your preferred contact details for all future communications. • Have you sent the complete original
2. We need all the records you have relating to the patient which may include: records and not just those you
a. the patient’s clinical notes (including a print-out of all computer-held records), consider relevant to the incident?
preferably the originals, and these should be sent by special or recorded
delivery
b. a typed record of the relevant entries in the clinical notes
c. a clear copy of any relevant entries in the appointment diary or message book
d. any radiographs, clinical photographs, study models or other laboratory
work/records
e. any communications with other healthcare professionals, such as referral
letters or consultant’s/specialist’s reports.
3. To protect confidentiality, we disguise the names of any other patients involved
(e.g. those in an appointment diary). Please let us know the identity of anyone
else named in the records so we can make sure there are no breaches of
confidentiality.

58 DDU Guide
 7.3
Proving clinical negligence

For a claim for clinical negligence to be successful, the patient (who is Our advice
referred to as the claimant) has to prove that there was some failure by Unfortunately things can and do go
the dental professional, and that failure caused the injuries of which the wrong and in practice the dividing line
between negligence and adequate care
patient is complaining. can be very fine. However, that’s no
consolation if you have just received
Key points a solicitor’s letter, full of allegations of
1. The burden of proof in claims for clinical negligence lies with the claimant. To negligence and the consequences for
succeed in a claim, he or she has to prove it was more likely than not that: their client. Of course, the allegations
a. the defendant dental professional owed them a duty of care may be unfounded or incorrect.
b. there was a breach of that duty
If you are accused of negligence you
c. avoidable harm followed as a result.
may feel angry and distressed, and may
2. The patient must prove breach of duty of care and causation – that is, not know what to expect or do. Seeking
that the breach of duty caused the injury or loss in question. Breach of duty our professional help is essential at the
and causation do not always go hand in hand. For example, a patient could be first sign of a claim.
harmed without the dental professional having been negligent (e.g. a ‘dry socket’
following an extraction). Similarly, a dental professional can be in breach of
duty without any harm to the patient (e.g. failure to diagnose very early caries
which does not progress). This is often difficult for patients to grasp. They tend Checklist
to think that just because something has gone wrong or does not meet their
expectations, the dental professional must be negligent. • Is the claimant your patient? If not,
does the person making the claim
3. The patient must find a reason for claiming that a dental professional’s clinical
management or performance has fallen below a reasonable standard. The have authority to do so?
clinical management of a patient will be assessed by one of our dento-legal
advisers and/or an independent dental expert as appropriate (see section 7.6
Working with expert witnesses) against the Bolam1 standard. For dentists, the
Bolam standard is that of ‘a responsible body of dentists’ practising in the same
field, though this does not have to be the standard of the majority. For dental
hygienists, it will be ‘a responsible body of dental hygienists’ and so on.
4. Judges may decide not to accept an expert’s evidence if it does not stand
up to close inspection. It is up to a judge to decide if the standard of care is
reasonable.

Reference
1
Bolam v Friern Hospital Management Committee [1957]
1 WLR 582

DDU Guide 59
 7.4
Informal resolution: the pre-action
stage of a claim

After records have been shared, there may be a long time when nothing Our advice
seems to happen while the claimant takes advice and decides whether to We appreciate that an indication of a
take matters further. This can take months, or even years. claim is an anxious time. Don’t hesitate
to call us at any time if you want to
If a formal claim is made against you, it is important to remember that only a small discuss your case.
proportion of dental claims ever go to court. The majority are resolved at the
pre-action stage (see opposite: Pre-action protocol). The Civil Procedure Rules in
England and Wales allow for quite a lot of flexibility in the resolution process and
require a fair amount of openness so both sides can help resolve the disagreement.
Mediation and arbitration can also be used.
Checklist
• Are we in receipt of all the
Key points documents related to the case?
1. The Limitation Act 1980 sets time limits within which a legal claim can be • Have you checked and confirmed
made. you are happy with our proposed
a. For adults with capacity, a claim must be made within three years of the date response to the claimant?
of incident, or from the date the claimant first became aware of a possible
claim (known as the ‘date of knowledge’), whichever is later.
b. If a patient was a child (under 18) at the time of treatment they have until
they are 21 to make a claim, if they are aware before that date that a cause
of action exists. A claim could be made later if the patient is justifiably
unaware that a cause of action exists.
c. No time limits apply for adults without capacity.
The court has discretion to allow claims to go ahead even if they are issued
outside the limitation period.
2. In England and Wales, the formal claim process begins after both parties have
looked at the facts of the case and assessed the merits of the claim (see
opposite: Pre-action protocol). The aim of this is to make sure that both sides
have every chance to sort out a dispute informally and without going to court. At
any stage, it is open to both sides to suggest a different way of sorting out the
dispute. Many claims are resolved at an early stage.
3. We use the four-month period after the issue of a letter of claim to talk to you
and any other dental professionals involved in the claim. During this time, we will
usually:
a. ask for disclosure of any additional clinical records
b. seek further clinical input/opinion from one of our dento-legal advisers
c. instruct independent experts, if appropriate (see section 7.6 Working with
expert witnesses)
d. work with you to write a detailed letter of response.
4. If, after getting advice from experts, we consider a breach of duty has caused
the patient loss or damage, we will usually make an offer to settle the claim,
but only with your consent, and negotiations will begin. We may also have
to make a total or partial admission of liability on your behalf, with your
permission.

60 DDU Guide
5. If we do not think there has been a breach of duty of care or that there may
have been a breach but it did not cause the patient any loss or damage, we will
deny liability. We will set this out, giving clear and detailed reasons so that the
claimant can think about their position. These arguments may make the claimant
withdraw the claim.
6. Following submission of our response made on your behalf, the claimant will
review their position. They may decide to:
a. end the claim
b. look for settlement, or
c. start court proceedings.

Pre-action protocol
If a claimant instructs a solicitor, the claim should be carried out according to
the set of rules known as the pre-action protocol. The likely order of events
is as follows:
1. The claimant’s solicitors issue a formal request to see the records.
2. You should notify us immediately on receipt of the request for records or
initial contact.
3. We allocate the case to a specialist claims handler.
4. We give records to the claimant’s solicitors.
5. The claimant’s solicitors may write to an expert.
6. The claimant ends or goes ahead with the claim.
7. If the claim continues, the claimant’s solicitors draw up a formal letter of
claim.
8. The claimant’s solicitors send a formal letter of claim to us (a letter of
claim may sometimes be sent at point 1 above.)
9. Under the protocol, we, as your representative, have just four months to
investigate the allegations after receiving the letter of claim. During this
period, the claimant’s solicitors should hold off starting legal proceedings.
10. On receipt of the letter of claim, we will seek your comments on it and
ask you to attend a meeting with a dento-legal adviser/expert/solicitor,
as appropriate, to discuss the case in detail and to prepare a factual
statement on your behalf.
11. Within four months of receipt of the letter of claim, and with your approval,
we will issue a formal letter of response.
12. The claimant’s solicitors consider our response and advise the claimant.
If a claimant has not instructed a solicitor and is acting for themselves (a
litigant in-person), then the claims procedure will be less predictable.

DDU Guide 61
 7.5
Formal resolution: court proceedings

Some claims cannot be resolved at the pre-action stage and the claim will Our advice
go on to formal court proceedings. The meeting with DDU counsel is
entirely informal and is a chance for you
Key points to review the case in detail. You should
use this time to tell us of any worries
1. Formal legal proceedings will involve presenting:
you may have and to be sure that all
a. a claim form - which must be served (given into the hands of the defendant
your questions have been answered.
or their representative) within four months of its issue.
b. particulars of claim - these must be sent with the claim form or within 14 You can amend your witness statement
days of the claim form being served. Both the claim form and the particulars as many times as is necessary, before
of claim must give details of the claimant’s case and of the damages claimed. you finalise and approve it and before
In most cases, they must be sent with a dental report confirming the personal it is disclosed to the claimant and the
injuries alleged in the claim. court, to ensure it is an absolutely full
and factual account of your involvement
2. The claim must be acknowledged within 14 days. Usually, the solicitor
in the case.
instructed by us will accept the claim form on your behalf. Sometimes the
claimant’s solicitor or the court may serve the proceedings on you in person. If Counsel is likely to ask you to see the
this happens, it is important to get these documents to us immediately, otherwise case from the claimant’s point of view.
a judgment may be made against you. Don’t take this personally. Everyone
has your best interests at heart and it
3. The solicitor instructed by us will put together a defence – a formal statement in
is better to identify any weaknesses or
answer to the allegations set out in the particulars of claim. A full defence must
difficulties at this stage, rather than in
be given to the court up to 28 days after the particulars of claim are served. If our
open court.
solicitor thinks more time is needed, they will seek an extension from the court.
If we believe there has been a breach of duty of care, this will have to be
recognised and reflected in the defence.
4. The defence will include a statement of truth. This is a declaration, signed by
Checklist
you, that you believe the facts stated in the defence are true.
• If the court has served the
5. The court allocates the case to one of three tracks: small-claims track, fast proceedings directly on you, have
track or multi-track, depending on the complexity and value of the case. The you sent this document to us?
court also issues directions as to how the case will be conducted, including • If you are happy with the defence
timetables for the exchange of witness statements and expert reports, and a
put forward, have you signed the
provisional trial date.
statement of truth?
6. The court may also arrange a case management conference, attended by • Have you checked your witness
the claimant’s solicitor and one of our appointed solicitors. This solicitor always
statement to make sure that you are
attends this conference on your behalf. The judge will review the steps taken by
satisfied with its accuracy and detail?
both sides, ensure they have identified the issues as far as possible, and consider
alternative ways of ending the dispute.
7. During the proceedings, copies of all relevant documents must be given to the
claimant’s solicitors. Your solicitor will do this on your behalf, as well as issuing a
disclosure statement confirming that as far as possible all documents required
have been provided. You will be required to approve and sign the disclosure
statement. It will also state that the ’duty to disclose’ is understood and has been
completed.

62 DDU Guide
8. The key to any defence in formal proceedings is the defendant’s witness
statement. This is a signed factual account of events, and it will be shown to
the claimant and lodged with the court. Your witness statement, put together with
the help of a solicitor, is your evidence and should only contain information with
which you are satisfied, as it will contain a statement of truth that must also be
signed by you.
9. Exchange of evidence is an important part of the legal process:
a. first, your witness statement, and any other factual witness statements,
are exchanged at the same time with the claimant’s witness statements. This
provides us with another chance to examine the case against you
b. then expert evidence is exchanged (see section 7.6 Working with expert
witnesses).
10. There may be a meeting with a barrister (usually called a ‘conference’,
or ‘con’) which is chaired by the barrister (counsel) instructed by the DDU.
This meeting is for you and your defence team only and is usually held in the
barrister’s chambers. It is attended by you, your solicitor, the expert(s) instructed
on your behalf, plus one or more members of staff at the DDU.
The barrister(s) will have reviewed the papers beforehand, and will usually begin
by talking through the events of the case, asking for clarification of the facts and
expert comments. A clear plan of how to go ahead usually emerges and we will
ask you to agree it.

DDU Guide 63
 7.6
Working with expert witnesses

The process of clinical negligence legal action depends mainly on opinions Our advice
from independent expert witnesses. We may ask an independent expert We maintain a database of experts
if, in his or her opinion, there is any possible liability related to your who we provide with instructions in the
role of expert witnesses and to whom
clinical management of the claimant. Sometimes we do this early in the we offer training. We make clear in our
process, sometimes later. instructions to experts that it is their
duty to help the court with matters
Key points within their expertise and that this duty
1. Experts are dentists (or relevant dental care professionals) with wide experience overrides any duty to the person from
of a particular field of dentistry and dento-legal work, either still in practice whom they have received instructions or
or recently retired. They may be generalists or specialists, depending on the by whom they are paid.
treatment at issue.
2. Experts will comment on your clinical management and compare this with that of
a reasonable dentist (or relevant dental care professional) with the same Checklist
experience.
3. An expert may also be asked to give an opinion on causation, to see whether • Do you have any questions on the
there is a direct link between the alleged negligence and the harm that the expert reports that you would like
patient claims resulted. If there is no link, there is what is called a ‘causation put to the experts?
defence’.
4. The expert’s duty is to give objective, impartial advice to the court.
5. Experts generally give their advice in a written report.
6. Both sides may put written questions to an expert about their report, which
must be answered.
7. Before exchange of expert evidence the expert advising you is asked to
comment on the statements prepared by the claimant. Experts meet formally
after exchange of their expert reports and produce a joint statement listing areas
of agreement and any outstanding differences of opinion, to help the resolve the
issues.
8. Sometimes, when your case seems strong and is supported by clear expert
advice, we may decide to disclose our expert evidence early in an attempt to
encourage the claimant to withdraw the claim.
9. If the case goes ahead, the court may ask experts to give verbal evidence.

64 DDU Guide
 7.7
Defend or settle?

The decision to defend a case or settle is taken with you. It is our policy to Our advice
involve members in the way their case is managed and whenever possible Sometimes a case cannot be
to take the action they want. successfully defended because of
non-clinical factors. The most common
On rare occasions, a member may ask us to settle a claim that we feel should be of which is the lack of adequate clinical
defended or vice versa, but after talking it through we are usually able to agree a notes.
way forward.
Records are a key part of patient care
Whether a claim is ended, settled before trial, settled at trial or found in favour of the and can provide vital evidence if your
member, the legal costs may be high on both sides. standard of care is called into question.

Key points
1. If a case cannot be successfully defended, after talking with you we will
negotiate a settlement on your behalf. This may involve making some Checklist
admissions, but this will be agreed with you beforehand.
• Do you agree that the claim should
2. Before a decision is made in more difficult cases, they may be reviewed by be settled or do you want it to be
our Dental Advisory Committee, which is made up of practising dental
defended, if necessary, all the way
professionals, all experts in their chosen field.
to court?
3. Cases are also considered by the MDU’s cases committee and case
management committee, which are also made up of clinicians.
4. If the claim goes to trial, the judge may decide not to accept an expert’s evidence
if it does not stand up to close examination. In the end, it is up to a judge to
determine if the standard of care was acceptable.

DDU Guide 65
 7.8
The emotional impact of a claim

Facing a claim for clinical negligence can cause a lot of stress and worry. Our advice
Many members who have gone through a claim tell us that coping with It is quite normal to feel worried or
personal feelings is perhaps the most difficult thing. depressed when faced with a claim. It is
important that you are aware of this and
Key points you get help and support. Your doctor
will be able to help you and you may
1. It is often better to let go of negative emotions than to hold them in. Of course, wish to tell a senior colleague. You could
this may be easier said than done. It is common, and understandable, to feel: also think about contacting:
a. anger, which may be directed towards the patient or other colleagues involved
in the case • your professional association
b. shame • The Dentists’ Health Support
c. upset Programme (t: 020 7224 4671)
d. disillusionment. which can provide general
2. Stress, worry and other emotions may interfere with work, sleep and home life. information and advice to dental
This is natural and you should make allowances for it. professionals encountering health
problems.
3. Maintaining a sense of proportion and perspective can be difficult, but may help
you handle the stress of a claim.
4. It may be helpful to find a trusted colleague with whom to share feelings (though
you must respect patient confidentiality). Let others know what you are going Checklist
through so they can offer help and emotional support.
• Are you careful to protect patient
5. It is useful if you write an account of your role as soon as possible after the confidentiality when speaking about
incident. This account can help if a complaint or claim for clinical negligence is
your case?
made at a later stage, and many members find it a reassuring process.
6. You can ask for a progress report from us whenever you want it. Keeping up to
date about your claim can help you to keep things in perspective.

66 DDU Guide
 Member story
I’ve just qualified and my patient has
accused me of negligent treatment
A 24-year old man attended my
foundation training practice complaining
of a fractured tooth in the upper right
quadrant. Pain from the tooth, which
was sensitive to hot and cold fluids, was
keeping him awake at night.
I examined the man and found
gross caries at the upper right first
permanent molar (UR6). This tooth
and adjacent teeth also responded
positively to ethyl chloride. A
periapical radiograph showed gross
caries that had resulted in destruction
of more than half the crown.
I attempted to extract the tooth
under local anaesthetic. However, the
palatal root fractured and became
displaced. I informed the patient of
the complication and noted that the
root had possibly been displaced into
the maxillary antrum. I referred the
patient to a consultant oral surgeon
who attempted to remove the root
under local anaesthetic and to close
the oro-antral communication. While
the latter was closed, the fractured
root was not found.
The consultant decided to explore
the right maxillary antrum under
general anaesthesia via a Caldwell Luc
approach. This was successful and the
root was removed.
A claim was later brought against
me for damages, personal injury and
consequential losses due to alleged
negligent treatment.
How we helped
We sought the opinion of an independent
expert who advised that there was no
evidence that the standard of treatment
provided fell below that normally
expected from a reasonably competent
trainee in a well supervised programme.
He said the evidence pointed to a high
standard of care throughout, both in the
foundation training practice and at the
hospital.
In view of this, we defended the case,
which went to trial.
At trial, the judge said that the claimant
had not discharged the burden of
proof, and that the dentist had acted
reasonably. He found in favour of the
dentist.
DDU Guide 67
8
Patient safety
and quality assurance
All members of the dental
team have an ethical duty
to put patient safety first.
Quality assurance systems
enable dental practices
to monitor their services,
ensuring care is provided in a
safe environment and meets
the needs of patients.

68 DDU Guide
 8.1
Patient safety and quality assurance
in dental practice

Dental practices are expected to have a quality assurance system in place Our advice
to monitor and, if necessary, improve services. This is a requirement of Ensuring you have a good quality
the current NHS General Dental Services contracts and is likely to be a assurance system in place covering all
aspects of patient care is important for
requirement of any future contracts. patients but it will also help your practice
Quality assurance covers all areas of dental practice. The aim is to maintain and work more efficiently and reduce the
improve standards of patient care and safety. kinds of incident that can lead to a
complaint or claim.
Evidence of effective quality assurance by dental service providers is also required
by the different regulatory bodies in England, Scotland, Wales and Northern Ireland. Consider a review of your practice
Following the Francis Report on Mid-Staffordshire NHS Trust, the Care Quality policies and procedures to check they
Commission (England) proposes to change the way it regulates, inspects and are fit for purpose and encourage
monitors services based on what has the most impact on the quality of patient care. members of staff to get involved by
It envisages that inspectors will use the following criteria when assessing services. highlighting areas where problems
• Are they safe? commonly arise, from referrals to
• Are they effective? professional development.
• Are they caring?
• Are they responsive to people’s needs?
• Are they well-led?
Checklist
Key points
1. Quality assurance requires an organisational culture where: • Does your practice have a quality
• openness and participation are encouraged assurance system in place?
• education and research are valued • Can you demonstrate that you
• people learn from mistakes participate in regular clinical audits
• good practice is freely shared. and review the delivery of healthcare
2. Quality assurance should ensure consistency, so that patients can be confident to ensure patient safety and best
that they will always be treated safely and appropriately. practice?

3. Quality assurance requires effective procedures and policies for the following: • Do you hold significant event audits
• infection control to learn from things that have gone
• safeguarding children and vulnerable adults wrong and highlight examples of
• dental radiography good practice?
• safety of patients, staff and the wider public • Does your practice have policies in
• evidence based practice in line with relevant guidance place to ensure it meets its legal
• data protection obligations e.g. infection control,
• employment, training and development IRMER, data protection, anti-
• patient information and involvement discrimination and child protection?
• fair and accessible care
• investigating and learning from complaints • Do staff have the opportunity to
• raising concerns contribute ideas and raise concerns?
• clinical audit and peer review. • Do you discuss and act on the
(Adapted from the 12 themes of clinical governance in the Primary care dental findings of patient satisfaction
services clinical governance framework, Primary Care Contracting, May 2006.) surveys in your practice?
• Have your training needs been
4. Practice policies and procedures should reflect authoritative national
guidance from organisations such as the General Dental Council (GDC), the reviewed recently? What about
British Dental Association (BDA), the Faculties of Dental Surgery and General those of any employees and/or team
Dental Practice at the Royal Colleges, the specialist societies and the UK members?
Departments of Health.

DDU Guide 69
 8.2
Patient safety and risk management

Many everyday clinical and administrative processes may seem routine Our advice
and familiar to dental professionals, but even routine processes can go Effective risk management requires
wrong if not carried out conscientiously. There may be consequences for practices to produce written protocols
which set out the processes for
patients, and for your professional reputation. handling routine and non-routine
While it is impossible to eliminate the inherent risks of providing dental treatment, activities, from infection control to
it is in everyone’s interest that dental professionals carry out effective risk raising concerns. They can then be
management to identify, prioritise and manage all significant threats to patient safety. put in a folder and should be made
At the same time, adverse incidents should be investigated to see what lessons can available to all members of the dental
be learned in order to improve the quality and safety of patient care. team, including new members of staff at
induction, so helping achieve a common
Key points understanding and consistent working
practices. Such protocols can also be
1. Areas of risk include:
helpful in demonstrating that you have
• administrative lapses e.g. failure to follow up referrals
appropriate and robust patient safety
• system failures e.g. lax data security protocols leading to inadvertent
systems during practice inspections.
breaches of patient confidentiality
• clinical lapses e.g. failure to monitor patients for periodontal disease or
failure to take radiographs of diagnostic quality at recommended intervals.
2. Effective risk management is a five-stage process. It involves: Checklist
• identifying areas of risk within the practice
• assessing those risks for frequency and severity • Have all non-routine procedures and
• removing those risks that can be eliminated activities e.g. surgical extractions or
• reducing the effects of those risks that cannot be eliminated hospital referrals, been identified,
(i.e. implementing risk-containment processes) prioritised and a strategy formulated
• weighing up the costs of risk (getting it right versus the costs of getting for managing any potential risk they
it wrong). present?
3. Risk-reduction processes should be audited at intervals to ensure they meet • Do you report all adverse incidents?
current standards and practice needs.
• Do you review your risk
4. Practices should gather information about the safety and quality of their service management procedures regularly?
from all relevant sources, including incidents that have, or could have, harmed
• Do you make appropriate changes
patients. These should be investigated and if appropriate, considered as part of
following reviews?
a significant event audit (see overleaf: Significant event audit) to identify the
causes and implications for patient safety. A system for recording and reporting
patient safety incidents is a GDC requirement (Standards for the Dental Team
2013, paragraph 1.5.4).
5. Focus on the learning points from investigations and audits so that practice
systems and training can be improved to protect patients from unsafe care.
6. The National Reporting and Learning System, part of NHS England, enables
practices in England and Wales to report adverse events which could have, or
did, lead to harm for a patient receiving NHS-funded healthcare. Practices in
England have a statutory duty to notify the Care Quality Commission (CQC) of a
death or serious injury to someone using the service.

70 DDU Guide
Significant event audit
This is a way of formally reviewing incidents at your practice using a structured root
cause analysis to determine what happened and why, agree what lessons need to be
learned and ensure the necessary action is taken to provide better patient care.
SEAs are ideal for analysing more complex cases which have implications for the
overall quality of care, particularly system failures. They are not intended to apportion
blame so one-off mistakes by individual members of staff should probably not be the
subject of an SEA, unless there is suspicion they are the result of underlying system
factors, such as confusing protocols.
An a SEA meeting can be useful to allow others in the practice to contribute. To
be effective, such meetings require careful preparation and protected time. If it is
decided that further action is necessary, a designated person, such as the practice
manager, should agree an implementation plan with the relevant staff which
prioritises the changes required, identifies a project leader, establishes a timescale
and the timing of progress reports.
It is essential to keep a detailed, written record of a SEA, anonymised to protect
patient confidentiality, to demonstrate that it was completed satisfactorily.

DDU Guide 71
 8.3
Listening to patients and staff

Patients and other members of the dental team can be a good source of Our advice
feedback on the quality of dental care and treatment provided by the It’s important to encourage all patients
practice. to give feedback on the quality of the
service and care they have experienced
The GDC sees complaints as an opportunity to learn and improve service. It also so that instances of good practice can
states that those in leadership positions ‘must promote a culture of openness in the be celebrated and problems highlighted.
workplace so that staff feel able to raise concerns’ if they believe patients are at risk Some patients may express pleasure
(Standards for the Dental Team 2013, paragraph 8.3.1). or dissatisfaction with your practice
through the NHS Choices website so it
Key points is worth monitoring comments here too.
1. Regular patient satisfaction surveys are a source of useful information about
areas for improvement such as appointment times, as well as more serious
concerns. Ask a representative sample of patients to complete the survey
anonymously following their appointments and analyse the results. Patient Checklist
satisfaction surveys can also be a good topic for clinical audit (see section 8.4
Clinical audit, peer review and CPD). • Do you carry out regular patient
satisfaction surveys or invite
2. Details of your complaints procedure should be readily available on the
feedback on your service?
practice website and displayed in the practice where patients can see it. The
issues raised in complaints should inform the practice’s quality assurance system. • Does your practice review
complaints as adverse incidents so
3. Members of staff should be encouraged to raise concerns about the risks to that lessons can be learned? Are
patient safety posed by colleagues, equipment or practice policies. The GDC says
improvements communicated to
practices should have a written policy in place which is readily available to staff.
patients?
Once someone has raised concerns they should be taken seriously and offered
support. • Do you have a written policy on
raising concerns which has been
4. Members of the dental team should have the opportunity to identify priorities
communicated to all staff?
for peer review and clinical audit (see section 8.4 Clinical audit, peer review and
CPD). • Do you invite staff to raise quality
assurance and risk management
issues during their appraisal or at
practice meetings?

72 DDU Guide
 8.4
Clinical audit, peer review and CPD

Clinical audit and peer review are central to effective quality assurance, Our advice
ensuring that best practice is being followed and highlighting Dental professionals should ensure
improvements needed to address shortfalls in the delivery of care. they are involved in clinical audits
and/or peer reviews. Consider taking
All dentists working in the UK are required to carry out clinical audit although the initiative in contacting other
arrangements differ depending on jurisdiction. For example, in Scotland audits are practices to form a peer review group.
part of dentists’ NHS terms of service, while in England the CQC will expect dental
providers to show evidence of audit activity.

Key points Checklist

1. The aim of the clinical audit scheme is to encourage dental professionals to
become more critical and structured in the way they analyse and learn from • Do you conduct clinical audits
their experiences. regularly?
2. A clinical audit project (see overleaf: Clinical audits) requires those managing a • Do you re-audit at appropriate
dental practice to: intervals?
• examine different aspects of their practice • Are you a member of a peer review
• implement improvements where necessary group?
• re-examine audited areas to ensure that a high quality of service is being
• Do you maintain records of all audits
maintained or further improved.
and peer reviews?
3. Peer review enables groups of between four and eight dental professionals to • Do you keep a record of all CPD
work together to improve the quality of service (see overleaf: Peer review). They activity you have undertaken?
do this by:
• reviewing aspects of practice
• sharing experiences
• identifying areas for change.
4. Clinical audit and peer review activities are considered part of dental
professionals’ compulsory continuing professional development (CPD). All
registered dental professionals are required to complete a specified amount of
CPD in order to maintain their registration. There are also defined core areas of
CPD activity for each group of registrants. The GDC requires all registrants to
keep a written record of CPD activity, and to produce this record if requested.

DDU Guide 73
Clinical audits
Local arrangements vary and we suggest you contact your NHS England local area
team or health board for details of schemes in your region. Dental audit and peer
review schemes will list a number of possible audit topics (such as decontamination,
record-keeping and managing emergencies) and will generally set the timescale
for completion. Audits undertaken through formal schemes will often be
approved as verifiable CPD. Alternatively, you can decide on an audit project
within your practice.
All audits should have a project outline including:
• aims and objectives
• summary of the methodology
• timetable
• a detail of educational source material.
You should keep a full record of the audit, including changes made as a result of the
audit findings. You may be asked for proof of participation by the CQC, other similar
national bodies, or your local NHS body.

Peer review
Peer review allows dental professionals to engage with their colleagues in the
dental community. Projects can be organised informally or overseen by local dental
audit and peer review schemes (where approved projects may count towards
veriable CPD). Each group of 4-8 dental professionals will discuss which topics
they wish to review over a series of meetings and one member will act as convenor.
A peer review project may cover both clinical and administrative aspects of practice
but topics must be clearly identified and researched before the meetings; must be
relevant to the objective of improving patient care; and demonstrate how changes
can be achieved. Meetings must be minuted and any conclusions noted, with an
action plan to implement any necessary changes.

74 DDU Guide
 Member story
An administrative error
I first proposed restorative treatment
for the patient when he complained
of sensitivity in the upper right
quadrant. My examination revealed
caries in the lower right second molar
(LR7) and upper right second premolar
(UR5) and bitewing radiographs were
taken. I advised the patient that on
completion of treatment he would be
referred for extraction of his wisdom
teeth.
Unfortunately, the receptionist
failed to record the appointment
for the restorations in the practice
appointment book and when the
patient turned up for the appointment
I was too busy to see him. As there
was a considerable wait until the
next available appointment, he was
placed on a cancellation list. However,
no cancellation appointment became
available and, in due course, he was
sent a routine appointment, which he
cancelled and remade. I was then forced
to postpone this appointment as I was
going to be away on leave.
During my absence the patient
complained of pain and was seen
by a colleague. He was referred to a
general anaesthetic clinic where his
wisdom teeth were extracted shortly
afterwards. The removal of the wisdom
teeth failed to alleviate the pain and a
radiograph later revealed a large cavity
in LR7 necessitating extraction.
The patient later alleged that I failed
to diagnose and treat the decayed LR7
which had resulted in a year of pain and
suffering, and the eventual loss of the
tooth.
How we helped
It was clear that there were
shortcomings in the practice’s
administrative procedures which had
contributed to the unusually long delay
between diagnosis and treatment in this
case. After discussions and with our
member’s agreement, we made an out-
of-court settlement without admission
of liability.
DDU Guide 75
9
Team working
Team working is a vital
element in the effective
provision of patient care by
dentists and all categories
of dental care professionals
(DCPs):
• dental hygienists
• dental therapists
• dental nurses
• dental technicians
• clinical dental technicians
• orthodontic therapists.
All DCPs must be registered
with the GDC. As well as
many privileges, such as
professional status and the
chance for DCPs to own
and run their own practice,
registration brings with it
responsiblities.
76 DDU Guide
All members of the team
should be aware that they
could be subject to the
disciplinary procedures of
the GDC.
The introduction of
direct access in 2013,
enabling patients to receive
treatment from hygienists
and therapists without a
prescription from a dentist,
also opens individual
DCPs to the possibility of
complaints and claims which
would once have been made
to the prescribing dentist.
 9.1
The regulatory environment

The GDC’s role is to protect patients and set high standards of dental Our advice
practice and conduct through statutory registration. Only suitably Dental professionals need to ensure that
qualified, registered dental professionals are legally permitted to practise they are registered with the GDC before
carrying out treatment. The Dentists
dentistry. Act 1984 makes it an offence for a
As a dental professional you are expected to contribute to maintaining high person who is not a registered dental
standards of patient care, and to make the interests of patients your first priority. professional to practise dentistry, or hold
You need to be able to show evidence of training and continuing professional themselves out – whether directly or
development and must take action if an inadequate standard of care, or anything by implication – as practising or being
else, puts patients at risk. prepared to practise dentistry.
Membership of the DDU would cease
Key points on removal from the GDC registers,
1. All dental professionals must be registered with the GDC to practise in the UK. unless the MDU Board of Management
They should be listed in the GDC’s dentist or DCP register. To be listed you decides otherwise.
must hold a qualification approved by the GDC for registration.
Working without indemnity contravenes
2. The GDC holds a number of dentist specialist lists covering areas such as GDC guidance and is in breach of
oral surgery and orthodontics. Dentists cannot call themselves a specialist in a the NHS General Dental Service
particular area if they do not appear on the appropriate list. regulations. The GDC can suspend a
dental professional found to be working
3. Each GDC-registered member of the dental team is individually responsible
without indemnity.
and accountable to the GDC for his or her own actions and omissions, and for
the treatment or procedures they carry out. If the GDC receives a complaint
about the professional conduct or fitness to practise of someone on its registers,
the case may proceed to a full public hearing by a GDC fitness to practise panel.
Checklist
4. Under direct access arrangements, dental hygienists and therapists can
treat patients within their scope of practice without the need for a full mouth • Is your GDC registration valid and
assessment by a dentist, provided they are trained, competent and appropriately up-to-date? Do you keep your skills
indemnified. However, there has been no change to relevant drugs legislation and and knowledge up-to-date and have
regulations which means only dentists can prescribe prescription-only medicines. a planned CPD programme?
This includes some drugs used to treat medical emergencies, local anaesthetics
• Do you keep a record of all your CPD
and fluoride varnish. Only dentists may sign a patient group direction for a dental
activity?
practice or clinic, report on radiographs, or prescribe/oversee tooth bleaching
treatment.
5. Continuing professional development (CPD) is compulsory for all dental
professionals to ensure their skills are kept up-to-date.
• Dentists must complete at least 250 hours of CPD over a five year cycle
of which a minimum of 75 hours must be verifiable CPD. Their CPD cycle
always ends on 31 December.
• DCPs must complete at least 150 hours of CPD with a minimum of 50
verifiable hours and their cycle ends on 31 July.
CPD records must be kept for at least five years after the end of the cycle in
which they were completed because the GDC may ask to see them.
6. The GDC has the power to remove or restrict a registrant’s right to practise if
it is considered to be in the public interest.
7. Statutory registration does not extend to practice managers or receptionists.

DDU Guide 77
 9.2
Working in teams

The dental team varies according to the needs of the patient. It may Our advice
include a dental therapist, a medical practitioner or other members of the All members of the dental team are
wider healthcare team. Dental professionals have an ethical duty to treat expected to work together in patients’
best interests which means effective
all colleagues fairly and with respect. communication and co-operation
between team members is essential.
Key points
1. GDC registered team members assume personal responsibility in clinical
governance and practice management. Failure to address these could lead to
a complaint, disciplinary action or even criminal allegations, either individually or Checklist
jointly with other members of the team. Such responsibilities include:
a. making appropriate fee claims • Do members of the dental team
b. being open and honest with patients regarding treatment know how to raise concerns?
c. health and safety at work • Are members of the dental team
d. patient confidentiality
aware of what to do if they are
e. maintaining adequate professional indemnity in the event of a claim for
uncertain about a treatment plan?
clinical negligence.
• Are patient clinical records
2. Registered dental professionals could be held responsible for the actions of maintained and updated by all
anyone in the team who is not registered with the GDC e.g. receptionists, and
members of the dental team
should ensure they are appropriately trained.
involved in a patient’s care, including
3. Team members should raise concerns if inadequate standards of care are referrals?
placing patients at risk, for example if a colleague’s health or performance is • Are all members of the dental team
causing concern.
aware of their scope of practice as
4. Dental professionals should work with (which means having easy access to) defined by the GDC?
another appropriately trained member of the dental team at all times when • Are all members of the team able
treating patients in a dental setting except: to seek advice and indemnity if a
• in out-of-hours emergencies
patient makes a complaint or claim
• when providing treatment as part of a public health problem
against them?
• in exceptional circumstances which could not have been foreseen. If
exceptional circumstances arise, they must assess the possible risk to the
patient of continuing treatment, explain the risks to patients, obtain their
consent and make a note of this in their record.
5. There should always be at least one other person available in the working
environment to deal with medical emergencies when treating patients.
6. Dental professionals should only delegate or refer a patient to a member of
the team who is trained, competent and appropriately indemnified. The request
should be clear and include all relevant information. Likewise, team members
should only accept a referral or delegation if they have the knowledge and skills
and believe what they are being asked to do is in the patient’s best interests. If in
doubt, discuss with the colleague concerned.
7. Dental professionals should be aware of tasks which are outside their scope of
practice or competence and be clear about the process for referring patients,
including the need for patient consent.

78 DDU Guide
8. Dental hygienists and therapists with the necessary training can carry out the
first cycle of tooth bleaching provided that a dentist:
a. has assessed the suitability of the patient for the treatment, and
b. is on the premises at the time of the first bleaching treatment.
9. Team members should ensure patients consent to treatment. This includes
informing them who makes up the team providing their care, who has overall
responsibility for their treatment and the circumstances in which information
about them may be shared with others involved in their healthcare. (See section
3.2 Valid consent).
10. The GDC states that all registered dental professionals should ensure that
patients are able to claim any compensation they may be entitled to by being
indemnified against claims at all times i.e. see below.

Indemnity
The main purposes of indemnity are to protect the dental professional against the
financial consequences of clinical negligence claims, and to safeguard patients by
providing access to financial compensation.
Dental professionals who are required to register with the GDC are fully accountable
for their own actions. In the event of a complaint or claim for clinical negligence, they
cannot automatically transfer responsibility to their employer, practice owner or the
manager of their employing hospital/trust.
The GDC expects all registered dental professionals to have adequate professional
indemnity, either personally or through their employer, and to check this is in place
before treating patients.

DDU Guide 79
 9.3
Leading teams

The GDC expects dental professionals in charge of teams to demonstrate Our advice
effective management and leadership skills. If a dental professional employs or
manages an unregistered person they
Key points could be liable to fitness to practise
proceedings and possible erasure from
1. It is the team leader’s responsibility to ensure all team members are suitably
the register.
qualified, registered with the GDC where required, and have access to
appropriate training. They should receive a proper induction and opportunities to We strongly recommend that as a team
learn and develop. leader, you check the registration status
of all registrable team members, ensure
2. Team leaders should ensure the working environment is hygienic and safe and
their indemnity record remains unbroken
that there is no discrimination against team members.
and that they have met their CPD
3. The team leader should ensure colleagues are not asked to undertake tasks obligations.
that go beyond their training and skills. They should ensure team members
understand their roles and responsibilities and that they are not pressured to
carry out a task if they say they are unable to.
4. Team leaders must provide team members with a way to raise concerns
Checklist
e.g. where there are doubts about the health, behaviour or competence of a
• If you own, run, or manage a
colleague.
practice:
5. Team leaders must ensure all staff, including non-registered members, are a. are there mechanisms in place to
trained in how to respond to medical emergencies and practise together check that all dental professionals
regularly. The GDC says there must be at least two people available in the are continuously registered
working environment to deal with medical emergencies when treatment is with the GDC and adequately
planned to take place. indemnified?
6. Practices are expected to display details of the dental team, including their GDC b. do you ensure all staff are
registration number where appropriate, in the reception or waiting area. complying with their CPD
7. The team leader must review and monitor individual and team performance, requirements?
including regular appraisals. • Is there a process in place to:
8. The practice owner must ensure there is an effective complaints procedure in a. monitor and review individual
place and team members are familiar with it. and team performance and raise
concerns relating to practice
policies and procedures?
b. ensure team members are
trained in complaints handling?
• Do you hold regular training
sessions for staff in emergency
procedures, including practising
simulated emergencies against the
clock?

Further reading
Standards for the Dental Team (2013), principle 6, GDC

80 DDU Guide
 Member call
Should I report a colleague?
I have just joined a new practice and
been asked to take over the treatment
of a number of patients from a
colleague who is reducing his workload
before leaving. The first patient I have
seen has advanced periodontal disease
and undiagnosed caries in several
molars. What should I tell the patient
and should I report this?
Our response
Many dental professionals are
understandably reluctant to report a
fellow professional. However, the GDC
makes it clear in Standards for the
Dental Team (2013) that all members
of the dental team are ethically obliged
to act in the best interest of patients
and states that ‘you must act promptly
if patients or colleagues are at risk
and take measures to protect them’
(paragraph 8.2). It goes on to say in
paragraph 8.2.3 ‘Where possible, you
should raise concerns first with your
employer or manager. However, it may
not always be appropriate or possible to
raise concerns with them, particularly if
they are the source of your concern.’
If you do not raise your concerns, you
may be regarded as partially to blame
and perhaps asked to give an explanation
to the GDC yourself if you choose to turn
a blind eye to poor performance which
has resulted in harm to a patient.
The Public Interest Disclosure Act
1998 offers protection for those who
honestly raise concerns about wrong
doing or malpractice in the workplace.
You should tell the patient what you
have found and your proposed treatment
plan. If the patient then wishes to make
a complaint, you can advise him or her
of the practice complaints procedure.
If the patient asks you to comment on
whether your predecessor’s treatment
was negligent, you should explain that
as the current treating dentist you are
not in a position to advise on whether
what you have found constitutes clinical
negligence or to judge the actions of
your colleague. Ensure you have made
a note of the discussion in the patient’s
dental records.
There may be a reasonable explanation
for what you have found and you are
not expected to judge whether your
colleague is competent to practise.
However, if you report concerns, you
need to be sure that you can justify them
if called upon to do so at a later date.
Depending on the nature of the concerns
and your relationship with the colleague,
you may consider discussing matters
directly with him or her. If you are
daunted by the prospect of challenging
a colleague directly, you could approach
another more senior colleague to discuss
your concerns.
If, after seeking advice from colleagues
or professional bodies, you decide you
need to take matters further, it can
help to prepare an account of events or
incidents that concern you, with dates
and details of your concern.
DDU Guide 81
 For dento-legal queries
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