Chapter 15
Law and ethics
Contents
Principal sources and further reading BDA 2000 Advice sheet Ethics in Dentistry. GDC 2005 Standards for Dental Professionals. P. Heasman 2008 Master Dentistry Volume 2, Churchill Livingstone. P. Lambden 2002 Dental Law and Ethics Radcliffe Medical Press. R. Rattan and J. Tiernan 2004 Risk Management in General Dental Practice Quintessence.
Definitions
Claimant
(or in Scotland, pursuer) The claimant in a civil action.
Defendant
(or defender) The person against whom a claim is made.
Legislation
A country’s written law. In the UK laid down in Acts of Parliament.
Secondary legislation
The precise implementation of the general rules laid down in the Act (often published as Statutory Instruments).
Litigation
An action brought in a court of law.
Claim form
A document setting out the details of a proposed action, which is served to the defendant.
Affidavit
A written statement on oath.
Legal processes
England, Wales and Northern Ireland
Civil law
Civil cases involve claims made by individuals against other individuals/-organizations for a breach of civil rules e.g. breach of contract, negligence, unpaid debt. Civil cases are decided on the balance of probabilities and the only remedy is financial recompense. The losing party is liable for the costs of both sides.
Depending upon financial value, cases are allocated to:
Appeals are referred to the Court of Appeal (civil division) and, occasionally, to the House of Lords.
Criminal law
Criminal prosecutions are undertaken when the ‘law’ has been broken, e.g. speeding, fraud, assault. The decision to proceed with a prosecution is made by the Crown Prosecution Service (CPS). In criminal law, the case must be proved beyond reasonable doubt. Depending upon the severity of the crime, cases are heard in:
Scotland
Civil law
The Sheriff court is the lowest civil court with appeal going to the Inner House of the Court of Session which sits at Parliament House in Edinburgh. The final court of appeal for civil cases is the House of Lords.
Criminal law
The decision to proceed with a criminal prosecution is made by the office of the Procurator Fiscal (PF). The PF is a qualified advocate/solicitor appointed by the Lord Advocate.
Depending upon the severity of the crime, criminal cases are heard in:
Coroners Court
This straddles the two systems and meets to consider unnatural and unexpected deaths, e.g. a death in the dental chair. The process is investigative (as opposed to the claimant versus defendant stance taken in the other courts).
Any unexpected death should be reported to the Coroner in England, Wales, and N. Ireland, or to the Procurator Fiscal in Scotland, either directly or through the police (the Registrar of Deaths will notify the authorities if this has not already been done).
Jury service
Dentists are no longer automatically exempt from jury service. It is possible to apply for discretionary exemption or deferral of service using the form sent with the summons. Jury service can only be deferred once. Where a person has attended for jury service in the previous 2 years they have a right to be excused service.
Complaints1
A complaint is any expression of dissatisfaction about any aspect of a dental service or treatment that requires a response. It may be spoken or written in nature. It is part of the responsibility of a dental professional to deal with complaints properly and professionally.2 All providers of dental services should have a complaints procedure with an appointed responsible person for dealing with complaints. All members of the team should be familiar with the complaints procedure. A written record of all complaints received should be retained and an annual report produced.
Stages
Local resolution
A complaint may be made either to the practice or direct to the PCT.
Once a complaint is received:
Time limits
Complaints must be made ≤12 months after the event or <6 months after the complainant realises there was a problem. Where a good case can be made, this latter time bar may be extended.
PALS/Local Health Councils
Although not part of the complaints procedure, they can give advice about the process and may be able to resolve concerns informally.
PCT/Health Board
Can deal with a complaint direct, or with the patient’s consent refer the complaint to the practice/provider. Where a complaint is difficult to resolve it can:
Independent Review Secretariat:
A Convener is appointed by the Board/Trust to decide whether a panel should be convened. Following investigation by a review panel, a written report is sent to both parties and the Board/Trust will decide whether service improvements are recommended.
NHS Ombudsman:
The ombudsman is independent of the NHS and investigates complaints relating to NHS services within hospitals/trusts/health authorities/practice. The ombudsman may not become involved in complaints where legal action is intended or has commenced, and will only deal with complaints that have failed to be resolved through local resolution/independent review. Can investigate the complaint and make recommendations where appropriate, e.g.
Dental Complaints Service:
The DCS is an independent complaints service funded by the GDC which aids in the resolution of complaints regarding private dental treatment in the UK. Where a patient contacts the service, they will encourage the complainant to try and resolve the issue with the practitioner directly through their complaints procedure. Where this has been tried, they will contact the practitioner and provide assistance to both parties to try and reach a fair resolution.
Care Quality Commission (CQC):
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