20

Law, ethics and professionalism

Hew Matthewson

Introduction

Traditionally the public has held healthcare professionals in high esteem. Trust in these professions has been based on the belief that their members are highly trained and competent, that they put the interests of their patients first and that they adhere to high standards of conduct both professionally and personally. While there is some justification for this position, concerns surrounding the delivery and practice of healthcare increasingly attract widespread attention and reduce public confidence in the professions. It is important that all involved in healthcare understand the ethical, legal and professional foundations of their activity, appreciating that these are in an almost constant state of reexamination and development in response to professional, public and political debate.

Regulation of dental practice

In the UK the regulation of the dental profession was first formalised by the Dentists Act 1878 that introduced voluntary registration of dentists with the General Medical Council. It was not until 1921 that a new act made registration with the Dental Board of the United Kingdom mandatory for newly qualifying dentists. The Dentists Act 1956 established the General Dental Council (GDC) as the professional statutory body responsible for the regulation of dentistry and the Dentists Act 1984 and Dental Auxiliaries Regulations 1986 provided for the enrolment and regulation of dental hygienists and dental therapists.

In 1993 a report on the use of auxiliary personnel in dentistry published by the Nuffield Foundation recommended a significant expansion in the membership of the dental team, proposing the introduction of a new range of personnel (Nuffield Foundation, 1999), some with direct clinical duties hitherto only undertaken by dentists, and now known collectively as dental care professionals (DCPs). Progress towards the implementation of many of the report’s agreed recommendations was hindered by the need for Parliament to debate and amend the Dentists Act and, perhaps not surprisingly, this has not been considered a high priority in the context of wider parliamentary activity. However, the Health Act 1999 provided a mechanism to make certain changes to the statutory arrangements for professional regulation without the need to open the Dentists Act to full parliamentary debate. As a result the GDC has been able to progress a number of significant reforms, including many that affect DCPs.

The General Dental Council

The GDC is the professional statutory body responsible for the regulation of the dental team. As such its overriding aim is the protection of the public and its recent reconstitution has been designed to enable it to undertake this task in a more effective way (Table 20.1). This relatively new structure represents an overall reduction in number with a significant shift in balance in favour of the lay and DCP membership.

Table 20.1 Composition of the General Dental Council, 2009.

In order to fulfil its overall aim of protecting the public, the Council has a number of specific roles.

Registration

The GDC maintains the Dentists Register, the Lists of Specialist Practitioners and the DCP Register Registration has been extended to include dental nurses, technicians, clinical dental technicians and orthodontic therapists. Acceptance on to the registers is through appropriate training and qualification.

It is illegal for anyone other than those whose names appear on the registers to use the job title or to undertake their defined duties.

Recertification

Formerly, once dental professionals were registered they remained so until they chose to remove their name from the register or the GDC found reason to do so. There were clearly risks associated with this situation as there was no statutory obligation to undertake any programme of further education or training, although many saw it as a professional duty and chose to do so. Now there is 5-yearly mandatory recertification of all registrants, making participation in continuing professional development (CPD) a requirement for the continuing registration.

Revalidation

Like all Healthcare Regulators the GDC is currently developing a system of revalidation. The current proposals are that every 5 years after first registration a registrant will need to demonstrate that they are still fit to practise and up to date for the work they are currently doing. This will not mean retaking final exams but it will mean showing that you have completed your CPD, that the CPD is relevant to your current practice, are participating in audit etc., it is expected that for most people this will simply be a matter of supplying the correct proof of activity.

Educational standards

In order to ensure that the training received, and qualifications gained, by dentists and DCPs are of an appropriate level, the GDC takes a particular interest in educational standards. The Council publishes guidelines on the scope and content of course curricula and undertakes visitations to those educational establishments involved in their delivery, such as university dental schools, DCP schools and hospitals, to ensure that the provision measures up to the high standards it requires. As part of this process, teams of appointed and trained visitors attend institutions to inspect the educational provision to ensure it conforms to the GDC’s published recommendations. Visitations result in a report that usually recognises the particular strengths of a course but that may also identify areas where improvements could be made. These reports are now made public. Ultimately, if the GDC had serious concerns about a particular course, it has the power to discontinue its recognition of the resulting qualification, an outcome that is serious enough to ensure that schools implement the recommendations of any report.

Fitness for registration

The GDC is concerned that all registrants are fit to practise dentistry. An individual’s fitness for registration may be called into question on grounds of their professional performance, conduct or health. As part of the recent reforms the GDC has revised the way it will approach this issue. The hope and intention is that, through mandatory CPD and the introduction of other approaches to enhancing quality and safety in healthcare, the majority of individuals will remain up to date and competent to practise their particular field of dentistry. However, there will be occasions where for a few, this may not be so. For others, deterioration in their health, for example through the abuse of alcohol or drugs, may put their patients at risk if they were to continue practising. There may also be issues concerning the conduct of individuals, either in association with their professional activity or beyond, that call into question the appropriateness of their continuing registration.

With patient safety as the central concern, the GDC has mechanisms to manage such situations, the overall consideration being whether or not an individual is fit to remain on the register and to practise. The starting point will be a screening or ‘pre-hearing’ stage to consider the issues that have been raised and, if necessary, to refer the case to a fitness to practise panel. The role of the panel will be to determine whether or not the individual’s continuing, unconditional registration is likely to pose a threat to patient safety. The GDC has the power to remove or suspend an individual from its register or to make their continuing registration conditional.

Complaints about individual registrants may be received by the GDC from a number of sources, including patients. The GDC considers all such complaints seriously and has to decide whether the complaint, if it were proven would suggest that the individual is no longer fit to remain on the Register, by virtue of the fact that their fitness to practice is impaired.

Any registrant convicted of a criminal offence will automatically have their conviction examined within these arrangements. It is important to realise that the GDC may also consider convictions, cautions and other episodes of misconduct that took place before an individual was registered for registrants cautions are never considered as ‘spent’ and must be declared to the GDC. An individual whose fitness to practise is called into question may have their name erased from the Register, preventing him/her from practising.

As we have seen, the GDC is concerned that dentists and DCPs are fit to practise at the time of their registration and continue to be so. Although this section has been primarily concerned with professional competence and health, professional and personal conduct is also important. The public has held an expectation that those in the healthcare professions live up to high standards both professionally and personally, although high-profile events have probably introduced some understandable doubts. The GDC may receive complaints about the behaviour of registrants from members of the public or other agencies. Any criminal convictions will automatically be reported to the GDC and the Council accepts as proven the findings of the court. Indeed, individuals are now obliged to declare any former convictions against them at the time of registration. In each case the GDC has to consider if the conviction or behaviour complained of might compromise the individual’s fitness for registration.

Professional duties and obligations towards patients

While the GDC imposes statutory control over dental professionals and the practice of dentistry, there are other legal, ethical and professional duties and obligations on those involved in the delivery of patient care. This is not a new concept designed simply to meet the higher expectations of a modern and increasingly litigious society. Hippocrates (460–377 BCE), considered by many to be the ‘father’ of medicine, set out ethical principles to govern the relationships between physicians and their patients. Many of these principles were subsequently embodied in the Hippocratic Oath, still sworn, albeit in modern form, by many qualifying healthcare students. Since then other groups have proposed principles of ethical and professional behaviour that should be adopted by those in healthcare. The GDC has provided its own set of guidance notes for all Registrants This latest and more general guidance, based around six key principles (Table 20.2), has been supplemented by detailed guidance on a range of specific topics, one of which, Principles of Dental Team Working (General Dental Council, 2006), is clearly of particular relevance to DCPs. Those embarking on a career as a dentist or DCP are strongly recommended to acquire and read these documents and remain familiar with them as they will inevitably be revised in the future.

Table 20.2 Key principles for ethical dental practice (General Dental Council, 2005).

Duty of care

From the moment patients are accepted for care by a dental professional they are owed a duty of care. Patients have the right to expect that those caring for them are appropriately trained and qualified to undertake their treatment and that they are competent to do so. Furthermore, there is an expectation that those delivering patient care will put the interests of their patients before their own. This duty of care extends beyond the execution of specific practical procedures, but applies also to every aspect of patient management, including diagnosis and treatment planning and the giving of advice. Indeed, there is an obligation on healthcare professionals to ensure that patients receive all the information and advice necessary to enable them to understand their condition and contribute to their own management. Failure to offer such advice is likely to constitute a breach of duty of care. It is particularly important to appreciate this in dentistry, as the delivery of, for example, oral hygiene instruction, dietary and smoking cessation advice is central to the prevention and management of oral diseases. Healthcare professionals should appreciate that if they have a conversation with an individual about their health or offer advice, a duty of care is owed – even if the individual is not their patient in the usual sense, and even if the interaction took place outside the professional setting.

Not only must practitioners deliver appropriate elements and items of care, but the care they deliver must also be of an acceptable standard. Failure to achieve an appropriate standard of care is also considered a breach of duty. The standard of treatment clearly varies for a number of reasons, not always under the control of the clinician. While most dental care is delivered to an acceptable standard and much is excellent, some does fall below the standard the patient has a right to expect. It is difficult to give a clear definition of this important threshold, below which the standard of treatment is no longer considered adequate.

For many years the standard of care has been determined in legal terms, using a principle established following a judgement in the case of Bolam v Friern HMC, 1957. In this landmark case it was concluded that as long as the standard of care reached that of the reasonably competent practitioner working in similar circumstances then clinicians would not be failing in their duty of care. This became known as the Bolam principle or test and has been used for decades by lawyers and the courts. It gave rise to the concept of a ‘respectable body of medical opinion’ and the belief that if a practitioner could show they had acted in accordance with such a body, they would be defensible in the event of litigation. Although such a line of argument is still used and accepted, it has been challenged on occasions and is no longer associated with the security it once appeared to offer. In particular, the court will need to be convinced that the body of opinion being cited is also logical and up to date, at least for the time of the alleged breach of duty (Bolitho, 1997). Given the greater emphasis on CPD it will no longer be a defence to claim that a practitioner’s standard of care was adequate simply because some other practitioners did things the same way. It is important to appreciate that the standard of care delivered by a dental hygienist or therapist is not measured against that expected of a specialist practitioner or consultant, but against that of hygienists and therapists generally.

Court actions for negligence

When patients are in a position to show that a dental professional owed them a duty of care and that there was a breach of that duty either by act or omission, they may be in a position to claim that their treatment was negligently provided and make a claim for compensation. In order to be successful they must show that, as a result of the alleged breach of duty, they suffered loss or damage, the relationship between the breach and the damage being referred to in legal terms as causation. If it is accepted or proven in court that all three criteria are fulfilled the patient is eligible to receive financial compensation or damages.

It is rare for a practitioner to be able to contest the claim that they owed a patient a duty of care. When once the patient is in the chair and submitted to examination, that duty exists. While the ultimate arbiter in relation to standard of care and breach of duty is the court, such assessments are made in the first instance on the advice of clinical ‘experts’ instructed by those advising the patient, who is the potential claimant in the case, and the practitioner who is the potential defendant. Increasingly, patients are seeking legal advice from law firms that specialise in personal injury litigation, even specifically in the dental context. The majority of claims are resolved without the need to go to trial, the outcome being the discontinuation of the claim or a negotiated settlement.

Technically, a claim of negligence must be made, for an adult claimant, within 3 years of the alleged negligence. However, this period is often longer as the 3 years are deemed to start from the date the claimant learnt that the event may have been negligent (the date of knowledge), which may be many years after the event. It is important that accurate dental records are retained for many years as it is increasingly common for patients to claim that 15 or 20 years have gone by without anyone telling them they had periodontal disease.

Indemnity

All registrants must be in a position to pay compensation to a patient and this is done by paying for insurance known as ‘professional indemnity’. This is usually done by joining a ‘Defence Organisation’ Those working in the hospital or community services are automatically indemnified for the work they undertake in the course of that employment and this is known as ‘NHS Immunity’. However, such indemnity does not cover clinical activity undertaken outside the employment setting nor does it cover dispute with an employer. It is sensible to consider membership of a defence organisation that offers additional benefits, including access to advice, and is recommended to all dental professionals. DCPs working in practice require indemnity through membership of one of the dental defence organisations or other appropriate insurer. Professional indemnity is now required by the GDC and lack of it could lay the individual open to a charge of fitness to practise being impaired.

Confidentiality

The relationship between health professional and patient is based on trust. Patients necessarily impart information to healthcare professionals on the understanding that it is held in strict confidence and shared with others only in very particular circumstances. Such information extends beyond what is obviously medical/dental in nature; for example, the very fact that an individual is a patient at a practice is a confidential matter, as are personal details, such as their address and telephone number. Even in ancient times, Hippocrates recognised the need for confidentiality, considering it an ethical duty of the clinician. This ethical duty remains, but confidentiality is now also seen as the patient’s right. It is, for example, enshrined in Article 8 of the European Convention on Human Rights and was subsequently embodied in the Human Rights Act 1998. The professional duty to maintain confidentiality features prominently in the GDC guidance and an undertaking to that effect appears in many hospital and practice brochures.

Clearly, clinicians concerned with the care of particular patients often have to share information about them and this is exemplified by the necessary communication between members of the dental team. However, even in this context, information should be shared on a need-to-know basis. In 1997 Dame Fiona Caldicott published a report addressing how confidential patient information should be managed within the National Health Service (NHS), in which she established six key principles (Table 20.3). Dentists and others who employ healthcare workers have a duty to ensure that all staff with access to patient information understand this important duty of confidentiality. Where breaches of confidentiality occur patients may be in a position to sue those concerned, although they are more likely to express their displeasure by making a formal complaint, perhaps to the GDC. The GDC views such complaints seriously, as, if proven, they are likely to constitute im/>

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