The Allocation of Blame for Dental Negligence

The roles of the dental hygienist and that of the dental therapist are often seen as second in line to that of the dentist. They are seen as mere assistants to the dentist who see patients once every six months for a regular scale and polish, or after a referral has been made for simple treatment. This is not the case, as the dental hygienist and the dental therapist play a crucial role in patient oral healthcare.


Duties

As a claimant solicitor, looking at the General DentalCouncil guidelines on the professional and personal conduct of dental hygienists and therapists, the rules clearly place a duty on both hygienist and therapist to enrol with the GDC prior to practice, and to ensure that they are indemnified against claims for professional negligence. Therefore the GDC has recognised that dental hygienists and therapists may be liable to take the blame for certain negligent treatment and have forced them to insure against such claims prior to practising.

Under the GDC guidelines (specifically, paragraph 2.1), hygienists and dental therapists are only allowed to practice ‘under the direction of a registered dentist’. Paragraph 2.1 then gives the hygienist and the therapist some scope to say that any claim made against them directly, automatically involves the supervising dentist. In my experience as a claimant solicitor, it is highly unusual for any allegation of negligence to be aimed directly at a hygienist, or a therapist, but this does not mean that they are out of reach of criminal or civil law.

The GDC has, in the past, taken a very dim view of anybody practising when they are not supposed to be.


Criminal prosecution
Earlier this year the GDC announced that it had prosecuted a former dentist, Alexander Gibson, for the illegal practice of dentistry. The case was heard at Blackpool Magistrates’ Court. At the hearing, Mr Gibson pleaded guilty to treating patients after his name had been erased from the Dentists Register. The Dentists Act 1984 makes it an offence for a person who is not a registered dentist or a registered medical practitioner to practice dentistry. As Mr Gibson was erased from the Dentists Register in 2003 having been found guilty of serious professional misconduct, he was not a registered dentist, and therefore, practising dentistry was an offence under the Act. Mr Gibson was fined £9,000, ordered to pay a contribution to the Council’s costs, and £400 compensation to a patient.

Although Mr Gibson was a dentist, the GDC would, in my view, be at liberty to prosecute a dental hygienist or therapist in the same manner should they consider practising whilst unqualified to do so, or proceed to practise without the appropriate direction from a dentist. There is clearly potential for a hygienist or therapist to commit a criminal offence, as shown from the above case. We shall see below that there may also be a liabiliy when a civil wrong is committed.

Limits on advice
The actual treatments that can be provided by a dental hygienist to a patient are surprisingly limited. Under the GDC guidelines, authorised treatment from a hygienist includes:

  1. Cleaning and polishing
  2. Scaling
  3. The application to the teeth of such prophylactic materials as the Council decides
  4. Placing a temporary dressing in a tooth

A dental therapist by virtue of paragraph 2.1 of the GDC guidelines is permitted to carry out the above treatments and is also able to extract deciduous teeth and undertake simple dental fillings. Conflict situations occur every day in every dental practice. Take for example the dentist who refers a patient to his therapist for a simple dental filling as authorised under paragraph 2.1 of the GDC guidelines. After examination, the therapist takes the view that the tooth should be kept under observation and not filled, but the referring dentist has requested that the tooth be filled. Where does this leave the therapist legally?

 

Therapists’ duty
The therapist is under a duty to act in the best interest of the patient, and has a duty to put the interests ofthe patient first. Indeed the GDC, in paragraph 4.2 oftheir guidelines state that the Council will take a ‘serious view of any neglect by a dental hygienist or therapist of their responsibilities for the care and treatment of their patients’.

Two questions arise that need to be answered by the therapist:

  1. Should the patient be told of the therapist’s concerns over the treatment proposed?
  2. Should the therapist confront the dentist over thebest course of treatment?

The therapist is in the precarious situation of disagreeing with the dentist on the correct course of treatment. The dentist has referred for a filling, but the therapist thinks the tooth should be kept under observation. In my view, the patient should be told of the therapist’s concerns, and both the therapist’s and the patient’s comments and suggestions should be noted in the clinical records for future reference. This would be in the best interests of the patient. The patient has then been given all of the treatment options, and consent is arguably properly obtained. The therapist has then discharged some of his duty to act in the best interests of the patient, and this is evidenced in the clinical notes.

To answer the second question, the GDC guidelines themselves provide some guidance:


What is the right course of action to take in a conflict situation? (paragraph 4.4 GDC Guidelines).

If a conflict regarding treatment occurs then paragraph 4.4 of the GDC guidelines states that: ‘…if in doubt (the hygienist or therapist) should seek advice from an appropriate professional organisation.’ The best advice is for the therapist (in the scenario above) is to contact his or her professional indemnity insurer for advice.

Defence organisations can offer a wealth of helpful advice, both legal and dental. In real terms, this may be impractical. This action will be seen as going over the head of the referring dentist, and would be seen as questioning his professional judgement which is going to prove an unpopular move. On a more practical level, the therapist could approach the dentist in question (after informing the patient of his concerns) to discuss the treatment options available and possibly suggest an alternative view. Dentists and therapists/hygienists should be encouraged to actively communicate with one another, as all three are an integral part of a smooth running dental practice.

Once the patient has been given the treatment options, they can then decide with advice, upon the best course of treatment. Taken one step further, say the tooth in question was filled by the therapist as requested, but this did not ease the patient’s suffering, and further investigations by the dentist show that it was an adjacent tooth causing the pain. The patient has had to undergo the rigmarole of an unnecessary filling, and has suffered damage to a perfectly good tooth in the process. Had the therapist brought his concerns to the attention of the dentist immediately, and recommended that the tooth be kept under observation, then the filling and subsequent damage to the healthy tooth could have been avoided.

This damage is, of course, claimable in law, but is likely to be classed as only minimal. The therapist is open to criticism by the patient and his legal team, for not raising proper concerns at the time, which is arguably not in the patient’s best interests.

Paragraph 4.4 of the GDC Guidelines state: ‘…Dental hygienists and dental therapists are obliged to carry out the lawful and reasonable directions of the dentist under whose direction they are working, regarding the care and treatment of the patient. They must not carry out directions which are unlawful or unreasonable. If in doubt they should seek advice from an appropriate professional organisation. ‘The guidelines on the one hand state that hygienists are only to carry out certain treatments under the direction of a suitable dentist, but on the other hand, must only carry out reasonable and lawful directions. This creates a conflict situation. On the one hand the hygienist/therapist is being told to follow the direction of the dentist, but on the other that if they have any doubts about the treatment proposed, then to query it.

The main question that has to be asked is how is a hygienist or therapist supposed to realise when adirection by a dentist is unreasonable or unlawful? No further guidance is given by the GDC guidelines, and it seems to boil down to individual experience and knowledge, (and plain common sense).

Employed or self-employed?

The fact that a hygienist and therapist must carry their own professional indemnity insurance is evidence that they are self-employed, and open to negligence claims themselves. However, the GDC guidelines clearly stating that they are only allowed to practise under the direction of a dentist, affords some protection, and opens the argument that they may be protected through the doctrine of vicarious liability, that is, that the employer is liable for the negligent act of his employee whilst acting in the course of his employment

Abbreviations and codes

Para 4.4 of the GDC guidelines states: ‘…the format and content of prescriptions are properly a matter for the prescribing dentist. However, it is the responsibility of the dental hygienist or dental therapist to ensure that they understand fully the treatment that the dentist has prescribed. The use of abbreviations or code in a written prescription is permissible provided the abbreviation or code used is fully understood by both the dentist and the dental hygienist or dental therapist…’. By way of example, if we look at the case of Prendergast v Sam & Dee Ltd, Kozary and Miller (1989)1 Med LR 36 CA, we find this useful guidance. In this case, a pharmacist misread a badly handwritten prescription and dispensed the wrong drug to a patient. The GP had written Amoxil, but the pharmacist read the script as Daonil which is a drug to control diabetes.

The patient who was a non-diabetic took the drug and suffered hypoglycaemia and irreversible brain damage as a result. The Court found the GP was 25 per cent liable holding that his handwriting had fallen below the standard of legibility required of him in the exercise of his duty to his patient.

The pharmacist was found 75 per cent liable and was heavily criticised by the Court for not making further enquiries of the GP regarding dosage and strength of the drug in question, and for not paying attention to what he was doing when he dispensed the prescription. This case sets a tough precedent for hygienists and therapists to beware when a referral has been made by a dentist for certain treatments to be carried out, and to make themselves fully aware of the proper treatment which has been prescribed.

If unsure, the hygienist or therapist must take steps to clarify the proposed treatment with the dentist themselves to avoid any liability. To protect themselves against any allegations of negligence a dental hygienist or dental therapist must:

  1. Enrol with the GDC prior to practising.
  2. Obtain proper professional indemnity insurance, and not be afraid to contact them for advice.
  3. Not carry out any ‘unauthorised, unlawful or unreasonable’ treatment.
  4. Bring any conflict situation to the attention of the patient and referring dentist.
  5. Keep the channels of communication with the referring dentist open.
  6. Obtain advice from a proper professional organisation if a conflict situation cannot be resolved by other methods.

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