Patients Want Answers, Not Choices

Will the proposed complaints scheme for non-NHS dentistry really work?

A consultation document was published in May 2002setting out the proposals fora new non-NHS dental complaints scheme, and the General DentalCouncil complaints working group concerned published their findings in January 2003. The GDC website (www.gdc-uk.org) says it has appointed a director to lead and manage the implementation and operation of the new scheme. The aims of the scheme (in a nutshell) are to provide an alternative to courtroom litigation, which is seen as ‘prolonged and expensive’, and to provide an alternative to theGDC’s fitness to practise complaints procedure, which focuses on misconduct issues and fitness as to registration. The working group criticised the GDCcomplaints of fitness to practise procedure, as not offering opportunities for mediation and complaints resolution, which is a wholly valid point. I often find myself advising clients who contact me, that their complaint may fall into the remit of ‘misconduct’, and suggest that they consider a complaint to the GDC in this respect. The working group found that the key to a successful complaints scheme will be the use of effective practice-based complaints procedures. The complaints scheme will be funded by the GDC. In real terms, all registered dentists, enrolled dental hygienists and therapists will pay for the scheme through the annual retention fees. The guiding principle has already been clearly agreed; although it will be the ‘GDC scheme’, it will be quite separate and distinct from the GDC’s fitness to practise procedure.

Overview

The new complaints scheme will have two main features:

  1. An information service (including a telephone helpline) which will be open to any person with a query or complaint about dental care they have received;
  2. Complaints resolution service. The primary aim of the information service is to establish what the caller’s query or complaint is, and then to explain the various options that may be open to that particular caller.

It is intended that a team of ‘complaints advisors’ will be trained to provide this service, by telephone, letter and email. Except in a few exceptional circumstances, complaints advisors will encourage the caller to discuss their complaint with the practice concerned. Of note, there do not appear to be any clear guidelines as to these ‘exceptionalcircumstances’. If this has been fully explored or is not suitable, other avenues will be discussed, such as:

  1. Alternative information sources about dental treatment and the obtaining of a second opinion.
  2. The NHS complaints scheme.
  3. The private complaints scheme.
  4. Seeking legal advice.
  5. The GDC fitness to practise procedures.

It is intended that the complaints advisor’s role will not be to direct the caller, but to explain what all the different options should be used for and what the caller might expect to get from them. The complainant will normally be expected to have tried to resolve the matter with the practice directly. If this does not work, then the complaints advisor (if appropriate) could seek to try and improve communication between the patient and the registrant.

Local panel procedure

If the complaints advisor is unable to resolve the complaint, then a panel of three members would be convened which would consider the complaint and make recommendations. Hearings will take place locally, although regionally based panels might be introduced. The working group envisage the panels not to be subject to the rules of evidence or procedure, but which would allow the complainant to give their views on what the complaint is about, and why it remains unresolved. What about those complainants who cannot or will not attend such hearings? Before stepping into the dental negligence arena, I was often asked to attend ‘informal’ hearings on behalf of clients, such as employment tribunal hearings, hearings in relation to tenancy disputes, and social security appeal hearings. I anticipate a real danger with the proposed new complaints procedure, in that clients will instruct a solicitor to attend the complaints hearings upon their behalf, which has the danger of turning the whole complaints system into a form of ‘mini-trial’. This is to be avoided. The panel will then come to a decision, and can then make the following recommendations:

  1. Direct that the complaint is unjustified with no further action
  2. Direct that the complaint is unjustified, but with recommendations as to future practice
  3. Recommend that the registrant offer an apology to the complainant with a refund of fees, or remedial treatment
  4. Recommend that further work be undertaken by another dentist at the expense of the registrant
  5. Recommend in exceptional circumstances that the complaint be referred to the director of the complaints scheme for further investigations

The panel’s recommendations will represent the end of the case for the complainant. This effectively means that there is no further right to appeal any recommendations. More problematic and concerning is that no enforcement mechanism is envisaged for any recommendations that have not been followed by the registrant. This is rather akin to a guard dog with no teeth!


Negligence

Will the complaints scheme really work? As a solicitor for a number of years, specialising in the niche area of dental negligence, I am contacted daily by numerous potential clients who wish to make a complaint about treatment they have received from their dental practitioner (or sometimes another member of the dental team). As a solicitor, I am under a duty to consistently act in the best interests of my client at all times. This duty includes explaining to potential clients any other methods of resolving their claim, which would include alternative dispute resolution (ADR), mediation and the following of dental practice in-house complaints procedures if judged that they are relevant. Before any claim in negligence is made, my clients are always advised that there may be other avenues to explore as to matters of redress, but I find that most turn to the law as a matter of last resort. Many clients who contact me have followed (or are in the process of following) either the in-house dental complaints procedure run by the dentist being complained about, or a complaint to the GDC in relation to misconduct. Society in general now expects transparent complaints procedures to be in place, but I find that often this is not the case in dentistry. Most clients are wholly unaware that either an in-house dental complaints procedure exists, or even that the GDC can become involved in certain scenarios. This is simply a lack of patient care information at the outset. As a solicitor, I am obliged by the LawSociety to tell my clients about my in-house complaints procedure at the outset of the retainer, and supply them with an overview of the manner that I will deal with any dissatisfaction with my service. Why could dentists also not adopt this policy?

Paragraph 3.13 of the GDC Maintaining standards guidelines state that:

‘3.13 – If a patient has cause to complain about the service provided, every effort should be made to resolve the matter at practice level.’It appears to me that the new GDC non-NHS complaints procedure is trying to enforce the guidance that has been in force for some time in any event in the form of paragraph 3.13.I am concerned about the new information service being staffed by ‘complaints advisors’. There are numerous questions to be answered, one of the most important is whether the complaints advisors are to hold qualifications in both dentistry and law? After all, it seems that they will be making judgement calls and offering advice on both of these complex areas. Many of my clients turn to the law due to a loss of confidence in their dentist (whether that loss be justified or not). It appears that irrespective of options these‘complaints advisors’ will strongly encourage patients to try and settle the problem directly with the dentist concerned. They are seemingly taking over the role of mediator. I foresee two major problems with this.The first is trying to persuade complainants to have any sort of contact with a professional who has caused them injury or discomfort in any way. In my experience, most clients simply do not want any contact with the dentist in question. Quite understandably, there seems to be a ‘once bitten, twice shy’ attitude amongst potential complainants. Another major problem will be dealing with dentists who have an ‘ostrich’ approach to complaints about malpractice, and simply do not wish to become involved. There are unfortunately some dentists who think they are infallible. We are all human, and everybody makes mistakes, and as the old adage suggests, sometimes it is better to admit those mistakes and learn by them.

If the practice based procedure fails, ‘the complaints advisor could seek to try and improve communication between patient and registrant’. How exactly will this be undertaken? I see a real danger that these trained ‘complaints advisors’ will step into the role of both expert witness and legal advisor by administering unqualified advice based upon the briefest of facts. The working group envisages that the potential complainant will not be directed into a certain course of action. I envisage that this will be most difficult to control. Most complainants will be at the end of their tether with the dentist in question that they are complaining about, they will be looking for guidance and good common sense direction, not more choices offered by these advisors that may simply confuse them further, leaving them not knowing which way to turn when faced with a multitude of choices. Even if the emphasis is upon not leading the complainant, many clients will ask the advisor ‘What would you do in my situation?’. The answer will result in the complainant being led. Complainants will be looking for answers, not choices.

 

Ultimately, the scheme will allow panels to make recommendations such as compensation in the form of a refund of fees or remedial treatment as in special damages. What about the issue of general damages for the patient’s pain, suffering and loss of amenity?

The patient will ultimately have to come back to a solicitor to claim any general damages, and risk repeating the whole process. Much of the evidence may have also been disclosed in the course of the complaints procedure, potentially jeopardising many claims which ought better to have been brought in front of a Court at the first instance. Alternatively, the panel may recommend that any remedial work be undertaken by another dentist at the expense of the respondent. This brings with it a whole host of enforceability problems if the registrant dentist disagrees with the recommendation.

To summarise, I see the general idea of a step towards mediation as a good idea. Courts have been open to mediation for a number of years, but the method and delivery proposed will be interesting to say the least. The real danger as I see it, are unqualified ‘complaints advisors’ taking over the roles of expert witnesses and lawyers, and leading complainants down a particular avenue of redress. It is open to question as to whether the suggested complaints scheme will actually work in the manner proposed, or whether changes will have to be made once the scheme is up and running.

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