Importance of legal cover during the pandemic and beyond
By Adrian O'Dowd
One of the fundamentals of any successful dental practice is to have good legal cover in place for all manner of situations that can occur, keeping the practice functioning smoothly and protecting dental staff and their patients.
However, when something as unexpected as a global pandemic happens, the need for legal cover becomes even more important.
Practices need legal cover which is provided by specialist law firms and indemnity organisations.
This support can come in many forms including help with practice sales and purchases, associate agreements, disputes with associates, fitness to practise disputes, making sure property leases are in place and checking for break clauses, UDA issues, practice mergers, reviewing COVID-19 action plans, employment disputes, redundancy, and business immigration.
The importance of legal cover should not be underestimated, according to Nicola Lomas, partner at law firm Brabners, who says: ‘Legal cover is important not just for this sector but for anyone running a business who should be wary of the fact that issues might arise for them that could lead them into serious hot water.
‘Dentists aren't immune from that. They will potentially be spending a lot of money on their business carrying out what is, effectively, high risk work. People sue other people and if you don't have the right legal advice and the right team behind you to make sure that you can cover those issues when they arise, it could be damaging to your business and you could eventually lose that and potentially lose your own money and home.’
The BDA’s head of indemnity Len D’Cruz explains: ‘There are two areas – one involves your practice insurance and your professional indemnity. If you are a practice owner, by law, you need employer’s liability insurance – that’s legal cover – and you also need public liability.
‘The other aspect of legal cover is your professional indemnity. Is it now a legal requirement to protect your patients in the event of an accident occurring to them or harm befalling them.
‘The legal requirement is there but it helps the patient even though what happened may be through no fault of your own and it could be an accident. In addition, because it’s expensive potentially, you would struggle yourself to be able to afford to defend that or to compensate.’
In cases where a patient might sue a practice for clinical negligence, Lomas adds: ‘They are generally covered on their professional indemnity insurance, but there are not just clinical claims. There are a million things that could go wrong in a dental practice or just running a dental business generally. Things do and can go drastically wrong.’
Complaints and conduct
High on the list of concerns for any dentist are complaints and cases of fitness to practise sent to the General Dental Council (GDC).
Numbers of fitness to practise cases have been on a downward trend in recent years as the regulator has taken a different, more targeted approach, focusing on more appropriate cases for consideration.
In the most up to date figures, the GDC’s annual report1 for 2019 shows that fitness to practise cases raised about dentists in particular have fallen from 2,182 in 2015 to 1,127 in 2019.
D’Cruz says: ‘The numbers of claims and number of GDC cases have dropped a little bit, not because people aren’t complaining, but because the systems are not allowing them to complain as easily as they used to.
‘The thresholds for what the GDC considers to be serious are different. The GDC are a bit smarter at what they doing now so that just because a patient complains, it doesn’t necessarily mean the GDC will get involved.’
The GDC is also seeking to ease the burden on dentists when they receive a complaint and is nearing the end of a nine-month pilot (from January to October 2020) of changes to the Rule 4 stage of the fitness to practise process.
The Rule 4 stage currently allows 28 days for dental professionals to submit their comments or observations in response to a concern that has been raised and these are considered when the GDC is determining whether the concern can be concluded by case examiners or if it should be referred to a practice committee hearing.
The pilots, which involve allowing a 14-day extension to the Rule 4 time limit for cases involving clinical concerns, follow a consultation2 that reported back in January of this year in which several organisations said the current 28-day timescale for responding was sometimes insufficient.
Source of complaints
The causes for patients to make complaints is something that is monitored.
Earlier this year, indemnity body the Dental Defence Union (DDU) examined a sample month of complaints to identify significant causes and concerns about unsatisfactory treatment or examinations.
Over a recent five-year period, the DDU helped dental professionals with more than 9,000 patient complaints.
NHS statistics show that in 2018-19, there were 14,000 NHS complaints in England, a 10% increase on the previous year’s figure of 12,700.
In the sample month of complaints, the main five reasons for complaints were unsatisfactory clinical treatment or examination; delayed diagnosis; communication problems; fees or charges; and staff attitude/behaviour.
Alison Large, DDU dento-legal adviser who carried out the analysis, said at the time: ‘Nobody wants to receive a complaint, but they are part of everyday practice and, if well-handled, can be a worthwhile experience for you and your patients.
‘Not only can you offer a remedy directly to the person complaining to avoid matters escalating to the Ombudsman or GDC, but you can also increase your standing by handling concerns calmly and professionally.’
John Makin, head of the DDU, adds: ‘Although it may seem counter-intuitive, a well-publicised complaints procedure operated by a well-trained dental team avoids issues escalating. Complaints successfully resolved at a local level can actually enhance your reputation.’
The impact of the COVID-19 pandemic on dentistry has been huge with regular practice put on hold for several months, but some normality is now returning.
Practitioners have been concerned about the legal repercussions as some patients in need of pressing or emergency treatment have been forced to attend Urgent Dental Care (UDC) hubs which provided care at the height of the pandemic.
Eleven of the health and care regulatory bodies issued a joint statement3 in March, which recognised the need to allow for the extraordinary circumstances that health professionals have been forced to work within this year.
The statement encourages health and care professionals to use their professional judgement to assess the risk of delivering safe care.
‘We recognise that in highly challenging circumstances, professionals may need to depart from established procedures in order to care for patients and people using health and social care services,’ it says. ‘Our regulatory standards are designed to be flexible and to provide a framework for decision-making in a wide range of situations.
‘Where a concern is raised about a registered professional, it will always be considered on the specific facts of the case, taking into account the factors relevant to the environment in which the professional is working.’
D’Cruz explains: ‘In general medicine, there has been an increase in claims, partly against GPs and partly against hospitals in relation to delayed treatment, delayed operations, and a failure to diagnose early enough serious issues such as cancer.
‘How successful they are going to be, I don’t know. In dentistry, I don't think we've seen it. We are back at work now and we haven't really gotten an inkling although we suspect that there might be more complaints.
‘It might occur with people who have had teeth taken out during lockdown that could have been saved, but we haven't really seen that yet. There is a potential for patients to have had treatment which they could have had different treatment had it not been for COVID.’
Good record keeping is going to be essential for practices to deal with any future claims, he adds.
‘Our advice has been about making sure you know what PPE you are wearing and what the staff are wearing, so people don’t say later on “I've got COVID from the practice and you weren’t doing the right things at the time”.
‘Claims take some time to materialise before they land on your desk. Knowing what you were doing at that particular time and the particular type of PPE you were using, who you were with, what fallow time you had – all those COVID-related things should be part of your record keeping.’
Impact on market
The pandemic has also left its mark on the dental market in terms of property and businesses with signs that buying and selling slowed down significantly during the pandemic lockdown but the pace is picking up again.
Hugo Barton, solicitor and founder of Healthcare Law, says: ‘The average dentist is not acquiring practices at the moment, but it's more a time for entrepreneurial and speculative dental buyers.
‘We are seeing less transactions albeit this has picked up since August, but those that are happening are more for entrepreneurial dentists than first-time buyers. Acquisitions also tend to be proceeding on a part-deferred payment basis and we have had sellers being asked to include a mechanism reducing the price where COVID has affected the practice performance.
‘Currently with COVID issues, it’s been harder to make money in a private practice until recently but now these practices are experiencing fully booked surgeries and waiting lists whereas with an NHS practice, it’s guaranteed payments albeit that isn’t straightforward either.
‘People are definitely looking at NHS practices more than they used to for security and banks also are tending to look at NHS practices because the income stream is more secure in these times.’
The demand for his firm’s services is as high as ever, he adds, saying: ‘We are very busy as a practice but COVID has changed the nature of our inquiries. Clients have been asking how to cope with COVID, less about acquisitions but more about the running of the practice and how to ensure survival.’
Lomas agrees, saying: ‘It is more important for practices these days to have legal support. During lockdown, we went from having a full book of sales and purchases and being very busy to everything going on hold and, effectively, stopping the transactional market.
‘Now, we've come full circle. We are receiving a real influx in new work coming in. The market has gone incredibly hot in terms of practices who are looking to sell and people looking to make business acquisitions and investments into their business.’
During lockdown, state schemes to help dental practices with an NHS contract were provided such as the government furloughed workers scheme, but there was no financial support for self-employed people who earn more than £50,000 – which would include the vast majority of private dentists.
Consequently, dentists seem to be favouring NHS dentistry for future work, as Lomas argues: ‘There's a real drive towards people wanting to work within and own dental practices which are NHS operated. The desire for ownership is really strong at the moment, but particularly for NHS. The market is incredibly buoyant at the moment.’
Demand for the services of legal support is still strong and practitioners need to be aware of specific issues which are dynamically changing at the moment, argues Barton.
‘In these times, we’ve got issues with funding, and you need to talk to your bank in terms of trying to agree loan holidays, to explore your financial covenants and the requirements in your loan documents, and in practical terms to see whether your government-backed loans during COVID are going to cause issues with repayments going forwards.
‘You need to be aware of your loan terms and your financial performance and take practical help as to dealing with your lender or even look to re-finance potentially.
‘Another reason why it is important to speak to us is that we can help with obtaining and making the most of any government support for business as they arise.’
The need for legal support has been growing for some time, adds Lomas, saying: ‘That growth is not just in the last couple of years, it's been growing for a while now.
‘Since I have been at Brabners (three and half years now), there are now 15 people within the firm specialising in dental practice sales and purchases. It is a real growth sector.’
- General Dental Council. Annual Report and Accounts 2019. (18 June 2020) https://www.gdc-uk.org/docs/default-source/annual-reports/gdc-annual-report-and-accounts-2019.pdf?sfvrsn=4cd4c002_4
- General Dental Council. Changes to the timescales for the Rule 4 process: Consultation outcome report. (January 2020) https://www.gdc-uk.org/docs/default-source/consultations-and-responses/gdc-outcome-report-changes-to-rule-4-final.pdf?sfvrsn=98be0f67_4
- General Medical Council et al. Joint statement from chief executives of statutory regulators of health and care professionals. (3 March 2020) https://www.gmc-uk.org/news/news-archive/how-we-will-continue-to-regulate-in-light-of-novel-coronavirus