UK: Dental Brief - March 2015

Last Updated: 30 March 2015
Article by Jenin Khanam

There have been several cases involving dentists with a variety of interesting predicaments we have highlighted just a few.

Dentist wins action against former patient for defamation

Keith Watson a dentist won a ground-breaking Ł50,000 in damages from a former patient, Mr A McIntosh, over allegations that false claims against him had damaged his professional reputation.  The GDC had concluded that the allegations against the practitioner were untrue and defamatory.

Whetstone v Medical Protection Society Limited ("MPS")

The High Court ruled on whether the MPS was liable to indemnify Mr Whetstone against liability for negligent treatment carried out on patients by his associate (who did not have his own indemnity insurance). The patients were asked to claim against Mr Whetstone personally.  The MPS refused to provide indemnity Mr Whetstone on the basis that it does not indemnify its members against vicarious liability for acts of other dentists.

The Court ruled in favour of MPS and Mr Whetstone lost his appeal.

Krebs v The NHS Commissioning Board

The Court of Appeal upheld a decision in favour of the Board that it had not acted unreasonably in terminating its contract for provision of dental services with Mr Krebs. 

This case concerned whether the Board's termination notice remained in effect despite a letter from the Board to suspend the dentist's termination until the dispute was resolved.  The Court held that the letter merely postponed its determination, and the Board was entitled to serve a fresh notice to terminate the contract. 

The Board had referred Mr Krebs to the National Clinical Assessment Service (NCAS). The court found that Mr Krebs was required to co-operate with NCAS even if he considered such request unreasonable.  The court concluded that Mr Krebs was unable to show the Board had acted unreasonably and the Board was able to go ahead with the termination of his contact.

Al- Nahar v General Dental Council ("GDC")

The Court of Appeal has upheld the GDC's decision to erase Dr Al-Nahar from the dental register.  Mr Justice Holman noted that there were not fewer than 66 charges relating to 14 different patients; 56 of those charges, which dealt with inadequate or inappropriate clinical treatments or inadequate record keeping, were found proved.  There were also charges of dishonesty in 3 separate incidents.  Dr Al-Nahar argued that because of his age, erasure from the register created a very real likelihood he would never return to practice, and that this would be disproportionate.  The judge said "while I accept that the sanction of erasing old practitioners may have the effect that the person never practise again, that cannot in my view be a justification for not erasing the registrant if it is otherwise requisite to do so.  Indeed, it might be said that the older the practitioner, and the more experienced he is, then the more grave it is that he has made errors and displayed the dishonesty found in this case".  Mr Justice Holman concluded that the GDC's decision for erasure was justified and therefore the appeal was dismissed.

Sandeep Bagga v Mahesh Nagpal

The parties had a dispute over a dental practice they ran in partnership. The claimant wanted the court to allow an expert to give evidence to show the basis of calculating expenses and to further amend his particulars of claim. The Court found that expert evidence was not reasonably required.

Parliamentary scrutiny of the GDC

The Health Select Committee has held a hearing into the running of the GDC and raised a number of interesting questions. The BDA is calling for such hearings to take place on a more regular basis. 

New Healthcare Laws

The Government has just responded to proposals from the Law Commission on the Regulation of Health Care Professionals.  The Government has announced its intention to make new laws.  Amongst other things:

  • language controls will be a priority and healthcare regulators will be given power to carry out language checks prior to registration
  • convictions for certain serious criminal offences, such as murder or rape will lead to automatic striking off
  • regulators will be given power to cancel referrals to fitness to practise hearings
  • the Government has sensibly rejected a proposal to alter the definition of misconduct.  A change to "disgraceful misconduct" would have led to arguments over what the word "disgraceful" means.
  • the Government wants to ensure that a single clinical incident – which would not come within the meaning of deficient professional performance -  can be dealt with at a Fitness to Practise hearing
  • the test for referring cases to a fitness to practise hearing will be whether there is a realistic prospect that the professional's fitness to practise is impaired and it is in the public interest to refer the case to a full hearing
  • if a healthcare professional has not been notified that a complaint has been made, and the complaint is not taken forward, there will be no obligation to tell the professional that the case has been closed, in case this would harm an ongoing relationship with a patient or carer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jenin Khanam
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