Handouts and Reading List HOW GOOD DO YOU THINK YOU ARE ? Legal, ethical and practical aspects of standards and quality improvement _______________________________________________________________________________ Throughout our lives we all accumulate new knowledge and skills. In an ever-changing and fast- evolving field like dentistry this becomes a crucial aspect of any professional career. The quality of the care and treatment we provide is continuously judged by patients and many complaints relate directly to this. But colleagues, regulators such as the GDC and CQC and the law itself also have a view and all these perspectives are often surprisingly different. This presentation explores the clinical, legal and ethical aspects of professional development and the quality and standards expected of us. It examines how we acquire new skills and keep them updated, and who decides when each member of the dental team can use them safely, successfully, to an appropriate standard and within the law. Kevin Lewis BDS FDS RCS(Eng) FFGDP(UK) Having qualified from The London Hospital in 1971, Kevin spent 20 years in full time general dental practice and 10 further years practising part time. He was the Dental Director of Dental Protection for 18 years up to 2016 and also an Executive member of the Council (Board of Directors) of the Medical Protection Society. Kevin has been writing a regular column in the dental press for 38 years – originally as the Associate Editor of Dental Practice and since 2006 as the Consultant Editor of Dentistry magazine. He still writes and lectures regularly all over the world, and provides advisory and consultancy services to various organisations working in and around healthcare, including the BDA. Kevin has been awarded honorary membership of the British, Irish and New Zealand Dental Associations, and also of the British Society for Restorative Dentistry. In 2017 he became a member of the Transition Board of Directors tasked by FGDP(UK) to establish a College of General Dentistry, serving as a collegiate home for UK primary care dentistry. 1 ABILITY, COMPETENCE & INSIGHT The presentation approaches this topic from seven perspectives as follows :- 1. STANDARDS and THE LAW 2. SCOPE OF PRACTICE 3. WHAT PATIENTS THINK 4. QUALITY ASSURANCE & IMPROVEMENT 5. ABILITY, COMPETENCE & INSIGHT 6. PROFESSIONAL DEVELOPMENT 7. FUTURE DIRECTION ? _____________________________________________________________________ 1. STANDARDS and THE LAW The thought process for the opening section of this presentation began 8 or 9 years ago with an article that I wrote in Dental Protection’s publication for its UK members [Riskwise UK 38 – December 2010] and it was rekindled in 2015 with an article published in the British Dental Journal [Professional standards and their escalating impact on the dental profession. K.Lewis B.Dent.J 2015; 218 : 381-383] The intention was to engage the profession, all those bodies which set and publish standards, those individuals who become involved in that process, those who act as experts and express opinions based upon them - and not least, those who sit on committees and tribunals which have a role in enforcing them. Expectations Most complaints and litigation can be traced back to some kind of unmet expectation on the part of the patient. Sometimes it is simply an adverse clinical outcome – perhaps through no fault of the dentist – but sometimes we might allow patient expectations to become unrealistic and/or not do enough to stop this happening. 2 Third parties (like the NHS) don’t always help when they promise or lead patients to expect more than dentists are likely to be able to deliver, on each and every occasion. The NHS Choices description of what treatment is available under the NHS (and what patients therefore have a right to expect) is dangerously – and no doubt, deliberately – ambiguous. NHS England says it commissions “high quality” treatment and NHS Scotland assures patients that they can expect “the best care possible”. Without the funding to back up these promises, language like this is setting dentists up for confrontation with patients, and planting the seeds for complaints. But after years of economic downturn and a desperately slow and protracted recovery, dentists have often fallen into the trap of “overpromising and under-delivering”. Some of the statements made and images used on practice websites and in marketing material is an accident waiting to happen too, and this provides plenty of raw material for the GDC and the “no win- no fee” law firms. Standards But right at the heart of the relentless increase in complaints, litigation and regulatory challenges by the GDC over the past decade, is something that becomes blindingly obvious once we know where to look. It has been happening right under our noses, gradually and silently, and sadly it is still happening today. Dentists in the UK are being judged against wholly inappropriate standards and are facing criticism and challenge for providing care and treatment that in most other countries in the world would be considered perfectly acceptable. This was getting progressively worse, year after year, because each new set of guidelines and each new standards document seemed to move the “bar” further and further away from the ‘Bolam’ standard (see below). Not many new sets of guidelines published over the years have moved the goalposts back in the other direction - although we will shortly discuss one welcome exception to this rule. What the law expects of us : what the GDC expects of us Clinical negligence and the courts “Bolam” refers to the landmark case of Bolam v Friern Hospital Management Committee (1957), in which principles of clinical negligence were established in British law that would endure for over half a century and still apply today. Scotland, Ireland and many other jurisdictions around the world that are based on or similar to British law, have their own equivalent cases, but the time- honoured Bolam principle still applies in that a practitioner is not negligent if s/he has acted in a manner which is considered to be appropriate by a responsible body of opinion amongst people working in the same field and professing to have the same skills as the practitioner in question. Furthermore, the Bolam judgment made it clear that a clinician’s failure to follow a practice which one particular ‘reasonable body of opinion’ might consider appropriate, does not necessarily mean that the clinician has acted negligently. The practitioner’s defence in law, in such a situation, is that s/he has followed an alternative body of ‘responsible opinion’ that happens to hold a (reasonable) contrary view about what is ‘appropriate’. The challenge, of course, is to persuade a court of law that the body of opinion that you are following is not only responsible, but also respectable, reasonable, logical and (when the context 3 demands) seeks an appropriate balance between potential risks and benefits. This facet of the professional opinion that the clinician has chosen to follow, was described in the much later case of Bolitho v City & Hackney Health Authority [1997] (finally determined on appeal in the House of Lords) and subsequently confirmed in several other UK cases. In the arena of clinical negligence in the UK, professional indemnity providers currently face many challenges. Not least amongst them is that of ensuring that general practitioners are genuinely being measured against a reasonable peer group, rather than against the standard of a specialist carrying out the same procedure(s). The GDC For many years the threshold standard for Fitness to Practise cases coming before the GDC was that of “serious professional misconduct”, flowing from the 30 year old case of Doughty (determined on Appeal) Doughty v GDC [1988] AC 164 PC Expressed simply, this meant that the GDC must have made one or more findings of fact, which individually or collectively must not only have shown the registrant to have fallen short of an acceptable professional standard (this amounting to a peer standard of reasonableness not unlike that expressed in Bolam), but such ‘falling short’ must have been to a serious degree. In summary, simply falling short of a reasonable professional standard was not sufficient to justify a finding of serious professional misconduct (SPM). Simply falling short of what a single body of professional opinion might consider to be reasonable, was even further from satisfying the test of SPM. Since 2005 a number of things have happened to change the fitness to practise landscape. The concept of “SPM” has been overtaken by a two-stage test. o Misconduct o Impairment of the registrant’s fitness to practise (A further important practical effect of this separation of these two issues will be discussed below) 4 The evidential burden has been reduced by the move from the previous ‘criminal standard’ of proof (the requirement to find the facts proved “beyond reasonable doubt”) to the much lower civil standard of proof (the “balance of probabilities”). The removal of the requirement for a statutory declaration (sworn and witnessed affidavit) when reporting information to the GDC for consideration. Such information and notifications can now be made anonymously. Erasures are now for a minimum of five years (previously 10 months) The term “Misconduct” appears at first sight to suggest a standard that is different to “serious professional misconduct” - and perhaps a less deficient standard - but this point has since been clarified by a Judicial