Are Dentists Returning to Work?
If the CQC aren’t stopping dentists, why are Insurers saying no?
“The decision to offer dental care services is one for the provider to take.”
This is the CQC’s “current position”.
However, they are still “encouraging” practitioners to give “proper consideration” to the CDO’s Letters of Preparedness, without giving any indication as to what “proper consideration” actually means. The CDO has both public health and logistical considerations (such as the re-deployment of medical staff and PPE) that should not be a consideration for the safe provision of dental care by non-NHS practitioners.
The crucial issue here is that the CQC cannot direct practices to close unless they can identify breaches of Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
What does regulation 12 say?
Safe care and treatment
(1) Care and treatment must be provided in a safe way for service users.
(2) Without limiting paragraph (1), the things which a registered person must do to comply with that paragraph include-
- assessing the risks to the health and safety of service users of receiving the care or treatment;
- doing all that is reasonably practicable to mitigate any such risks;
- ensuring that persons providing care or treatment to service users have the qualifications, competence, skills and experience to do so safely;
- ensuring that the premises used by the service provider are safe to use for their intended purpose and are used in a safe way;
- ensuring that the equipment used by the service provider for providing care or treatment to a service user is safe for such use and is used in a safe way;
- where equipment or medicines are supplied by the service provider, ensuring that there are sufficient quantities of these to ensure the safety of service users and to meet their needs;
- the proper and safe management of medicines;
- assessing the risk of, and preventing, detecting and controlling the spread of, infections, including those that are health care associated;
- where responsibility for the care and treatment of service users is shared with, or transferred to, other persons, working with such other persons, service users and other appropriate persons to ensure that timely care planning takes place to ensure the health, safety and welfare of the service users.
It is now incumbent upon dental practices to undertake appropriate risk assessments and implement the proper levels of PPE, ensuring records are kept of all decisions made. If this is done, it is our view that there is no regulatory prohibition for returning to practice.
So why are some indemnity insurers refusing to provide cover to dentists and dental care professionals who want to go back to work, or limiting their cover to those working in “emergency dental practices” only?
We are receiving numerous emails and calls from dentists saying that whilst they have put all the necessary safe guards in place, implementing at the same or improved levels of protection for staff and patients than that recommended by the Department for Health and NHS, they are being told that they “should follow the advice of the CDO in England”, which effectively means stay shut unless you are a nominated UDCC.
Ominously, one insurer has stated to a private practitioner, “what is less sure is the extent to which your position might be defendable if you stray away from the CDO’s advice.”
The same insurer justifies their approach with reference to the following:
[The CDO’s advice] is designed to markedly reduce the movement of the population and the number of physical contacts in an effort to reduce the spread of the virus in accordance with The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.Whilst this is undoubtably a legitimate consideration for the CDO, the government explicitly allowed dental practices to remain open. Good dental care is fundamental to the overall health and wellbeing throughout the community. So why are indemnity providers taking it upon themselves to facilitate government policy of limiting the movement of people, (which have largely moved on bearing in mind the easing of the lockdown), instead of ensuring that practices are able to offer safe dental treatment to their patients; many of whom have not been able to access dental treatment for months?
The CDO restricted the provision of NHS dentistry, not private dentistry.
It is worth noting that there are indemnity insurers who have sought legal advice, and who have confirmed that they will provide appropriate insurance cover to dentists who wish to return to work as long as the appropriate safeguards are put in place (in our view this would be at a level equivalent to the UDCC and/or hospital clinics who are undertaking AGPs). Dentists who have been refused cover may be able to invoke the “force majeure” clauses in their existing policies and seek appropriate indemnity cover elsewhere. In the alternative, you may be able to argue that a fundamental breach of contract has occurred, as the services being paid for are not being provided.
As the GDC have also advised all dentists to take into account the guidance of the CDO, dentists will need to be able to justify their individual decisions to return to work. This could well be: a) concerns for patient welfare, and b) that the practice has put in place all necessary safeguards. The balance of which would support any decision to recommence.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.
