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Leaving a practice part 2: obligations to a practice

30 January 2020

This second article on leaving a practice sees Dr Kiran Keshwara and Dr Simon Parsons, dentolegal consultants at Dental Protection, explore additional obligations to the practice

Our first advice is to organise any departure from a practice on good terms wherever possible. Try not to ‘burn bridges’ and instead express gratitude and goodwill for the opportunity of having worked at the practice, even if there are mixed feelings about the overall experience. If reciprocated, this should make your transition to new employment a whole lot easier!

Ethical and contractual obligations

Sometimes patients will ask where a practitioner is moving to and will seek to follow them to their next practice. Most employee and contractor clinicians will have a confidentiality agreement in place, and implicit to this will be an obligation not to copy or otherwise use the details of patients of the practice. Even in the absence of such agreements, it could be seen as unethical to reveal your future practice location, as this could compromise the goodwill of the current practice. Often it can be best to deflect any such enquiry from a patient with a broad response, such as:

“I’m really flattered that you would like to follow me to my new practice. Unfortunately it isn’t ethical for me to discuss my future practice given you are a patient of this practice. I’m sure the other practitioners here will be able to look after you, and I recommend you see X as he/she works in a very similar style to me and I think you’ll feel really comfortable in his/her care. If in the unlikely event you’re unhappy with your ongoing care, I’m sure you can go online and make alternative arrangements.”

With most patients being familiar with the internet and social media, they should easily be able to find a certain dentist if they really want to. We recommend you leave your patients to do this if necessary, and don’t fall prey to the temptation of encouraging them to do so.

We also advise that employees and contractors start out their arrangement with a clear understanding of the obligations of both parties should employment cease for any reason. This may take the form of a detailed contract. Practitioners may have to comply with a specific contractual notice period in order to provide a practice with reasonable time to employ a replacement or transfer ongoing care to other clinicians at the practice. We advise members to be mindful of this when leaving.

It is understandable that some practitioners may be hesitant to provide notice for fear of having employment terminated immediately. However, in the interests of good patient care and appropriate handover, it is best to provide whatever notice is required of you.

Sometimes a practice will also have the option of restricting the area in which a departing clinician may work for a period of up to several years, in order to maintain the practice’s goodwill and to ensure that patients do not follow the outgoing dentist to their new practice. Such agreements are common and some are more reasonable than others. We recommend that members carefully consider any such provisions at the time of contract negotiations and seek professional legal advice on whether to agree to such terms. If these provisions are already in place and seem unfair to the outgoing clinician, it may be possible to negotiate on a variation, or challenge their legality in terms of your right to earn a living elsewhere. Please be aware that we may be unable to advise you on specific commercial issues but are able to put you in touch with lawyers who can.

Complaints

We all develop professional relationships with our patients and thankfully most are robust and able to cope with change. However, some patients will have developed a fragile relationship with their clinician and this can be soured when the clinician leaves a practice.

At Dental Protection, we sometimes see an increase in patient complaints when a practitioner temporarily or permanently leaves a practice. This may be because the new clinician finds undiagnosed disease, such as periodontal disease, or the patient has an ongoing complaint or issue that the leaving practitioner was unable to resolve adequately (or where the new practitioner is reluctant to take on responsibility for the management to its complete resolution).

Sometimes, the new practitioner may make a treatment suggestion that the patient does not recall being offered in the past. The patient may leave feeling that they were not originally given all the necessary information, even if the outgoing practitioner had properly given the patient all their options and discussed risks and benefits of each treatment option. This is why it is vitally important for practitioners to ensure that the dental records for patients are comprehensive and well-documented and include details not only of what was agreed to, but also the other options that have been excluded and why.

Handling a treatment plan you don’t agree with

We have all faced situations where we see a patient whose treatment plan we don’t understand or do not wholeheartedly agree with. This causes considerable discomfort. Do we tell the patient we don’t agree that the tooth needs the planned treatment, and thereby sow doubt in the patient’s mind about their past care? Or do we proceed to perform treatment we don’t agree with to keep the peace? Dental Protection always advises that you are held responsible for your care of a patient, so we recommend you only perform treatment that is in keeping with your professional skills, training, experience and opinion. It can be better to refuse to treat with an explanation why than treat in doubt and be blamed for an adverse outcome or unnecessary treatment.

Some dental practices hold money for a few months after the practitioner has left – this provides the practice some certainty that patient issues can be promptly resolved. This arrangement should only occur with the consent of the outgoing practitioner, or in accordance with contractual obligations already in place. If a practice wishes to retain a portion of recent earnings in the absence of this agreement, we recommend you seek legal advice, as such behaviour might be unlawful. However, it is reasonable for a practice to want to know how complaints arising from your past care of a patient should be managed, and it can be constructive to discuss options before one’s departure date.

Nevertheless, the practice should provide the practitioner with an update of any complaints or ongoing issues, so that the practitioner can take advice and direct the practice on how the patient should be treated. The departed practitioner should be allowed the opportunity to indicate whether they agree that a refund should be given to a patient for the treatment they have completed or whether the work needs to be redone by another clinician. In all cases, it is important to keep an open line of communication with the patient, generally via the practice.

In all cases, the fewer surprises that a patient has and the better the communication between the practitioner, the practice and the patient, the simpler the transition is for all involved. Impeccable record-keeping and complaint management is of paramount importance. The practice and staff should work as a team to ensure that the patient feels well cared for at all times.

You can also listen to our podcast series for further guidance and advice.

© 2019 The Medical Protection Society Limited

DPL Australia Pty Ltd (“DPLA”) is registered in Australia with ABN 24 092 695 933. Dental Protection Limited (“DPL”) is registered in England (No. 2374160) and along with DPLA is part of the Medical Protection Society Limited (“MPS”) group of companies. MPS is registered in England (No. 00036142). Both DPL and MPS have their registered office at Level 19, The Shard, 32 London Bridge Street, London, SE1 9SG. DPL serves and supports the dental members of MPS. All the benefits of MPS membership are discretionary, as set out in MPS’s Memorandum and Articles of Association. “Dental Protection member” in Australia means a non-indemnity dental member of MPS. Dental Protection members may hold membership independently or in conjunction with membership of the Australian Dental Association (W.A. Branch) Inc. (“ADA WA”).

Dental Protection members who hold membership independently need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA National Insurance Pty Ltd (“MDA”), ABN 56 058 271 417, AFS Licence No. 238073. DPLA is a Corporate Authorised Representative of MDA with CAR No. 326134. For such Dental Protection members, by agreement with MDA, DPLA provides point-of-contact member services, case management and colleague-to-colleague support.

Dental Protection members who are also ADA WA members need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA, which is available in accordance with the provisions of ADA WA membership.

None of ADA WA, DPL, DPLA and MPS are insurance companies. Dental Protection® is a registered trademark of MPS.