Like their medical counterparts, Dental Boards and Dental Councils around the world have been wrestling with this issue for some years now. Most regulatory bodies consider that when giving advice remotely in relation to the treatment of a specific patient, you are practising dentistry, even if you never actually meet the patient in person.
However, some regulatory bodies have taken the view that you are practising dentistry wherever you physically happen to be when giving the advice, while others take the alternative view that you are practising dentistry where the patient(s) involved are being treated. Where dentistry is being provided across jurisdictional or national boundaries, this can have complex repercussions, including allegations of the illegal practise of dentistry, questions relating to which law would apply to any legal action brought by the patient, and also to whether the patient could bring an action both where they were based and where the remote clinician was based.
Dental Protection has assisted members in exactly these situations. Most solicitors will advise a patient/client to sue in jurisdiction where the defender is based (so that any court judgement is more easily enforceable). If the patient resides in another legal jurisdiction, and chooses for whatever reason to sue there (perhaps because one treating clinician is based there), clinicians must also consider whether they are indemnified to practise dentistry in that part of the world.
Duty of care issues
You owe a duty of care to every patient in respect of whom you agree to provide dental services, including advice and treatment. The law expects you to exercise reasonable skill and care when discharging this responsibility. This duty of care is absolute, and undiminished by any constraints that happen to be imposed by the circumstances in which you choose to practise. If you involve any colleague or team member in the treatment of the patient who is under your care, you also have a duty of care to ensure that these people are appropriately trained and competent to carry out the task(s) for which they are responsible. You should not, for example, refer patients to a person, or involve another person in a patient’s treatment, without satisfying yourself as to their qualifications, training and competence. This ‘due diligence’ exercise needs to be as thorough as the circumstances require, and proportional to the risks involved.
Record keeping and data protection
Complications can arise if the patient’s records exist in two places and are not synchronised. It also raises questions of whether more than one legal jurisdiction is involved, what data (especially sensitive personal information) will be held by whom, in what form, for how long, and for what purpose. What safeguards are in place in relation to the storage, use, processing, retrieval, access/sharing and security? When and how will the data be destroyed, and by whom? To what extent have you satisfied yourself on these matters, in relation to any other parties you are involving in the patient’s care and treatment? Is the ‘remote’ dentist appropriately compliant and registered for data protection purposes?
Are you inadvertently working with someone who is not registered and/or is not appropriately indemnified? Both could land you in problems with the GDC if the patient who is being placed at risk is being treated here in the UK. Some indemnity arrangements specifically exclude telemedicine (sometimes clearly and directly, on other occasions indirectly through less obvious terms, conditions and exclusion clauses that have the same effect).
As several test cases in the USA have demonstrated, the dangers are greatest when the situation remains unaddressed or is unclear in the indemnity wording. Many indemnifiers have simply not considered or provided for the risks of teledentistry. And if it transpires that other parties are not indemnified for their part in a patient’s care, you may find yourself increasingly in the firing line.
This is one of the most complex aspects of teledentistry, because the patient is in many cases being asked to consent to having someone involved in their treatment, about whom they probably know very little, and who they will never meet. Yet this unknown person’s advice could impact directly upon their dental care.
Some people have tried to argue that the situation is no different from that of the dental technician who makes an ‘arms-length’ but crucially important contribution to the care of the patient receiving a crown, bridge, veneer or denture (for example). The patient rarely knows who that person is, or how competent they are.
The key difference, however, is that in the latter situation the patient’s ‘contract’ is with the dentist, while a separate ‘contract’ exists between the dentist and technician. It is the dentist’s role to quality-assure the product that is fitted in the patient’s mouth.
Many dentists now send their laboratory work to technicians in India, Hong Kong, China, Malaysia, Brazil and elsewhere, which illustrates the potential complexity of the relationships involved.
It is all too easy for a patient to maintain, after something has gone wrong, that they would never have agreed to proceed with their treatment had they been aware at the time that the ‘remote’ dentist (for example):
- Had not practised for 20 years.
- Was not registered in the UK (or at all).
- Was not indemnified for carrying out this work.
- Was not competent to provide the advice or service that was involved.
- Was giving the advice via a mobile device, without properly paying attention to the clinical matters at hand.
- In some situations, a patient may not even be made aware of the involvement of the ‘remote’ third party – in which case the validity of their consent would be highly questionable.
Risks and constraints
When negligence claims are brought, the ‘particulars of negligence’ list the ways in which the standard of care has allegedly fallen short of that reasonable standard which the patient had a right to expect (ie, the standard that a responsible body of your peers would consider proper and reasonable). Teledentistry can leave several such doors open:Who has established the patient’s medical history, how?
- Who has established the patient’s medical history, how?
- Has an extra oral examination been carried out and if so, how have the findings been communicated?
- What other enquiries have been made of the patient’s personal, social and dental history? This Includes the presence or absence of any relevant risk factors.
- What other tests and/or investigations have been carried out and how have the result/findings been communicated?
- Is the ‘remote’ clinician in possession of all the relevant facts, or only a selection of them?
- Is this ‘remote’ clinician in a position to contribute to the patient’s care and treatment safely and to the same high standards as if they were physically present or had examined the patient personally?
If there is any potential for compromise, has this fact been explained to the patient, and has the patient agreed to proceed on the basis of being in full possession of all the relevant facts about the identity, role and status of this ‘remote’ dentist and any possible limitations or risks of being treated in this way? This information is ‘material’ to the patient’s consent if it has the potential to influence any decision that the patient might make.
A dentist, who is concerned about the unusual appearance of a lesion on the patient’s oral mucosa, uses a digital camera to photograph the image, and these electronic images are then emailed to a consultant in oral medicine for a second opinion...
Again, this is an example of teledentistry which is very similar to the situations that arise in telemedicine. A BDJ article in 2009 considered this scenario and concluded that such a ‘set up’ can work. In remote and rural settings, where there is no locally-based referral service, this is precisely how the obstacle of distance is overcome and this is certainly better than no second opinion at all. Australia, Africa and some parts of the Caribbean are examples of places where Dental Protection has first-hand experience of arrangements of this kind. This does raise questions in relation to all of the other issues described in this article and these need to be carefully managed in order to protect all parties.
A company in Malaysia offers to provide an orthodontic diagnosis and treatment planning service...
The referring dentist sends a series of digital photographs of the patient (full face and left/right profile), the dentition in and out of occlusion and, of articulated study models of the patient, together with some digital x-rays, and the company undertakes to provide a detailed case assessment, treatment plan and report within 24 hours. This is accompanied by computerised cephalometrics, and even a computer-generated image of what the finished case might look like.
A dentist working in an area of the UK where there is a 6-month waiting list for the local orthodontic consultant, and a 2-year waiting list for commencing NHS orthodontic treatment, finds this service very attractive. Should he get involved, and are there any risks in following a treatment plan provided in this way?
This situation is problematic unless you have some way of quality-assuring the advice you are receiving (and acting upon) from the remotely based clinician in Malaysia (indeed, is the clinician even based in Malaysia or is the Malaysian company outsourcing the specialist advice and opinion from elsewhere?) Do you know who is actually providing this advice and what training/qualifications/ experience they have?
If the giving of advice relates to a specific patient under your care, is this clinician effectively practising in the UK and if so, is s/he registered in the UK and indemnified for giving this advice?
If you act upon this advice and for any reason it results in a negligence claim against you, you may or may not be able to join the remote dentist into the claim as a co-defendant (through issuing third party proceedings). But if the dentist is not UK-based this process could be extremely difficult and your indemnity organisation/insurer might feel that this has compromised their ability to defend or mitigate the claim. If you contracted with the company, rather than with a named individual within it, similar complications (and others) could arise.
A dentist takes some digital x-rays of an area of periapical radiolucency, and emails this to a consultant radiologist, requesting an opinion as to the differential diagnosis of the bony lesion...
This is the simplest of the three scenarios, if the radiologist is registered here in the UK with the GMC/GDC. A radiologist will often be interpreting x-rays and digital images without examining the patient, and this situation (‘teleradiology’) is very common (and widely accepted and practised) in many areas of telemedicine. The other issues still apply, but are much more easily managed in this situation.
As technology continues to develop and becomes more sophisticated, new opportunities and new risks will arise and no doubt new variations on teledentistry will emerge. As illustrated in this article, the technology involved may be advanced, but the dento-legal issues are basic and the underlying principles very familiar.
One of the perils of breaking new ground in the delivery of dental care is that you can easily find yourself breaking new ground in terms of the regulatory or legal consequences too – and this applies equally, whether you are the person commissioning the ‘remote’ advice/opinion/instructions, or the person providing them.
Please contact Dental Protection if you are unsure about any of the issues arising from this webpage.