Additional complications...17 August 2015
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.
Click or tap the scenarios to expand...
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.