• Treatment decision making – the Icarus questions

    To promise too much and overstep your competency can be paralleled with stories from Greek mythology writes NSW Advisory Services Peer Advisor, Dr Roger Dennett

    Greek mythology tells the tale of Icarus and his father Daedalus, who attempted to escape from a tower prison via wings made of feathers and wax. Icarus’ father warns him first of complacency and then of hubris, asking that he fly neither too low nor too high, lest the sea’s dampness clog his wings or the sun’s heat melt them. Icarus ignored his father’s instructions not to fly too close to the sun, and when the wax in his wings melted, he fell into the sea to his death.

    The parallels in dentistry are strong – promise too much, overstep your competency, and you’re just as likely to tumble out of the sky as deliver on your promises.

    Practitioners mindful of this tale should consider the following questions when deciding on the patient’s treatment:

    1. Can I do it well? (GP Orthodontics)

    Advisory Services have seen a lasting upsurge in the number of complaints involving general practitioner orthodontics. The Australian Society of Orthodontics is on record as stating that the only way that GP dentists should be doing orthodontics is after completing the MDSc programme in orthodontics. Whilst this is not necessarily the view of ADANSW, practitioners need to remember the Code of Conduct 7.2, which states:

    “Development of knowledge, skills and professional behaviour must continue throughout a practitioner’s working life. Good practice involves keeping knowledge and skills up to date to ensure that practitioners continue to work within their competence and scope of practice.”

    In situations involving GP orthodontics that have gone wrong, it usually comes to light that a proper and full clinical assessment of the patient’s orthodontic condition was not carried out and that the treatment plan was ill-advised and thus ineffective. Specialist retreatment usually occurs with invariably good results. This can be an expensive learning exercise for all concerned.

    2. Can I do it efficiently and effectively? (Endodontics, Oral Surgery)

    Advisory Services have dealt with many complaints involving GP dentists doing molar endodontics, where the main issue is a lack of locating, and subsequently treating, all of the canals. This often results in many “dressing” appointments, delaying a final result which proves to be unsatisfactory, necessitating specialist retreatment or the loss of the tooth. When this occurs – and without appropriate pre-op warnings being given – the result may be an expensive claim against the practitioner.

    Third molar surgery has been another area where enthusiasm and hubris may result in a clinical disaster. A simple example of this is where there is a lack of proper assessment of the difficulty of the case, resulting in unexpected difficulties during the operation, leading to a surgical ordeal for the patient and an extended procedure outside of the expected norms.

    In a more complex case, a lack of proper assessment and understanding of the position of the IAN and its proximity to the wisdom tooth roots can result in damage to the IAN. In addition, an improperly placed incision can increase the chance of post-operative lingual nerve neuropraxia or neurotmesis. Sometimes it is better to refer to a more experienced colleague than have to spend time with your professional indemnity insurance-appointed solicitor!

    3. Can I do it without harming the patient? (Implant Surgery)

    Members may be aware that insurers have identified GP implant surgery as a high risk area for claims, so much so that those GP dentists who perform this pay a higher insurance premium than those who don’t. Sadly, this is based on the number of expensive claims involving implant placement by GP dentists with poor results and complications, resulting in patient dissatisfaction.

    Implant dentistry is expensive and patients have a reasonable expectation of high levels of competence and a good outcome. These cases are expensive to retreat when unexpected consequences occur. Such consequences were usually not discussed at the planning or diagnostic phase. By way of example, the Advisory Services Team has seen cases:

    • where a single implant has been placed such that it impinges on the periodontal ligament of an adjacent tooth, resulting in pulpal necrosis, pain and an unhappy patient
    • where the implant was buried at the time of placement (and not being able to be used prosthodontically) due to inadequate torque being obtained at placement
    • where a mandibular posterior implant was placed into or up against the inferior alveolar canal, resulting in ongoing pain. Removal of the implant (if done quickly) may result in abatement of the symptoms, but there may be permanent damage to the mandibular nerve in such situations. Either can lead to an expensive claim

    4. Would I recommend this treatment for myself or a member of my family?

    If you wouldn’t want the treatment for yourself or a member of your family, why recommend it to a patient? Heroic treatment to try to save a tooth which is unrestorable doesn’t make sense, yet the Advisory Services continues to see examples of this.

    In like fashion, if your treatment plan is complex and difficult (e.g. sinus lifts and implant treatment), consider referring the patient to a more experienced colleague or specialist – if only for a second opinion. Do you have a mentor or a senior colleague whose experience and opinion that you value? Why not approach them and present the case? Dentistry can be a challenging profession for many reasons, not the least because of the professional isolation in which some of our colleagues practise.

    5. Can I communicate well with this patient?

    As Buddha said, “the cause of suffering is desire”. As dentists we deal with desire and patient expectations every day!

    Thoughts to ponder – Are you aware of what the patient expects as a result of the treatment that you are recommending? Are those expectations reasonable? Are there cultural barriers to their understanding and your communication with them? Do they have capacity to consent to the treatment, you having explained the known risks, limitations, outcomes and complications? Have you obtained informed financial consent, as well as informed consent?

    Informed consent is a process where the parties reach a mutual decision about what treatment the patient is to have, and where the material risks of the recommended treatment have been discussed and understood by the patient. Simple treatment requires a simple (verbal) consent. Complex and expensive treatment requires written information to the patient (prior to a decision being reached) and a signed consent form.

    We sometimes see cases where the treatment does not appear to be in the patient’s best interests with a high likelihood of failure and problems. Often in such situations, a prescriptive patient who thinks that they know best prevails on the dentist to carry out the treatment they want. This is a recipe for disaster and in such cases the practitioner should remember that he/she always has the right to refuse treatment!

    As always, the Advisory Services welcomes your comments and is here if you wish to discuss any clinical situation. We do not have all the answers all of the time, but many of our conversations end with our member saying “Well, thank you and I’m really glad that I called you today!”

    Contact the NSW Advisory Services Team on (02) 8436 9944 or email advisory@adansw.com.au.
  • Oral Cancer – The Need to Remain Vigilant

    By Dr Sarah Jones – NSW Advisory Services Peer Advisor

    As dentists, we have an obligation to examine all intraoral tissues, not just the teeth and gums. Oral cancer is a debilitating disease and we certainly hope that none of our patients is unfortunate enough to develop cancer. However, with an increasing incidence, there is a reasonable chance that we may be the practitioners to notice cancerous or pre-cancerous lesions first, particularly if the presentation is symptom-free. Nobody wants to be the practitioner who allows cancer to develop under his or her watch.

    It is important at all times to achieve the best possible outcomes for our patients. The routine application of effective oral cancer screening will have a dual benefit: the avoidance of delayed diagnosis (and the unfavourable consequences which can flow from that) and, by extension, fewer adverse consequences for the practitioner.

    Aside from the obvious sense of guilt for a patient’s poor outcome, the consequences for a practitioner can include legal action for negligence. A recent overseas study [1] reviewed cases where dental practitioners were found liable for failure to diagnose and/or refer, and the results were costly (average settlement of over $1 million US). Strong statistical evidence is difficult to source locally, but it would be reasonable to expect similar adverse findings in the NSW and ACT jurisdictions, particularly with the rise of plaintiff legal firms actively targeting adverse medical outcomes.

    “Dentists tend to sit on suspicious lesions” says Dr Peter Foltyn of the Dental Department at St Vincent’s Hospital in Sydney. Dr Foltyn sees 6-10 oral cancer patients weekly in his role at the Kinghorn Cancer Centre at St Vincent’s Hospital. He recommends not ‘sitting on’ suspicious lesions. One reference [2], produced by a WHO-sponsored collaborating group, seeks to assist in classifying whether a lesion is suspicious. If an undiagnosed lesion or ulcer persists for greater than two weeks, Dr Foltyn suggests that we either biopsy or refer.  His concern arises from seeing first-hand the outcome of diagnostic delay for patients attending the Head and Neck Clinic.

    Perhaps this diagnostic delay arises from the tendency of dentists to ‘watch’ other pathology, such as incipient carious lesions. However the consequences of prolonged ‘watching’ of potential malignancy are much too severe for this to be an acceptable management strategy. Failure to diagnose or refer a patient promptly allows progression of the disease. As cancer progresses, the necessary treatment becomes more extensive and debilitating, and the chance of survival diminishes. Treatment for cancers may include combinations of surgery, chemotherapy and radiotherapy. If you are worried about a patient’s lesion, it is acceptable to not know the diagnosis, so long as you refer to someone who does.

    There were 3,896 head and neck cancers (not including lip and skin cancers) reported [3] in Australia in 2009, and this number appears to be rising. This represents 3.4% of all cancers. 2,037 (or 52%) of these were oral cancers. If a newly diagnosed oral cancer patient has seen a dentist in the preceding year, the question that will be asked is: “Why did the dentist not see this?”

    So what do we need to do?


    • Your examination needs to be thorough and well-documented, include both extra- and intraoral components, and any abnormalities must be noted and acted upon. A history of any symptoms must also be taken;
    • All mucosal surfaces must be viewed (the lip, tongue, floor of mouth, buccal mucosa, gingivae, and palate); dentists have a tendency to jump straight to the teeth and periodontium;
    • Dr Foltyn says screening can be easily done in “less than a minute” and suggests, for example, screening while waiting for local anaesthetic to take effect;
    • Educate yourself about which lesions should raise an index of suspicion, due to a higher malignant transformation potential;
    • Remember also to ensure that you examine all patients being treated by a dental auxiliary in the context of a Structured Professional Relationship; and
    • Take a thorough history to identify any significant risk factors such as tobacco or alcohol, and educate yourself about emerging risk factors, such as HPV (human papilloma virus).

    A suspicious lesion

    • If a lesion is suspicious and persistent (i.e. not reducing in size or healing), and if in any doubt as to the diagnosis, it must be biopsied or referred for diagnosis;
    • Document the lesion appropriately in your notes with a very comprehensive description of your findings. Photographic images are particularly useful;
    • Dr Foltyn encourages practitioners to become familiar with performing simple punch biopsies in appropriate circumstances, and referring when necessary;
    • Establish referral pathways for your practice, so that you have a number of dental and medical specialists to whom you can refer quickly, if necessary; and
    • Remember to ensure that the patient did in fact follow through on the referral. However, there is a fine line between making a patient unnecessarily anxious, and ensuring they understand the necessity for diagnosis of a suspicious lesion.


    Screening patients for oral cancer allows us to identify cancer early, perhaps before it is even symptomatic. We have an obligation to check for any suspicious lesions, screening takes very little time, and the outcome for patients is vastly improved by early diagnosis and management.

    Key points

    1. A dentist is obliged to examine all relevant extra- and intraoral tissues during examination
    2. If a lesion persists for greater than 2 weeks, and if in any doubt as to diagnosis, BIOPSY or REFER
    3. Delaying treatment allows progression of cancer
    4. Failure to diagnose and/or refer could lead to medico-legal issues


    [1] Head and neck, oral, and oropharyngeal cancer: a review of medicolegal cases. Epstein JB et al, Oral Surg Oral Med Oral Pathol Oral Radiol 2015 Feb;119(2):177-8

    [2] S. Warnakulasuriya et al, Nomenclature and classification of potentially malignant disorders of the oral mucosa. J Oral Pathol Med (2007) 36: 575-80

    [3] Australian Institute of Health and Wealfare 2014. Head and neck cancers in Australia. Cancer series no. 83. Cat. no. CAN 80. Canberra: AIHW

  • Commenting on other dentists’ work

    Guild Insurance regularly analyses claims information to understand factors which may contribute to claims and complaints occurring.  This analysis has highlighted a trend where claims involve treatment by at least two dentists.

    Evaluating another dentist’s work

    All dentists will at times treat a patient who’s had dental work carried out by another practitioner.  And you may have questions about that treatment, such as when:

    • the work may not seem to be up to the standard expected of a registered dentist;
    • the treatment selected may not appear the be the ideal or obvious choice given the clinical situation or
    • it may seem as though the treatment provided has not led to the intended or expected outcome

    Dentists must be very mindful of how they handle these situations and what they say to or in front of the patient.  It’s understandable that to provide treatment the dentist will want a complete understanding of prior treatment.  However conversations about another practitioner’s treatment, if not conducted appropriately, may contribute to the patient lodging a complaint against that other dentist.

    What can go wrong?

    Not all situations where a dentist questions previous treatment will lead to issues arising.  However the following case examples highlight how easily complaints can occur.

    A patient had received many years of dental treatment from Dentist A.  Whilst happy with the treatment provided, the patient began seeing Dentist B when she moved house.  During a consultation, Dentist B commented on the file fragments which had been left in her tooth, assuming she was aware.  When she appeared surprised, Dentist B explained that he had detected small fragments of a file which had been left in a tooth following RCT.  Dentist B was openly critical of Dentist A for what he described as ‘sloppy treatment’ and told the patient she should have been informed at the time when the file broke.  Whilst away for a weekend, a patient felt a tooth break whilst eating.  He decided to see a local dentist who was available to provide emergency treatment.  When he returned home he went to see his regular dentist to receive further treatment to that tooth.  His regular dentist was quite surprised with and critical of the treatment provided by the other dentist.  She informed the patient that due to the poor work she was going to have to replace what was done, therefore costing the patient more than he had anticipated. 

    Impact of comments made

    Making negative comments about the work of another dentist can reflect poorly not just on that dentist but the profession as a whole.  If the entire situation surrounding treatment is not understood, the comments may be incorrect and presumptuous.  This can unfairly damage the reputation of a dentist as well as cause unnecessary frustration for the patient.

    It’s therefore very important that when a dentist finds themself in a situation where they have questions about the work of another dentist, this is handled appropriately.

    Tips for managing these situations

    • Don’t make off the cuff comments to a patient judging or criticising the treatment another dentist has provided. Making even what you see as a small or insignificant comment to a patient regarding the choice and quality of treatment provided by another practitioner could be enough to encourage that patient to make a complaint or a demand for compensation.
    • If your patient has received treatment which doesn’t appear to have been the most preferred for their clinical situation, don’t assume this is an error on the part of another dentist. Sometimes patients choose a different course of treatment to that recommended by their dentist, often due to financial restraints.
    • If you have concerns or questions about the treatment your patient has received from another dentist, consider seeking the patient’s permission to contact that dentist to find out more about the treatment provided and reasons behind their clinical decision making. It’s possible that the clinical situation you’re seeing is not exactly the same as the first dentist saw.  Avoid making assumptions.
    • When sending a patient back to their referring practitioner, provide a letter for that practitioner outlining your diagnosis, the treatment you provided and why that treatment option was selected. Don’t rely on the patient to convey this information.
    • Documentation is vital! If your work is being questioned by a patient, another dentist or AHPRA, you’ll need your accurate clinical record to act as the explanation and evidence behind your clinical decision making.
    • Patients can become frustrated with ongoing treatment costs. If replacement work is required, be very clear and upfront about the cost of this further treatment.
    • Avoid offering free or discounted treatment when replacing work. This may further suggest that the initial treatment was ineffective and therefore a waste of money.  Also the patient may expect that discounted or free treatment will continue beyond what you had anticipated.  Always contact your local ADA branch or Guild Insurance before offering any form of discounted treatment to a patient.
    • And finally, maintain a high level of professional behaviour at all times, both when treating patients and also anytime you’re communicating and interacting with them. This not only reflects well on you, it can also improve the public perception of dentistry as a profession.
  • Understanding social media risks

    Social media is an ever increasing form of communication for many people in both their personal and professional lives. It presents people with many benefits in allowing them to communicate a variety of messages to many people with great speed and efficiency. However, those benefits need to be balanced with the many risks social media presents.

    Social media is a very broad term which includes any websites and applications which allow users to interact with other people as well as create or share information (text, photos, videos etc.).

    There are endless examples where people appear to have not stopped and thought before they’ve posted on social media. Poorly considered social media posts can and do affect the personal and professional reputation and image of individuals as well as a businesses; even if the post isn’t directly related to a business.

    The following tips will assist individuals and businesses manage their risks when using social media.

    1. Have a business plan for how and why social media is to be used
    When deciding whether or not to create a business social media presence, it’s very easy to think ‘if everyone else is doing it, so should I’.  However there needs to be greater thought put into this decision.  The decision to use social media should be well thought out and based on a company’s needs and business plans; the benefits and risks need to be considered.

    2. Business social media should be based on business requirements, not personal views
    Business owners and managers need to be sure that when they make a decision on whether to use social media for their business, this decision is based on the needs of the organisation, not the owner’s/manager’s personal views of social media.  For example, a person who chooses to not use Twitter for personal use may still decide it’s a great tool for them professionally.  Business decisions and personal decisions regarding social media use should be separated.

    3. Create clear business guidelines and processes regarding who is able to post on social media and how this is to be done
    Due to the risks associated with social media interactions, it’s very important that businesses have a clear process for who is responsible for posting on social media.  The person undertaking this role needs to understand when social media is an appropriate form of communication and what sort of messages are to be shared using social media.  This process should also provide guidance on how often social media is monitored and responded to and how to respond to negative comments.

    4. Consider training for those staff responsible for social media
    It’s often assumed that young people are well versed in social media use however this isn’t always the case.  Also, not all users of social media understand appropriate business use and its associated risks.  Therefore it’s worth considering training in social media communications and its risks for the responsible staff members.

    5. Understand the social media site you’re using
    There’s a wide variety of social media sites available to businesses, all providing similar yet different benefits.  When a business is using any of these sites, it’s very important they understand the various functions within that site.  Not fully understanding how a site works is going to increase the risks of using it.

    6. Consider what messages should be shared using social media
    All businesses have various ways in which they communicate with their customers and clients.  Social media is generally designed for short sharp messages, yet not all information suits this style of communication.  When businesses are communicating with their customers, they need to carefully consider how that particular message should be shared.

    7. Carefully consider the implications of engaging with clients on social media
    Professionals and businesses should consider if social media is an appropriate forum for them to be communicating with clients, both through business or personal accounts.  Engagement through personal accounts can blur professional boundaries.  When using business accounts, some conversations may not suit social media, especially if the conversation appears in a public setting.  It’s important to consider what conversations are best had away from social media and when to take a discussion off line.

    8. Your business social media use must adhere to the AHPRA Advertising Guidelines
    AHPRA regulated professionals need to adhere to AHPRA’s Advertising Guidelines with all of their advertising.  This includes any advertising or promotion done using any social media site.

    9. Understand that you can no longer separate personal and professional use
    Unfortunately many people hold a view that what they write within a personal social media account in their own time will have no bearing or impact on them professionally.  However this is not the case.  Whether fair or not, professionals are always representing their profession and professional self; personal social media posts can be considered to be representing a professional view.  Therefore the professional impact needs to be considered before any personal post is made.

    10. Don’t believe that any post is ever private
    Too often people post information on social media which they intended to remain private and not be seen widely.  However social media can never truly be private.  Many online groups claim to be private and state that members require approval.  However non-approved users don’t need to be particularly savvy to access these groups and then share or copy information being posted.  Professionals need to remember that if they don’t want their colleagues, clients or competitors seeing a social media post, it should never be posted on either personal or business accounts.

    11. Never post in haste, all posts need to be carefully considered
    As mentioned earlier, social media is designed for quick short messages to be shared widely.  This means social media can encourage messages to be shared with little thought or planning which on occasions leads to poorly worded messages which are easily misinterpreted.  It’s important to pause and think through a message before it’s shared.



    Guild Insurance Limited ABN 55 004 538 863, AFS Licence No. 233 791.  This article contains information of a general nature only, and is not intended to constitute the provision of legal advice. Guild Insurance supports your Association through the payment of referral fees for certain products or services you take out with them.

  • New Government schemes and your Medicare provider number – guard it well

    Once upon a time we graduated, applied for and received a Provider Number from the Department of Health and Ageing. This number is specific to a location and any dental practitioner working in multiple locations requires a number for each one. For many dentists once received there is no further thought about the number, its intention or its potential for abuse and in most cases it travels along in our practicing lives as a silent partner.

    In recent years there have been some alarming developments resulting in misuse or appropriation of provider numbers. The rationale of the provider number is so that practitioners can access Medicare (MCA) funding, which for many years this was limited, in the case of dental practitioners, to accessing radiographic services and a few other ancillary medical services. MCA has also restricted the use of item numbers for many services to specialist groups (such as CBCTs).

    Recent challenges have emerged with the introduction of government schemes: the one most prominent in our minds being the CDDS and the problems faced by a profession not provided with adequate education or briefing by MCA, nor used to working with a government funded scheme and its inherent red tape. It has been estimated that over 10,000 dentists provided treatment under the CDDS scheme and a great number of those were unwittingly non-compliant with Section 10. Guild Insurance worked exhaustively with the ADA branches and Meridian Lawyers to lobby, advise and appeal to MCA in an effort to assist all members who had audits and by inference, all vast number who carried a liability for non-compliance of paperwork.

    It was during this time that as practitioners we became aware of the value of our provider numbers: it was the first time that the majority of dentists had accessed public funds. It also brought to light some examples of misuse of the numbers in certain cases.

    One unfortunate case had a group of volunteers in a remote indigenous community providing services and allowing the managers of the centre to bill for services: once they had done their time (usually a week) they moved off and left the mangers to it: however it transpired that the paperwork was not submitted correctly which, in MCA eyes meant that the dentists were fair game for prosecution. In some ways if this case had have made it to the papers with all the buzz words (volunteer, indigenous remote, service access) it may have engendered some sympathy for dentists after all the negative press we had received. However, after due consideration and representation by Meridian Lawyers on behalf of these members, MCA agreed to waive the investigation – possibly they also considered the bad press for them!

    Unfortunately other changes in the landscape of our professional lives are having an impact. Some ADA branches have become aware of employees being pressured to act unprofessionally (over servicing), and of employees being held accountable for decisions made by employers particularly where the practice owner or corporation processes all paperwork and the employee “loses sight” of what is being processed or claimed under his or her provider number. In the eyes of Medicare each practitioner is responsible to ensure that their number is used correctly and that no activity occurs that could be construed as inappropriate (meaning fraudulent) If you feel that you are potentially the subject of such abuse of the mandatory notification provisions of the National Law, please contact your ADA Branch immediately to discuss what you should do.

    We also have new government schemes either just introduced or on the horizon and we are all feeling a bit battle weary after the CDDS experience. Not only should members ensure that they understand the terms and requirements of any new scheme (including limitation of services) but they should ensure that they have control over the provider number as the liability engendered by its misuse rests with the owner of the number, not the practice.

    Please refer to newsletters, alerts and websites of your branch ADA office for fact sheet and guidance when the new schemes are introduced, or contact the professional advisors/consultants with any concerns you may have. Guild and the state branches are fully prepared once details have been confirmed, to make sure that members have the information available to ensure compliance and thus practice safely and avoid liability. Please make sure you are fully briefed before entering into any government scheme so that lessons learnt are not mistakes repeated.


    Dr Eryn Agnew
    Community Relations Manager/Professional Consultant

  • Advertising: A timely reminder

    Advertising compliance has been on the Australian Health Practitioner Regulation Agency’s radar recently, with Meridian Lawyers assisting a number of health practitioners, including dental practitioners, in relation to notices of concern.

    Advertising restrictions – the legislation

    Section 133 of the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law), prohibits advertising that (in connection with a regulated health service):

    1. is false, misleading or deceptive or is likely to be so
    2. offers a gift, discount or other inducement to attract a user of the health service without stating the terms and conditions of the offer
    3. uses testimonials or purported testimonials
    4. creates an unreasonable expectation of beneficial treatment, and/or
    5. encourages the indiscriminate or unnecessary use of health services (see Dental Board Guidelines).

    Examples of compliance issues

    Some of the recently identified issues relate to:

    • interactions with patients on social media, including reviews left by patients on a dental practice’s Facebook page where the content of the review may qualify as a testimonial
    • a practitioner who offered a free home whitening kit when the patient underwent a particular course of treatment
    • ‘two for the price of one’ offers for dental services such as implants or crowns, particularly where the patient seeing the advertising has not yet been examined or treatment planned, and where the full terms and conditions of the offer are not fully and not prominently displayed with the offer
    • the use of words, terms, or titles, which may indicate or which may be seen to indicate to the public, that a practitioner is a specialist practitioner in circumstances where the practitioner is not so qualified and/or endorsed.The advertising rules (and penalties) apply to anyone and any entity that advertises a regulated health service – whether that person or entity is a registered health practitioner or not.

    The following AHPRA/Dental Board publications are relevant:

    AHPRA’s website contains policies and guidelines that every health practitioner and every owner/operator of a registered health service should read and understand.

    1. Social media policy
    2. Guidelines for advertising regulated health services
    3. Dental guidelines – Scope of practice registration standard

    A breach of the advertising rules under the National Law is a criminal offence. AHPRA is at liberty to prosecute advertisers for such offences, which carry the risk of a criminal conviction and a penalty of up to $5,000 for an individual and $10,000 for a body corporate.

    Protected titles – the legislation

    Sections 118 and 119 of the National Law prohibit a person who is not a ‘specialist health practitioner’ from using such a title or from taking or using any title, name, symbol, word or description, which in the circumstances indicates or could reasonably be understood to indicate, to the public that the person is a specialist health practitioner or that the person is authorised or qualified to practice in a recognised specialty, or that the person is registered in an area in which he or she is not registered, or that a person holds an endorsement that he or she does not hold.

    The above provisions apply equally to practitioners’ own advertising, as they do to other persons (or legal entities) that carry out advertising for registered health practitioners or services offered by registered health practitioners.

    A contravention of sections 118 or 119 is considered ‘unprofessional conduct’ under the National Law, for which disciplinary action may be taken by the National Board, and in the case of a prosecution by AHPRA, these offences carry maximum penalties of $30,000 for an individual and $60,000 in the case of a body corporate.

    Examples of compliance issues

    Issues can frequently arise in connection with general dental practices that focus on orthodontic services. General dental practitioners and general dental practices in these circumstances must be very careful not to hold themselves out as specialist orthodontists or to use words, phrases, symbols or descriptions that might indicate this is the case.

    AHPRA has taken issue with advertising (mostly on practice websites) containing phrases such as ‘specialising in orthodontics’ or ‘specialising in root canal therapy’. While these phrases do not expressly state that a practitioner is or may be a specialist orthodontist or endodontist (as the case may be), they may give rise to such an inference whether expressly or by implication.

    In the case of general dental practices and general dental practitioners, it is recommended that the term specialist and all derivatives of that term (i.e. specialising in…; special focus on; areas of speciality or specialisation etc) be avoided.

    Alternative phrases might include ‘focus on…’, ‘experienced in…’, ‘practice dedicated to…’.

    In some cases, it will be appropriate for advertising to specifically state that the practice or the practitioner is not a registered specialist in his or her field.

    Meridian Lawyers recently assisted a dental clinic practice that set up separate rooms in an old specialist medical centre and where AHPRA subsequently took issue with the words ‘specialist centre’ remaining on the building’s outdoor signage after the specialist centre component of the tenancy had disbanded. The general dental clinic and the specialty medical practice had co-existed at the same premises, operating under different names and different businesses, for many years. But once the specialist medical practice ceased to operate from the premises, the issue arose whether it was appropriate for the front signage (which contained the historically relevant words ‘specialist centre’) to continue to remain on the building premises. The practitioner changed the signage to accommodate the concerns identified by AHPRA.

    The current National Law has been operating for in excess of five years and registered health practitioners and operators of registered health practices are now well expected and required to know their obligations in connection with advertising rules and offences. The Board publishes guidelines and codes of conduct in relation to these matters, which are accessible and easy to read.

    For more information, please contact Special Counsel Tamir Katz or Principal Kellie Dell’Oro.

    Download this article.


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  • Record keeping – It’s not going away

    I can almost hear the groans this topic often elicits. Yes, it’s those dirty words again - clinical records. Hang on a minute! Please read on…

    Record keeping - It's not going away 1

    Surely we don’t need to be reminded again, I hear you protest. There’s always someone nagging us about it. Yet hundreds of dental claims every year remind us that it’s a topic that’s not going away. Good clinical records are an essential part of contemporary dental practice. As the following claims highlight, good records help protect you against the unexpected.

    Adverse patient outcomes

    • A dentist referred one of her patients to a colleague for extraction of tooth 44. While the initial conversation was had over the phone, she emailed through a written referral a few days later. However, in preparing the referral, the dentist realised she hadn’t made note in the patient’s record of which tooth was to be extracted. Relying on memory, she wrote tooth 45 in the referral, instead of 44. The wrong tooth was subsequently extracted, causing much embarrassment to both dentists and claims of negligence against them.
    • A young woman presented for the extraction of tooth 35. She completed a ‘medical history form’ in the waiting area on which she disclosed her allergy to codeine. While the dentist asked her a number of questions about her medical history, he did not review the form or ask her about known allergies. He subsequently prescribed an analgesic containing codeine. The woman’s mother contacted the dentist a few days later to advise that her daughter had required hospital treatment for an adverse drug reaction. A letter of demand for compensation followed soon after.

    Claims of negligence or misconduct against you

    • A patient telephoned her dentist after hours to report persistent pain and swelling post procedure. The dentist took the call on his mobile phone while he was driving home from work. He clearly recalls advising the patient to come back in the following day if her symptoms had not settled. However, he did not make any record of their conversation.   As the patient did not return the next day, he assumed her symptoms had subsided. Yet the patient was subsequently hospitalised with a systemic infection and later claimed the dentist was negligent in failing to diagnose her condition. She denied that he had told her to return to the practice the following day if her symptoms had not subsided.

    Disciplinary action for failing to meet your professional obligations

    • A patient lodged a complaint with AHPRA about the quality of veneers performed on teeth 11 and 21. In investigating the patient’s claim, AHPRA also found the dentist’s record keeping to be seriously deficient. At times he had referred to porcelain fused to metal crowns instead of veneers, and at other times he had recorded the wrong date of the patient’s appointment. Furthermore, while the dentist insists he carefully worked through a process of gaining informed consent to treatment, there was no evidence of this in the clinical record. Therefore, the dentist had the added pressure of responding to further allegations about the appropriateness of his practice.
    • A dentist was asked to provide a copy of her clinical records to AHPRA in response to a complaint made about another dentist. While they had both treated the patient over time, there was no complaint about this dentist. Her records were simply required to help the investigators better understand the patient’s course of treatment. Having provided her records, she was shocked to receive notice from AHPRA advising that her records were now the subject of an investigation. Her record keeping was deemed inadequate in that the hand written notes were illegible, not maintained in chronological order and did not include adequate details of the treatment provided.

    Why keep clinical records?

    Contrary to popular belief, good record keeping is not simply about protecting yourself from ‘being sued’. It’s more important than that. The primary purpose of clinical records is to ensure the safety and continuity of patient care. That is, to record the patient’s unique journey from start to finish. Carefully recording the sequence of events allows you or someone else, to return to the records at any time to clarify the facts behind your decision making. Even a dentist with a photographic memory can’t remember the circumstances of every patient. Who has a known allergy? What did the OPG taken 4 years ago reveal? What did you advise the patient about that broken endodontic file?

    Although good clinical record keeping has always been a requirement for health professionals, the Dental Board of Australia has formalised dentists’ obligations by issuing the Guidelines on dental records. Remember, you must be familiar with the guidelines and disciplinary action can be taken against those who fail to comply.

    In addition to the Board’s requirements, good clinical records are essential for fulfilling your obligations to funding providers such as government agencies and private health funds. As dentists well know, compliance audits can be onerous and costly for those who fail to comply.

    Finally, good clinical records will assist you in defending a claim of negligence or misconduct against you. The old adage of good records – good defencepoor records – poor defence and no records – no defence is no cliché. If you fail to keep good records, disputes will ultimately boil down to the patient’s word against yours. Conversely, you are much better placed if you can demonstrate that good record keeping is part of your usual practice. Not just for the patient in question, but for all of your patients.

    Copies of the Dental Board of Australia’s Guidelines on dental records (2010) can be readily accessed via www.dentalboard.gov.au/Codes-Guidelines/Policies-Codes-Guidelines.

    What constitutes clinical records?

    Clinical records generally encompass any hard copy or electronic information pertaining to a patient’s care. This includes:

    • Clinical notes, including any diagrams, photographs or consent forms
    • Diagnostic imaging and reports including CAD-CAM restoration files
    • Dental models
    • Reports, referrals and any other correspondence pertaining to the patient that has been exchanged with third parties. This includes Instructions to and communications with laboratories.

    General principles for collecting and maintaining clinical records

    Record keeping - It's not going away 2

    What information should be recorded in clinical records?

    • Identifying details of the patient
    • Details of who the patient would like contacted in the unlikely event of a medical emergency
    • Previous and current medical history including any allergies or adverse drug reactions
    • The date of each visit and the identifying details of the practitioner(s) providing the treatment
    • The patient’s presenting problem and any changes in their condition since their last contact with you or your practice
    • Information about the type of assessment, examinations and diagnostic imaging performed
    • Your observations, clinical findings and diagnosis
    • Proposed treatment plans, associated risks and alternatives as discussed with the patient
    • Estimates or quotation of fees
    • The patient’s consent to the agreed treatment and proposed fees
    • All treatment provided and the patient’s response to that treatment. Include the use of any medicines, prostheses or other products. Did the treatment go according to plan? Did the patient respond as you expected?
    • Instrument batch (tracking) control identification, where relevant
    • Instructions to and communications with laboratories
    • Instructions or warnings given to the patient
    • Details of any further exchanges with the patient, or carer, that occurred via telephone, text message or other method
    • Any correspondence with other service providers, or third parties, pertaining to the care of the patient
    • Any other information you feel is relevant to the continuity of the patient’s care

    Achieving good clinical records

    While it can be tempting to declare that good record keeping is simply too onerous for a busy dentist, many health professionals do manage to achieve it, dentists included. Arguably, success lies in structuring your processes for gathering and recording clinical information in a way that reduces any administrative burden. Work with your Practice Manager to explore ways in which your record keeping processes could be streamlined.

    Consider the benefits of using hard copy or electronic templates for recording clinical information. Ensure they are set out in a way that is easy to use.

    • Ensure information gathering follows the sequence of clinical workflow
    • Set out relevant headings in the order a dentist is most likely to use them
    • Insert prompts to remind dentists to record particular information
    • Use colour coding where appropriate, as a visual cue for recording certain information

    While it might take some time to set up the practices that work best for you, there are significant benefits to be had, including opportunities for greater business efficiencies.

  • Sex, drugs, impairment and dodgy work – reporting risky colleagues is now compulsory

    The National Registration and Accreditation system includes a regulatory obligation to notify AHPRA where you consider a registered health practitioner may pose a risk to the public. Since its introduction in 2010 there have been numerous calls to advisory staff at all branches about interpretation of this obligation. The broad definition of public risk can and has been difficult to define, both by the DBA itself and by legal advisors to the profession. Section 140 of the Health Practitioner Regulation National Law Act (2009) (The National Law) states:

    Notifiable conduct 

    In relation to a registered health practitioner, means the practitioner has

    (a) Practised the practitioner’s profession while intoxicated by alcohol or drugs; or

    (b) Engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or

    (c) Placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

    (d) Placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

    AHPRA makes it clear that “Registered practitioners and students who fail to report notifiable conduct may face disciplinary action by their National Board”. However, this in itself is hard to interpret except that the law allows for a fine to be imposed. There has not been, to my knowledge at the time of writing this, an instance where a health professional has been so fined. After nearly 3 years sense seems to have prevailed in that aspect, but there is still general confusion amongst dental professionals about the scope of that obligation.

    The obligation to make a mandatory notification applies to the conduct or impairment of all practitioners, not just those within the practitioner’s own health profession. This means that doctors, pharmacists, nurses, physiotherapists, optometrists, psychologists and other registered persons could notify AHPRA if concerned about a dentist, and dentists in turn may have an obligation to notify AHPRA in relation to the risk posed by members of those other professions.

    The notification process

    Different arrangements apply with regard to notifications in NSW, where a notification about the conduct, health or performance of a practitioner, must be made to the NSW Health Care Complaints Commission.

    For other States and Territories, the notification process is the same as would apply for a member of the public lodging a complaint (notification) with AHPRA. A notification form is downloadable from: www.ahpra.gov.au/Notifications/Make-a-complaint

    Notification outcomes

    Depending on the circumstances of the case, outcomes may be determined with or without a hearing. Outcomes can range from revoking the practicing certificate, placement of conditions on clinical practice, cautions and undertakings.

    Sufficient grounds

    The Dental Guidelines for Mandatory Notification published by the DBA state:

    Making a mandatory notification is a serious step to prevent the public from being placed at risk of harm and should only be taken on sufficient grounds. The guidelines explain when these grounds are likely to arise.”

    Clear cut evidence for mandatory notification may include evidence of a practitioner’s sexual misconduct, working under the influence of alcohol or drugs, or while psychologically disturbed the obligations are relatively straightforward.

    Pattern of behaviour

    Problems of interpretation arise when trying to judge whether a colleague’s quality of work may be notifiable, where a different set of problems arises. The belief that a practitioner “has practised the profession in a way that constitutes a significant departure from accepted professional standards” is interpreted to mean that a pattern of poor work has been identified, and that this could be independently substantiated.

    To illustrate the difference we can refer to cases where different decisions applied. The first involved a specialist discovering that over 25% of patients treated by an ex-employee suffered serious complications. The employer obtained legal advice on referral by the relevant ADA Branch regarding implications for notification of AHPRA, notification of the PI insurer and the duty to advise patients. The notification proceeded but as the practitioner was no longer resident in Australia there was no disciplinary action taken. However, the pertinent point in this notification was based on a pattern of behaviour.

    The second case highlights ‘philosophical differences’ between a general practitioner dentist and a specialist treating the same patient. The specialist was concerned when a child who had seen a general practitioner for orthodontic care presented with six teeth with frank caries. Contact was made with the general practitioner but no agreement was reached about what was in the best interests of the child. The legal obligation to notify AHPRA was not clear in this case, and on balance it appears the situation did not offer sufficient grounds, especially as no evidence was available about a pattern of behaviour. Despite the case showing a departure from accepted practice standards which could be, on individual merit, judged to constitute unprofessional conduct if brought before the DBA there was no repetitive litany of cases and could have been defended on clinical judgement (or patient management) grounds. In this case the patient (or parent) would have to be encouraged to notify AHPRA.

    A recent case notified and dismissed by the Board involved a practitioner who had mental health issues which were being appropriately managed. The practitioner had voluntarily limited his clinical delivery to accommodate his competency. The member was praised by the DBA for this judicious and responsible approach. It has to be said that the colleague who made the notification did so after much soul searching and counselling so the stress of complying with these new regulations falls on all parties.

    If in doubt about whether to notify AHPRA, we recommend that in the first instance you contact your ADA Branch for discussion of the circumstances. Where appropriate you may be referred on to legal advisors.

    For more details on the obligations of registered dental practitioners, see the Guidelines for Mandatory Notification in the Policies, Codes and Guidelines section of the DBA website www.dentalboard.gov.au/Codes-Guidelines/Policies-Codes-Guidelines.

  • Radiographs – risk management considerations

    Radiographs (referred to hereafter as the colloquial albeit incorrect “x-rays”) are one of a dentist’s most important tools in the diagnostic process as well as being a useful aid in communication with patients. Because the taking of x-rays is common and usually straightforward, the value that radiology affords the practitioner can often be underestimated. In addition to their obvious clinical benefits, x-rays are often of key importance in defending complaints from disgruntled patients about treatment, and sometimes can be THE key in determining the entire course of a complaint or claim as you will see in some of the following case studies.

    When it comes to the crunch, it is surprising how often to a member’s regret and/or embarrassment, the simple x-ray has been overlooked, or is poorly fixed or cared for, poorly taken in the first place, or been misplaced. Like other forms of patient records, in a legal setting, the quality of x-rays contributes to the impression of the quality of the treatment, especially when there may be little else available to base an assessment on. An excellent diagnostic x-ray is a delight to see!

    Dentists have a legal duty to ensure that patients are treated with skill and care. This duty begins with the initial consultation process and involves:

    1. Duty to diagnose
    2. Duty to inform

    There is then a duty to ensure treatment is carried out to an appropriate standard.

    Where a practitioner fails in any of these duties, and the patient suffers in any way as a result, the patient has a potential claim. It will then be a matter of establishing whether the actions taken, or, perhaps not taken, were reasonable in the circumstances.

    Let’s look at the first two duties in the context of x-rays. I would like to highlight that this is a greatly simplified view just for the purposes of illustration.

    Your duty of care to your patients

    Duty to diagnose

    A practitioner has a duty to diagnose dental disease, occlusal disturbances and oral pathology so that, after appropriate discussion with the patient, treatment can be provided in a timely manner and the patient restored to oral health. “Failure to diagnose a condition correctly, in circumstances where a reasonably competent member of the same class of practitioner would not have so failed, will render a doctor [/dentist] liable in negligence”.[1]

    Case 1

    A patient presented seeking cosmetic enhancement of his smile. After appropriate discussion, bleaching and porcelain veneers were decided upon along with replacement of a pre-existing anterior crown. The treatment was completed in a series of appointments and the patient left apparently happy. Shortly afterwards a request for records and letter of complaint were received. The patient had sought treatment elsewhere and been advised that the re-crowned tooth now required extraction due to failure of the underlying root canal therapy that had been performed many years earlier by a previous dentist. The patient complained that the dentist had failed to take updated x-rays prior to commencement of the cosmetic work and requested assistance with the cost of implant replacement.

    Comment: An updated x-ray had indeed not been taken of the tooth prior to the crown being replaced. In the absence of symptoms, it had been assumed that the root therapy was sound. Sometimes patient pressure to keep costs down can sway dentists against taking x-rays which would otherwise have been taken without hesitation. Resist this temptation. Always take the x-rays you need to ensure an unequivocal diagnosis, especially before commencing expensive or irreversible treatment. When you compare the cost of an x-ray and the information it affords you to the overall cost of treatment, the additional expense is insignificant.

    Case 2

    A patient was referred away for removal of most of his teeth under general anaesthesia, and returned for issue of immediate dentures and post-operative management. Over the subsequent months, the patient was cared for by different dentists at the practice and had several small bony sequestra removed and numerous denture adjustments. However the patient continued to experience pain. He was a heavy smoker and had failed to comply with instructions to cease smoking during the post-operative healing phase, and this was considered a possible contributing factor to his ongoing problems. After numerous months of persisting discomfort, the patient sent the practice a letter expressing his desire to sue for pain and suffering, and sought treatment elsewhere. An x-ray of the upper anterior region taken by the dentist at the new practice revealed that a large portion of an incisor root had been left behind. Removal of this piece resulted in rapid settling of the patient’s remaining symptoms.

    Comment: Whilst common things occur often, always keep the uncommon in mind! It was so unexpected that a straight rooted anterior tooth would have fractured that the taking of an x-ray to check for a retained root was overlooked. If no obvious cause for a patient’s problem is evident, it might be worth taking an xray to assist in diagnosis.

    Case 3

    A lady had attended a dentist regularly for six years having examinations and minor restorative work done. After moving house, she attended a different dental practice. A check-up was done and bitewings taken. The patient was shocked to hear that she required 5 major fillings done and one extraction – in the past she had been used to needing either nothing done or only one or two small fillings. She sent an angry letter to her former dentist requesting copies of her records and complaining that he had done inadequate examinations, failed to take sufficient x-rays, and had failed to diagnose urgent treatment.

    Comment: Taking regular x-rays is a necessary part of the diagnosis and monitoring of the dental status. If the patient declines having x-rays taken, ensure this is noted in the patient’s records along with the reason. You may need to refer to this later, should a patient allege deficiencies in your treatment that the presence of x-rays would have assisted with.

    If you are the subsequent treating dentist, bear in mind that small lesions or other problems that you detect may have been known to the previous practitioner. Sometimes doubtful areas or incipient lesions are not immediately restored and instead their progress is monitored radiographically to check for any development. It is important that the findings on such x-rays are discussed with the patient and that the need for regular monitoring and possible future restoration is made clear. Ensure that you record a brief note about your discussions in the patient’s records.

    Case 4

    A young girl presented upon orthodontic referral for removal of deciduous canines. The dental practitioner was not provided with, nor took, any x-rays prior to the extraction. A permanent lateral incisor was misidentified as a deciduous canine, and was removed and given to the patient. The practitioner only became aware of the error following a call from the orthodontist.

    Comment: Extracting teeth for orthodontic reasons is the most common scenario resulting in the wrong tooth being removed, because of anatomical similarities and the usually pristine condition of the teeth requiring extraction. Always ensure you view an x-ray prior to treatment so that there can be no ambiguity about tooth identity.

    Duty to inform

    Practitioners have a duty to inform patients of the potential risks or complications of a procedure. In the past, the Bolam principle dictated that the standard of what to warn patients about was set by what a significant body of other peers within the profession considered was appropriate at the time. However the 1992 Australian High Court decision in Rogers v Whittaker led to a changed responsibility in the duty to disclose such that patients must now usually be warned of any risk inherent in the proposed procedure that is considered material. “A risk is material if in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner [/dentist] is, or should reasonably be, aware that the particular patient, if warned of the risk would be likely to attach significance to it”.[2] Hence the standard of care with regard to warnings is now determined by what the individual patient may desire as opposed to relying solely on medical judgment.

    Case 1

    A man presented with pain from tooth 47. RCT was suggested as the ideal option with extraction the only alternative. The dentist took an excellent periapical x-ray which indicated proximity of the mandibular canal to the 47 root apices, and noted in the records a caution to himself to avoid exceeding working length on instrumentation.

    Having thought about it overnight, the patient returned the following day with the decision made to extract. The tooth was atraumatically removed.

    Three days later, the patient returned for review and reported paraesthesia of his lower right lip. Unfortunately, despite the note in his records, this normally meticulous dentist had failed to warn the patient of this risk, being more concerned at the time with the patient’s complicated medical history and possible adverse postoperative complications arising from that. He had also been surprised and slightly distracted by the patient’s decision not to save the tooth, and the extraction appointment had been somewhat hastily arranged.

    The dentist’s longstanding good relationship with the patient placed him in good stead to manage the patient’s anxiety and to oversee the gradual return to sensation in the lip over the following months.

    Comment: Commonly it is the third molar region where x-rays are deficient, and which can result in insufficient information with which to adequately warn the patient of the likelihood of nerve damage. However paraesthesia has at times been reported following removal of lower first and second molars and also premolars. On rare occasion, sensation has remained permanently impaired. Hence it is necessary to ensure that xrays of all lower posterior teeth destined for extraction show sufficient information beyond the tooth apices to indicate any relationship with the inferior alveolar nerve canal. This will enable suitable warnings to be provided to the patient of the chance of nerve injury occurring, should the x-ray indicate such a risk. This will go a long way in preparing the patient should the worst case scenario eventuate, as well as being of obvious assistance in defending any potential allegations of negligence.

    Case 2

    A dentist placed a filling in a new patient’s tooth, 14, which had a large carious lesion. The filling was apparently close to the pulp but the tooth was asymptomatic and the patient was not warned about the possibility of RCT being required at some later stage. The patient developed symptoms two months later and sought emergency treatment from a dentist at another practice who commenced the RCT. The patient sent a written complaint to the original treating dentist stating that tooth 14 needed RCT due to him not having done the filling correctly, and threatening to take the complaint to the Health Care Complaints Commission or to the Dental Board.

    Comment: Be mindful that complaints from new patients are far more frequent than complaints from existing patients with whom a relationship of trust has been established. If you are going to keep good records for anyone, ensure you do so for new patients!

    The first dentist had not taken a pre-operative x-ray because the caries was clinically obvious. It is nevertheless often prudent to take a pretreatment film to ensure a full and proper diagnosis (in this case to check for chronic periapical infection); for the purpose of having a record of the patient’s presenting state (for your own records and treatment planning purposes as well as for any future dentolegal defence requirement); and as a tool to assist in communication with the patient about their treatment.

    Had the dentist taken such an x-ray, he would have had irrefutable evidence that the depth of the original caries was the reason for the RCT requirement as opposed to any fault of his restoration or “drilling too far”.

    [1] Dix, Errington, Nicholson and Powe, Law for the Medical Profession in Australia, Butterworth-Heinemann 1996, p 291.
    [2] ibid, p 104.

    Case 3

    A dentist carried out a lower molar RCT and placed a post, core and crown. Eight years later she received a solicitor’s letter claiming expenses for approximately $5,000 subsequent to a fractured instrument being discovered in the mesial root and the need to have the tooth retreated. The dentist had taken pre-, intra- and postoperative x-rays during the root therapy which had allowed her to detect the fractured file and inform the patient. However there was nothing noted in the clinical records to prove that any discussions with the patient had taken place – the dentist could only rely on the fact that it was her usual practice to inform of a fractured file and whether or not it had been able to be bypassed or removed etc. The patient claimed that he had not been so informed. Whilst the dentist’s management may have been appropriate, because of the lack of evidence of her side of the story, liability was a problem and the case needed to be settled.

    Comment: This example highlights the importance of documenting radiographic findings in the records and any discussions with the patient. An offer of specialist assessment should be recorded along with the patient’s response, particularly if it is to decline referral. A court will likely believe a patient’s version of events over a dentist’s in the absence of supportive clinical records.

    Sometimes a dentist will deliberately avoid taking an x-ray when something adverse has occurred, fearing or knowing the evidence that it will show, in order to claim ignorance of an event. However the delay in being informed of a problem (which may come courtesy of a subsequent treating practitioner) may only serve to further upset a patient and in some instances, unnecessarily complicate management and reduce prognosis. It is better to promptly inform the patient of the adverse event, and you may wish to consult the ADA for advice before doing so.

    Case 4

    A new patient presented to a young dental practitioner for treatment of pain from the lower right which she believed was emanating from tooth 46. On examination the dentist found that tooth 46 and 47 were equally mobile with a poor prognosis, but tooth 47 was more tender to percussion than tooth 46. The dentist recommended extraction of 47. The specific tooth to be removed was only identified to the patient by percussion – she was advised that the sorest of the two teeth was the one that was going to be removed. The patient was not informed that this was a different tooth to the one that she believed was the problem. To save on costs, the patient had refused to have an x-ray taken and because 47 was so mobile, the dentist did not insist, knowing that the extraction would be straightforward. The tooth was indeed easily removed and the patient paid and left.

    Shortly afterwards she returned stating that the tooth she had wanted taken out was still present and she wanted it removed. The dentist complied and extracted tooth 46 for no charge. A courtesy call was made to the patient later that day to check her progress. She was in some pain but feeling more comfortable.

    The following day the patient’s partner phoned accusing the dentist of having removed the wrong tooth and requesting a meeting. A very lengthy meeting ensued between the partner and the dentist during which the partner demanded compensation for two extractions having been performed instead of one. He mentioned that the dentist had not followed correct procedures by failing to take an x-ray and said that he was holding him liable for loss of the abutment (47) for a future prosthesis that had been planned subsequent to the extraction of 46. The dentist was asked to think about it and contact the partner back with an offer. A harrowing fortnight followed for the dentist during which the partner continued to harass and harangue. The matter was resolved with a payment and execution of a Deed of Release.

    Comment: This case raises issues of informed consent, patient privacy (the need to confine discussions about a patient’s treatment with the patient involved), admission of liability, and the practitioner’s right to decline providing treatment in situations where the patient is unwilling to comply with advice (in this case to have an x-ray taken prior to an extraction). The patient had also failed to provide an address and it is in contravention of the Dental Practice Act 2001 (NSW) to provide treatment in such circumstances. Whilst other evidence would likely have established that correct treatment had been provided, the lack of a pre-operative radiograph left the dentist in a vulnerable position and would have been a significant impediment in defending the case.

    Case 5

    A patient attended with a broken upper molar tooth with all coronal tooth structure having been lost. The dentist only recorded the patient’s name and not other essential details such as address or medical history. He failed to take any x-ray. The extraction was attempted but after a struggle the dentist failed to remove more than one root. As he was in a hurry, the dentist sent the patient off with no further advice or offer of referral. A fee of $100 had been charged and paid. “One extraction” plus the tooth number was all that was recorded in the patient records about the appointment.

    The patient subsequently phoned the dentist and advised that he had attended a specialist oral surgeon and had been informed that in addition to the retained root, the sinus had been perforated.

    Comment: This case was settled promptly.

    Remember this!

    • Take the appropriate number of films which, in combination with your other findings, allows you to be confident of your diagnosis (or at least the adequacy of your attempts to reach a diagnosis). You may need to take additional films from other angles to capture adequate information. Complaints about a dentist having taken too many x-rays tend to be much less common, and tend to be about incidents of much less significance, than complaints about a dentist having taken none/too few/inadequate x-rays. If in doubt, take another x-ray.
    • Best practice suggests that pre-operative films be taken before commencing expensive work such as crown and bridge, implant procedures, orthodontics and endodontics. In the case of endodontics, additional films should be taken both after and usually during the treatment, even if using an apex locator, so that the progress and outcome of treatment can be monitored and documented.
    • Ensure your x-rays are of diagnostic value – this involves both the clinical taking of the films and their processing. It is no good having excellent radiography skills if the film processing is substandard or vice versa. Bear in mind that you may be required to provide copies of your records to one of your professional colleagues one day or to the Dental Board or to a patient’s solicitor.
    • Ensure that your x-rays are dated, labeled and, if the non-digital type, are mounted correctly. This also applies to copies of x-rays which you are forwarding to other practitioners as part of the referral process, particularly referrals for removal of teeth. Oversights in these areas have resulted in the wrong tooth receiving the wrong treatment, including extraction.
    • Be mindful that different practitioners, including within the same practice, might be in the habit of mounting x-rays with left and right reversed.
    • Record in the dental records what x-rays were taken, the date they were taken, the purpose (if not obvious from your other notes), and what diagnosis was made, including if there was no abnormality detected (“NAD”). This way if the x-rays are lost, you will have your diagnosis recorded as further evidence of the films having been taken. Writing down your diagnosis also aids treatment planning.
    • In addition to lowered radiation, digital x-rays have the advantage of creating an electronic audit trail where dates cannot be tampered with or inadvertently recorded incorrectly. They are also easier to store and can be stored indefinitely without deterioration. Secure back-up procedures are required to prevent loss of information through system failure. The use of digital x-rays does however involve an initial learning curve for the practitioner who is new to the system to become familiar with it and adapt his or her diagnostic skills. Auxiliary staff will also require appropriate training. Some practitioners believe that the non-digital system produces images of superior quality to those of digital systems.
    • With digital x-rays, it may be prudent to keep a copy of the first image you take before any manipulation of contrast, brightness etc is done to enhance the image, in case something goes awry with the process.
    • Always keep a record if the patient refuses to have an x-ray taken and the patient’s reasons – apart from being good clinical practice, this may become important in defending a claim. Without any such notation, you may leave yourself vulnerable to allegations of “I never said I wouldn’t have x-rays”.
    • It is best to advise the patient up front that a certain procedure will involve the taking of multiple x-rays and why. That way the patient is forewarned and any objections about “unnecessary” x-rays can be addressed before they become an issue during treatment.
    • Avoid using cost minimisation as a reason for not taking an x-ray that you feel is important. When the treatment is expensive, involved or irreversible, the cost of x-rays is minimal by comparison. If the patient declines having an x-ray for financial reasons, perhaps more information is needed to assist their understanding of the need. In such cases commencement of the treatment should be reconsidered (eg in the case of a tooth extraction).
    • If copies of non-digital x-rays are required, this can be arranged through radiology centres, dental teaching centres, and the radiology department of major public hospitals.
    • If you are the owner of radiology equipment, you are legally obliged to ensure that it is properly installed, housed and maintained so that it is safe for staff and patients.

    By the Advisory Services Team at the ADA NSW

  • Private health fund audits

    Reading relevant articles can count towards your required continuing professional development hours.  Therefore, reading the article below may assist you to achieve these required hours. (see more below)

    Practitioners can be subjected to an audit of their billing practices by a private health fund. This article explains what can trigger an audit; answers some frequently asked questions; identifies some common billing issues that Meridian Lawyers has observed; and provides some hints and tips to practitioners seeking to avoid common pitfalls.

    How are audits commenced?

    What triggers an audit?  

    Audits are typically triggered as a consequence of the practitioner (provider) having a high servicing ratio relative to their peers in their state and postcode.   It is important to remember that each of the private health funds collects data, and turn that data into statistical models that identify billing trends across the industry. The funds collect data on individual provider’s billing and patterns and compare these levels to industry “norms”.

    A provider’s servicing profile has been explained by one of the private health funds, as being made of up the following:

    • Service and Benefit ratios per patient
    • Service and Benefit level ratios per membership
    • Service and Benefit level comparison ratios for the provider’s State and Postcode
    • Age Group Service comparison ratios for the provider’s State
    • Item Category Service comparison ratios for the provider’s State

    A high servicing ratio may often trigger a letter to the provider seeking an explanation, which is generally followed by a second letter informing the provider that an audit is to occur. Typically, a provider who has been identified as having a high service ratio, can expect the following line of correspondence from a private health fund:

    Letter 1 : Provider advised of high servicing profile and asked to provide an explanation


    Letter 2 : Provider advised that private health fund has decided to conduct an audit of the practice. Private health fund will seek access to the clinical records of specific patients over a specific period of time.


    Letter 3 : Provider will be advised of audit’s findings. Provider will be provided an opportunity to respond to the audit findings.


    Letter 4 : Provider will be advised of the private health fund’s decision. The provider will be informed as to whether the private health fund will take action.


    What power does the private health fund have to audit my practice?

    The relationship between a provider and a private health fund is contractual in nature. As such, the power of a private health fund to perform an audit will be created by the terms of the contract. Generally speaking, these contracts contain a clause requiring the provider to co-operate with any request for documents. A failure to perform an obligation under such a contract, may give the private health fund the right to suspend that provider’s billing privileges, and ultimately, end its relationship with the provider.

    Will I breach patient privacy if I provide the private health fund a copy of my clinical records?

    Previously, this has been an issue faced by providers. However, most patients will have now consented to such a disclosure when becoming a member with the private health fund. Before providing a copy of any clinical records, it is prudent to request a copy of the patient’s consent or at least, written confirmation from the private health fund that this has been obtained.   We note that some funds provide this information at the time of a request for clinical records. We recommend seeking legal assistance to draft an appropriate first response to such a request.

    What can the private health fund really do if I do not cooperate/respond in a timely manner?

    Most private health funds reserve the right to suspend billing privileges or end the relationship with the provider, should there be a failure to respond by the nominated date. It is extremely important to keep this in mind if correspondence is received from a private health fund. We are aware of private health funds suspending the provider’s billing facility until a response is received.

    What are the possible outcomes of an audit?

    The contract between the private health fund and the provider generally reserves the right of the private health fund to end its relationship with that provider, if a serious breach has occurred.   It is important to remember that when an item number is billed to a private health fund, it is a representation that the service has been appropriately provided. Consequently, audits that uncover item numbers that have been inappropriately billed, albeit unintentionally, could result in termination of the relationship with the provider.

    Private health funds may also reserve the right to require the provider to fix the breach, if possible. For item numbers that have been billed incorrectly, this generally means paying back to the private health fund the billed amounts. This is called restitution. Be warned that if a billing trend for a particular item number is uncovered by an audit, the private health fund very often seeks full restitution for all times that item number has been billed, even beyond the sample of audited files.

    We note that should a provider’s status as a provider be terminated, as a consequence of an audit, the provider may have an obligation to notify AHPRA of the event. Depending on the circumstances, this may also be the case should a provider’s billing privileges be suspended during an audit. We recommend that a provider seek legal advice should either of these events transpire.

    Frequent issues

    Audits by private health funds generally focus on the following three issues:

    • Was the treatment in fact provided?
    • Was the treatment provided warranted?
    • Was the item number appropriately used?

    The potential to defend these types of allegations depends almost entirely on the quality of and the detail in the provider’s notes. The provider, in answer to these issues, will need to look to the following:

    • Is there a record of the treatment that is the subject of the claim?
    • Does the record of the history and examination findings, including the conclusions from any radiology/intraoral photographs justify the treatment that was provided?
    • Is the recorded treatment within the scope of the claimed item number?

    Audits frequently target the use of the following item numbers:

    Item 011 which provides for a comprehensive oral examination.   The funds have taken issue with clinical records that do not support a comprehensive oral examination having been completed.

    Item 013 which provides for a limited oral examination. The funds have taken issue with providers who bill this item number in conjunction with planned treatment.

    Item 015 which provides for an extended consultation of 30 minutes or more. The funds have taken issue where this item is being used for every first consultation; or routinely where there does not appear to be any clinical justification for doing so. Where there is complex treatment proposed, and the provider is required to explain the treatment plan in detail, including the risks and benefits, and the outcomes, such circumstances may justify the use of this item. However the provider must ensure that this necessity is detailed in their notes. A simple consultation is unlikely to justify the use of this item.

    Item 022 which provides for intraoral periapical or bitewing radiograph per exposure. Providers need to ensure that radiographs that are being claimed under this item are actually able to assist in clinical diagnosis.   Audits have identified instances where radiographs of poor and unusable quality have been claimed inappropriately. It is important that providers retain all radiographs and document the findings/conclusions from these radiographs in the patient’s clinical file.

    Item 122 which provides for home application topical remineralising and/or cariostatic agents. This item requires that the patient is provided with a custom-made tray. Audits commonly identify the inappropriate use of this item where providers are simply providing the patient with an over the counter tray.

    Item 123 which provides for concentrated remineralising and/or cariostatic agents. This item cannot be used where restorative treatment of the same tooth/teeth is also provided. We note that this item may be used for the prolonged and targeted application of concentrated fluoride where it is a procedure to promote caries resistance in a specific situation. Audits have focused on the incorrect use of this item for fluoride treatment or for the issuing of tooth mousse, particularly in circumstances where there are no clinical records to justify such treatment. It is not appropriate to claim item 123 where a desensitising agent is applied.

    Restoration items The funds have focused on providers that claim for restorative items on the same tooth over a relatively short period of time. They maintain the position that this may indicate an issue with the quality of the workmanship, and believe it should be a cost borne by the provider. We recommend that providers think carefully when engaging in this practice. If the replacement restoration is not because of workmanship, the reasons for the treatment should be detailed in the patient’s clinical notes.

    We understand that providers rely heavily on their administrative staff when it comes to billing.   We have observed that some of the item numbers disputed by the funds have arisen because the administrative assistant entered the incorrect item number; or the administrative assistant billed and then cancelled an item number in order to quote a service to the patient. These entries form part of a provider’s servicing profile, thereby adding to the provider’s servicing ratio.   Providers should ensure staff are trained on how to use the billing systems properly and what is and is not acceptable.

    Auditors regularly seek explanation for pre-claiming, back dating or splitting claims over the calendar/benefits year.

    Hints and tips

    Practitioners need to be mindful of the potential for audits to be conducted by the private health funds. Meridian Lawyers’ recommends that practitioners:

    • Ensure complete and accurate clinical records are retained
    • Ensure administrative staff are educated regarding appropriate billing practices
    • Ensure they are familiar with the ADA Schedule of Dental Services and Glossary, and that their treatment accords with accepted practice
    • Ensure that any clinical records provided to a private health fund are:
    • Complete; and
    • Good quality copies (if the x-rays are digital, we recommend providing a CD/DVD containing the digital image)
    • It is strongly recommended that any practitioner contact their professional indemnity insurer for assistance, if correspondence from a private health fund regarding an alleged high servicing ratio is received.


    Detailed clinical records enable a provider to respond to an audit request, or demand by a private health fund with:

    • a contemporaneous record of the treatment, which accords with the item description; and
    • a contemporaneous record of the clinical justification of the treatment.

    Without detailed notes, whether the treatment was provided, whether it was appropriate, and whether it was within the item number claimed, are open to dispute.

    This article was prepared by Jeremy Smith, Solicitor; Marnie O’Brien, Solicitor and Kellie Dell’Oro, Principal of Meridian Lawyers.

  • Old concepts, new buzz words, big issues in dentistry

    Recent times have seen a lot of change in dentistry, from which came greater clarity in some areas — Open Disclosure — and greater confusion in others — Scope of Practice.

    Open disclosure

    No matter how careful, qualified or experienced we are, adverse events are an inevitable part of dental practice. For many years ADA NSW has been writing articles on a practitioner’s obligation to fully inform a patient should something go wrong. So the concept is not new and ‘open disclosure’ is already occurring in many areas of dentistry, but what is new is the Australian Commission on Safety and Quality in Healthcare’s standard and the reference within the Dental Board of Australia Code of Conduct .

    Both these references aim to promote a clear and consistent approach by healthcare professionals to open communication with patients and their nominated support person following an adverse event. This includes a discussion about what has happened, why it happened and what is being done to prevent it from happening again. They also aim to provide guidance on minimising the risk of recurrence of an adverse event through the use of information to generate systems improvement and promotion of a culture that focuses on health care safety.

    Principles of open disclosure

    Open disclosure is the open discussion of incidents that result in harm to a patient while receiving health care. The principles of open disclosure include:

    1. Openness and timeliness of communication: When things go wrong, the patient and their support person should be provided with information about what happened, in an open and honest manner at all times. The open disclosure process is fluid and may involve the provision of ongoing information.
    2. Acknowledgment: All adverse events should be acknowledged to the patient and their support person as soon as practicable.
    3. Expression of regret: As early as possible, the patient and their support person should receive an expression of regret for any harm that resulted from an adverse event.
    4. Recognition of the reasonable expectations of patients and their support person: The patient and their support person may reasonably expect to be fully informed of the facts surrounding an adverse event and its consequence, treated with empathy, respect and consideration and provided with support in a manner appropriate to their needs.
    5. Staff support: Dental Practices should create an environment in which all staff are able and encouraged to recognise and report adverse events and are supported through the open disclosure process.
    6. Integrated risk management and systems improvement: Investigation of adverse events and outcomes are to be conducted through processes that focus on the management of risk. Outcomes of investigations are to focus on improving systems of care and will be reviewed for their effectiveness.
    7. Good governance: Open disclosure requires the creation of clinical risk and quality improvement processes where adverse events are investigated and analysed to find out what can be done to prevent their recurrence. It involves a system of accountability through the practice principal/senior dentist to ensure that these changes are implemented and their effectiveness reviewed.
    8. Confidentiality: Policies and procedures are to be developed by a dental practice with full consideration of the patient’s, carer’s and staff’s privacy and confidentiality, in compliance with relevant law, including Commonwealth and State/Territory Privacy and health records legislation.

    The open disclosure process

    As health professionals, we have a legal and ethical duty to our patients to notify them when things go wrong. A good practitioner will recognise what has happened and;

    • act immediately to rectify the problem, if possible, including seeking any necessary help and advice,
    • express regret,
    • explain to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences,
    • acknowledge any patient or client distress and providing appropriate support,
    • comply with any relevant policies, procedures and reporting requirements, subject to advice from a professional indemnity insurer,
    • review adverse events and implementing changes to reduce the risk of recurrence,
    • report adverse events to the relevant authority as required,
    • ensure patients or clients have access to information about the processes for making a complaint.

    It is important to note that an explanation of the facts is different to, and certainly should not be, an admission of liability, the latter being statements made by the practitioner indicating direct acceptance of all responsibility for the adverse outcome which has occurred. Dental practitioners need to be aware of the risk of making an admission of liability during the open disclosure process. In any discussion with the patient and their support person during the open disclosure process, the dental practitioner should take care not to:

    • state or agree that they are liable for the harm caused to the patient
    • state or agree that another health care professional is liable for the harm caused to the patient
    • state or agree that the dental practice is liable for the harm caused to the patient

    Case studies

    The following case studies emerged from a search of DDAS files for incidents which involved a decision on whether to inform the patient of a problem. Whilst the search was a purely random one, you will see that in every instance no action was taken by the patient. Whilst not necessarily illustrated by all of the examples below, a policy of open disclosure can help to build patient trust and in many instances, results in a positive change to practice procedures thereby improving patient care.

    Caries overlooked

    Case details: Tooth 45 requires RCT as a result of a cavity not being detected on the x-ray two years ago. Patient has had an exam by a partner in the practice in between times (no x-rays) and the cavity was also not detected. A crown may also be required. A patient presented for emergency treatment of severe toothache emanating from tooth 45. RCT was commenced.

    On subsequent review of the patient’s records, the dentist discovered that there had been undiagnosed distal root caries on 45 visible on bitewings taken 15 months earlier. The caries had also not been detected during a dental examination undertaken by a partner in the practice some months afterward. Rather than attempt to cover up the oversight, the treating dentist accepted responsibility and wished to correct the error. The patient was informed of the caries and the RCT was completed for no charge. A good relationship was maintained with the patient who had loyally attended this particular practitioner for 15 years, including following her through three changes of practice location.

    Comment: Radiographs are one of a dentist’s most important diagnostic tools (and can contribute significantly to the defence, or lack thereof, of a claim). On a busy day in a busy practice, occasional oversights are bound to occur. Having a systematic order of examining structures on a radiograph reduces this risk, as does rechecking radiographs at the end of the appointment at which they are taken.

    Wrong filling replaced

    Case details: The family had been attending a dental practice for 8 years. One of the adolescent members of the family, with a history of high caries, had fillings placed on 26 and 37. A couple of months later a filling in 47 was to be carried out due to recurrent caries. Unfortunately the practice manager wrote the wrong tooth number on the patient’s card, the dental nurse took a digital x-ray for tooth 37, and when the patient attended for treatment, the dentist removed the 37 filling to find no decay, at this point realising that the wrong tooth had been worked on. The dentist explained to the patient and her mother that she had just redone the filling in tooth 37 by mistake instead of replacing the one in tooth 47. Naturally, there was no charge for the treatment. The filling in 47 was also subsequently replaced for no charge. The dentist’s prompt and honest disclosure was rewarded by the patient’s calm acceptance of the error and the family’s continued attendance at the practice.

    Comment: When multiple members of the dental team are involved in providing treatment, the risk of error increases. Good communication and a system of cross-checking is necessary to avoid perpetuation of errors. The individual practitioner, however, is ultimately responsible for the treatment provided and it is clearly incumbent on him/her to check that the right tooth is about to be treated before commencing any dental procedure.

    Perforation during root canal therapy

    Case details: A patient presented for emergency treatment of pain on the lower right side of her mouth. The dentist commenced RCT on the deeply filled 46, during which he perforated the lateral wall of the mesial root. This was confirmed radiographically. The tooth was dried and dressed, and it was explained to the patient that the perforation had occurred and had reduced the prognosis for long-term retention of the tooth. An endodontic consultation with an Endodontist was recommended should the patient wish to continue with the treatment. The patient, was not too concerned and was more interested in having the tooth extracted and a bridge placed. She declined specialist referral. After further discussion, the dentist suggested that she consider what had been discussed before making a final decision on the future of the tooth. The following day the patient experienced severe pain and attended another dentist at the practice who adjusted the temporary filling, provided a script for antibiotics and analgesics, and referred the patient to the endodontist. One month later, the patient wrote to the practice principal accusing the assistant dentist of being “negligent in his treatment” of her. She stated that she had “not been given any antibiotics or painkillers by him, the temporary filling had not been completed properly, and he should not have commenced RCT if he was not capable”. She advised that she would be continuing treatment with the Endodontist.

    The original treating dentist sent a courteous letter of reply to the patient outlining how the perforation had come about and been addressed, and reminding her of their detailed discussion about the problems with, and treatment options available for, tooth 46 at a visit prior to the RCT appointment. As a result of those discussions, it had been agreed that although the tooth may have to be eventually extracted, they would attempt to salvage it with RCT. The patient had been informed that no guarantees could be given and that there was a failure rate of around 10%. The dentist ended by saying that he was nevertheless happy to offer the patient a full refund ($200) for the treatment he had provided to 46 because of the unfortunate outcome and his primary concern for the satisfaction and wellbeing of his patients.

    Five months later the dentist had still heard nothing in reply and the patient had failed to take up the offer of refund. The RCT was completed by the E ndodontist and the patient was apparently happy with the service that had been provided. A crown was planned to be placed in the near future by another dentist at the practice.

    Comment: A patient will commonly accuse a dentist of “negligence” however negligence is a legal concept which must be determined by a court of law. With the exception of prima facie examples such as extraction of the wrong tooth, negligence can be very difficult for a patient to prove and comparatively few adverse incidents in dentistry are ever deemed to be “negligent”. More often they would be considered as unexpected, but always possible, complications of the procedure being performed, and about which the patient should be warned before the procedure is commenced. Perforations are more common when treatment has been carried out in an emergency appointment when staff can be rushed and unprepared. When a perforation occurs, it can be tempting to hide it by not taking adequate radiographs which would assist in demonstrating the problem, however by doing so, this may only delay its discovery (often by a future practitioner) when the uncomfortable truth inevitably comes out. It was fortunate in this case that the perforation did not render the tooth unsalvageable. The outcome was assisted in part by both the dentist’s prompt admission of the problem and specialist attention at an early stage. It is important to follow up on patients who have been referred to ensure that they follow through with care. A patient who was well-informed prior to treatment plus a well-worded letter of explanation and genuine expression of regret were important in preventing this matter from escalating.

    Wrong tooth filled

    Case Details: It is often very difficult and embarrassing to admit errors to patients and it can be tempting to want to hide them. What distinguishes us as professionals is our management of errors when they happen. A set of bitewings taken as part of a routine examination on a young adult revealed that a filling was required in tooth 27. At the treatment appointment 3 weeks later, the dentist carried out a tunnel preparation on the tooth. When no decay was found upon drilling to the depth indicated by the x-ray, it was discovered that the x-rays had been accidentally mixed with nearly identical bitewings of a similarly-aged patient, and tooth 27 did not in fact require a restoration. When the correct x-ray was located, a distal carious lesion was noted in tooth 26. Upon contacting the DDAS for advice, the dentist was advised to phone the patient and apologetically admit the error and advise of the need for the restoration in tooth 26. If the patient allowed the opportunity for the filling to be placed, it was suggested that it be done for no charge as a goodwill gesture.

    It was a difficult call and when it came to the crunch, the dentist opted simply to inform the patient that he had missed a filling and that another appointment would be needed. When the patient presented for treatment, he made no enquiries about the need for the extra filling so the dentist offered no explanations.

    Comment: Whilst Dr C may have “gotten away with it” (for now), his management would be considered in breach of professional ethics. In addition, it is important to note that whilst an error or bad outcome is not necessarily negligence, failure to disclose it can be, and can be the basis for a successful claim. Hence the recommendation is always to be transparent with the patient, as difficult as that may be in such circumstances. On a positive note, the dentist amended his procedures so that x-rays are now labelled immediately to avoid a similar error recurring.

    Clinical privileging

    In the last six months, how many times have you heard another dentist state that his/her hygienist is able to perform procedures that your hygienist doesn’t. Equally so for a therapist or Oral health therapist. And you wonder how they can “get away with it”. With the introduction of the National Law, many of the state based differences could not be maintained and specifically defined as previous. The scope of practice for Dental hygienists, dental therapists and oral health therapists is one such area.

    Dental hygienists, dental therapists and oral health therapists exercise autonomous decision making in those areas in which they have been formally educated and trained. They may only practice within a structured professional relationship with a dentist. They must not practise as independent practitioners. They may practise in a range of environments that are not limited to direct supervision

    — Dental Board of Australia Scope of Practice Standard

    There is no longer a blanket descriptor for each of the roles. The onus is now firmly on the dental practitioner to assess their own competency and perform only those procedures for which they have been formally educated and trained in programs of study approved by the Board. The pursuit and development of additional skills will then raise some legal considerations that must be addressed in the context of the broad range of patient care for which the dental practitioner is legally accountable. It will undoubtedly be the obligation of the practice principal/senior dentist to ensure that the right people have the right education to provide the right procedure within the practice- clinical privileging.

    By David Sweeney (ADANSW)

  • Notifying your insurer of a possible claim

    ADA members have all recently renewed their membership and most have simultaneously renewed their Professional Indemnity cover. It is recognised that dentists whether in private or public practice, often lack time to do more than tick the right box and send off the cheque. Your obligations to your indemnifier do not stop at paying the premium however.

    It has become apparent to the ADA Branches and Guild Insurance Limited (GIL) that members often have trouble recognising circumstances that oblige them to notify Guild (through their ADA Branch) that they may need to make a claim under the terms of their policy.

    There are certain obligations that dentists owe their Indemnity provider, such as notifying them in the event of any potential legal liability, incidents or claims. There are also benefits such as access to legal advice that are often not used because dentists are not aware of the protection available in the insurance policy. These may have been read and understood when the policy was taken out after graduation but have been forgotten or overlooked because there has been no need to call on them in the intervening time.

    This article seeks to clarify what those circumstances are so that GIL, through the local ADA Branch receives early notifications, to enable members to access the help they need in a timely and effective manner. The events of 2009-10 associated with Medicare audits in particular have shown, there is a real need for dentists to carefully consider their rights and responsibilities as policy holders

    The insurance cover offered by GIL is multi-faceted, and so there are a wide range of circumstances that should be recognised as trigger events for contact with the ADA Branch and GIL. The cover provided to ADA members by GIL is a combined liabilities cover, and includes:

    • Professional indemnity protection
    • Public liability protection
    • Products liability protection
    • Legal fees cover

    For example, under the Legal Fees cover, an Insured Event is defined as;

    “A fact situation or circumstance which:

    • arises out of the operation of the Dental Practice; and
    • results in or has the potential to result in criminal prosecution, a coronial inquiry, a de-recognition inquiry by a health benefit insurer or the pursuit of disciplinary proceedings by a legally constituted industry board, committee or the like, or results in or has the potential to result in the defending of any claim or legal proceeding following a dispute with an employee, former employee or applicant for employment pursuant to any State or commonwealth Anti-Discrimination or Equal opportunity legislation.”

    This means that Medicare Australia audits, Health Fund investigations and audits, Professional Services Reviews and Dental Registration Board investigations and hearings (amongst other trigger events) are all notifiable to GIL through your ADA Branch.

    Different triggers will apply under each of the forms of cover available, and to illustrate how wide a range of circumstances could be involved the table below has been developed, based on actual dental claims experience.

    In managing any of the following incidents, a professional approach and timely notification to the ADA and GIL mean that the matter can be handled with the least amount of stress and anxiety to the dentist, with access to both dental and legal professionals being available if required. Often the immediate reaction to an incident, whether a complaint or an adverse outcome can range from shock, anger, disappointment and often the feeling that you just want the problem to be solved. Consequently independent and helpful advice on how to approach the incident, together with possible solutions and case preparation if required, mean that the situation can be resolved in an efficient manner. In all instances, it is the management of the problem which needs close attention, and if handled correctly leads to the best outcome for all parties involved.

    Professional Indemnity

    Illustrative Incidents:

    • A patient swallows a bur head which broke while you were preparing a cavity.
    • On preparing a root canal, you perforated the apex and the sinus.
    • After removing a third molar, the patient reported enduring numbness some weeks afterwards.
    • Endodontic treatment is commenced on the incorrect tooth.
    • You realise you have extracted the wrong tooth.
    • In response to you sending a notice about an overdue account, a patient indicates that they were not happy with the treatment and that they expect you to waive the fee.
    • A patient contacts the ADA asking whether the fee you charged is reasonable and the ADA contacts you to seek information about any problems you may have encountered.
    • A nearby practice contacts you to ask for transfer of a patient’s records and hints that the patient wasn’t happy with work you did for them 6 months ago.


    In all of these, the most important steps are:

    • Informed consent before the procedure if indicated.
    • Informing the patient about the incident when it occurs.
    • Recording the incident and patient discussions.
    • Referring the patient for appropriate follow up treatment or monitoring.
    • Contacting the ADA Branch to help submit an Initial Advice form to notify GIL that there is apotential claim and advice on how to handle the patient’s future management to avoid a notification if possible.
    • Discuss with the ADA advisor on how to proceed and possible approaches to reach a solution.
    • The ADA advisor will be able to inform you whether the incident should be notified to GIL.
    • In most cases the matter will be referred to GIL as a notification only, but with the potential to become a claim.
    • The use of the ADA mediation service if available may be suggested by GIL.

    Public Liability

    Illustrative Incidents:

    • A patient trips on the steps at the entrance to your practice and suffers cuts and bruising.
    • A patient bumps into your practice sign when parking in your car park, requiring a new sign to be installed.
    • While entering the surgery, an elderly patient slips on a wet floor and suffers a broken hip.


    • Public Liability cover of $20 million forms part of your GIL cover. This covers accidental bodily injury or damage to property arising from your negligence.
    • Notification to GIL is required.

    Products Liability

    Illustrative Incidents:

    • Goods you sold to a patient were considered faulty and the patient alleges this caused them an injury.
    • Advice you provided about use of a home bleaching tray was considered the cause of soft tissue damage and the patient is seeking remedy.


    • Covered under Products Liability ‘Civil liability for Goods Sold and Advice on Goods Sold’.
    • Notification to GIL is required.

    Legal Fees

    Illustrative Incidents:

    • Medicare Australia contacts the practice inviting the practitioner/s to respond to a questionnaire about rebates paid to them in relation to the Chronic Disease Dental Scheme.
    • HBA contacts the practice indicating that they intend to conduct an audit of treatment provided and accounts rendered for certain fund members.
    • The Chief Investigator at the Registration Board contacts the practice to advise that he will be visiting to interview the principal and staff about a patient complaint.
    • The Health Services / Complaints Commissioner contacts you to seek conciliation of a complaint by a patient.


    • All of these circumstances are notifiable events and you are required under your GIL policy to contact GIL through the ADA to notify them as soon as possible after the event.
    • The matter will be recorded and notified for legal fees assistance and advice from the ADA will be provided.
    • If the matter is subsequently deemed to not have merit and is dismissed, with no adverse finding, GIL will remove the case from active files.
    • Your GIL policy is available for your protection and assistance. Focus is on early intervention.
    • None of these incidents should be handled without GIL notification and assistance.

    If you need another copy of your Guild Insurance Policy, please contact Guild Insurance on 1800 810 213.

    If you wish to discuss circumstances which might lead to a claim, which you have not previously notified to your insurer, contact your ADA Branch as soon as possible.

    Dr Eryn Agnew
    ADAVB Community Relations Officer and professional Consultant

    Mr Garry Pearson

  • Case study – the law of consent for treatment to children

    An orthodontist in Victoria sought legal advice on how to respond to a demand by the father of a 16 year old child, to cease a course of planned treatment.

    The parents of the child were going through a bitter divorce.

    The mother of the child had signed a Costs Agreement for the planned treatment at the outset of the treatment. This was done with the father’s knowledge and approval at that time.

    The mother and child were keen for the treatment to proceed. The mother had informed the orthodontist that she would pay the account for the treatment.

    At the point in time when the father made the demand, the child already had fixed appliances fitted. In these circumstances, the orthodontist sought advice on whether he could legally proceed with the treatment.

    The orthodontist was advised that the law in Victoria recognises that a child as young as 16 can still have the capacity to consent to treatment.

    The orthodontist was advised that he needed to satisfy himself that the patient herself consented to the treatment, and that provided he formed the reasonable belief that she had the capacity to do so, he could proceed with the treatment, notwithstanding the objection raised by the father.

    In Australia, the test to establish whether a child has the capacity for giving consent is whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.

    There is little guidance on how a practitioner should assess the competence of children to give informed consent. The decision must be based on a reasonably formed belief of the practitioner. Obviously, the younger the child is and the more risky the procedure, the higher the standards that necessarily have to be met in order to regard the child as competent to consent to treatment.

    In this case, the orthodontist was persuaded to the view that the child was competent, having regard to her relatively mature demeanour, that she was 16 years of age, that she had already had the fixed appliances fitted and that she had been a longstanding patient, just part way through the course of treatment.

    The orthodontist was advised that it would be prudent to require that both the patient and her mother sign a consent form for the further treatment. This was in addition to the practitioner making a careful record of his opinion that the patient had capacity to give valid consent. Whilst it is not a legal requirement, it was suggested that the practitioner also ask the mother to sign a new costs agreement.

    Anticipating a demand by the patient’s father for the clinic to release information about the treatment and possibly the cost of the treatment, the orthodontist was advised that the patient can also make a decision to object to the release of her health information to the father. The orthodontist was advised to ask the patient whether she wanted to keep her information confidential and if she did, to respect that decision provided he formed the belief that she was mature enough to make an informed decision to that effect.

    The test for determining a child’s competence for making a decision is the same in each State of Australia, however it is noteworthy that in South Australia a child, for this purposes, is defined as a person under the age of 16 and in New South Wales, a child is defined as a person under the age of 14.

    If a child is under 18 years of age, or in the case of New South Wales and South Australia, under 14 and 16 years old respectively, then the child may give valid consent for medical treatment but only in circumstances where a practitioner determines that they are legally competent to do so having regard to whether the child has achieved a sufficient understanding and maturity to enable him/ her to understand fully what is proposed and that the treatment is in the best interests of the child.


    Kellie Dell’Oro
    Principal, Meridian Lawyers

    Jehan Mata
    Solicitor, Meridian Lawyers

  • Ever bought something expensive?

    It may have become second nature to most of us but in reality the decision-making process for a consumer when deciding whether to purchase a good or service is anything but straightforward. The potential influences on consumer behaviour are many and varied and will differ from one person to the next. The marketing analysts, for example, cite a wide range of factors affecting purchasing decisions. These may include, but are not limited to:

    • External Influences – culture, group, situation;
    • Internal/Personal Influences – perception, attitude, knowledge, personality, income, opportunity cost, lifestyle, role;
    • Marketing Influences – product, promotion, price, distribution, service.

    It is worth noting that these matters are not, for the most part, mutually exclusive. They interconnect in a way that influences who we are and how we behave.

    After feeding the available information through our personal decision-making sieve, we arrive at our own conclusion – to buy or not to buy? It may, of course, be the case that we still decide to proceed with a purchase despite having formed the perception that the good or service is “expensive”. We have simply satisfied ourselves that the outlay is justified given the outcome we expect to achieve by making the purchase. Confronted with similar circumstances, however, another person may deem our “expensive” purchase to be a “bargain” and vice versa. Indeed, none of us are really in a position to speak for others in the marketplace as to what constitutes value for money.

    Is dentistry any different? Whether we are comfortable with the terminology or not, our patients are consumers. Are we as dentists able to predict how any patient (given their individual circumstances, many of which we are not privy to) will perceive the fees we charge for the services we provide? The reality is that we are unlikely to be able to predict their perception but we may be able to have some input in to how they arrive at their conclusion.

    At the heart of this process is information, which takes a number of different forms. In broad terms, a patient needs first to understand (on a technical level) and agree to the treatment procedure(s) being recommended. This is classically referred to as Informed Consent. Secondly, but no less importantly, the patient should be made aware of the costs they are likely to incur in receiving the treatment. It is this latter issue, Informed Financial Consent, which is addressed here.

    There is nothing in the Competition and Consumer Act 2010 (Cth) that regulates the prices charged by professionals. As such, professionals are free to decide what fees they will charge clients for their services. Because of this, the Australian Competition and Consumer Commission (ACCC) believes that professionals have an ethical duty to inform their patients about the cost of the services they provide while consumers have a right to obtain information on these costs – “where possible, in advance of the services being provided”. The ACCC contends that consumers are often not as well informed about professional services as they are for other sectors because of the imbalance between what they know of the service provision compared with what the provider knows. It follows that better information needs to be provided about professional services to enable consumers to make better-informed choices about purchasing services and whether to provide consent for such services to be provided.

    The source of protection for consumers is provided by the Australian Consumer Law (ACL), which is contained in a schedule to the Competition and Consumer Act 2010. Generally, the ACL requires that professionals do not, in their promotional activities, act in a way that is misleading or deceptive, or is likely to mislead or deceive. Through its enforcement of the consumer protection provisions of the ACL the ACCC is concerned that professionals obtain informed financial consent from their clients. Practitioners should be aware, for example, that failure to disclose material information such as fees may, in some circumstances, put them in breach of ACL provisions.

    The issue of misleading and deceptive conduct is an important one to consider in relation to “failure to disclose material information”. In its 2010 publication Professions and the Trade Practices Act the ACCC states:

    “Misleading and deceptive conduct – whether that conduct actually misleads clients or is merely likely to mislead them – is prohibited. Generally this type of conduct involves leading someone into error, or being likely to, and includes behaviour such as:

    • lying
    • leading someone to a wrong conclusion
    • creating a false impression
    • leaving out (or hiding) important information
    • making false or inaccurate claims

    It is irrelevant whether these are done intentionally or not. A business can break the rules by both deliberate and inadvertent actions”.

    What, then, does this all mean in real terms for the practitioner? We know from the above where the legislators stand, but what about consumer organisations? CHOICE has published several articles in recent years which touch on the issue of Informed Financial Consent as it relates to the provision of dental services. The articles Guide to choosing dental care (12 June 2007) and Can you trust your dentist? (23 November 2009) are worth reading if only to put yourself in a patient’s shoes and to understand what a consumer advocate body feels is appropriate. Both articles refer to the benefit of patients having a written quotation for proposed dental treatment. There are also several statements which acknowledge the need for dentist and patient to understand the perspective of the other. To the dentist, CHOICE urges the need to explain:

    “Dentistry is said to be a notoriously inexact science, or even art based on scientific knowledge. With most people now assuming they’ll keep their teeth for life, dentists have an unprecedented duty of care. While preventative care is simply good practice, unnecessary work could ultimately destroy a tooth. Most people aren’t in a position to judge whose opinion best serves their long-term interests”.

    To the patient, CHOICE endeavours to explain some of the reasons for fee variations:

    “…there’s a wide cost range for most item numbers. Charges vary for many reasons, including the surgery overheads, the expertise of the practitioner and the time it takes. Even a single item number can be charged differently by the same dentist: a filling on one surface may be particularly large or hard to access, for example, and require more time; or if you’re having several fillings done at once there may be a discount (because it takes less time than doing each as a single filling)”.

    And a cautionary note to patients from the same publication:

    “Don’t let leading questions sway your judgement, and watch out for the sales pitch that doesn’t sound like a sales pitch. Is your dentist in the business of dentistry or the practice of dentistry?”

    Would it not be reasonable for a dentist to operate in both of these spheres? It may just be that the perception of only being in the “business of dentistry” could be largely reversed by the open disclosure of fees prior to the commencement of treatment (together, of course, with a patient-appropriate explanation as to why the treatment is being recommended).

    And so to the practicalities. Where does your Association stand on this matter and how can we help you? ADA Inc has an excellent resource for you to consider and I commend it to you. The Policy Statement Informed Financial Consent (“The Policy”) is complete in its coverage yet concise in its expression. You can find it on the Federal ADA website at www.ada.org.au/Professional-Information/Policies/Third-Parties/5-16-Informed-Financial-ConsentThe document deals with the relationship between dentist and patient and additionally considers the impact of third party funding bodies. Some of the major points to note from this document are:

    • Informed financial consent is sound ethical professional practice. This is also good business practice and will result in fewer disputes over accounts, lower debt recovery costs and fewer bad debts;
    • Many patients will be unfamiliar with what is involved with their dental procedure. In some instances, patients may have wrongly assumed that the fee for the dental service is fully covered by their health fund;
    • Patients may be apprehensive over the pending dental procedures. They may be unwell, distressed, disoriented, or affected by more than one of those conditions. Discussing financial implications with some patients at this time may be impractical and unworkable;
    • Dental fees may be based on an itemised schedule of treatment or on the time taken to complete the dental procedure. Accordingly, the dentist may only be able to estimate a range of fees based on the expected time to undertake the procedure. Similarly, if the planned procedure is changed during surgery, due to unforeseen circumstances, this may also result in a change to the final fee charged by the dentist. Of course, any such fee should be advised at the appropriate time.

    The Policy sensibly advises that any information about expected charges, provided to the patient prior to treatment, should include advice that the estimate is not guaranteed and the cost to the patient may increase if the planned procedure takes longer than expected or other procedures are required. The point is also made that dentists should ensure that patients are in a fit state to give informed financial consent.

    In the public domain your Association has made its position on informed financial consent clear. On October 2008 the then Federal President, Dr John E Matthews, issued a media release in response to statements made by the Federal Minister for Health and Ageing, Nicola Roxon. In a speech to the Australian Health Insurance Association Annual Conference Minister Roxon mentioned Dental Services in relation to out-of-pocket costs, “Insurers publish information about the benefits they pay for dental treatment – but consumers often don’t get information about the actual charges until after they’ve had the treatment and receive an account”. Dr Matthews responded “The Minister is generalising when she makes such a statement as often patients request or are offered a treatment plan before commencing treatment. The ADA supports the principle of full disclosure of fees before a course of dental treatment and encourages dentists to provide and patients to seek a full estimate of treatment in advance. This is part of the ADA’s policy on informed financial consent”.

    So how could you go about managing the issue in your day-to-day working life? Every practice has a different “feel” to it and there are no hard and fast rules. You know your business and your patients better than anyone else and have to decide what will work best in your particular circumstances. For some, it may be a blanket policy of providing quotations for all treatment proposed for all patients. Many current software programs make it quite easy to produce a quotation document based on the treatment plan you have entered. Given the compliance requirements of the Medicare Chronic Diseases Dental Scheme (CDDS) this should, by now, be routine for many. For others, you may choose to place a sign at reception with wording such as “We are happy to provide you with an estimate of fees for your treatment. Please advise if you would like us to prepare a quotation for you”. Other practices may take the decision to only provide quotations for treatment above a certain dollar amount and still others may just leave it to the practitioner’s discretion to suggest a quotation at the time when treatment is being discussed. Whatever the case, be mindful that what seems in prospect to be an imposition on your time (and that of your staff) is as nothing compared to the time and emotional energy you will need to invest in responding to a complaint about fees made by a patient (either to yourself or a statutory authority) after the event.

    The issue of disputes over fees is very real. At the Dental Defence Advisory Service (DDAS) we are regularly assisting members on matters relating to treatment costs. The database of matters reported to DDAS currently contains some 130 files specifically on issues of fees. These are broadly categorised into one of two areas: Failure to Advise All Treatment Costs and Excessive Fees. So what are the types of circumstances that give rise to problems? Examples include:

    • Differences between what was quoted and what was subsequently charged with no explanation as to why the change occurred. The difference between the fee for a simple extraction and a surgical removal, for instance, needs to be discussed;
    • Seeing a patient for the first time and at the initial visit undertaking examination, prophylaxis, radiographs and multiple restorations – all without any discussion of what the fee payable would be at the end of the appointment;
    • Misunderstandings regarding ongoing costs such as subsequent denture relines where the patient may believe such fee was included in the original cost of the prosthesis;
    • A patient not being aware that the fee quoted for endodontic treatment was not inclusive of the subsequent restoration of the tooth. Similarly, a patient quoted for an “implant” needs to understand what this term means as a dentist’s usage of the term may be vastly different than the patient’s mental picture of a complete new tooth;
    • Unexpected additional procedures being required. An example would be the need to graft at an implant site which is only determined at the time of surgery. This possibility should ideally be canvassed prior to the event but, at the very least, addressed with the patient as soon as the practitioner becomes aware of the need to do so;
    • A patient’s monetary limit under the CDDS being exceeded such that the patient will unexpectedly incur out-of-pocket expenses;
    • Patients not understanding their gap payment obligations under either the CDDS or with health fund cover.

    There are many, many more. Whatever dentistry you practice you will justifiably seek remuneration for the provision of this service, however it cannot be stressed enough just how important it is that you discuss fees with your patients prior to treatment and document these matters in your treatment notes. As a consumer yourself, would you expect anything less than to know the cost of the good or service you are considering purchasing?

    At DDAS we are always just a telephone call away to provide an ear, a shoulder and, of course, advice. This is delivered in a non-judgemental way to help members deal with some of the problems that unfortunately arise as a result of dealing with people and being only human ourselves. Nonetheless, it is hoped that reading this article may stimulate you to rethink how you approach the matter of informed financial consent and perhaps, just perhaps, save you some trouble in the times ahead.

    Article on Informed Financial Consent for NSW Dentist June 2011
    Craig Brown, DDAS Peer Advisor

  • Ethics, AHPRA and indemnity in dentistry

    Webster’s dictionary defines business as “a commercial or mercantile activity engaged in as a means of livelihood” while a profession is defined by the Australian Council of Professions as “a disciplined group of individuals who adhere to ethical standards and who hold themselves out as, and are accepted by the public as possessing special knowledge and skills in a widely recognised body of learning derived from research, education and training at a high level, and who are prepared to apply this knowledge and exercise these skills in the interests of others”.

    In a recent article in ADA Inc newsletter (Nov 2010), George Beaton listed as some of the characteristics of a profession; altruism, autonomy, collegiality, and an ethical code. It is these characteristics, among others, that differentiate the profession from the business of dentistry.

    As an association of professionals ADAVB Inc. has promulgated a by-law, compliance with which is required by all members.

    This by-law regulates the:


    (a) Members shall behave considerately and courteously towards their professional colleagues. They shall also be prepared to freely share any scientific, clinical or technical knowledge available to them, and be willing to help a colleague if their advice or assistance is sought.

    (b) Members shall not, in view of their obligations under Clause (a) unreasonably criticise a colleague’s opinion, treatment or fees.

    (c) When Members are acting as consultants, their obligation is to give a considered and honest opinion.

    (d) Members acting as consultants shall not embark upon any treatment, emergency treatment excepted, outside the realm of their consultancy, or upon any treatment not requested by the referring dentist without prior consultation with that dentist.

    (e) Members acting as consultants shall not refer a patient to another dentist or medical practitioner for consultation or treatment without prior consultation with the referring practitioner or agency, where possible.

    A number of instances have been brought to the attention of the ADAVB Inc. Community Relations Officers where inadvertent or thoughtless comments by practitioners have the potential to bring their colleagues and indeed the profession as a whole into disrepute. This generally involves practitioners making adverse comments on treatment or treatment plans that the patient tells them was provided by another practitioner, without knowing the full circumstances in which that treatment or plan was provided. Such comments can lead to a complaint against a dentist which, when fully investigated, proves to be without foundation but results in a patient who has lost confidence in the profession as a whole.

    While it is entirely appropriate and indeed necessary to fully inform the patient of their dental state at the time of consultation, it is inappropriate and perhaps unethical to speculate on the possible causes of their current condition when there may be multiple contributing factors. If you have concerns about treatment provided by another practitioner, you can easily clarify or communicate these concerns by contacting the practitioner and discuss them in a collegiate manner. Failure to do so could lead to a breach of the Branch’s Code of Ethics.

    If, however, a dentist, in the course of practising his profession, forms reasonable belief that another health practitioner has placed the public at risk of harm because that practitioner has practised the profession in a way that constitutes a significant departure from acceptable professional standards, he or she is required, pursuant to Section 141(2) of the Health Practitioner Regulation Law Act 2009, to make a mandatory notification to the Australian Health Practitioner Regulation Agency (AHPRA). The obligations of practitioners to make a mandatory notification are outlined in the “Guidelines for mandatory notifications” published on the Dental Board of Australia website. Although there are no penalties prescribed under the National Law for a practitioner who fails to make a mandatory notification, any practitioner who fails to make a mandatory notification when required may be subject to health, conduct or performance action.

    An unnecessary comment about a colleague’s performance can often lead to a claim against his or her insurance, either directly or via a patient notification to AHPRA, and has the potential to impact on the premiums that the profession as a whole pays for professional indemnity.

  • Should I replace another dentist’s work that is not up to my standard?

    Imagine that you have purchased a dental practice from a senior dentist who has recently retired. You notice that the quality of the dentistry you see in the patients is not up to the standard that you practice.

    What do you do? If you repeat the dentistry, it will involve extra expense to the patient and put them through the discomfort of undergoing extra procedures. How will you explain to the patient why the dentistry, some of which was done recently, needs to be replaced. This could leave the previous dentist open to criticism and possibly legal action. You may find yourself in court as a prosecution witness. Worse, the retiring dentist’s lawyers may take action against you claiming your criticism was both unfair and designed to increase demand for your services. You have heard that patients do not think more highly of dentists who criticize other dentist’s work, but rather post-criticism see all dentists in a lesser light. They wonder if the criticizing dentist is more interested in financial gain than in their patient’s welfare.

    On the other side of the coin, shouldn’t you tell the patient? Doesn’t the Hippocratic Oath state that you should keep the patient from harm and injustice. Hasn’t the patient a right to know? The situation you face is an ethical dilemma.

    Such a case has recently occurred where a retiring dentist has faced multiple legal cases after criticism and replacement of his work by the dentist who purchased his practice.

    According to the FDI, as members of a profession dentists have duties and responsibilities over and above other citizens[1]. A common reason given for this extra responsibility is that there is an imbalance of power and knowledge between the dentist and the patient. At the same time as being a profession, dentistry is a commercial enterprise and there is tension between the two concepts.

    To make your decision even more difficult, individuals disagree amongst themselves about what is right and what is wrong. What is ethical varies among different religions, between different cultures, and over time. On what basis should you be making your decision? Many ethical issues arise in dental practice for which there is little guidance. You will be ultimately responsible for making your own ethical decisions and for implementing them.

    One way to make ethical decisions is to use what are called non-rational approaches such as obedience, imitation, feeling or desire, intuition and habit. Obedience was used during the post-war Nuremburg trails of Nazi leaders and is known as the “Nuremburg defence,” where morality consists of following orders of those in authority, whether you agree with them or not. Imitation consists of using role models: You may look towards the behaviour of your parents or of senior dentists. Feeling or desire is a subjective approach. What is right is what feels right or satisfies one’s desire. There is an old adage of “when in doubt, it is probably not ethical.” The FDI suggest this adage is a good personal guideline1. Intuition is similar to desire in that it is subjective. It is different in that it directs moral decisions through a simple flash of insight. Habit is a very efficient method of moral decision-making because you don’t have to think. However, there are bad habits as well as good ones and as ethics change over time, continuing with the same habit may no longer be appropriate.

    Another type of approach to making ethical decisions is to use rational approaches. Deontology involves a search for well-founded rules. Often there is no room for disagreement. This approach is often used in religion. An example is Christianity with its 10 commandments. Consequentialism is based on the principle that the right action is the one that produces the best outcomes: “The ends justifies the means.” However, there can be disagreement about what are the best outcomes. Virtue ethics focuses less on the decision-making and more on the character of the decision-makers, but virtuous people are not immune from making wrong decisions. Principlism uses ethical principles as the basis for making moral decisions.

    Hippocrates (ca. 460 BC – ca. 370 BC) – was an ancient Greek physician, who is considered one of the most outstanding figures in the history of medicine. He is referred to as the “father of medicine” in recognition of his lasting contributions to the field as the founder of the Hippocratic school of medicine. The following four principles based on the Hippocratic Oath capture most of what is at the centre of ethics in dentistry.

    All actions should demonstrate:

    1. regard for self-determination (respect for autonomy)
    2. the avoidance of doing harm (nonmaleficence)
    3. the promotion of well-being (beneficence)
    4. fairness in the distribution of goods and harms (justice).

    The FDI based its International Principles of Ethics for the Dental Professionon the Hippocratic Oath. According to the FDI, the primary duty of the dentist is to safeguard the oral health of patients. Hence, the dentist should refer for advice or treatment any patient requiring a level of dental competence greater than he/she possesses, must ensure professional confidentiality of all information about patients and their treatment, should continue to develop professional knowledge and skills, and should support oral health promotion. The dentist should also be respectful towards professional colleagues and staff, and should act in a manner which will enhance the prestige and reputation of the profession.

    However, if a colleague has performed poor dentistry, the “the needs of the patient” may be in conflict with the principle of being “respectful towards professional colleagues”. It is difficult to explain that a patient’s existing dentistry is poor without criticising their previous dentist.

    So what should you do? If the reason for replacing the work is for financial gain, that is unethical and shouldn’t be done. You also need to decide that even if the dentistry is not up to the standard you wish in your patients and whether replacement of the dentistry will be to the patient’s benefit. If you decide that the work does need to be replaced, ethically you should outline all the necessary information, but refrain from disparaging the previous dentist publicly or to the patient, except where the criticism is justifiable, such as, gross and continual faulty treatment. You also have an ethical and legal responsibility to report grossly unethical or unprofessional conduct.


    [1] Williams JW, Principle features of ethics. In Dental Ethics Manual, FDI World Dental Federation www.fdiworlddental.org., 2007.

    Dr Len Crocombe, Guild Liaison Group

  • Drugs and poisons obligations for dental practitioners – Victoria

    The following article is adapted from a summary of Key Requirements for Dental Practitioners, prepared by the Drugs and Poisons Regulation Group within the Victorian Department of Human Services in early 2009. Similar provisions exist in all Australian jurisdictions, and readers are urged to check current local requirements with the relevant unit within their own Health Department.

    Under the Drugs, Poisons and Controlled Substances Act 1981 and Regulations 2006 Victorian Dentists are authorised to obtain, possess, use or supply Schedule 4 or Schedule 8 poisons for the lawful practice of their profession, i.e. for the dental treatment of persons under their care (section 13 of the Act, regulation 10).

    Schedule 2 and 3 poisons (labelled Pharmacy Medicine or Pharmacist Only Medicine respectively), typically referred to as “over the counter” medications, must only be supplied (in an open shop) by pharmacists. Dentists may use or supply Schedule 2 and Schedule 3 poisons in a similar manner to Schedule 4 poisons (i.e. for the dental treatment of persons under their care) but must not supply these drugs for any other purpose.

    The Drugs and Poisons Regulation Group (DPRG) within the Victorian Department of Human Services advise that a dentist’s authorisation does not extend to:

    • activities that are unrelated to dental treatment (e.g. the use of local anaesthetics for body piercing, administration of Botox® for cosmetic treatment).
    • supplying drugs that have been prescribed by a medical practitioner (e.g. for self, spouse or employees); that is the role of a pharmacist.
    • supplying drugs or poisons by wholesale; an activity which requires a wholesale licence.

    Dentists must not prescribe or supply Schedule 4 and Schedule 8 poisons other than for the dental treatment of persons under their care and then only after taking all reasonable steps to ensure that a therapeutic need exists.  It is illegal for a dentist to prescribe or supply S4 or S8 poisons except in these circumstances, and a dentist found to have done this will be liable to prosecution (regardless of whether the drug is prescribed as a Pharmaceutical Benefit). Guild Insurance Limited has confirmed that their Dentists Liabilities Insurance Policy will not respond in these circumstances, because the policy only covers a dentist who has provided dental treatment.

    Registered dental hygienists and dental therapists are authorised to possess and have access to a limited range of specific Schedule 4 poisons that are required for them to provide dental care. The list of Schedule 4 poisons that have been approved by the Secretary is available on the DPRG website at www.health.vic.gov.au/dpu/approve.htm

    NoteDental hygienists and dental therapists are not authorised to supply Schedule 4 poisons. Dentist employers who permit a dental hygienist or dental therapist to supply S4 poisons will be liable to prosecution, as will the dental hygienist or dental therapist who committed the breach.

    Storage requirements

    Schedule 8 poisons must be stored in a locked facility, fixed to the floor or wall, which provides not less security than a (10 mm thick) mild steel drug cabinet. Schedule 8 poisons must not be stored with any other items (e.g. money) other than other drugs of dependence.

    Schedule 4 poisons (including professional samples) must be stored in a lockable storage facility (e.g. cupboard, drawer, fridge, filing cabinet).

    Storage facilities for Schedule 4 and Schedule 8 poisons must be secured to prevent access by all persons not authorised under the legislation (i.e. staff other than dentists) unless the dentist is present. Accordingly, keys should not be accessible to unauthorised staff members.


    Dentists who supply Schedule 4 or Schedule 8 poisons must personally ensure that the correct drug is selected and supplied in the required manner; this responsibility cannot be delegated to another person.

    Prescribing and dispensing

    The roles of prescribing and dispensing drugs have traditionally been separated, at least in part, to allow a pharmacist to check for possible contraindications and to independently assess the safety and appropriateness of prescribed medications.


    Under the legislation, a dentist must make true and accurate records of all drugs administered or supplied, retain them for 3 years and produce them, on demand, to an authorised officer.

    Patients’ treatment records (retained for at least 7 years to satisfy other legislative requirements) showing full details of the drug administered or supplied may be sufficient for Schedule 4 poisons, but for Schedule 8 poisons a separate record (almost certainly manually created) is also required.

    Records for Schedule 8 poisons must be in a form that shows the true balance remaining after each transaction and that cannot be altered without detection. Note: A drug register or administration book is usually available from wholesalers. For limited use of Schedule 8 poisons, a smaller book is available from the Royal Australian College of General Practitioners.


    Garry Pearson
    CEO, ADAVB Inc.

  • Dentistry – a career of learning

    As a “boomer” dentist with four decades of dentistry behind me and with just a few years to go, I have offered in this article to reflect on how I most usefully expanded and upgraded my skills from graduation.

    Many senior or employer dentists perceive that new graduates to the profession are tending to restrict the range of dental procedures which they are carrying out. Whether they are constrained by the limits of their undergraduate university training, by the warnings from risk management personnel or indemnifying insurers or their own cautiousness, it is not clear.

    This article seeks to illustrate how one senior dentist, typical of many, has achieved the skills and confidence to carry out some ‘difficult’ but safe procedures. It is hoped that those new graduates may themselves follow this pathway and safely perform a broad service to the public within general practice.

    I don’t claim to be anything other than a GP dentist who tries hard and sets myself high standards – like most of my professional colleagues – and who has sought to keep up with evolving techniques and knowledge.

    In the beginning

    On graduation I really only knew the fundamentals of being a dentist. My undergraduate course had taught me firstly the sciences that back dentistry then progressively under the supervision and guidance of academic staff and clinical tutors, I developed manual and interpersonal skills along with the carrying out of basic clinical treatment on patients.

    So with a handful of extractions (none surgical), a few crowns and dentures, a bridge, a good number of routine restorations and a couple of “perio” patients, I graduated and was registered as a dentist to work on the public.

    My first couple of years were busy and exhausting. The demands of every day practice, although perhaps simpler than today, were enormous as a new graduate.      I was lucky to have worked in a practice where the senior dentist was an active mentor and this facilitated patient management and my introduction to “dental business”. In addition I worked with another young dentist with whom I was able to freely interact and together we learned off our respective daily experiences.

    Carefully we expanded our treatment range but it was clear that we had to build on those rudimentary skills.

    Along the journey

    A couple of years after graduation I was invited to be a clinical tutor in paedodontics. It was clear that I urgently needed more knowledge; revisitation of basics, attendance at a couple of courses and interaction with fellow tutors all combined to allow me to hopefully be useful to those students over several years.

    As a GP dentist I knew that I had to upgrade all the other aspects of my practice. So began more frequent participation in short courses, attendance at meetings of the ADA which had guest lecturers and more organised interaction with fellow dentists through a study group.

    Courses then were less frequent in the 1970’s and often overwhelmingly technical but somehow the contemporary developments, for example the introduction and refinement of early composite resins, found their way successfully into our daily practice.

    Courses – Short and extended and CPD

    In the mid 1980’s I was persuaded to attend a week long extended perio course which commenced with revisitation of basics and contemporary theory then moved to interactive discussion and finally clinical work. This extended course offered greater depth to a lecture only format and resulted in a more confident expansion of my range of treatments. Subsequently I attended extended courses in the other main facets of my dental practice. These have had the biggest single impact in my delivery of dental treatment.

    About this time I commenced attending ADA Congress. Not only are these an opportunity for social interaction with colleagues but they are invaluable in keeping up with the latest developments, mostly minus the commercial “hype”. Foundational knowledge is refreshed and techniques and equipment can be explored. Presentations on dentistry in a community and epidemiological perspective, along with HR and risk management, are all vital components to successful practice covered in these congress programs.

    At a pivotal stage of my practicing years I undertook an extensive personal development and motivation course entirely outside the dental realm. For me, this was an invaluable aid and personal reinvigoration which I would strongly recommend to colleagues.

    Universities and associated Foundations along with some ADA Branches hold lecture programs and utilize clinical facilities to enable theory to practice experience for attendees. Many of these courses are extended and offer the invaluable assistance that I have mentioned above.

    There has in recent times, been a proliferation of commercially presented courses and with the obligatory Continuing Professional Development (C.P.D.) required under the new National Registration Scheme there will probably be more. Many will be very good but the real skill will be to determine which will be of best value.

    Publications – print and electronic

    Whilst paper and print has been the backbone of information dissemination there is a steady progression towards electronic sources.

    The Australian Dental Journal with its sharper articles in recent years has long offered practitioners that steady stream of contemporary research, case reviews and technical evaluation. A scan of the abstracts of each article will tell you of the relevance to your interests.

    Other Dental Association, Societies, specialist groups, and even PI insurers publish excellent work which fills in the various niches of other information required for operating in these complex times.

    ‘Dental Files’ of course are ADA initiated CD’s which enable a convenient way of picking up snippets of information.

    Therapeutic Guidelines produced by the ADA in 2007 is another indispensable resource which I most commonly use and always keep in my surgery.

    The Internet equally has found a place in my knowledge resource bank with authoritative websites on medications, disease presentation, PI and safe practice issues and so much more.

    Looking Back

    The relentless changes to materials and the way that dentistry is practiced must be faced if a dentist is to remain relevant and contemporary in the care of their patients.

    Your graduation skills are just the beginning. Not only in the past but now by legislative regulation under the new National Registration arrangements, there is an obligation for all practitioners to be demonstrably involved in attending courses and other learning exercises. (Mandatory C.P.D.)

    This should not be seen as a burden.

    There is a range of ways in which you can continue your life long learning and in case it helps you, I have outlined what has been of greatest help to me.

    • Extended courses
    • Congresses and specific topic courses
    • Participation in student training where practical
    • Ongoing back up with print articles and guidelines
    • And now – a plethora of online and information sources

    I still enjoy doing dentistry and accept the challenge of new learning until the day I finish.


    Bruce Noble
    General Dental Practitioner
    Chairman Guild/ADA Liaison Group.

  • Case study – a good news clinical record story

    It is always encouraging to hear that good, comprehensive clinical records can and do assist dental practitioners in successfully defending patient complaints. This case study is about one such positive outcome.

    In 2009, the patient lodged a complaint against the dental practitioner with the Dental Board of New South Wales (as it was then known). The patient complained that her health had declined as a result of alleged injuries sustained from implant placement. The practitioner rejected the allegations of complaint and submitted to the Board that his management of the patient had been appropriate and in accordance with established standards of good practice.

    In 2010, the matter was considered by the Dental Care Assessment Committee (DCAC) of the newly established Dental Council of New South Wales. The DCAC considered the matter, including reports from the consultants whom the patient had subsequently attended. An independent practitioner also provided an assessment, based on examination of the case records. The DCAC formed the view that the treatment provided was unsatisfactory on the following grounds:

    • Failure to record a medical history and patient assessment.
    • Incorrect diagnosis and treatment planning, failure to assess bone levels and failure to consider the necessity for bone grafting resulting in unsatisfactory case selection.
    • Incorrect placement of implants resulting in perforation of the maxillary sinus and bony floor of the nasal cavity resulting in apparent infection in the maxillary sinus.

    The Committee made a recommendation to the Dental Council of New South Wales that the practitioner be directed to refund treatment fees.

    The Dental Council sought the practitioner’s attendance before it so that the issues could be ventilated.

    At the meeting with the Dental Council in 2011, the practitioner made submissions addressing the grounds above and answered questions from the Dental Council members. The practitioner also supplied the Dental Council with all of his clinical records, radiographs, and other materials.

    In the result, the Dental Council decided as follows:

    • Council compliments the practitioner on his thorough and excellent records.
    • Council does not agree with the decision of the DCAC.
    • Council resolves to dismiss the complaint.

    The Chairman of the Dental Council specifically commended the practitioner on the quality of his records and said that this matter is likely to be a good teaching tool for the rest of the profession. The outcome is an excellent one for the practitioner and, in our view, the wider profession in that it highlights the importance of good records and demonstrates that good, comprehensive records are important not only in the context of providing good clinical care but are also useful in successfully defending the practitioner against complaints.

    For the current requirements in record keeping, practitioners are referred to the “Dental Guidelines on Dental Records” which can be found on the Dental Board of Australia website at www.dentalboard.gov.au.

  • Your disclosure obligations under the national law – vigilance required!

    The Health Practitioner Regulation National Law (the National Law) introduces a number of new obligations on you, the registered dental practitioner, to disclose and report certain circumstances and events to the Dental Board of Australia (DBA). A lot of interest has understandably focused on the new mandatory obligations placed on registered health practitioners, employers and education providers to report, in certain circumstances, “notifiable conduct” as defined under s140 of the National Law.

    This article does not address those mandatory reporting obligations, but rather, highlights the other important parts of the National Law which clearly require you to disclose information to the DBA.

    Renewing your registration

    An application for renewal must be accompanied by an annual statement. In your annual statement you must declare that:

    • you do not have an impairment (as defined);
    • you have met applicable recency of practice requirements;
    • you have completed the requisite continuing professional development;
    • you have not practised in the previous period of registration without appropriate professional indemnity insurance arrangements (as defined) being in place; and
    • you will not practise unless appropriate professional indemnity insurance arrangements are in place.

    You must also disclose the following in your annual statement:

    • details of any change in your criminal history that occurred during the preceding period of registration (criminal history is defined to include every conviction for an offence, every plea of guilty or finding of guilt by a court for an offence whether or not a conviction is recorded and every charge made against you for an offence);
    • if your right to practise at a hospital (or another facility at which health services are provided) is withdrawn or restricted during the preceding period of registration because of your conduct, professional performance or health (details of the withdrawal or restriction must be provided);
    • if your Medicare billing privileges are withdrawn or restricted during the preceding period of registration because of your conduct, professional performance or health, (details of the withdrawal or restriction of the privileges must be provided);
    • details of any complaint made about you to a registration authority (as defined) or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners (this includes bodies such as State and Territory Health Complaint Commissions); and
    • any other information required by an approved registration standard relevant to your profession.

    Reporting during the year

    There are also certain circumstances and events which must be notified to the DBA upon occurrence or awareness.

    Within 7 days of becoming aware of any of the following events, you must notify the DBA of the event in writing:

    • being charged with an offence punishable by 12 months imprisonment or more;
    • being convicted of or the subject of a finding of guilt for an offence punishable by imprisonment;
    • appropriate professional indemnity insurance arrangements no longer being in place;
    • your right to practise at a hospital (or another facility at which health services are provided) is withdrawn or restricted because of your conduct, professional performance or health;
    • your Medicare billing privileges are withdrawn or restricted because of your conduct, professional performance or health;
    • your authority under a law of a State or Territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted;
    • a complaint is made about you to one of the following:
      • the chief executive officer under the Medicare Australia Act 1973 of the Commonwealth;
      • an entity performing functions under the Health Insurance Act 1973 of the Commonwealth;
      • the Secretary within the meaning of the National Health Act 1953 of the Commonwealth;
      • the Secretary to the Department in which the Migration Act 1958 of the Commonwealth is administered;
      • another Commonwealth, State or Territory entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners;
    • your registration under the law of another country is suspended, cancelled or made subject to a condition or restriction.

    Within 30 days of any of the following changes happening, you must give written notice to the DBA of the change and any evidence providing proof of the change:

    • a change in your principal place of practice (as defined);
    • a change in the address the DBA should use to correspond with you; and/or
    • a change in your name.

    Failure to notify the DBA of any of these events within the relevant time frame may constitute behaviour for which health, conduct or performance action may be taken.

    So, it is important to be aware of your obligation to report the above circumstances and events to the DBA. Failure you do so will place you at risk of disciplinary action and for this reason we recommend that you share this article with your colleagues at your next staff meeting and start thinking about simple ways to ensure that the above mandatory requirements are not overlooked.


    Tighan Tosen,  Solicitor
    Meridian Lawyers

    Marianne Nicolle,  Principal and Practice Group Leader
    Meridian Lawyers


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