Building a fortress – how robust record keeping can protect you against GDC complaints

The GDC’s 2017 Annual Report states that the GDC received 1910 complaints in 2017, which is a marked decrease from 2016 (2630 complaints) and 2015 (2786 complaints). This is a positive trend, although it is not yet known whether it has continued into 2018.

Nonetheless, the harsh reality is that not even a “gold standard” practitioner has an impenetrable fortress against complaints, even if, ultimately, those complaints are deemed to be unfounded.

However, there are steps that you can take regarding your own record keeping and that of your dental practice which can reduce the risk of complaints being made to the GDC or reduce the risk of any complaints spiralling out of control.

Hannah Stephenson, a barrister in the regulatory team at Hempsons, sets out some of the steps that you and your practice can take to “build a fortress” against complaints.

Understand the legal and ethical requirements

The GDC’s Standards for the Dental Team is not a light read (the current (June 2018) version being almost 100 pages!) and it is regularly updated. When you are exceptionally busy not only providing and recording care but also potentially running a dental practice, it can be easy to lose sight of those standards. It is advisable for you to not only fully apprise yourself of any newly introduced standards but to also remind yourself regularly of the standards already in place.

Other requirements include your CQC obligations (in particular, Regulation 17: Good Governance), IRMER Regulations, NHS contractual obligations and the data protection requirements introduced by the GDPR and Data Protection Act 2018 (“the DPA”).

The FGDP’s Clinical Examination and Record keeping Standards (2016) set out the “gold standards” which you can adopt. Although they may be a higher standard than that required by the GDC, adhering to those standards can only improve your prospects of successfully guarding against complaints. In particular, the FGDP standards set out in detail how to best approach the issue of obtaining and documenting patient consent.

Understand why those requirements exist

It is common mantra that the legal and ethical requirements regarding record keeping exist to facilitate continuity of care. However, they also play an important role in helping you to reach a diagnosis, prevent adverse incidents and safeguard your patients, you and your dental practice. Remember that GDC complaints can often turn on what has been documented by a practitioner and when, which brings us to our next step.

Ensure contemporaneity and consistency in record keeping

Not only are contemporaneous dental records more likely to be reliable, they are also more likely to be believed if there is a conflict of accounts regarding the care provided. As a rule of thumb, if a complaint is made, the less contemporaneous your records are, the less likely they are to be believed.

It is also crucial to ensure consistency with all patients regarding the use of handwritten and electronic records, the storage of records and their disclosure. Regular auditing of dental records is an important way in which you can alert yourself to inconsistencies and promptly address them.

 Deal appropriately with record keeping errors

Despite your best efforts, everyone is human, and errors can be made. What can make a marked difference, however, in relation to any complaint is how those errors are dealt with. In fact, where proper processes are not followed, it is sadly not uncommon for practitioners to face allegations of dishonesty, which can entirely change the complexion of a case for the worse and can place a huge strain on a practitioner while a complaint is being dealt with by the GDC.

Practitioners often feel a conflict between not being permitted to amend records yet being required to ensure that records are accurate. However, there is no conflict when it is recognised that there is a difference between an “amendment” and a “correction”.

Practitioners must never amend records. However, corrections can, and should, be made where it is known that a record is inaccurate, but care must be taken to ensure that the error is dealt with in an appropriate and transparent fashion.

In a nutshell, if you are correcting an error on paper records, you should cross the inaccurate entry out with a single line and make a signed and dated handwritten correction alongside. If you are correcting an electronic record, you should make a new entry and never amend a previous one. Always make it clear that it is an entry written in retrospect and ensure that the correction is dated and attributed to you. The common theme is that it must be clear to a lay person reading the dental records what both the original and corrected versions are, who made the correction and when. If in any doubt, you should contact your indemnity body for advice.

Deal appropriately with requests by patients for copies of their records

The GDPR and GDC Standards for the Dental Team give patients a right to access their records, although the “serious harm test” remains enshrined in the DPA. As a result of the GDPR, disclosure must now ordinarily be made within one month and free of charge. It is important that you document the request for disclosure and check the records before they are provided to the patient to ensure that everything is included. If a request is made by a third party, there must be written consent from the patient before disclosure can be made.

How do you deal with requests for disclosure of dental records by the GDC where written patient consent is not provided? What you may find when such a request is made is that the GDC quotes its power under Section 33B Dentists Act 1984 to compel disclosure. However, this power does not apply to persons under investigation and there may therefore be a conflict between the duty to protect patient confidentiality and the duty to cooperate with any formal or informal inquiry, both of which are set out in the Standards for the Dental Team. This is a grey and quite tricky area and is one in relation to which Hempsons often advises practitioners. As a first step, when you receive such a request from the GDC, you should always contact your indemnity body for advice.

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