This article was published prior to our new policy on vicarious liability as of 1 June 2021. You can read the latest information on this subject here
Simon Quelch discusses the boundaries of responsibility that exist between the trainer and the foundation dentist.
It is recognised that almost all newly qualified dentists will go on to complete further training in order to practise in NHS general dental practice.
In the beginning, training for new dental graduates selecting a career in practice was not mandatory. In 1993 Vocational Training, as it was called at that time, became compulsory for all UK dental graduates wishing to obtain an NHS contract number.
The name for this mentored environment has now changed to Foundation Training and the process has evolved from its original amateur (but none the less worthy) origins into a professionally delivered educational process with a curriculum.
Dental Foundation Training aims to produce caring, competent and reflective practitioners and relies heavily on the input of the educational supervisor. These supervisors facilitate the introduction into practice for the graduates, in a protected environment and are still commonly referred to as trainers. It is recognised that all stakeholders within Foundation Training want clear advice over where the responsibility lies when issues are raised.
Trainer meeting discussions
The graduates are called Foundation Dentists (FDs) and are appointed by a national recruitment process and then they are allocated to a training practice. Although trainers are involved in the interview panels for this, many deaneries no longer allow a trainer to select an individual FD for their practice. During the training year, trainers arrange to meet and review the FD's progress and more frequently the discussions at these sessions will turn to who is actually responsible for the things that an individual FD does?
The questions often asked are, is it the FDs themselves or do trainers have a responsibility, or should the deaneries hold some responsibility?
It is often mentioned by trainers that the experience levels of recent graduates do not compare to the levels of clinical activity that was completed by them and examples commonly given are in relation to endodontic and oral surgery procedures. Interestingly, these are also two areas of dentistry that Dental Protection has found to be responsible for a disproportionate share of the complaints and claims made against young dentists.
It has yet to be established that if trainers are not involved in individually selecting FDs they may be more suspicious of taking the responsibility for a poorly performing FD. In the future further support from the deaneries may be required to assist trainers who find themselves in this situation.
In the past it was unusual for an FD to receive a complaint or a claim during their training year, however this has now changed and it is reflecting the general rise experienced by all dentists. Sometimes these would be taken and sorted out quietly by the trainer in an attempt to shield or protect the FD. As the number of complaints about treatment has risen so has the concerns raised about the responsibility for that care. Trainers are starting to be more protective of their business goodwill and the harm that can be done by a series of complaints.
Registrants in their own right
All FDs are registered with the General Dental Council (GDC) and are entitled to call themselves dentists. As registrants they are independent professionals and will be treated the same way by the regulator as any other dentist in respect to the standards that are expected of the profession. This extends to all areas that the regulator monitors including personal behaviour involving criminal convictions, probity and also issues of clinical performance. If there were a question surrounding a FD's fitness to practise then the regulator would exercise its responsibilities to protect the public.
In all dealings with patients, staff and other dental professionals, FDs must maintain the highest professional standards, and must not behave in any way that is liable to bring the profession into disrepute or undermine public confidence. FDs must not make any misleading or unethical statements about their clinical work, abilities, qualifications and experience or about that of anyone else. If there was a complaint about clinical issues, the fact that they are responsible for their own acts or omissions will mean that that some responsibility will lie with the FD.
If a complaint or a claim is made about some clinical aspects of the treatment provided by an FD, they would be expected to answer those. Obviously trainers will provide help with their own practice complaint systems and protocols. All dentists must indemnify themselves against professional risks and that part of this wider role is provided by Dental Protection. If a complaint or claim is received then Dental Protection can provide support, guidance and assistance to the FD, in addition to the actual provision of indemnity itself.
Vicarious liability
Vicarious liability can be described as the indirect legal responsibility that an employer bears for the acts and omissions of its employees. This can apply even in situations where the negligent act was expressly forbidden by the employer, or where the omission represented a failure to follow reasonable instructions given to the employee by the employer.
The FD employment contract
FDs are employed directly by a practice to provide NHS treatment and have a nationally agreed contract of employment. Trainers may raise questions about their vicarious liability under that employment structure and the fact that is different from self employed associates. However, the contract will describe the FD's responsibility to observe and conform to the provisions of the Dentists Act 1984 so far as they relate to the FD or his/her employment and that they must observe GDC Professional Standards.
The holder of the NHS provider's contract, who may not always be the trainer, would be responsible for the premises and as the registered 'provider' many of the governance systems as regulated by the Care Quality Commission and also for the other support staff that are involved in patient care.
Obligations in respect of employment law, rest with the employer, rather than the FD.
All written responses to NHS complaints should be counter-signed by the Responsible Person in the practice who is usually the principal or provider. In the event that the complaint is escalated to the Ombudsman it is the contract provider who is likely to be questioned.
The contract states that the FD shall comply with the NHS Terms of Service, although as the FD is not directly the contract holder they cannot answer an independent review of a complaint or a disciplinary hearing for a breach of the NHS Terms of Service. The trainer would have to do so on their behalf and the FD would be expected to attend.
In exceptional circumstances NHS England has powers to remove an FD from the performers list or to impose further conditions on their continued inclusion on their list.
Assisting with training
There may be some blurring of the areas of responsibility particularly in relation to advice or assistance offered by a trainer. During treatment by an FD there is the need sometimes to step in and take over treatment particularly during difficult procedures or treatments beyond their competence. Where two clinicians have provided advice and treatment to a patient there would be some shared responsibility to answer a complaint or a claim. If a FD was receiving advice from a trainer to the effect of aiding a diagnosis or treatment planning, then some liability may be passed to the trainer. Dental Protection could provide assistance for apportioning the liability in respect of the trainer and FD if a claim was successful.
The role of the deaneries
The role of the deanery is to oversee the training within the practice and only has an educational agreement with the trainer and the FD. Trainers should seek guidance through the Programme Directors and the Dental Deans where there are performance concerns. It will then be the responsibility of the deanery to support all parties so that an FD can improve and hopefully address those issues. Successful completion of foundation training still remains the responsibility of the deanery.
Summary
There is no straightforward answer to the question 'who is responsible' and it will depend on the individual circumstances of any case. All trainers and FDs should have indemnity in place so that they can seek advice and assistance with complaints and claims.
Dental Protection provides some very useful CPD courses on mastering risk and adverse outcomes that will help to reduce an FD's exposure to complaints and claims.
Simon has been in general dental practice since 1997. He is also employed by the KSS deanery as a VT programme director for the South Scheme.
He has been an examiner for the MJDF examination and the Restorative Diploma at the FGDP(UK). Simon is also a dento-legal adviser for Dental Protection.