Fairness is a common theme in my conversations with fellow dental professionals about the dento-legal climate. They expect to be held accountable, but they want the rules and systems that apply to them to be fair and proportionate. This principle drives the DDU when we speak for members in our dealings with the government, regulators and others - which you can read about in this issue.
Rapidly rising legal costs paid to claimants' lawyers in negligence claims are one glaring example of unfairness. Not only are they grossly disproportionate, commonly exceeding the damages awarded to the claimant in low value cases, but they are also having an inflationary effect on the overall cost of claims, with consequences for the NHS, dental professionals and tax payers.
The DDU has been at the forefront in articulating concerns about the fairness of the clinical negligence system and disproportionality in legal costs, using our data to shed light on the problem. For example, we noted that in 2022, DDU claims settled for up to £10,000 had average legal costs of more than £12,300.
Now the government has recognised that something has to be done to restore balance with the introduction of fixed recoverable costs for claims worth up to £25,000. Responding to its own consultation on the proposed scheme, the government noted the impact that excessive costs are having on precious NHS resources:
"Between financial years 2006 to 2007 and 2022 to 2023, the annual expenditure on clinical negligence claims more than quadrupled from £0.6 billion to £2.6 billion, with legal costs comprising a notable proportion of this rise. These costs are funded from the core NHS budget and use resources that could otherwise have been spent on patient care."
Although a welcome first step, the proposed fixed costs scheme isn't enough to have a meaningful impact on claims inflation. We think there will be a strong case for increasing the upper limit when the scheme becomes operational to include more claims, and that fixed costs are one of several reforms needed to the civil litigation system if we are to achieve a more affordable and fairer system of compensation.
The DDU has been at the forefront in articulating concerns about the fairness of the clinical negligence system and disproportionality in legal costs.
Regulation is another area where dental professionals are getting a raw deal. In our experience, the GDC's fitness to practise process is unduly time consuming, burdensome and blights the lives of those under investigation.
Again, the DDU has given members a voice, both in campaigning for legislative changes that will free the GDC's hands to implement meaningful reform and by engaging directly with the regulator about issues that it can address under its current powers, such as timely records gathering.
The GDC's new Initial Inquiries Pilot is one promising development that should lead to earlier requests for specific information in clinical practice cases involving a single patient, such as the relevant clinical records. The GDC says this will improve proportionality and timeliness by enabling its clinical advisers and casework managers to make informed decisions more quickly.
The DDU will certainly be willing them to succeed, because the protracted nature of many GDC investigations, highlighted in this PSA review, causes real distress for the members concerned. In some cases, we've found it can take months for basic investigation work to be completed, such as identifying all the practitioners involved in treating a patient. Meanwhile the dental professional, through no fault of their own, has to live with a dark cloud hanging over them and effectively put their career on hold for the duration.
We understand the stress this puts members under and we want to be there for them. If you're subject to an investigation, you can expect your assigned dento-legal adviser to get in touch at an early stage to introduce themselves, explain the process, offer initial guidance and advise you on things you yourself can do to help your case be concluded at the earliest possible stage.
Where cases do run on, your adviser, together with an instructed solicitor, will be by your side throughout to offer advice, reassurance and support, as well as representation. You can also talk one-to-one with a colleague who has been in your shoes through our Peer Support network.
Such wellbeing support is a significant aspect of the DDU's role these days. Of course, dentistry at its best is a hugely rewarding career, but many practitioners are struggling to contend with intense workplace pressures, alongside the legal and regulatory challenges described above.
At the moment, it can feel like the odds are stacked against practitioners. But whether it's providing advice and support, fighting their corner or campaigning for dento-legal reforms, our aim is to achieve a fair deal for our members.