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Aim: to advise dental professionals how to respond to an adverse incident.

Objectives:

  • Help dental professionals understand their professional responsibilities when something goes wrong, including their duty of candour.
  • Explain how to make the most of the learning opportunities that arise following an adverse incident.

Anticipated learning outcome: to be aware of dental professionals' legal and ethical obligations in the aftermath of an adverse incident.

It is anticipated that this will help to meet the GDC development outcomes A, B, and D.

Despite the best of intentions by those working in dental practice to be conscientious, everyone is human and it's inevitable that mistakes will be made.

When this happens, an appropriate response is critical. Get it right, and those affected will feel properly supported and there will be opportunities to learn and improve. By contrast, trying to cover-up errors or cast blame on individuals is likely to inflame the situation and fuel mistrust. A high-handed response makes it more likely that patients or staff will raise concerns elsewhere, with far-reaching consequences for the dental professionals and practice concerned.

In the worst-case scenario, a single error could prompt a series of investigations from various sources - for example, NHS authorities and a regulator. This is a situation known as 'multiple jeopardy'.

With so much at stake for everyone involved, it's important for dental professionals to understand their individual responsibilities in the wake of an adverse incident and for practice leaders to oversee a constructive and supportive response.

What is an adverse incident?

Adverse incidents can be defined as any event which causes, or has the potential to cause harm to patients, other members of the dental team or members of the public. Examples include:

  • clinical issues, such as the accidental extrusion of sodium hypochlorite during root canal procedure, wrong tooth extraction or bur injury.
  • system failure, such as poor IT security leading to the loss of sensitive patient data.
  • administrative lapses, such as failing to send an urgent referral for a patient with a suspicious lesion.

Incidents resulting in actual harm are an obvious cause for concern but it's important not to ignore close calls or 'near-misses' which could have easily caused damage if not for a last-minute intervention or simple good fortune. It is always better to heed an early warning than tempt fate.

It makes sense for practice staff to be trained to identify adverse incidents when they occur, and there should be a clear process for raising concerns to a senior nominated individual - such as their line manager or the practice manager - as set out in the GDC's Standards for the Dental Team (Standard 8.3).

The immediate aftermath

The GDC is explicit about the need for dental professionals to be open and honest with patients from the outset - the professional duty of candour. It says that when something goes wrong you must:

  • tell the patient, in a way they can understand and answer any questions
  • apologise
  • offer an appropriate remedy or support to put matters right (if possible)
  • explain the short- and long-term effects of what has happened.

This echoes the advice that the DDU has been giving members for many years, particularly the need to say sorry. There is an enduring misconception that an apology in these circumstances could be used against you in the event of a claim, so it is worth repeating that saying sorry is both the right thing to do and not an admission of legal liability. In fact, Section 2 of the Compensation Act 2006 states 'an apology, offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty'.

Saying sorry might feel awkward, but the communication skills required are actually not very different from those you need in any other patient interaction (see box). The GDC says that the apology and explanation should generally come from 'the most appropriate member of the dental team'. This might be a dental professional or perhaps the practice manager, although there is no need for the person making the apology to take responsibility for something that was not their fault.

Research suggests that patients generally want an apology to include an explanation of what happened, what it means for them and what can be done to put things right. However, you should respect the wishes of someone who does not want to know the details and leave the door open for them to change their mind. All discussions with the patient, including your apology, should be documented in their records.

Once you have alerted the patient, it's time to reflect on what went wrong and determine what happens next.

Saying sorry is both the right thing to do and not an admission of legal liability.

Tips on saying sorry

  • Start by explaining what has happened. Once there is context, an apology can naturally follow. Don't speculate on reasons for what happened; just explain if further investigation is needed.
  • Speak as you would in a natural conversation, in the first person. 'I am very sorry that this happened' sounds more sincere and less defensive than, 'The practice regrets…'
  • Think about body language. Saying the right words while standing over the patient with arms folded may not seem like an apology at all.
  • Take your time and ensure you won't be interrupted.
  • Think of a meaningful apology as part of a process of restoring trust and be receptive to the patient's wishes.
  • You may decide to make a goodwill gesture in the circumstances but this should never be seen as a substitute for a proper apology.
  • Contact the DDU if you have any concerns about apologising.

The statutory duty of candour

All practices should already have clinical governance procedures that support adverse incident reporting by staff and let the practice meet its obligations as a registered organisation. In England and Scotland, this internal clinical governance process should dovetail with the practice's statutory duty of candour.

This legal obligation is distinct from the ethical duty of individual dental professionals and applies to healthcare organisations, including general dental practices and NHS Trusts. The details are set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended) and the Health (Tobacco, Nicotine and Care etc) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018.

A statutory duty of candour is not yet in force in Wales or Northern Ireland, although a bill has recently been introduced to the National Assembly for Wales, and if passed will become law in summer 2020.

In addition to a general duty to act in an open and transparent way, the statutory duty of candour sets out what organisations must do when an incident meets the threshold for notification. In a practice setting, this applies when where something unintended or unexpected has occurred in the care of a patient and appears to have resulted in:

  • their death, where this relates to the incident and is not simply due to the natural progression of the illness or condition
  • impairment (of sensory, motor or intellectual function) that has lasted or is likely to last for 28 days continuously
  • changes to the structure of the body (for example, erroneous extraction)
  • prolonged pain or prolonged psychological harm - this must be, or likely to be, experienced continuously for 28 days or more
  • shortening of their life expectancy
  • or where the patient requires treatment by a healthcare professional in order to prevent death, or the adverse outcomes above.

A different threshold applies within NHS Trusts, where notification is required in the event of:

  • the death of the service user, where the death relates directly to the incident rather than to the natural course of the service user's illness or underlying condition, or
  • severe harm, moderate harm or prolonged psychological harm to the service user.

As soon as is reasonably practicable after a notifiable incident occurs, the organisation's representative must tell the patient about it in person. Most will already have been made aware of a problem at the time of the incident, but the organisation is required to provide a full explanation of what is known at the time as well as an apology. Failure to make that notification may amount to a criminal offence.

There is also a statutory duty to provide reasonable support to the patient after a notifiable incident. This might take the form of giving emotional support or providing an interpreter to make sure discussions are understood.

While the statutory duty applies to organisations, dental professionals may act as the practice's representative under the statutory duty and are expected to cooperate with governance procedures. The GDC's Indicative Sanctions Guidance advises fitness to practise panels to 'take very seriously a finding that a dental professional took deliberate steps to avoid being candid with a patient or to prevent someone else from being so'.

DDU members can call our advisory helpline if they are unsure about their dento-legal position under the statutory duty of candour.

DDU app

Reporting to regulators

As well as telling patients of adverse incidents under the statutory duty of candour, healthcare regulators require practices to notify them about patient safety incidents and demonstrate that appropriate reporting and governance arrangements are in place. These arrangements differ across the UK:

England

Under the Care Quality Commission (Registration) Regulations 2009, registered providers must notify CQC of deaths or serious injuries to service users. Further guidance and notification forms are available on the CQC website.

Scotland

The Healthcare Improvement Scotland (Applications and Registrations) Regulations 2011 requires practices to notify Healthcare Improvement Scotland (HIS) of significant incidents and accidents. HIS has produced guidance which includes a list of notifications and timescales.

Wales

Healthcare Inspectorate Wales (HIW), which now regulates both NHS and private practices, requires registered providers to report notifiable events, as set out in Regulations 30 and 31 of the Independent Health Care (Wales) Regulations 2011. Further guidance can be found on the HIW website.

Northern Ireland

The Independent Health Care Regulations (Northern Ireland) 2005 require providers to notify deaths and other serious incidents affecting service users to the Regulation and Quality Improvement Authority (RQIA). Guidance is available here.

It's a good idea to share the learning points and improvements made after an adverse incident with the patients affected.

Preventing a repeat occurrence

While an adverse incident can be a shocking and chastening experience for those involved, it is important to shine a light on what happened to see if it has implications for patient care and what can be learned.

Significant event analysis (SEA) is widely recognised as an effective clinical governance tool that lets you look systematically at what happened, identify the contributory factors and address problems, without seeking to apportion blame (see box). It is ideal for analysing more complex cases that have implications for the overall quality of care, rather than one-off mistakes by individuals.

It's a good idea to share the learning points and improvements made after an adverse incident with the patients affected, whether or not the incident is covered by the statutory duty of candour or has been the subject of a complaint. It could also help reassure patients that something positive has come from their experience, and help restore trust.

Regardless of whether there is a formal SEA process carried out in the workplace, dental professionals may still wish to reflect on their personal involvement to help them improve their own practice.

Reflective practice is becoming increasingly significant as part of the GDC's enhanced CPD process and a mistake or an adverse incident is a useful subject, particularly if it helps you to identify gaps in learning for your personal development plan. However, remember that there is no need for patient identifiable information to be included in a piece of reflective writing.

Involving the DDU

It's a good idea to tell the DDU about an adverse incident at an early stage. Our dento-legal advisers are on hand to listen to your side of the story and offer support.

On a practical level, we can discuss the appropriate response, including advising you if you're asked to produce a report or statement for an investigation. We can also represent you if you're held to account at a disciplinary or fitness to practise hearing - although this would be unusual if you have acted in accordance with your duty of professional candour and cooperated with initial inquiries. Our press office can also help if there is any media interest.

It is also worth notifying us of any incident that might result in legal action at a later date. It can often be some time - even several years - before you are notified about a claim, so it makes sense to have a factual account of events on file while your memory is still fresh.

Avoiding adverse incidents

The possibility of an adverse incident can never be eliminated entirely but practices can reduce the risk by taking steps to identify and address all significant threats to patient safety.

As discussed in this article, this includes learning from errors when they occur and encouraging a culture where everyone is prepared to report concerns (both patients and staff). More broadly, regulators require practices to have a system of quality assurance that identifies areas for improvement. The DDU has produced guides on quality assurance and patient safety and risk management that you can view on our website or via our mobile app, and we also use our claims and complaints data to provide specific guidance on dento-legal risk in specific areas of practice, from root canal treatment to data protection.

Finally, DDU members are also encouraged to use our advice line whenever they need our input as one of their benefits of membership. As well as being a golden opportunity to talk, a simple call could ultimately help you avoid making an error and pre-empt an adverse incident. Calling us doesn't affect your subscription, and could make all the difference in resolving an adverse incident early, to the satisfaction of everyone involved.

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This article was correct at publication on 01/08/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.