Hopefully, your relationship with your colleagues in the dental practice is at all times both professional and friendly. However, when an associate, hygienist therapist or orthodontic therapist signals their intention to leave a practice, tensions can sometimes arise which can be unsettling and potentially damaging to all concerned, including patients.

Agreements

The DDU recommends that there is always a comprehensive written agreement or contract between practice principals and self-employed clinicians. Such an agreement makes disputes much less likely, and easier to resolve if they do occur, because the obligations of both parties are clearly set out. The BDA can provide advice to their members on these agreements and can provide model contracts.

If a clinician plans to leave, it is obviously important that both parties review that agreement and any so-called 'binding out' clause in it, which restricts the departing clinician's ability to practise nearby and/or canvass patients treated at the principal's practice.

If there is a written agreement and it contains suitable clauses covering the departure (as any comprehensive agreement should), both parties should do all they can to comply with both the letter and the spirit of that agreement.

Communication with patients

The GDC would expect both the practice principal/owner and the departing clinician to be open and honest with patients, and to act in their best interests. Ideally the practice principal would write to all the patients usually treated by, or booked with the clinician to inform them of their imminent departure and to introduce their replacement or explain the alternative arrangements for their ongoing care.

Obviously it is important that any such letter is factually correct and does not in any way mislead patients, but there is no need to give any information about the departing clinician's new practising arrangements.

The practice principal should ideally have a detailed discussion with the person who is leaving about the arrangements surrounding their departure, and try to agree a mutually acceptable approach to letting patients know.

If no written agreement exists, then the departing person is free to tell patients where they are going.

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Data protection

However, the outgoing member of staff is not usually entitled to use the practice record system/database to write to patients themselves, or to take the patients' contact details/records with them.

In most circumstances the practice database/records belongs to the principal as the ICO registered data controller and owner of the system. If the practice principal is the owner of the database/record system and the registered data controller, all the patient personal data belongs to the principal.

The departing clinician would be breaching the Data Protection Act 1998 to take, hold and use that data for their own purposes (as opposed to using them for treating patients in the existing practice, as a data processor, which is allowed and for which the patients have given their agreement).

Summary

Whatever the contractual position, clearly the best outcome is that both parties negotiate a mutually acceptable agreement about how communications with the patients involved should be managed.

It is vital patients are not mislead in any way. Accordingly, the departing person will really have no option but to tell patients they are leaving, when advising them about their ongoing care and arranging follow-up appointments.

It would obviously be undesirable from both a GDC standards perspective and from the point of view of the practice's goodwill for patients to believe they will be returning to see the outgoing clinician, or that they will be able to complete the patient's current course of treatment, when their departure will make this impossible.

However, what they tell patients does not need to include any information about their new practising arrangements, although in the absence of a formal agreement with a suitable binding out clause, the principal may be unable to prevent them doing so; unless of course they now negotiate with them not to.


This article was correct at publication on 19/12/2017. 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.

Rupert Hoppenbrouwers

Former head of the DDU

Rupert Hoppenbrouwers BDS LDSRCS was head of the DDU until his retirement at the end of 2015. He is a former general dental practitioner and was director of the School of Dental Hygiene at University College Hospital, London, from 1980 to 1986. He has lectured and written widely on risk management and dento-legal matters, has previously chaired the UK Dental Law and Ethics Forum, and has a particular interest in litigation.

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