GDPUK Forum interviews John Makin - Head of the DDU
Answering your indemnity questions The Head of the DDU, John Makin, answers questions on dental defence, sent in by GDPUK readers.

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Spring Publication
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John Makin comments: “In recent months, there have been a number of threads on the GDPUK website about indemnity issues. Indemnity can be a tricky topic so I am keen to dispel some of the myths surrounding it by addressing some of the questions we have received. “The DDU is the specialist dental division of the MDU, a mutual not-for-profit member-owned organisation focussed on guiding, supporting and defending our members.  We have a large team of specially trained dentists, claims handlers and solicitors focussed on ensuring that our (well over 20,000) dental members achieve the best possible outcome when they face a claim, GDC complaint, disciplinary procedure or even criminal investigation arising out of their practice.” The questions asked by the GDPUK Forum:- GDPUK - Is it true that the more you ring the DDU the higher your subs go? JM - This is a question we are asked often. The simple answer is no - this is, categorically, not the case. Providing dento-legal advice to members is one of our core services and we positively encourage members to contact us at any time whether pre-emptively when they need guidance on how to approach a potential matter or to discuss a current issue that has arisen. Our dento-legal advisory team is 100% dentists with wide-ranging personal experience of UK practice. We can assure members that calling us to seek advice or writing to us with general dento-legal or risk management queries will not affect their subscription. We encourage members to contact us whenever they need our input and we speak to many thousands of dental professionals every year on our 24-hour advice line. GDPUK - Why do the indemnity organisations not go into much greater detail when determining the subs to be paid, like car insurance companies do? Why can I not be given a ‘no claims discount’ if I have been lucky enough to have never had a claim? JM - If you are a dentist in general practice, your individual subscription is based on the amount and type of work you undertake as well as additional factors reflecting your career experience and work environment. These additional factors can include:
  • past claims or potential claims
  • complaints and other professional difficulties (whether involving the DDU or not)
  • the length of your DDU membership
  • factors relating to your place of work and your professional responsibilities
We are increasingly trying to reflect the cost of providing indemnity to an individual in their subscription but professional indemnity is very different to, say, car insurance and ‘no claims-discounts’ are too simplistic an approach to use when providing indemnity on an occurrence basis. This is because over 45% of dental claims first come to light more than two years after the date the patient was treated and almost a quarter are brought more than five years later. The occurrence basis for membership means our members can look to us for assistance with such cases without the payment of further ‘run-off’ costs. Awarding no-claims bonuses at the end of a membership year would be likely to reward the majority of those who will later face claims from that year. All told however, a member with a long unblemished record in membership will generally pay a lower subscription than a colleague who has had a number of claims settled or expensive GDC cases in the past few years. GDPUK - In retrospect wouldn't DDU have been better sticking with its combined offer of insurance & discretion as it used to have - as DDU used to promote/provide to all members, it's the best of both worlds if you like, with guaranteed cover and discretionary help on top too ? GDPUK - How do you ensure your discretionary indemnity is fair? JM - Like the other dental defence organisations, we are a not for profit mutual operating on a discretionary occurrence basis, as we have done successfully for over 130 years. Our member guide clearly lays out the areas in which members can expect to receive our assistance. So long as a dental professional was a member on the date an incident occurred, has properly declared their work (and paid the appropriate subscription for it), has acted within the law and has been honest and open with us, they can expect the highest level of expert support available. We do not settle cases for expediency sake nor do we abandon members mid-case at the GDC – even if a case is going to be difficult to defend - and we never settle a claim without a member’s agreement to do so. DDU’s assistance or indemnity is provided at our Board of Management's discretion, the Board has a legal obligation to act fairly, in the interests of our members and in accordance with our Memorandum and Articles of Association. We retain the discretion to be flexible and responsive to the needs of members and support issues in the interests of the wider membership. Unlike an insurance policy, there is no long list of exclusions buried in ‘small print’; no limits on the size of claims we can indemnify; and no excesses to pay. Insurance and discretion both have their respective merits. We did for a period of time offer a combination of both insured claims-made indemnity and our traditional discretionary occurrence benefits, but with rapidly increasing costs associated with the insured element (Insurance Premium Tax, for example, has more than doubled since 2011) our Board took a view that providing the insured element (which overlapped with the broad-ranging discretionary benefits) no longer added sufficient benefit to members.

GDPUK - Why is there a huge discrepancy between indemnity fees for experienced GDPs in England, compared to similar colleagues in Scotland who only pay about one third of the fees by comparison, yet it is the same GDC ?!? JM - Due to the different legal system in Scotland, the DDU has not seen the same increase in claims north of the border, which has enabled us to keep our subscriptions lower. GDPUK - Do policies provided to Irish members of the DDU also cover working in the UK or do they require separate cover or a separate supplementary cover? JM - Existing Irish members of the DDU who wish to carry out work in the UK should contact our membership team to discuss their requirements. Indemnity for UK work is generally cheaper than that for work in the Republic of Ireland but there may be a cost to add more sessions if the planned volume of work is significant. Likewise, UK members who would like to start doing work in Ireland alongside their UK work should also contact us before doing so.    GDPUK - What is the DDU position on vicarious liability? JM - DDU membership is for the individual and members normally seek our assistance for matters arising from their own clinical practice. However, DDU practice principal members can ask for assistance for matters arising for employed support staff such as dental nurses and practice managers due to their vicarious liability. We would also recommend that dental nurses have indemnity in their own right to enable them to access the various other benefits of DDU membership. All other members of the dental team such as dental associates, hygienists and therapists should have their own indemnity in place and contractual arrangements between the parties should reflect this as a requirement. To limit their exposure to vicarious liability claims, and as part of their governance arrangements, principals should routinely check that such staff have current indemnity in place and require that evidence be provided, for example in the form of a membership certificate. It would be prudent to keep a copy of indemnity certificates for future reference as claims can be pursued several years after treatment has been provided. We are aware that on occasion when an associate has left the practice, claimant solicitors have tried to bring a claim against the principal alleging vicarious liability for their ex-associate. Practice principal members can, in such circumstances, look to the DDU for assistance. Usually such matters are quite straightforward to resolve with the associate’s indemnity provider. Very occasionally, the DDU has needed to instruct solicitors on behalf of a practice principal to advise them and to ensure that the liability is properly directed to the clinician who provided the clinical care. Dental practice is not static and therefore we are constantly reviewing our products and services to meet our members’ needs. GDPUK - What financial stress tests are performed internally and by external bodies to ensure there is a good level of provision to cover future claims. Where may members and prospective members access those data? JM - Our accounts are externally audited each year and published in our annual report which is, circulated to members and published on our website. We make sure funds are available to meet notified claims with a financial cushion held in the mutual fund to reflect future liabilities. GDPUK - How will the move to state-backed indemnity for GPs impact on the mutual organisations’ medical departments. Will downsizing and redundancies be necessary on the medical side? Might this impact on the dental department too? JM -Full details of the planned scheme are yet to be announced so it is too early to say what the impact will be but we do not expect the scheme introduction to have any impact on the activities of the DDU. GDPUK - What information do you hold on registrants who are not members of the DDU and how can those individuals access the information? JM - We hold information on dentists and dental care professionals who have been DDU members in the past, have contacted us to enquire about applying for membership or have been involved in cases involving DDU members. Individuals are able to make a subject access request to determine what data is held about them under the terms of the current Data Protection Act.
GDPUK - What agreements do you have with other indemnity providers which involves transfer of information on members/customers between those organisations? With the introduction of GDPR, will you require consent for such exchanges of information in the future? JM - Confidentiality is crucial to our business. There are some circumstances where information is communicated to and requested from other indemnifiers or insurers, for example when a colleague wishes to switch providers or where a case involves a number of dental professionals. This would only ever occur with the consent of the member. GDPUK - What are your data retention policies and how do registrants and members of the public access them? JM - We are currently updating our privacy and data retention policies to ensure compliance with the General Data Protection Regulation (GDPR) which comes into force in May 2018. The privacy policy will be available on the DDU website. GDPUK - How can any matter before the GDC be dismissed as 'non-dental' and therefore not have ANY cover/help provided by their paid indemnity, when by definition, it is a matter before the General DENTAL Council and thus affecting dental registration? JM - We believe that it is very important that dental professionals are legally represented at the GDC. DDU assistance with GDC cases is comprehensive and our dental advisory team work closely with specialist solicitors who have detailed knowledge and experience in this complex area of law. Where appropriate, expert witnesses and barristers are engaged to help. We robustly fight our members’ corner and have an enviable record of successfully defending our members, concluding cases at the earliest possible stage. It is very rare that we decline members’ requests for assistance at the GDC, even if the request is in relation to non-clinical matters. One exception is proven crime – we do not believe that other members’ subscriptions should be spent defending established criminal activity. Our experience is that most members agree with this approach. At the DDU, we are driven by our members' dento-legal interests. In addition to our work on behalf of individual members we are actively engaged in activities aimed at making a positive change to key areas that affect DDU members’ profession and practice. We are ready, willing and able to call the GDC and other organisations to account where we believe unfairness or injustice occurs. GDPUK - By your estimation, John, what proportion of complaints made to the GDC which reach an FTP hearing is the complainant a registrant? JM - Figures on this subject show that 6% of matters were notified by other registrants. It is disappointing and of concern that in recent times we have seen a number of cases brought to the attention of the GDC where complaints appear to have flowed from business and financial disputes that have got out of hand. Before raising concerns about another dental professional, I would strongly recommend that colleagues take advice from their dental defence organisation.   GDPUK - We have heard from lawyers that many legal firms believe that dentists and their representatives are much easier legal targets than most other branches of healthcare, or other businesses in general, with much less chance of a claim (or its size) being robustly defended. John, why do you think such a belief exists? JM - Dental cases are often more straight forward than medical cases making them a prime target for solicitors targeting clinical negligence claims, especially small and medium sized claims as they can generate legal costs with limited risks. Fortunately the DDU has a good track record in defending claims. In 2017, we successfully defended 58% of dental claims, despite the fact that cases are carefully selected by legal firms. GDPUK - What are the clinical areas showing the greatest increase in the number of claims, in order of cost of claims including legal fees? Is there a role for more aggressive examination of legal expenses? JM - The majority of claims we see relate to ‘routine’ dentistry such as fillings, extractions and root fillings. As patterns of treatment change we are seeing an increase in the number of claims relating to orthodontics and implants. The most costly claims remain those related to undiagnosed periodontal disease and implants. We already comprehensively examine and where appropriate, challenge and contest the expenses of claimant solicitors. GDPUK - Not every claim can or should be fought, but what strategies are viable to retaliate and fight claims more frequently? JM - It is important to understand the impact that a claim has on the individual dental professional and to take this into account when handling claims. The DDU will never settle claims for expediency’s sake or on economic grounds such an approach would be detrimental to members as it would set a damaging precedent. Indeed, we successfully defend the majority of claims despite the fact that many are carefully selected by specialist claimant lawyers before being progressed. We have been actively campaigning to make compensation fair, proportionate and affordable. This includes addressing excessive legal costs and radical reform of the civil litigation system. To find out about our Fair Compensation Campaign and the other legal reforms we propose, visit: https://www.themdu.com/about-mdu/fair-compensation. We encourage dental professionals to get involved and make their voice heard.
Thanks to John and the team at DDU for answering the questions from the forum. We hope you have found the interview interesting and informative as promised.
John-Makin-2016
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