A. Background
The Dental Law Partnership Solicitors Limited was established in 2000 and, is the leading organization representing dental patients in legal claims in dental negligence. Directed by doubly qualified dentists and solicitors, it is estimated that in England and Wales the Partnership represents between 60% and 70% of all dental patients who bring legal claims against dental registrants.

Since 2000 the Partnership has successfully acted for 1853 dental patients and recovered damages for those patients to a total amount of in excess of £13,100,000.00. The Partnership is currently assisting over 1000 dental patients in live cases.

B. Legal claims and professional indemnity
The primary purpose of legal claims in dental negligence is to ensure that patients who have been harmed by the negligent acts and omissions of registrants can be compensated. In particular financial compensation is essential in order that the injured dental patient can obtain sufficient funds with which to purchase remedial dental care of appropriate quality. In this way the damage which has been inflicted by the negligent registrant can be put right and the injured dental patient can achieve a just and equitable conclusion. In order that the rights of the injured dental patient are protected it is therefore essential in our view that a mechanism of effective indemnity exists and persists over time, in relation to each and every clinical encounter between a dental patient and a dental registrant. It is our view that an effective indemnity mechanism is one which will always provide appropriate financial compensation in the event that any dental patient suffers avoidable harm by way of an act or omission of a dental registrant.

C. The operation of the current indemnity system
Our experience of the existing system of registrant professional indemnity is that there are significant loopholes in the current framework which deprive dental patients of access to justice in cases of dental negligence.

We have supplied details of example cases for the benefit of the Council at Appendix 1, and Appendix 2, and summarised our findings herewith. These anonymised claims are samples of cases which were likely to be successful on the substantive legal merits but where no legal claim was possible, or the dental patient’s claim was profoundly compromised for the reasons set out below. A number of cases fall into more than one category.

1. Defendant registrant not located
S v L
F v L
M v L
P v L
C v L
S v M
S v T
H v A
M v K
G v W

2. Defendant registrant was confirmed as having no professional indemnity cover for the relevant period
C v C
M v W
B v T
D v S
P v S

3. Defendant registrant had no assets in jurisdiction/was bankrupt. No indemnity available/discoverable.
G v B
B v B
N v B
P v S

4. Defendant registrant un-cooperative – declined to respond/tardy in response to the Partnership
S v B
M v J
J v D
L v E

5. The indemnity provider Dental Defence Union/Dental Protection declined to advise as to whether or not the defendant registrant was in membership
S v M
D v P
M v K

6. The relevant indemnity provider - Dental Defence Union or Dental Protection Limited - exercised its discretion not to assist the member defendant registrant, or the indemnity provider exercised its discretion to withdraw assistance to its member after a period of initial assistance.
B v B
J v D
F v L
G v B
B v D
B2 v D
F v D
K v D
K2 v D
P v D
P2 v D
S v D
W v D

D. The Dental Law Partnership submission re proposals regarding Insurance

List A
Section 1. No comment

Section 2. We would prefer to see run-off cover for a minimum of 15 years duration, rather than the proposed 10 year period. The proposal for a 15 year period is based on our experience of a number of dental negligence cases where knowledge of negligence does not crystallize until many years after the breach of duty. A common example of this type of claim is in relation to a failure by a registrant to manage a chronic condition such as periodontal disease where the disease process may continue unchecked for many years before discovery – sometimes in excess of 10 years after cessation of treatment by the relevant registrant.

Section 3. No comment

Section 4. No comment

Section 5. We are concerned by the drafting of this section and in particular the use of the verb ‘to manage’ in relation to dental negligence claims. It is our view that the proposal regarding the acquisition of authority from the member and the agreement to manage claims by the insurance provider must be more tightly drafted so as to include a requirement for the insurance provider to obtain specific prior authority and provide agreement to act for the insured registrant in legal proceedings, as well as in the period prior to the issue and service of legal proceedings. This prior authority/agreement must be obtained and agreed at the time of commencement of the period of professional indemnity, and explicitly cover the entire duration of any legal claim including acceptance of service of legal proceedings, instructions to act for the duration of the legal claim up to and including the payment, if any, of damages and legal costs to the dental patient.

We hold this view because, although many dental negligence claims settle within the pre-action protocol period for personal injury claims, nevertheless it is our experience that a significant number of dental claims do proceed beyond that stage into legal proceedings. Without the detailed drafting as outlined above we would be concerned that the protection afforded to dental patients would be illusory.

This section is drafted so that the proposed additional requirement to manage only applies to ‘claims made by patients direct’. We are very concerned that this section will exclude claims which may be defined as indirect where the patient has legal representation ie, claims made by solicitors acting on behalf of dental patients. It is our view that it would be inequitable for dental patients to be prejudiced by instructing solicitors when no such prejudice applies to a registrant. Additionally it is uncommon for dental patients to issue proceedings without instructing solicitors and therefore this section, as drafted, would tend to allow insurance providers to avoid the requirement to manage claims once legal proceedings had commenced – thereby removing the protection for dental patients which the Council is seeking to provide. We would urge the Council to redraft this section to ensure that insurance providers are compelled to manage such cases both when the cases are prosecuted by patients as litigants in person, and also when dental patients are legally represented.

Section 5 concludes by restricting the situation when an insurance provider will be compelled to act on behalf of an insured registrant as being, ‘where the patient is due compensation’. We are of the view that interpretation of this will be significant. During dental negligence claims, it is our experience that insurance providers frequently take a different view from patients and their legal representatives as to whether or not patients are due compensation. Indeed it may be argued that a patient is not ‘due’ compensation until such time as a court orders an award in damages to a patient, or a binding offer is made by a registrant or a registrant’s representatives to a dental patient, or to a patient’s legal representatives.

We strongly recommend that this element of the section should be redrafted so that a dental patient’s right to prosecute a claim, which may include the contemplation of legal proceedings, is not stymied by a narrow interpretation of when an insurance provider will be bound to act on behalf of an un-cooperative or absent insured registrant.

Section 6. No comment

Section 7. No comment

E. The Dental Law Partnership submission re proposals regarding Discretionary Indemnity List B
Section 1. It is our view that there is good evidence that the incorporation of any discretionary element into the mechanism of professional indemnity exposes a dental patient to the risk that, in the event of harm being caused to the patient by a dental registrant, the patient will be unable to bring a successful legal claim.

We have submitted evidence of a very recent exercise of this discretion by the dental defence organizations at Appendix 2. In a particularly egregious series of cases involving claimants who were minors, the Dental Defence Union exercised its discretion so as to deprive our clients of their right to bring legal claims. Because of the discretionary nature of professional indemnity these children, who had been harmed in a clinical setting by two members of the Dental Defence Union, have been harmed for a second time by the operation of the Dental Defence Union’s discretion. It is clear that the Dental Defence Union exercised its discretion in favour of the protection of its members’ financial interests at the expense of justice for a significant group of damaged children.

Section 2. No comment

Section 3. We are concerned by the drafting of this section and in particular the use of the verb ‘to manage’ in relation to dental negligence claims. It is our view that the proposal regarding the acquisition of authority from the member and the agreement to manage claims by the indemnity provider must be more tightly drafted so as to include a requirement for the indemnity provider to obtain specific prior authority and provide agreement to act for the member registrant in legal proceedings, as well as in the period prior to the issue and service of legal proceedings. This prior authority/agreement must be obtained and agreed, at the time of commencement of the period of professional indemnity, and explicitly cover the entire duration of any legal claim including acceptance of service of legal proceedings, instructions to act for the duration of the legal claim up to and including the payment, if any, of damages and legal costs to the dental patient.

We hold this view because, although many dental negligence claims settle within the pre-action protocol period for personal injury claims, nevertheless it is our experience that a significant number of dental claims do proceed beyond that stage into legal proceedings. Without the detailed drafting as outlined above we would be concerned that the protection afforded to dental patients would be illusory.

This section is drafted so that the proposed additional requirement to manage only applies to ‘claims made by patients direct’. We are very concerned that this section will exclude claims which may be defined as indirect where the patient has legal representation ie, claims made by solicitors acting on behalf of dental patients. It is our view that it would be inequitable for dental patients to be prejudiced by instructing solicitors when no such prejudice applies to a registrant. Additionally it is uncommon for dental patients to issue proceedings without instructing solicitors and therefore this section, as drafted, would tend to allow indemnity providers to avoid the requirement to manage claims once legal proceedings had commenced – thereby removing the protection for dental patients which the Council is seeking to provide. We would urge the Council to redraft this section to ensure that indemnity providers are compelled to manage such cases both when the cases are prosecuted by patients as litigants in person, and also when dental patients are legally represented.

Section 3 concludes by restricting the situation when an indemnity provider will be compelled to act on behalf of a registrant as being, ‘where the patient is due compensation’. We are of the view that interpretation of this will be significant. During dental negligence claims, it is our experience that indemnity providers frequently take a different view from patients and their legal representatives as to whether or not patients are due compensation. Indeed it may be argued that a patient is not ‘due’ compensation until such time as a court orders an award in damages to a patient, or a binding offer is made by a registrant or a registrant’s representatives to a dental patient, or to a patient’s legal representatives.

We strongly recommend that this element of the section should be redrafted so that a dental patient’s right to prosecute a claim, which may include the contemplation of legal proceedings, is not stymied by a narrow interpretation of when an indemnity provider will be bound to act on behalf of an un-cooperative or absent registrant.

Section 4. No comment

Section 5. No comment

Section 6. As regards an ‘exception report’ we are of the opinion that, in order to ensure that indemnity providers are acting in accordance with the Council’s proposals and that dental patients, and the general public may be satisfied that the indemnity providers are held accountable, the indemnity providers should provide detailed reasons for any failure on their part to provide indemnity within the exception report. An exception report should be drafted on each occasion when a decision is made by an indemnity provider to decline to indemnify a member, and the report itself should be a public document.

F. Summary and further submissions
Disclosure of registrant’s indemnity status
1. Currently when a registrant cannot be contacted, in contemplation of a claim in dental negligence, it may be impossible for a patient or a patient’s solicitor to obtain details of a registrant’s indemnity status from the relevant indemnity provider or insurer. This is because of a narrow interpretation by some indemnity providers and insurance providers of the operation of the Data Protection Act 1984. For the benefit of the Council examples of such standard responses from indemnity provider/insurance providers are appended at Appendix 3.

Our concern is that the benefits of the Council’s proposals will be lost if indemnity providers and insurance providers continue to evade identification of whether or not a particular registrant is either indemnified by, or has the benefit of an insurance policy with the relevant provider. We recommend therefore that an essential pre-requisite of effective professional indemnity should be that prior authority be obtained by the indemnity providers and insurance providers from the relevant registrant, at the time of commencement of the period of professional indemnity, to allow later disclosure of the registrant’s indemnity status to a dental patient or a dental patient’s legal representatives in circumstances which may include the contemplation of legal proceedings in negligence.

Regulation of providers of professional indemnity
2. The Council’s proposals would place additional requirements on indemnity and insurance providers in terms of claims management, and reporting. We note that the Council’s proposals in relation to indemnity providers’ activity, considered in List B Section 3 above, would have the effect of reducing the scope for the exercise of the discretion of an indemnity provider not to assist a member in a dental negligence claim. We are of the opinion that these additional requirements are commensurate with the importance of protection of dental patients. However we remain concerned that the adherence of the providers to the Council’s proposals should be open, transparent and enforceable. We note the absence of any sanction in the event of a failure by a provider of professional indemnity to comply with the Council’s proposals

We also note that, under the Council’s proposals, indemnity providers would retain a core discretion to decline to provide indemnity for their members. The proposals as drafted would leave the indemnity providers free to exercise their discretion in all cases other than where the conduct of the member is caught by the proposals as drafted.

We endorse the Council’s view that the Mutual Societies exist to protect the interests of their members, and indeed as we have outlined in List B Section 1 and Appendix 2 above, this has been demonstrated very recently by the Dental Defence Union to the detriment of a group of dental patients. It is our view that neither the protection of the public, nor the wider reputation of the profession are promoted by the existence of such discretionary indemnity and that it would be appropriate, at the very least, for the Council to provide additional guidance and a framework within which any residual discretionary indemnity must be exercised.

We submit that the Council should consider the implementation of a system of registration and oversight of all indemnity providers in the field of dental negligence. This system of regulation must contain within it appropriate sanctions to control and prevent the arbitrary exercise of discretion on the part of indemnity providers. This would ensure compliance with the Council’s proposals and provide reassurance to the public that the Council is achieving its primary objective of the protection of the dental patient.

Absence of professional indemnity
3. We remain concerned that the Council’s proposals do not address the situation where a registrant has omitted to obtain professional indemnity whether by means of insurance or otherwise, for the relevant period. In such a situation, even under the new proposals, the indemnity providers or insurance providers would seek to avoiding acting for the registrant by legitimately arguing that the matter fell outside the additional responsibilities or liabilities imposed by operation of the Council’s proposals. Additionally as presently drafted, the proposals provide no protection for dental patients in whose cases the indemnity providers have exercised their residual discretion not to assist the relevant registrant member.

We strongly urge the Council to consider additional proposals to protect patients who are the unwitting victims of registrants who have failed to comply with the statutory requirements, or who are left exposed by the exercise of discretion. We advocate that the Council should consider establishing a fund to provide appropriate compensation for patients who have been harmed by the negligence of un-indemnified or unassisted registrants. A clear and effective example of the protection afforded to the general public by a similar fund is available in the form of the Motor Insurers’ Bureau. Whether it were to be funded directly by all registrants, or by the indemnity and insurance providers themselves, it is our view that only the existence of such a fund would ensure the complete protection of patients’ interests by ensuring that all dental patients were able to claim compensation to which they were entitled.