Discretionary Indemnity – what does it mean for dental patients?

The Dentists’ regulator, the GDC, has issued guidelines which currently state that dentists are ethically required to have appropriate professional insurance or indemnity cover provided by a Defence Organisation. This cover is supposed to provide protection to dentists’ patients should the patients have the misfortune of suffering negligent dental treatment, and should allow patients to obtain adequate dental compensation for the harm they have suffered.

But what happens if a dentist’s professional cover is only discretionary and the discretion lies with the insuring body?

Put simply discretionary means that the defence organisations can simply refuse to help their dentist should they be subject to a claim for Dental Negligence.

Discretionary Indemnity cover for dentists, is the most widely used form of dental professional ‘insurance’ by dentists in England and Wales, and provides dentists, and therefore their patients, with no guarantee that they will receive assistance from their defence organisation if a claim for compensation is made by a patient. Remarkably this type of cover only guarantees that a dentist’s request for help will be considered. The Defence Organisations reserve the right to withhold legal assistance from their members. Their decision to do so is not subject to review by an Ombudsman or regulator and cannot be appealed by either the dentist or the patient.

Should this happen, the patient is left with no viable means of receiving compensation from their dentist – save personally suing them for their assets – and it is this compensation which patients may rely upon to provide help with dental costs incurred by corrective treatment.

The most recent cases that highlight the effect of discretionary indemnity have come from the patients of the notorious Dr D’Mello. Dr D’Mello had in fact paid for, and possessed professional indemnity cover with the Dental Defence Union (DDU) on their standard discretionary terms. Unfortunately on finding out that there were lots of legal claims being brought against D D’Mello, the DDU have simply refused to assist Dr D’Mello with any of the dental claims bought against him. This has effectively left all of his patients unable to claim for compensation through professional indemnity cover.

As an example, Mr Wesson a former patient of Dr D’Mello is facing a remedial dental bill running into the tens of thousands of pounds, after Dr D’Mello failed to treat his gum disease. The DDU’s refusal to assist Dr D’Mello has left Mr Wesson, and hundreds like him, with the prospect of lengthy legal proceedings with no quick resolution and no guarantee of gaining compensation to assist them to pay for the remedial dental work they now require.

The UK is the only EU Member state (apart from Ireland and Malta) where discretionary indemnity is still allowed, which means that UK dental patients may be left without adequate provision for compensation even if their dentist follows the ethical guidelines stated by the GDC that they should have appropriate arrangements in place for patients to seek compensation. It seems completely wrong that patients’ right to obtain compensation when they have been harmed by a dentist should be entirely dependent on the whim of an unregulated unaccountable and secretive organisation like the Dental Defence Union. Surely the government must intervene to control this unregulated and harmful practice?