Nicola Blower discusses the topic of dental tourism claims facing UK dentists post-Brexit in BDJ In Practice.

This article originally featured in BDJ In Practice (Blower, N. Dental tourism claims facing UK dentists post-Brexit - BDJ In Pract; 35: 23).

The subject of dental tourism could easily fill many pages of this entire publication. Indeed, it was the cover feature for a recent issue of the BDJ In Practice last summer.^₁

Patients seek treatment abroad for a wide spectrum of healthcare problems and for a variety of reasons including cost, availability, access, and convenience. Similarly, patients from abroad come to the UK for the same reasons or may be here on vacation when they seek dental care from you.

Usually everything goes well, and the patient returns home smiling. However, occasionally things can go wrong. If you provided the treatment that has gone wrong, the patient may bring a clinical negligence claim against you. Alternatively, a patient may come to you seeking remedial treatment after the treatment provided aboard has failed.

This article provides a brief overview of the basic jurisdictional issues that arise in the most common types of dental clinical negligence claims in our post-Brexit world.

Seeking legal advice

First and foremost, if you receive correspondence from a patient or law firm which suggests that a claim is being pursued against you or your dental practice, you should consider seeking advice from your indemnity provider immediately.² Civil claims can be complicated and stressful, and even more so with the added complexity of a second jurisdiction. Your indemnity provider and any law firm that they instruct on your behalf will be able to guide you through the process, which will ease the burden on you and help to achieve the best outcome possible.

Jurisdiction

Quite simply, a Court having jurisdiction over a claim means that they legally have the right to hear it. The United Kingdom has three separate legal jurisdictions: England and Wales, Scotland, and Northern Ireland. This article focuses on the law applicable in England and Wales and the English and Welsh courts, which I will refer to as ‘the Courts’.

Which legal regime?

There are several legal regimes that might be applicable in determining which country’s court has jurisdiction to hear a claim. It is also possible that multiple courts will have jurisdiction and it will be at the Claimant’s discretion which court they take the case to.

If the Claimant wants to issue a claim in England or Wales, it will be governed by the Civil Procedure Rules. If the Defendant is physically located in England or Wales, for example living/working there or visiting temporarily, and the claim is validly served on them, the Courts have jurisdiction to hear the case. When the Defendant is outside England and Wales, the Claimant must seek the Court’s permission to issue the claim. To do this, they must be able to demonstrate that:

1. The claim falls within one of the ‘jurisdictional gateways’
2. The claim has a reasonable prospect of success; and
3. England or Wales is the proper place to bring the claim.

There are numerous jurisdictional gateways, however, the one which is most likely to apply is that the ‘damage was sustained, or will be sustained, within the jurisdiction’. The term damage is interpreted widely and includes where the treatment took place and where the loss (for example the treatment failing) is suffered.

If there is a contract and that contract was made within the jurisdiction or is expressly subject to the jurisdiction or governed by English and/or Welsh law, the Courts will also have jurisdiction.

Advising patients

NHS England and the General Dental Council has prepared guidance for patients who are considering going abroad for treatment.^3,4 If your patient tells you that they are planning to seek treatment abroad, you may wish to refer them to this guidance to help them come to an informed decision as to whether they want to proceed.

Remedying negligent treatment

Another issue that practitioners will need to be wary of is when they are faced with a patient who has received negligent treatment aboard and is now seeking remedial treatment in England or Wales.

Practitioners have a duty to treat acute issues like pain or infection. However, if a patient is seeking less urgent treatment, you need to consider whether you can provide complete remedial treatment or whether you are limited to simply removing the problem.

For example, if a dental implant has failed, it may be that it is only appropriate to remove the implant and not to replace it. What can and cannot be performed will also depend on whether the treatment is being provided on the NHS or privately. The question also arises as to who will then be responsible if the remedial treatment also goes on to fail.

Conclusion

In summary, the English and Welsh Courts have a wide jurisdiction which enables them to hear most cases that are brought before them, even when that treatment is provided in a different country. Jurisdictional issues can become complicated, and it is therefore wise to seek legal assistance to help with you handle any claim that you receive.

For more information on this topic, please contact Nicola Blower at Nicola.blower@clydeco.com or David Westgarth, Editor of BDJ In Practice, at david.westgarth@bda.org. 

_References

^{1 Westgarth D. Dental tourism: No holiday delight. BDJ In Pract 2022; 35: 14-17.}

^{2 Blower N. Legal support when facing a civil clinical negligence claim. BDJ In Pract 2022; 35: 36-37.}

^{3 General Dental Council. Going abroad for your dental care? Available online at: www. gdc-uk.org/standards-guidance/information-for-patients-public/going-abroad-for-dental-treatment (Accessed October 2022).}

^{4 NHS Going abroad for medical treatment. Available online at: www.nhs.uk/using-the-nhs/healthcare-abroad/going-abroad-for-treatment/going-abroad-for-medical-treatment/ (Accessed October 2022).}