When you employ a practitioner

Before you employ an oral health practitioner you should check the Register to verify:

• that they are currently registered
• in what scope of practice they are registered
• whether they hold a current annual practising certificate
• their registered qualifications, and
• whether there are any conditions or restrictions on their scope of practice.

To comply with your obligations as a health provider under the Health and Disability Commissioner’s (HDC) Code of Health and Disability Services Consumers Rights (the Code), you must ensure that your oral health practitioner employees retain their registration and always maintain a current practising certificate.  If they do not, you should stand them down immediately and notify the Dental Council.

You may be liable for your employees’ actions

If you employ an oral health practitioner, the Code determines that you are a health provider and you are accordingly responsible for the treatment that your employees provide. For example, if you employ a health practitioner whose competence you believe to be in doubt, you as the practitioner’s employer could be liable for failing to provide services of an adequate standard— a breach of Right 4 of the Code.

Concerns about an employee

If you have concerns about the performance of an employee who is an oral health practitioner, you should talk to us and seek our advice.  You can do so informally and we will discuss it with you, or you can send us a formal notification, but before you do you may wish to consider:

• was it an isolated issue or one-off incident, or does there appear to be a pattern of poor performance emerging? If so, you may wish to consider the possibility of a competence issue.
• have you talked to the practitioner about your concerns?
• was it a serious departure from accepted practise for that profession?
• does the practitioner pose a risk of serious harm to their patients?
• has there recently been a change in the practitioner’s behaviour or ability? If so, you may want to consider the possibility of a health issue impacting on their ability to safely practise.

The more information you provide to us, detailing examples of the practitioner’s poor performance, the more informed we will be to make a decision about what further action, if any, may be required. This could include:

• requiring the practitioner to undergo a competence review
• requiring the practitioner to undertake an individual recertification programme
• requiring them to undergo a medical examination
• establishing a voluntary undertaking
• writing to the practitioner to recommend a course of action i.e. undertake a specified course of training
• requiring the practitioner to practise under supervision
• imposing conditions on their scope of practice
• altering or restricting their scope of practice
• suspending their practising certificate while the concerns are investigated further
• taking no further action
• referring the concerns to a professional conduct committee (PCC) for investigation.

If you want to provide us with information about an employee who is an oral health practitioner, but you’re not sure if you need to raise a concern or a notification, then you should contact us and seek our advice. If you get in touch with us we will advise on how we may act on the information received. In deciding how to act we will consider:

• the principal purpose of the Act, where receiving and acting on information is a key means by which the Council assures itself that practitioners are competent and fit to practise (thereby protecting the public)
• relevant legal processes
• relevant Council policies, standards, and regulatory principles; and
• the rules of natural justice.

As part of our process, if its needed, we will advise you and the practitioner of any further information that we need to ensure we have the relevant information to inform our decision making. If we decide through the contact from you that we do not need to take any further steps, we may retain the information that you provide, subject to the rules of natural justice and the privacy principles.

We accept anonymous information, but we may consider whether the matter can be progressed while observing the rules of natural justice. We will not usually take any further action, except to retain the information. We will act on anonymous information where:

• the information that is disclosed is serious; and
• there are grounds for protecting the disclosure or the identity of the complainant. 

The role of the Health Disability Commissioner

Whenever the information you have provided to us discloses that the practice or conduct of an oral health practitioner has affected a health consumer, we are legally obliged to refer the matter to the HDC. 

If the concern you have raised or the notification you have given us relates to the practitioner’s competence or health, we are able to address the matter in parallel with the HDC’s investigation.

If the concern you have raised relates to the practitioner’s conduct, we cannot refer the matter to a PCC, until the HDC’s investigation is complete.  In the interim period however, we can impose conditions on the practitioner’s scope of practice, or suspend their annual practising certificate, pending the outcome of the investigation.

Concerns about an employee’s competence

If you are an oral health practitioner who employs another oral health practitioner, you have an ethical obligation to notify us if you have reason to believe that your employee may pose a risk of harm to the public, by practising below the required standard of competence. Where an employee is performing below acceptable standards, you as a health provider have obligations to ensure the service provided meets the standards set out in the Code.

Duty to notify us of a competence concern

As an employer, where you dismiss an employee who is an oral health practitioner or they leave your employment because of a competence issue, you have a legal obligation to immediately notify us in writing.  You must also tell us the reasons for the dismissal or resignation.

Concerns about an employee’s health

Oral health practitioners, like anyone else, get ill and suffer injury.  When an oral health practitioner develops a physical or mental health problem it may impair their ability to practise their profession safely, endangering patients and the public. Depending on the nature of their illness, an unwell or injured practitioner may:

• be unable to make safe judgements
• be unable to demonstrate the level of skill and knowledge required for safe practice
• behave inappropriately
• risk infecting patients with whom they come into contact
• act or omit to act in ways that impact adversely on patient safety.

Health conditions that may make a practitioner unfit to practice include alcohol or drug dependence, other psychiatric disorders, a temporary stress condition, an infection with a transmissible disease, and certain illnesses or injuries or physical disabilities.

Delaying intervention, treatment and assistance may not only result in patient care being affected, but may also affect the practitioner both professionally and personally. In our experience, early intervention usually enables a practitioner with a treatable illness or condition to continue practising while receiving treatment.

It is important that concerns about an oral health practitioner’s health are raised early and dealt with appropriately.

The Health Practitioners Competence Assurance Act 2003 entitles you to seek medical advice to assist you in forming an opinion, for example, through occupational health, or treating doctors.  Any formal notice to us made subsequently, must state whether such advice has been obtained.

You always have the option of getting advice about a health situation or concern relating to an employee from your indemnity insurer. Your insurers have a lot of knowledge and experience on health problems and how they affect a practitioner’s practice.

Within a larger practice setting,such as a hospital, or a corporate practice, you may also use the clinical governance process, for example talking to the clinical director, the director of training, or the chief dental officer.

If a concern is notified or referred to us, this does not need to interfere with an employer’s usual human resources, clinical governance, or occupation health processes.  These can occur simultaneously.

Duty to notify us of a health concern

If you employ an oral health practitioner, you are legally obliged to notify us in writing if you have reason to believe they are unable to perform the functions of their profession because of a mental or physical condition.   You must also tell us of all the relevant circumstances that led you to that belief.

Concerns about an employee's conduct

Our principal objective is to protect the health and safety of the public, by ensuring, amongst other things, that oral health practitioners are fit to practise.  To do so we have set standards that we require all oral health practitioners to meet. Should a practitioner not meet our standards, we may refer them to a PCC for investigation.

Duty to notify us of a conduct concern

You have a duty to notify us if you have concerns that an employee, who is an oral health practitioner, may be engaged in immoral, illegal or unethical conduct; is neglecting their professional duty; or has been grossly negligent.

If we consider that the information you provide to us raises one or more questions about the appropriateness of the conduct or the safety of the practice of the practitioner, we may refer the matter to a PCC for investigation.  A PCC may in turn, lay charges against the practitioner before the Health Practitioners Disciplinary Tribunal.

We also have the power to place conditions on a practitioner’s scope of practice, or to suspend their practising certificate whilst their conduct is being investigated by a PCC or by the HDC.

Legal considerations

Please be aware that if you raise your concerns with us, the principles of natural justice require that any information you provide will be disclosed to the practitioner in question.  Natural justice requires that the practitioner be given the opportunity to comment on the information you provide.

If you notify us because you have a concern about an employee’s competence, health or conduct, you will not be legally liable for any statements you make, so long as you have acted in good faith and with reasonable care.

Complaints or notification processes

Read more about the processes we follow if we receive concerns or complaints about a practitioner.

Contact us if you have a concern