Dentists and Dental Hygienists… A Marriage on the Rocks?

by Symon Zucker, LLB, LLM

For some years now there appears to have erupted a peaceful but wary co-existence between the dental and dental hygiene communities. While individual relationships are for the most part unhampered by the general tensions that exist, there remains a large degree of concern and suspicion by dentists as to the direction that the dental hygiene profession is taking. The primary concern is economic. Dentists are worried that their dental hygiene staff are going to run off with their patients.

While there are numerous anecdotal tales of dentists losing the core of their practice to a departing dental hygienist, the reality of the situation is that the sky has not fallen. Dental hygienists, while continuing to be on the front line in dental practices have not to date run off with the silverware.

That is not to say that the parties do not have to understand their respective rights and obligations in order to maintain both a harmonious working relationship as well as ensure that should there be a break-up that economic and patient rights will be respected.

The value of a dental practice is its goodwill. That goodwill is primarily determined by the number of active patients in the practice. Before there was ever a concern about the threat posed by dental hygienists there was the nagging concern that the Associate would walk out the door with the patients in tow. Much Judicial head scratching has gone into determining who owns the charts.

Lawyers have prospered litigating non-competition and non-solicitation agreements. Insofar as Associates are concerned there appears to be a general consensus that the patient owns the information, the principal dentist owns the chart. Non-competition clauses (except in the context of a sale of the practice) have for the most part been done away with in favour of non-solicitation agreements. Clearly the Judges don’t own dental practices and have no real understanding that non-solicitation agreements have virtually no value in the context of a dental office. An Associate who has spent any time in a dental office does not have to solicit. If s/he opens nearby the patients will follow.

Mercifully the Courts have not yet been asked to weigh in on these issues as they relate to dental hygienists. The parties must therefore look to their respective governing bodies.

The College of Dental Hygienists of Ontario instructs their members that upon departing a practice they can:

* take a copy of the patient’s records with them; or

* leave them behind with the understanding that the charts will be kept for the required period of time and may be accessed, if required.

Both the dental and dental hygiene regulatory Colleges recognize that the primary concern is the care of the patient. The Royal College of Dental Surgeons of Ontario does not however advise a departing Associate that he may take a copy of his patient charts. Therein lies the fundamental difference between the two professions.

Dentists acknowledge that a departing health professional has a right to access charts as well as the right of patients to transfer their charts. They do not however accept the right of another regulated health care professional to take a copy of their particular charts be they Associate or dental hygienist. There is at this time no legal duty on a dentist to permit an employee to walk out with a copy of their charts unless otherwise agreed to by contract.

There is however a duty to make charts available to dental hygienists if they are required by law to access them. If a dental hygienist is under investigation by their College or is answering a patient inquiry the chart must be produced and made available.

Likewise the College of Dental Hygienists of Ontario is entitled to enter a dental office and demand that the dentist produce charts in furtherance of an on-going investigation. A refusal to co-operate in providing the charts opens the dentist to sanction by the Royal College of Dental Surgeons of Ontario.

The College of Dental Hygienists of Ontario has also developed a Quality Assurance process which permits them to seek access to the charts of the clients seen by the dental hygienist. These visits may appear intrusive to dentists but the appointed assessor will attempt to schedule her visit at the least disruptive time for the office. Those dentists who have refused to co-operate in this process have been advised by the Royal College of Dental Surgeons of Ontario that they must indeed co-operate.

This leaves open the question as to what happens if dental standards or potential professional misconduct are evident when reviewed by the College of Dental Hygienists of Ontario. It would seem evident that a complaint could be directed to the Royal College of Dental Surgeons of Ontario. While to date this has not occurred there is a certain inevitability that this will eventually happen.

So where does this leave the two professions? Being in doubt as to their respective rights seems to be part of the status quo. Most issues can and should however be covered by contract. The old adage of “if in doubt, write it down” when deciding what to put in a dental chart seems equally appropriate when entering into a new employment relationship, or restructuring an old one. Contracts that respect the intent of the Regulated Health Professions Act, or the standards of the various professions, will likely be honoured by the Courts.

Symon Zucker is a senior Toronto Litigator specializing in Civil, Administrative and Family Law.