Greg Waldron
The Dental Law Partnership, Nantwich, United Kingdom
HIV Infections and Custodial Sentences in Scottish Case Law
In February 2001, a former Scottish dentist,
Mr William Duff, was jailed for 3 years for, amongst other things, exposing his
patients to blood borne virus infections due to poor cross infection control. He
had been previously erased from the dentist's register in January 1997 after
being found guilty of serious professional misconduct. He now found himself
sentenced to 21 months for culpably and recklessly exposing his patients to the
risk of infection by repeatedly reusing unsterilised surgical equipment. He was
jailed for a further 15 months for making fraudulent claims for payment against
the National Health Service.
During his trial evidence was heard of the use of contaminated injection needles
and failure to sterilise extraction instruments between patients. In mitigation
Duff claimed that he had been depressed at the time of the offences. Despite the
offences having occurred between 1990 and 1994, it is as yet unclear whether any
patients were infected by Duff who is not known to be carrying any infection.
After the verdict was announced the Greater Glasgow Health Board announced that
it was in the process of trying to trace 4,500 patients treated by Mr Duff
between 1990 and 1994. Letters were being sent to those patients that could be
traced and a help-line was set up for all patients to offer counselling and
blood tests for Hepatitis B, Hepatitis C and HIV. The verdict was widely covered
in the media which advertised the help-line service.
Apart from the widespread shock following fairly wide media coverage many
dilemmas for patients arise from these appalling events:
- Firstly many former patients are faced with the possibility, however remote,
that they may have been infected and need to decide whether they should take a
blood test. Parents are faced with similar decisions with regard to their
children.
- If patients find themselves to be infected then showing that the infection
came by way of their former dentist, after such a long time, may prove very
difficult. If they were subsequently to seek compensation then they would need
to prove that their former dentist was the most likely cause when other
infective routes were considered. In a city where there is known to be a high
incidence of intravenous drug abuse, they would risk having their private lives
raked over for other possible infective sources such as drug usage or sexual
infection. It is instructive to recall the dying pleas of Kimberley Bergalis to
remove any doubts that she had contracted her HIV infection sexually or by drug
usage after being infected by her dentist who carried the virus.
- If patients are informed that they were at risk, then they may need to declare
this risk when making mortgage or life insurance applications. This may possibly
result in them either being refused loans or insurance, charged increased rates,
or effectively forced into taking a test to demonstrate a negative result to
assure the insurer or funder.
- Patients may, with very good reason, become very untrusting of the dental
profession and this may affect their future dental health. At a minimum, such
patients may also be very wary about cross infection control and perhaps even
arrange to provide their own sterile disposable instruments or require proof
that instruments are sterile before usage.
A major problem that was envisaged was tracing all former patients because the
necessary dental records may no longer have been in existence. There is no clear
statutory requirement regarding the retention of dental records in the UK and
many patients may have moved from their former addresses. A British dentist does
not usually record the patient's details for identification purposes apart from
taking name, date of birth and address. The safeguard of the routine recording
of the patient's national health service number or national insurance number and
the indefinite retention of dental records would assist in tracing patients so
long after the event in question.
It has alternatively been suggested that a small number of patients could
possibly benefit from Mr Duff's actions by being provided with an innocent
explanation for their contraction of a virus which was in fact transmitted by
their own reckless sexual behaviour or drug usage.
The Glasgow Health Board is to be commended for its open and correct action. It
may go some way to reinforce a preferred procedure for dealing with such
instances where healthcare workers have placed a large, and unknown number, of
partially unidentifiable patients at risk. The good ethical stance of the
Glasgow Health Board could be contrasted with the emergence of a potential
scandal in China. Chinese authorities are accused of attempting to cover up a
private organization’s paying peasants for their blood and subsequently selling
it with a profit, while almost totally disregarding potential cross infection
risks. There is growing evidence of the impoverished populations in the
developing world being decimated by AIDS infection contracted during the
collection of their blood in return for a small payment.
If there had been evidence of Mr Duff having infected any patients, almost
certainly his sentence would have been more severe. In February 2001, a HIV
positive Scottish man, Stephen Kelly, was jailed for 5 years for deliberately
infecting his girlfriend, Anne Craig, with HIV by way of unprotected sexual
intercourse after being warned of the danger of such unprotected sex.
These custodial sentences reflect the present position in Scotland. It is yet to
be seen how they will be interpreted, or whether they may be persuasive, in the
rest of the UK.
Contact Address:
Greg Waldron, BDS, Solicitor
The Dental Law Partnership
Regent House - Princes Court
The Barony Employment Park
Nantwich - Cheshire CW5 6PQ
United Kingdom
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