Presume nothing?

“IN modern law, medical paternalism no longer rules….”

Presumably, Lord Steyn’s declaration in the landmark medico-legal case Chester v Afshar was designed to discourage the few healthcarers who, even in 2004, still adhered to the “doctor knows best” approach to patient management. At the very least, his words acknowledged the emergence of an era of patient autonomy in which, amongst other things, proceeding with any medical intervention simply on the assumption of competent consent is no longer acceptable.

This is now one of the legal and ethical default settings in all areas of healthcare, including dentistry. Inadvertent departure from this doctrine has resulted in litigation or a GDC investigation against even the most skilled and caring practitioner and, with the advent of direct access, it may prove to be a stumbling block for the unwary hygienist or therapist. It is therefore scarcely surprising that the critical importance of securing valid, informed consent prior to virtually any intervention forms an integral part of the dental undergraduate curriculum and is constantly re-emphasised, often by defence organisations, to dentists and DCPs alike.

In reality, many dental professionals will regard the notion of ever proceeding without consent as being so archaic and incompatible with their own philosophy that these constant warnings are completely redundant. This is, however, a trickier area than it first appears and it is not uncommon for MDDUS to assist in cases which involve the issue of presumed consent. In the overwhelming majority, the non-consensual treatments in question were usually minor and beneficial. However, such is the stringency with which this facet of healthcare is regarded, that the operator’s excellent dentistry and good intentions did little to mitigate their failure to fully inform their patient.

In order to illustrate this harsh reality, it may be worth providing a brief description of a couple of relevant cases with which MDDUS recently assisted.

Failed marriage, failed consent

In the first case, patient A attended with a fractured tooth LR4. The patient had a poor dental history and had previously declined anything other than the simplest conservative dentistry. As a result, she had upper and lower acrylic dentures, replacing 12 natural teeth. Her dentist therefore presumed that she would wish to have LR4 extracted and gained the patient’s consent to this procedure without discussing any alternative treatments.

The extraction was unremarkable, but, as Sod’s Law would have it, the patient subsequently had a dry socket. Some weeks later, our member received a solicitor’s letter, claiming that the dry socket had been the result of negligence and had caused patient A’s marriage to break down. There was a temptation to respond by suggesting that this patient’s home life was in the same state as her dentition. However, MDDUS replied to the effect that a dry socket was generally an unavoidable complication and that, in any event, we doubted that a causal link between this condition and the claimant’s impending divorce could be established.

We then received a further letter of claim, this time arguing that, based upon examination of the pre-operative radiograph, patient A’s LR4 could have been restored with a post-crown. Having been so advised, it was perhaps unsurprising that patient A had instructed her solicitors that she would have consented to a crown, if only she had been offered this option.

Unfortunately, our member’s records contained no evidence of a crown being discussed. In fact, he advised MDDUS that, in view of the patient’s history of complete disinterest in all things restorative, he had simply presumed that she would only agree to another extraction. We ultimately had to accept that patient A had (for the most logical of reasons) been incorrectly consented and the claim was settled for around £4,000.

Taking care of business

Next comes the case of patient B, who presented at an out-of-hours emergency clinic when our member was on duty, complaining of a fractured, carious UL7. To complicate matters, patient B was about to depart for America on a business trip.

History and clinical presentation, together with radiographs, all indicated that a simple dressing would suffice and the patient was very happy to consent to this treatment. Unfortunately, subsequent caries removal exposed the pulp. Although extraction would at this stage have been a reasonable option, our member genuinely believed that it would be in patient B’s interests to retain UL7 and proceeded to extirpate the pulps without further discussion.

Some weeks later, a letter of complaint was passed to our member by the emergency clinic. It seems the patient’s UL7 had become acutely symptomatic while he was abroad and the consequent need to seek further emergency care had severely disrupted his business schedule.

Our member did not contact MDDUS at this stage, but wrote back explaining that the need for first stage endodontics had been unexpected, but had been necessary if UL7 was to be retained. Patient B’s response was that, in view of the importance of this trip, he would have requested the extraction of UL7 if the pulp exposure and its ramifications had been explained to him.

Our member had incorrectly presumed that, having consented to one conservative treatment stage, patient B would surely have consented to the next. After a lengthy exchange of correspondence, the patient eventually accepted our member’s sincere expression of regret. However, the initial failure, albeit for the best of reasons, to re-consent the patient for root canal treatment proved to be very stressful for dentist and patient alike.

No moral complexity

We can therefore see from these cases, which are by no means unique, the dangers of assuming that patients would, if informed, concur with the practitioner’s judgement. It is also evident that this approach need not be the product of arrogance or thoughtlessness, but can nevertheless lead to practical and legal difficulties.

Dentists who face such problems may cite certain morally complex medical situations where this doctrine is tacitly accepted or even enacted into law. One prime example is the new legislation in Wales (which reflects laws already enacted by many European countries) governing organ donation. On the face of it, consent to organ removal following death will be presumed in the absence of an expression of wishes to the contrary (though there will doubtless be many safeguards incorporated into the legislation).

Could this represent a sea change in the current position? Perhaps the law is softening its stance and will, on occasion, permit the provision of beneficial treatment without the patient’s complete knowledge?

It might seem odd for me to say this as a lawyer, but I would advise dentists to avoid involving lawyers if at all possible. Whilst I do not mean that they should not take legal advice, as that can often be a useful way of getting an independent perspective, involving a lawyer in correspondence can be counterproductive. Receiving a letter from a lawyer on behalf of a co-partner can often heighten the tension quite considerably and obviously it would be better if that can be avoided.

The fact is that such arguments, while certainly fascinating, are likely to be of very limited practical value in dental cases where express consent has not been secured. With the possible exception of cases involving incapacitated adults, medical emergencies or simple examinations, it is difficult to envisage any dental treatment which would not require the informed consent of patients or their proxies.

Those who continue to have reservations regarding this advice could do worse than to read the new GDC standards – or contact an MDDUS dental adviser. The regulator’s expectations regarding consent are uncompromising. Breach them at your peril.

Mr Doug Hamilton is a dental adviser at MDDUS