COMMUNICATION and consent are key elements in contemporary clinical dental practice – and a failure to ensure a high standard in either or both can lead to a complaint or civil claim in negligence. The GDC in its Standards for the Dental Team (Principles 2 and 3) obliges us to communicate effectively with patients and to obtain valid consent.
The consent landscape has shifted over time in case law from Bolam (the view of the profession about what the patient should know) through Sidaway (the knowledgeable patient) to Montgomery, with the focus now on what the patient wants and expects to know about a treatment. Complaints tend to arise when expectation exceeds outcome. The safe and skilful clinician is able to identify both the relative merits of a particular treatment plan and the potential problems, and articulate these to patients in ways they can understand.
An explanation given in advance of a procedure tends to be viewed by patients as the mark of an experienced clinician who knows which direction trouble is likely to come from. The very same explanation given after the event is generally regarded as an excuse. In the latter situation, the patient is likely to think either that the procedure was straightforward and the clinician made a mess of it, or that the clinician cannot recognise a difficult problem when faced with one. Neither of these views is particularly helpful.
One particular type of case that we see here at MDDUS on a regular basis (albeit in small numbers) arises when a member (usually a dentist) decides for one reason or another to “do the patient a favour”.
We should not be surprised that our members want to do this. We work, after all, in a caring profession. We do not like disappointing patients, we do not like giving patients bad news, and we prefer to not take their teeth out unless we really have to. It is unsurprising then, when faced with difficult decisions and where we know that the treatment options will not be particularly attractive to the patient, we may try to help by delaying or avoiding unwelcome facts. This is not just a case of the ‘humble patch’, which can have merit in specific circumstances. This group of cases goes rather beyond the patch, with a number of common characteristics.
Firstly, the prognosis for the treatment (and usually the tooth) is often very limited or non-existent – or at least extremely difficult to carry out effectively and with any degree of predictability. But this is not made plain in any discussion with the patient, perhaps to spare them disappointment.
Secondly, the member tends to make a number of assumptions:
- The patient is bound to be grateful whatever the eventual outcome because, after all, you are "just doing them a favour".
- It may be acceptable to cut the odd corner or accept a particular standard because you know that the prognosis is poor.
- Things may go wrong but the patient is bound to understand and be grateful that you tried anyway.
- A colleague may look at the case but it will be obvious that you were just trying to help in extremely difficult circumstances and it’s not your fault that things did not work out.
The trouble here is that the member is almost invariably wrong in making some or all of these assumptions. This is usually because no explanation has been offered to the patient as regards the limited basis on which the treatment was being carried out.
There are some further common features in this type of case:
- Almost always, at some point in describing the case, the member will say: "I was only trying to do them a favour".
- It is usually very difficult or impossible to justify or defend the member’s actions when viewed objectively.
- The member tends to be very upset or annoyed, or both, when the patient complains. They feel they have done nothing wrong, and after all were only "trying to do the patient a favour".
Later when things go wrong and the case is reviewed, the member’s motives might well be recognised (though not invariably so). The tooth might be lost but it is generally agreed that the member’s treatment was not the direct cause, as that outcome was inevitable in any case. And yet that treatment will still be deemed to be negligent because the patient was not adequately informed and therefore not adequately consented. Such treatment will be considered futile and the patient deemed to have suffered unnecessarily.
PROGNOSIS: SUCCESS UNLIKELY
A recent example of one such case involved a patient with a failing bridge and periodontal disease. One of the bridge retainers had extensive secondary caries, although the patient had no symptoms. Our member knew that the carious retainer and the bridge were bound to be lost. However, he also knew this would represent a real problem for the patient, so in hope of retainig the bridge for a little while longer he tried to treat the carious lesion.
Unfortunately, the limited basis on which the treatment was provided was not made plain to the patient, who thought this was definitive treatment. The following day she re-attended with pain and eventually the bridge was removed and the tooth extracted.
A complaint followed. The patient’s not unreasonable view was that she had not had any dental problems until our member’s treatment and she had now lost a tooth and a bridge.
In response to the complaint, a full explanation of the clinical reality was given together with an apology for any lack of explanation prior to treatment. However, remaining dissatisfied, the patient took the complaint to the Ombudsman. The Ombudsman took advice from a dental expert who agreed that the loss of the tooth was not a direct consequence of our member’s treatment.
Nevertheless, taking everything into consideration, the Ombudsman recommended that our member pay the patient a sum of money, provide a written apology and draw up an action plan to ensure there would be no recurrence of the situation, also to be sent to the patient.
Do me a favour....
In fact, do yourself a favour. If for some reason you feel the need to do the patient a favour of this type, make sure that he or she fully understands the basis on which treatment is being provided.
Please tell the patient exactly what is to be done and why, and what other more definitive and reliable (even if less palatable) treatment options might be available. Explain carefully how long the treatment is likely to last, and what may happen in the short and longer term so that when the treatment fails and the tooth is lost the patient will say:
“That’s okay. You told me this would happen and I appreciate that by trying, you were just doing me a favour.”
Mike Williams is a dental adviser at MDDUS