A fresh look at consent

A recent legal ruling has clarified the information that clinicians should share to ensure informed patient consent. MDDUS dental adviser Claire Renton looks at what this means for dentists

AS dentists, we are all aware of our professional duty to provide patients with enough information to allow them to make informed decisions about their dental treatment. It is a topic that generates many advice calls to MDDUS and plays a key role in many of the cases we deal with. There is also extensive advice and guidance available in this area from the likes of the General Dental Council and other organisations.

But a recent, high-profile legal judgement issued by the Supreme Court has clarified the way in which informed consent should be viewed, including the nature of the information that must be given to patients. It also confirms that the position in Scotland should be regarded as the same as the rest of the UK.

The case of Montgomery v Lanarkshire Health Board has crystallised the law in relation to consent and attracted more than a few headlines, not least because of the £5.25 million award. And while this particular case relates to medical care, its implications do extend to dentistry.

In essence, Mrs Montgomery experienced complications during the birth of her son. The baby’s head failed to descend properly due to a shoulder dystocia – a rare complication where the baby’s shoulder lodges behind the mother’s pubic bone and essentially becomes stuck. In this unfortunate case, there was a 12-minute delay between the baby’s head appearing and delivery, during which time the cord was completely or partially occluded. Sadly the baby suffered significant cerebral palsy.

Mrs Montgomery alleged negligence saying that before the birth she should have been warned about the possibility of shoulder dystocia, as she was only just over five feet tall and diabetic. She also claimed that abnormalities on the tracing of the baby’s heart during delivery should have prompted a Caesarean section.

Initially Mrs Montgomery lost her case at trial and later on appeal, but she went to the Supreme Court and won.

Explaining dental risk

So what has all this got to do with dentistry? I agree it’s unlikely that we will ever have to advise a patient on such a condition and I admit I had to consult with my favourite clinician, Dr Google, to find out exactly what a shoulder dystocia was. But there are significant lessons to be learned here and from now on, this case changes the type of information we are required to give to a dental patient during the consenting process.

In the past, we simply assessed how likely a complication was before deciding whether or not to inform the patient of this risk. For example, the risk of fracturing the mandible during the extraction of a mobile, periodontally-involved tooth in a young, healthy, six foot rugby player is so small that it’s unlikely that we would inform him of this possibility before the extraction. In contrast, in cases where this complication is more likely to occur then we were obliged to inform the patient of the risk. For example, the chance of a fractured mandible is increased to the level where it would be necessary to issue a warning if the tooth is lone standing, firm and the patient is a tiny 80 year old with osteoporosis.

The Montgomery case sets out very clearly what our obligations are in terms of information disclosure

So our decisions on whether to inform the patient or not were based mainly on risk. If the complication was likely to occur, then we warned the patient. If the risk was low, we kept quiet. Yes, I know if the risk was small but the consequences were severe such as anaesthesia or paraesthesia following wisdom tooth removal then we are also obliged to warn the patient, but apart from these exceptions, in the main, the decision to warn the patient or not was based on risk - the likelihood of it occurring in percentages.

The patient’s view

The Montgomery case, whilst not changing the law significantly, does force clinicians to look at things rather differently. It sets out more clearly what our obligations are in terms of information disclosure. The focus now is on matters that the patient would find important, not just the clinician’s assessment of the likely risk. Within the judgement it says: “…it follows…that the assessment of whether a risk is material cannot be reduced to percentages.” It then makes it clear that the assessment of relevant information to disclose cannot be based solely on the percentage risk of occurrence, but must include an assessment of what the patient would find important. The judgement also then says that the courts will have the final say in “determining the nature and extent of a person’s rights… not the medical professions” .

The judgement states: “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor (dentist) is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test for materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

So, in practice, what does this mean? Well, in addition to warning a patient of likely complications and rare but severe complications, we are now also required to assess whether or not a particular patient would attach significance to rare complications and therefore should be warned about them before embarking on treatment. In other words, stand in their shoes and make a judgement on whether or not they would want to know about a rare but possible complication before agreeing to treatment.

Just to make it a tad more challenging, the patient does not have to ask specific questions about rare risks as it’s been pointed out that a lay person should not be expected to know what questions to ask. Obviously the safe thing here is to fully explore any issue the patient raises and ensure the discussion is fully documented in the clinical records.

It is always good to reflect upon our interactions with patients and perhaps here is a chance to check that our consenting processes are fit for purpose and incorporate the new additional requirement.

If you ever have difficulty in assessing what you think a particular patient might be concerned about, even if they do not ask any questions about specific risks, then contact MDDUS for advice.

Claire Renton is a dental adviser at MDDUS