Sea change in consent

Dental adviser Doug Hamilton tests the waters after a landmark legal ruling on shared decision making in consent

  • Date: 31 May 2016

DUE perhaps to the generally torpid nature of medical law, the seminal case of Montgomery v Lanarkshire Health Board has prompted many fevered commentaries and opinion pieces. The facts surrounding this ruling are probably well known. Nevertheless, it is worth reminding ourselves, very briefly, of the decision which, although it related to an obstetrics claim, has impacted upon the consenting practices of virtually all healthcare professionals.

The claimant in the case – Mrs Montgomery – experienced complications during the birth of her son. The baby’s head failed to descend properly due to shoulder dystocia – a rare complication where the baby’s shoulder lodges behind the mother’s pubic bone and essentially becomes stuck. This led to 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 was only just over five feet tall and diabetic. She alleged negligence, saying that, before the birth, she should have been warned about the possibility of shoulder dystocia. Initially Mrs Montgomery lost her case at trial and later on appeal, but she went to the Supreme Court and won.

The Supreme Court clearly recoiled from the ‘paternalistic’, though doubtless well-intentioned, attitude of the treating physician. As a result, the prevailing ‘prudent doctor’ standard was abandoned. It is no longer a matter of what the reasonable clinician thinks the patient ought to know. Instead, healthcare professionals are now required to treat their patients “…so far as possible as adults who are capable of…. accepting responsibility for the taking of risks affecting their own lives...”

Whilst few would dispute its wisdom, one might still question whether this doctrine is required, or even workable, in every healthcare environment. Take, for example, an NHS dental practice. Financial survival depends to an extent on reasonably fast care delivery. Many of the procedures are routine and are relatively low-risk. GDPs will often be well acquainted with their regular patients. Must there always be a comprehensive exploration of the patient’s wishes prior to treatment at every dental appointment?

Risk of endocarditis

Consider the hypothetical patient who pitches up in the middle of a typically busy session with a painful upper 1st molar. The patient expects speedy and efficient pain relief. The tooth is heavily compromised. The patient in question has never shown the slightest interest in conservative dentistry. There is no obvious risk of maxillary sinus involvement. Might the practitioner in these circumstances simply confirm that an extraction would be acceptable before proceeding?

To make the case more “interesting”, imagine our patient has had a previous episode of infective endocarditis (IE). (To be clear, this is a dento-legal thought experiment and not a clinical article.) Probably, at some point in the past, this patient would have received prophylactic antibiotics prior to invasive dental procedures. However, following the publication of the relevant NICE guidelines in 2008, this practice would have been discontinued.

It is difficult to imagine a dentist who continues to work within NICE guidelines being criticised. However, practitioners will have read recent reviews by NICE and another authoritative body, the European Society of Cardiology (ESC), of their respective endocarditis guidelines. Contrary to NICE, the ESC maintains that prescription of prophylactic antibiotics for high-risk patients is the safer approach.

It is important to acknowledge that a causal link has not been established between the withdrawal of cover since 2008 and the apparent rise in IE cases. Nevertheless, the question is begged whether, in the new era of patient autonomy heralded by Montgomery, both sides of the debate should be discussed with this patient. Remember that the law, as it now stands, places the dentist “…under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment”. The all-important test of 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”.

It does seem quite reasonable to presume that a patient with a previous episode of endocarditis may attach significance to the view of the ESC. So, there may be some dentists, possibly emboldened by the sentiments conveyed in Montgomery, who feel compelled to offer the choice of antibiotic cover to our hypothetical patient. Doubtless, this would be based upon well-informed reflection and would be the result of factual, neutral and very well-recorded advice. Before I remove my toe from these very troubled waters, please let me emphasise that MDDUS is not endorsing the provision of prophylactic antibiotics. Whilst slavish adherence to best practice guidelines is not mandatory, members must be aware that NICE remains a voice of authority and refuge lies within its parameters.

More routine risks

Thankfully, most patients are not at risk of IE, so there is no need to consider antibiotic cover. However, the loss of this particular tooth might well lead to reduction in function, denture retention or aesthetics. These problems might be remediable, but only by means of treatments such as bridgework or an implant, both of which involve their own risks not to mention significant cost. Having been so advised, the patient may well decide that conservative options, though possibly less durable or predictable, are worth exploring. Of course, the patient is always entitled to refuse or delay treatment.

So, there may be plenty for the dentist to explain and for the patient to consider prior to carrying out a seemingly routine extraction.

No risks?

Moving further down the excitement scale, it may be that the cause of the presenting symptoms was simply cervical sensitivity. No need for extractions or endodontics: this problem might be treatable by means of something as mundane as topical fluoride application. Surely, little in the way of warnings is needed? Perhaps not – but this does open the door to a related cautionary tale involving younger patients.

I had a call from a member recently who had been engaged by his area team to visit a local primary school with a view to applying fluoride varnish. A letter was sent to each parent in advance which contained very limited information but did ask if their child suffered from asthma, and, if so, the severity. These forms were reviewed and fluoride was not applied to the dentition of any children with a history of severe asthma.

Later and following discussion on a well-known parenting forum, a number of complaints were received at the school. In summary, some parents completing the consenting form did not realise that there were a variety of possible adverse reactions to the varnish.

The dentist’s approach (based largely upon guidance from his area team) was not without logic. Fluoride application represents an efficient means of reducing dental disease. Complications are very rare with, arguably, the only serious outcome being exacerbation of severe asthma.

Nevertheless, it must be remembered that the physicians’ “… advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s [or their ‘legal proxies’] entitlement to decide on the risks to her health which she is willing to run”.

Unsurprisingly, many parents attached significance to the possibility, however slight, that the application of fluoride varnish could have led to unpleasant side-effects, such as gastric disturbance or allergic reaction. Had they been given the full picture, as they should have been, consent may have been withheld.

Securing reliable consent

If the treatment of choice is obvious, even the most fastidious dental practitioner may be tempted to offer advice which is incomplete or slightly skewed. This is not done to actively mislead patients. Instead, it is generally the result of a mental calculation, based upon extensive expert knowledge, which is designed to offer the most helpful and digestible amount of advice in a reasonably time-efficient manner.

Yet this approach fails to recognise that different facets of planned treatment will have significance for different patients. Information which might appear to be irrelevant or superfluous to the practitioner may be very important to a patient undergoing treatment. Therefore, discussion is almost always needed in order to secure consent upon which dentists can subsequently rely.

Doug Hamilton is a dental adviser at MDDUS

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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