Dr Annalene Weston, Senior Dentolegal Consultant at Dental Protection, shares the importance of consent and some tipping points through two cases.
Estimated read time: 6 mins
Valid consent is recognised to be a critical component of patient care. The following cases reflect the common scenario of confusion around what the consent has been given for and identify the tipping point for these patients.
Dr P had provided a treatment plan to Ms Q involving mesio-palatal fillings for the 12 and 11. Ms Q gave consent to proceed, and Dr P administered local anaesthetic, and removed the caries. When Dr P went to place the fillings, he noticed a mesio-incisal chip on the buccal surface of 12 and decided to 'fill that while he was there' at no charge and as a favour to the patient.
Ms Q was furious when she checked her appearance postoperatively and demanded the filling be ground away. Somewhat surprised, Dr P acquiesced but was unable to take to tooth back to its pre-treatment appearance. Ms Q lodged a complaint with Ahpra alleging that Dr P had treated her without consent and had made value judgements about her appearance.
Master L presented with his mother to see Dr K complaining of a painful tooth 36. Clinical and radiographical examination confirmed a badly broken-down tooth, likely, hypomineralised in the first instance. Dr K outlined her findings, and it was agreed to extract 36. Dr K gave an lD block and the 36 was extracted uneventfully. On removal of the tooth, Dr K noted that 75 was mobile and 74 was over-retained. Dr K took the split-second decision to flick those teeth out while Master L was numb, at no charge to help.
On completion of treatment Mrs L became angry and tearful. She accused Dr K of butchering her son and left the clinic. She would not return any of their calls inviting her in to discuss what happened.
Dr K swiftly received a request for records from a solicitor, followed by a formal request for compensation for psychological harm caused to Master L by the unnecessary extractions.
It is important to note that in both of these cases, the dental practitioner had consent for planned treatment of the same nature as the extra treatment undertaken – so in case one anterior restorations, and in case two, extraction. It is also important to note that neither practitioner performed the additional treatment with the intent to claim additional fees for the extra work done, and both genuinely and legitimately believed themselves to be acting in the patient's best interests.
So why were the patients so very angry? Essentially because they had not been consulted prior to the change of plan or the undertaking of additional treatment. Both patients were conscious and had capacity to give consent to any additional treatment required. Failing to ask them if they wanted to proceed with the extra items did not recognise their autonomy, and led to them feeling shocked, violated and demeaned.
Understandably, we may look on these matters through the lens of clinicians, with a thorough understanding that no harm was done and perhaps also understanding how the additional procedures could be deemed beneficial and wonder what ‘all the fuss is about’. It is however also important to recognise that;
the variation to the agreed treatment plan was not essential lifesaving treatment.
patients have the right to accept and to decline treatment, regardless of our recommendations or opinions.
by failing to consider this in the heat of the moment, and regardless of how well intentioned they may have been, both Dr P and Dr K provided treatment without consent.
The Tipping PointMs Q and Mrs L were broadly happy with the planned treatment. Both understood that the planned treatment was provided appropriately and to an acceptable standard. The tipping point here was a failure of the practitioners to ask whether the patients agreed to or even wanted the additional treatment. This perceived lack of respect triggered both patients to escalate the matter to a higher party.
Dr P acknowledged to Ahpra that they had erred by not asking Ms Q if she wanted the chip filled, and they apologised to Ms Q for any distress this had caused
Dr P also undertook some targeted CPD in consent and ethics, and showed true insight into how Ms Q felt, acknowledging that the chipped incisor formed part of Ms Q’s smile and her self-identity. Ahpra reviewed the matter and dismissed it, issuing Dr P with a caution.
The request for compensation from Dr K took a different route. The lawyers were unable to support their claim of psychological harm to Master L with a psychiatrist’s report, and, as the permanent successors erupted uneventfully, there was no evidence of harm. Consequently, after a very stressful period of time for Dr K, the claim was dropped.
Learning points
It is important to discuss any mid-treatment change to the treatment plan with the patient before undertaking additional care.
This is compounded if the treatment is elective, cosmetic, or irreversible in nature.
Consent given for a specific procedure on a specific tooth does not extend to the same procedure on other teeth, nor to the treatment being repeated in the future without reconfirming the patient’s consent (think application of fluoride – just because they had it before does not mean they are willing to have it again)
Whether the treatment is free or had a charge attached, the patient’s valid consent to that treatment must be sought.
