Is the patient fully informed about their treatment? Informed Consent and GDC Principle 3
Dental professionals have a legal and professional responsibility to inform their patients about the material risks, benefits, and any clinically appropriate alternative treatment options available, before commencing a course of dental treatment.
In the recent Supreme Court decision in McCulloch & Others v Forth Valley Health Board [2023] UKSC 26 (‘McCulloch’) the process of obtaining informed consent was confirmed to be a two-strand test. In practical terms, this means that dentists will need to consider whether all the clinically relevant treatment options have been provided to the patient (McCulloch) and whether the patient has been informed of all material risks in respect of those relevant treatment options (which goes back to the key consent case of Montgomery).
To assist practitioners in communicating treatment options and risks there has been an increase in the use of technology, with a number of dentists utilising digital dental aids to show patient’s diagrams/videos of what proposed treatment may include. Whilst this can be a helpful tool in explaining a modality of treatment, it is still important for all material risks and benefits to be discussed in an objective and non-biased way that the patient can understand, and for those discussions to be documented.
Expert Evidence – The importance of complying with duties to the Court
The starting point for dentists who act as expert witnesses in civil cases brought in England and Wales, is that they are acting as an objective and independent third party in accordance with Civil Procedure Rules (CPR) Section 35 . Their duty is to the Court and not the party instructing them. Were a dentist to provide such an expert opinion, they would need to consider all the evidence and set out their views before completing the required CPR declaration i.e. that their views are their true and professional opinion and that they understand that they could be found in contempt of court were they to make a false statement in their report.
In Robinson v Mercier [2023] EWHC 21 (KB) the expert commissioned by the patient’s legal team (who ultimately abandoned their claim for damages) was pursued for the costs of the failed claim, being criticised for his comments on breach of duty and causation as he was a GDP and the clinician carrying out the alleged negligent extraction was a trainee oral and maxillofacial surgeon. Of interest was the fact that when deciding that Mr Mercier should not face an order for costs (as Mr Mercier was assessed as qualified to give an opinion as to the viability of the tooth that was not extracted), the appeal Judge did not agree that there was a flagrant disregard of Mr Mercier’s duties to the Court. Mr Mercier did not therefore have to pay any of the patient’s costs in her failed claim for damages.
Dental cases can often involve different fields of dental specialisation, including general dentistry, orthodontics, endodontics, periodontics and many others. The Mercier case highlights the important of experts only providing an opinion on issues within their expertise to comply with the Bolam test requirements when commenting on breach of duty. They should inform their legal team if further input is required to address causal impact of any failings. While their instructing solicitors and barristers can assist, it is ultimately the dentist's professional duty to meet the relevant requirements and minimise the risk of criticism.
Contributory Negligence – The importance of good record keeping
In the County Court case of Rix v Wall [2022] 12 WLUK 704 a patient with periodontal disease brought a claim against his treating dentist for failing to appropriately diagnose and treat his periodontal disease as a result of which he suffered loss of teeth. Both parties’ experts agreed that there were failures in relation to management of the disease, including plaque removal and provision of oral hygiene instruction.
However, the experts also agreed that there was a significant contribution from the patient to his outcome as he continued to smoke for much of the material period, failed to maintain good oral hygiene and follow instructions when they were provided. Following the required expert discussion pre-trial, the experts produced a joint statement in which the experts agreed that the patient’s contribution to his own poor outcome was 35%. This was accepted by the Judge, so a 35% reduction was made to the awarded damages.
Periodontal disease claims are very common in dental negligence. The level of contribution accepted was significant in the above case and highlights that thorough contemporaneous records are very important as this provided the objective evidence for the reduction in damages. This means that even though a practitioner may be aware that their patient is a smoker, it is important to record this in the notes at each appointment and that smoking cessation advice was given and the patient was warned of the risks to their condition if they continue to smoke. It is also important to set out briefly the type and frequency of any oral hygiene instruction given to patients and whether this advice has been followed by the patient at the subsequent appointments.
Where it is evident that there have been failures by a patient to manage their own oral condition, contributory negligence arguments can be utilised to assist with negotiations and bring down any eventual settlement/damages award by the Court. That said, judicial treatment of these arguments is not always positive as seen in the case Haughton v Patel [2017] EWHC 2316 (QB) where liability was accepted but the contribution award was not agreed despite the patient continuing to smoke even up to the trial date (this was a claim that also involved periodontal disease). That case demonstrated that there is no guarantee that a court would accept fault by the patient and reduce their damages but if the entries are not made in the records the strategy cannot even be deployed.
The recent case of Balachandra v General Dental Council [2024] EWHC 18 Admin also highlights the importance of maintaining accurate records. This was a regulatory case in which the GDC suspected that the dentist in question was frequently altering medical records after the patient had been assessed, to improve the quality of the records for the purposes of regulatory inspections. There were many evidential issues in the case as original records were lost in error by the investigating authorities and whilst the decision was that the initial sanction (erasure from the GDC register) was too harsh, the case serves as a reminder that there can be severe consequences for failing to ensure that accurate and original records are produced.
Dental Tourism: Could we see more cases impacting UK dentists?
There has been an increase in the number of dental patients travelling abroad taking advantage of the cheaper packages where dental treatment plus a four-star Holiday in the Sun are on offer! The reality is that the outcome can often be a disappointment for patients, as illustrated by a recent survey commissioned by the BDA of 1000 dentists, which found that 86% of patients who had travelled abroad for treatment required corrective treatment on their return to the UK.
The case of Clarke v Kalecinski & Others [2022] EWHC 488 (QB) provides some insight into the various challenges faced when bringing claims for medical treatment provided abroad.
Ms. Clarke was a patient who had travelled to Poland for cosmetic medical treatment. The surgeon was UK trained and registered and the initial appointments were undertaken in London. The subsequent surgery performed in Poland was substandard and the patient developed sepsis and required extensive corrective (lifesaving) treatment in the UK. Although the patient was able to secure some damages, the case had several procedural challenges (resulting in her ultimately suing the surgeon, clinic and insurers of the clinic). Due to the very low level of insurance cover in place for the clinic, the overall damages received were far below what the patient would have recovered had there not been such a restriction or had there been engagement from the surgeon and/or clinic (neither responded to the litigation).
The Clarke case highlights that even where a patient has received treatment abroad from a UK registered clinician with provision of some consultations in the UK, there will still be various procedural difficulties with establishing which jurisdiction’s legal processes and procedures should apply. We are aware that many dental clinics abroad provide treatment without these measures in place (i.e. not being UK registered or having UK consultations) and often without even an initial assessment of the patient to determine whether surgery is suitable. However, litigation on this issue is currently sparse and is likely to remain so due to the procedural difficulties of bringing cross jurisdictional claims.
DWF Law is one of a panel of law firms supporting BDA members with a policy from BDA Indemnity.
Authors: Vicki Swanton and Sabrina Mahmood.
Further reading: Open Wide: Dental regulation receives a serious check-up.
