We are all familiar with the concept of consent. With the pressures of practice and demands upon our time, the consent process is often seen as a tiresome hurdle that must be overcome before we can get on with doing the dentistry. However, colleagues sometimes miss the fact that the consent process – quite apart from being a legal and ethical requirement – is also an opportunity to develop a relationship of trust with the patient, the foundation upon which the professional relationship is built. It can also develop your reputation amongst your patient base – and who is a better advert for your practice than a trusting patient? 

Happening now 

At Dental Protection, we unfortunately see a variety of negligence claims brought against colleagues. In recent years the basis for many of these appears to have changed. Most of us would assume that if a clinician was the subject of a negligence claim, it would be because of an adverse outcome arising from treatment. However, we are now seeing a significant increase in claims alleging the absence of valid consent. 

Establishing the basis of a claim 

For a patient to be successful in a negligence claim they must demonstrate that there has been a breach of duty and that they have suffered harm as a result. If a recognised risk occurs following a procedure yet the assessment, treatment and technique of the clinician all stand up to scrutiny, then many lawyers will look to make a claim on the basis that the patient was unaware of the potential risk and that the consent process was flawed from the outset. In other words, the patient’s lawyer is saying ‘had my client fully appreciated the potential risks involved in the treatment at the start, then they would not have agreed to it.’ 

It is not only lawyers who are challenging dentists in relation to the consent process. We are also seeing an increase in the number Dental Council cases where the validity of the consent process has been central to allegations against the registrant. The registrant needs to be able to demonstrate that the patient was involved in the decisions about their treatment, and Dental Councils guide us to ensure the records reflect the process.

When treating our patients it is important that we ensure that they fully understand all the details when they agreed to treatment.

Strong relationships 

Maintaining a strong professional relationship between the patient and the clinician significantly reduces the risk of complaints or claims should an adverse outcome develop or a mistake arise. It would therefore make sense that we focus upon to creating a strong professional relationship with our patients. 

When discussing treatment options with a patient, we need to communicate comprehensively with them, and this should be summarised in their records. Not only will this reduce the risk of a challenge arising in the first place as a good professional relationship is developed, but it can significantly help the clinician should a claim subsequently arise – particularly in the case of a claim based on consent. 

Assertive patients 

As healthcare workers wishing to help our patients, there is often a desire to do what the patient wants even when it goes against our better clinical judgement. 

It can be difficult to stand your ground and refuse to provide the patient’s preferred treatment option. But colleagues who ignore their better judgement and allow the patient to push them into a treatment are likely to find that the same patient will challenge them when the clinical outcome is not exactly what they wished for. For example, trying to save a tooth with a hopeless prognosis – often referred to as “Herodontics” might be very much appreciated by the patient in the short term but not when it fails. Asking a colleague to attend and give a second opinion is often the best way to manage the situation. 

The patient may push hard and persuade you to agree to a particular treatment plan, however, in the aftermath of any subsequent challenge there will be clinical scrutiny to establish whether the treatment was reasonable in the first instance, appropriate in the clinical circumstances and within the competency of the clinician to provide it in the first place. 

Learning to say “no”

One of the issues that can arise is that we will do the utmost to meet a patient’s request, but we may compromise our own position by doing so. Learning to manage a patient and their expectations comes with experience however some dentists may believe that if the patient wants a particular treatment, they can have it if they have given their consent. Acting in the patient’s best interests must be the over-arching concept. Although many of us may find it difficult to refuse an assertive patient, it is far better to stand firm at the early stage than to fail heroically later, particularly given the potential for the patient to develop selective amnesia regarding earlier discussions. 

The patient declines 

The opposite situation can arise when a patient refuses to have treatment that has been recommended to them. If the clinician has not created a good set of records, there is a risk that the patient’s ‘informed refusal’ has not actually been noted. This can leave the clinician vulnerable because it could appear that the work which has been consciously refused was actually overlooked by the clinician at the time. 

For example, if a patient refuses a referral or refuses periodontal treatment, referrals to the hygienist or periodontal specialist, then this should be clearly stated in the notes. 

Difficulties can arise if the patient challenges the clinician, perhaps even many years later, and the notes do not reflect the fact that the patient failed to pay heed to the appropriate clinical advice. We are back to the ‘no records equals no defence’ situation. 

A strategy 

There is clearly a significant benefit from building a relationship with the patient based on open communication. Time invested in a discussion around treatment and obtaining valid consent is time well spent which will build trust, significantly reduce the risk of any subsequent challenge in the first instance, and build our own reputation. 

It is also important that we understand that the wishes of the patient should not be the sole determination of treatment provided and that any such wish must be clinically reasonable in the first instance to warrant further consideration. 

For further learning, articles and case studies please visit www.dentalprotection.org