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Why disclaimers should not be used as an additional form of PPE

20 November 2020

Dr Alasdair McKelvie, Senior Dentolegal Consultant at Dental Protection, looks at the ethical and dentolegal reasons you should not ask patients to sign COVID-19 disclaimers

Worldwide, dental practices have been identified as potential COVID-19 transmission hotspots. The potential for risk is mainly associated with aerosol generation during the provision of routine and emergency care. The aerosols assist virus dispersion and this risk is elevated during periods of sustained community transmission of COVID-19.

Naturally, dentists and their teams seek to mitigate the consequences of virus transmission through compliance with enhanced infection control procedures and PPE protocols. Yet there is still a risk, perhaps similar in effect to that of background radiation, that a patient could contract the virus from a dental visit and seek to litigate depending on the medical consequences of their infection.

For many of our members, one very practical way of minimising the risk of a claim even further has been to ask the patient to sign a disclaimer. Those disclaimers we have seen commonly include a message that the practice procedures are compliant with COVID-19 related infection control policies and PPE protocols. Yet the risk of transmission still exists and so the disclaimer seeks to transfer the remaining risk to the patient. By signing the document, the patient then waives any right to legal redress should transmission occur and they think it happened during their visit to the dental practice. In effect the patient is seen to have consented to the risk of virus transmission and is one less thing for you to worry about.

It sounds all well and good as another layer of PPE, and a sensible approach to take, until you read the ‘small print’ and realise the following points are indisputable:

(1)  A patient cannot consent to negligence and is likely to be told that the disclaimer is not enforceable in the event that your infection control protocols and use of PPE fell below the reasonable standard of care required of you during the pandemic.

(2)  You cannot contract out of your common law duty of care, as the duty of care is absolute.

(3)  Requiring a patient to sign a disclaimer precluding them from suing for damages would probably constitute unprofessional or unethical conduct in most jurisdictions, as the disclaimer seeks to place the interests of the clinician above those of the patient. The disclaimer would undermine those ethical principles of non-maleficence and beneficence. Given the power imbalance in the relationship it might also be regarded as an abuse of the clinician’s position.

We would argue that the use of a disclaimer may indeed have the opposite effect, particularly where public perception of infection transmission creates a heightened sense of anxiety. The inevitable side effects of closing down dental practices at the height of transmission generates the suspicion that a dental practice is one place most sensible members of society would choose to avoid if their primary concern was to stay safe. Asking them to sign a disclaimer where they have never had to do so before opens, in the patient’s mind at least, the possibility that the source of any subsequent COVID-19 infection was in fact the dental practice they visited rather than anywhere else. So you are, in effect, planting the seeds of doubt that could bring about the very thing you are trying to prevent.

If you want to reduce the possibility of a patient bringing a claim, then you are more likely to achieve this by reassuring patients that dentists have always had to follow strict standards around cross-infection and as such, are well experienced to deliver the necessary precautions to keep patients safe. You may wish to expand on this and reassure patients of the guidance and standards being followed, and any additional steps you have put in place to counter the additional risks posed by COVID-19. This may include any changes to usual personal protective equipment (PPE) requirements, explaining the social distancing measures being put into practice, and the additional hygiene and decontamination processes you are delivering in surgery. Such messaging can be displayed on the practice website as well as within the practice.

A more effective message is that your practice is a safe environment to be treated in – not an inherently risky one, as could be implied by the disclaimer or waiver form.

Please note: Dental Protection does not maintain this article and therefore the advice given may be incorrect or out of date, and may not constitute a definitive or complete statement of the legal, regulatory and/or clinical environment. MPS accepts no responsibility for the accuracy or completeness of the advice given, in particular where the legal, regulatory and/or clinical environment has changed. Articles are not intended to constitute advice in any specific situation, and if you are a member you should contact Dental Protection for tailored advice. All implied warranties and conditions are excluded, to the maximum extent permitted by law.