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Counter-claim wins due to lack of consent

29 August 2014
A patient cannot consent to treatment when sedated, so the simple answer is not to do anything the patient has not agreed to, as this case demonstrates...

A dentist saw a patient who required restorative treatment under intravenous sedation. The patient had consented, in writing, to a specific treatment plan. During the procedure the member felt the need to provide additional treatment and did so without the agreement of the patient, who was sedated at the time.

When the treatment was completed, the member informed the patient about the additional treatment she had received and billed her for this. The patient refused to pay for this, alleging that it was not necessary and that she had neither offered to undergo it nor budgeted for it.

The dentist decided to pursue the debt through the courts and served a summons on the patient. The patient took her own legal advice and counter-claimed for breach of contract and negligence, in that treatment was provided without her consent.

The dentist's defence organisation advised that it would be prudent not to pursue the fees for the additional treatment as it had indeed been provided without the patient's consent and could have been provided at a future appointment without compromising the patient's oral health.

An agreement was made with the patient's legal team that the dentist would not pursue the fees for the additional treatment if the patient dropped her counter-claim. This was agreed and all claims were dropped.

Learning points:

The patient's consent must be obtained before providing any item of dental treatment. It is extremely rare that an exception can be reasonably considered because the patient’s well-being is endangered by the non-provision of a dental procedure for a given period, while waiting for the patient to be able to give their consent.

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These case studies are based on real events and provided here as guidance. They do not constitute legal advice but are published to help members better understand how they might deal with certain situations. This is just one of the many benefits Dental Protection members enjoy as part of their subscription. 
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