Material risks

In an Australian case (Rogers v. Whitaker), the High Court of Australia ruled that a 1 in 14,000 risk of blindness associated with a procedure, should have been disclosed to a patient. In this example, the patient was already almost blind in one eye and the doctor should have warned of the possible risk of blindness to the other eye no matter how slight in these circumstances, regardless of whether the patient had expressly asked the question or not.

The High Court said,

“A risk is material if in the circumstances of the particular case, a reasonable person in the patient’s position – if warned of the risk – would be likely to attach significance to it, or where the medical practitioner is (or should reasonably be) aware that the particular patient – if warned of the risk – would be likely to attach significance to it.”

Consequently, the perspective of the “prudent dentist” needs to be balanced first against that of the “prudent patient” i.e. what would a normal patient of sound mind, reasonably expect to know before being in a position to make a decision as to whether or not to proceed with the treatment?

Even this, however, might not be enough if the Australian precedent were to be applied more widely. What matters more, arguably, is what this specific and individual patient would wish (or need) to know before deciding whether or not to proceed with treatment. No treatment should ever be undertaken without giving the patient the opportunity to ask questions and/or raise any concerns or fears.

Where there is a high risk of failure or post-operative complication, not only should the patient be warned but a specific entry naming the complication should be made on the record card.

Many claims involving paraesthesia and also immediate dentures are successful simply because it cannot be shown later that the patient was specifically warned of the possible post-operative complications.

While on the subject of information, cost (in some branches of dentistry at least) becomes an important facet of consent. Without the knowledge of the financial and social implications of treatment, a patient cannot give a proper commitment. Where treatment is to be protracted, involved or expensive, it is worthwhile writing to the patient with an explanation of the treatment, the time it will take, prognosis, sequelae and costs. The patient can then have the opportunity to raise any enquiries before agreeing the treatment and making an appointment. The GDC’s Standards for Dental Professionals: Principles of Patient Consent12 also requires that a patient returning for treatment should be given a written treatment plan:

“Whenever a patient is returning for treatment following an examination or assessment, give them a written treatment plan and cost estimate.”

Language is also an important element in obtaining consent. If the patient speaks a different language from the dentist an interpreter may be indicated. Whenever the common language is not the first language of either patient or dentist, then care should be taken to ensure that the points have been properly explained and understood. All specialities tend to have their own shorthand and nomenclature, and care should be taken to avoid dental “jargon”, which can also be a barrier to effective communication.

An explanation should be simple and clear. The patient’s failure to grasp information would be the dentist’s responsibility, if it can be shown that the language of the explanation was simply not understood by the patient. Special care should be taken with deaf, partially sighted or blind patients.

Consent is often given by a patient because of the apparent advantages or benefits of a particular line of treatment. Care should be taken to ensure that the information given is balanced and accurate, and can be substantiated. Statements such as “your crown will last for life”, or “your molar root treatment will be 100% successful” or “I guarantee you will have no problem” may dramatically weaken the value of the consent contained. It can also enable a patient to bring a successful claim for breach of contract at a later stage, even when no negligence is present.

Where treatment is unusual or experimental, it is important that the patient should fully understand the situation and it is worthwhile to get the patient to sign a Statement to the effect that they recognise the controversial or relatively untried nature of the treatment and accept that the risks are greater and perhaps even unknown.

Even when all the relevant facts and explanations are given to a patient, confirmation must still be obtained that the patient can understand them. This raises the question of “competence” or the patient’s capacity or ability to understand, which will now be considered.