May 29, 2020
by Neil M. Abramson
The worldwide COVID-19 pandemic has dramatically altered the ways in which society operates as a whole. For the time being, large public gatherings are prohibited and cultural and sporting events have been brought to an end. Restaurants and most businesses have been shuttered. Where possible, people are trying to work from home. Our hospital Emergency rooms, which typically operate at or beyond capacity, are largely empty as patients who require medical attention fear becoming infected. Thus, it is hardly surprising that the practice of dentistry has also been turned on its head.
However, as with so many areas of healthcare, dental practice cannot simply be brought to a permanent halt. Urgent and emergency cases must be attended to. As the Province begins to open for business, all of those hygiene and recall appointments which have been delayed for so long will need to be scheduled. Routine dental and dental specialty care will surely be required. The real question then becomes not whether the practice of dentistry can resume, but how it can do so in the COVID and post-COVID era?
Certainly, one would presume that guidance and direction can be taken from the dental profession’s regulator, the Royal College of Dental Surgeons of Ontario (the “RCDSO”). Indeed, the RCDSO appears to be doing its very best to come up with a set of evolving guidelines and policies which are designed to protect both dentists and the public.
On careful examination, some of those policies and guidelines, certainly when read together, may appear rather confusing to the practitioner. Broadly speaking, dentists are dissuaded from providing routine and non-emergent care during the pandemic. Where there is a need for urgent or emergent care, certain safety precautions are required. Should that urgent or emergent care be even potentially aerosol generating, an even higher level of protection is required. Where dentists believe that they have the ability to treat such cases, until very recently, they were directed to register with the RCDSO. However, the RCDSO retained the sole discretion as to whether dentists should or should not have been included on the list of those practitioners who could provide emergency treatment typically based upon the responses provided to a series of specific questions.
This registration requirement now appears to have been lifted. In fact, this may have the effect of removing a level of confidence in a dental practice’s compliance with all necessary safety protocols. Moreover, for those dentists who by their own choice (or that of the RCDSO) are not able to treat urgent or emergent cases under the new rules, they are nonetheless expressly dissuaded from referring patients to a public hospital. What are they to do when there is no practical way in which to provide treatment to the patient? In certain circumstances, tele-dentistry is encouraged. Naturally, it is often of limited use.
Needless to say, dental practitioners who simply choose to ignore the various guidelines and policy statements of the RCDSO concerning treatment of patients during the COVID pandemic run the
risk of investigation and formal prosecution, as well they should.
But what of the far more common occurrence of the well-intentioned dentist who simply gets it wrong? Indeed, the RCDSO has already been involved in investigating dentists who are alleged by patients or even by competing dentists to be in some way non-compliant with the required rules and guidelines. Should a patient claim that they contracted COVID-19 from a dental office, such would give rise to a formal investigation by the RCDSO. In fact, there is no principled reason that a staff person making a similar allegation would not also trigger a formal regulatory investigation. Certainly, if it were alleged by the College that there was a breach of the standards of practice expected of the ordinarily prudent Ontario dentist concerning the maintenance of infection control protocols, a disciplinary prosecution could well ensue.
As the Province attempts to return to some form of normalcy and the present restrictions upon the ability to treat dental patients inevitably loosen, what about the patient who simply has a sense that things were not as they wished they would have been in the dental office? What of the patient whose anxiety surrounding the pandemic causes them to complain to the College about the feeling that their trip to the dentist could have been one wherein greater attention was paid to infection control?
The unfortunate reality is that all of these scenarios will undoubtedly give rise to an increased number of College complaints and investigations. Indeed, long before the existence of COVID-19, the RCDSO routinely investigated alleged infection protection and control or “IPAC” lapses.
Those investigations sometimes gave rise to formal prosecutions. One can only imagine the proliferation of such investigations and prosecutions in the immediate post-COVID era.
So what is a responsible dental practitioner to do?
First, needless to say, the prudent dentist should familiarize themselves with all of the RCDSO’s guidelines and policies on the subject. These policies are easily accessible simply by clicking on the RCDSO’s website.
Second, to the extent that that review of RCDSO policy causes any confusion, and it may well, a consultation with colleagues is encouraged. How do others in your field of practice interpret the policies and guidelines? What are they doing to ensure safety for all concerned? Study clubs, the Ontario Dental Association, and the various specialist associations are all likely very good sources
Last, if any uncertainty still remains, calling the RCDSO to inquire about your planned course of conduct is encouraged. It is true that this approach is typically not recommended as the RCDSO’s primary mandate is to protect the public. As such, inquiring of your professional regulator concerning whether your conduct may be “offside” could hardly be seen as an effective strategy for your defence. However, in these new and uncharted waters, this may be the very best course of action in the circumstances. Indeed, it may be the case that the RCDSO will have to come up with a program whereby dental offices could be inspected for COVID safety compliance, strictly on a voluntary basis. Whether the RCDSO will ultimately have the resources to implement such a program is unclear.
However, so long as a dentist or dental specialist were able to make an inquiry of the RCDSO and indeed invite the College into their practice without any fear of reprisal whatsoever, this might be the very best way of ensuring safety for both patients and staff alike. Certainly there is no principled reason that staying safe and staying in practice should be incompatible.
About the Author
Neil M. Abramson is the Head of the Litigation Department at Torkin Manes LLP. He is double certified as a specialist in health law and civil litigation and he routinely represents dentists and other health professionals before their professional Colleges and in hospital privilege disputes. If you have any questions about dentist rights and obligations during COVID-19 pandemic, we encourage you to contact Neil M. Abramson at firstname.lastname@example.org.