Oral Health Group
Feature

Informed Consent/ Standard of Care/Dentists’ Duty to Disclose Material Information

July 1, 2007
by Bruce Glazer and Robert Tighe


The most recent information bulletin released by the RCDSO called “Staying Safe” is a most welcome document aimed at the subject of risk management in dentistry. One area that receives 27 pages of explanation is “Informed Consent,” the legal side of practice management and treatment planning which is sometimes very confusing. Several areas not covered in the member’s workbook are laid out in the following dialogue between Robert Tighe and me. My questions to Robert are italicized. It is interesting to note how the duty to maintain patient confidentiality can also arise when considering the preliminary legal issues a specialist may encounter when referral of patients occur. This vignette represents unique areas of my practice but hopefully this dialogue will be helpful in establishing protocols of risk management for both specialists and generalists alike; as referrals are a two way street requiring certain protocols from each direction.

Patients are typically referred to my office for either anesthesia or prosthodontics or both. Similar referral scenarios exist for all specialty offices. Many times the patients arrive without little more than a telephone call. On many occasions the initial contact is made by the patient. In order to develop proper protocol for the present and to develop risk management for the future I now insist on some form of correspondence from the referring dentist in order to identify the problem and to facilitate the referral.

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Without signed consent forms are my staff allowed to contact the referring dentist and openly discuss the referral?

The referring dentist has the disclosure issue since it is his/her patient that is affected. It is advisable that the referring dentist have the signed information release forms before the referral takes place for his or her sake. The patient is not your patient and may not become your patient at this point for a variety of reasons. You may decide that you are not the right person to treat the individual for starters. This is a “disclosure of information issue” at law not an “informed consent” issue for the referring dentist. It would be wise for the referring dentist to have signed consent forms to release information to a 3rd party (you) in his or her file.

Release of Information forms regarding contact with other health professionals are not signed until we meet the patient on their first appointment. This may or may not be informed consent?

Actually, this is not an informed consent issue, but a duty of confidentiality issue. The release of information form presumably allows the provider of sensitive health information to satisfy or release him or her from the duty of confidentiality that every dentist owes his or her patient when he or she provides information to 3rd parties or to another health practitioner.

As opposed to release of information forms” “informed consent” is, as lawyers and the Courts understand it, another separate legal duty the dentist owes his/ her patient. This duty is owed before commencing a procedure.

Consent can be written or oral. Written is preferable as it is easier to prove consent as a matter of satisfying the laws of evidence if there is a dispute in the future. However, the mere fact of a signature on a consent document, which elucidates risk and benefit, does not constitute proof of “informed consent.” The content of the form provides only some of the evidentiary basis of the nature and extent of the dialogue between the doctor and the patient.

Securing the patient’s “informed consent” can be, depending upon the doctor’s techniques or way of operating with his or her patients, a process, whereby the doctor enters into a dialogue with the patient. It is during this dialogue that benefit and risk issues are disclosed along with many other parameters of treatment. The patient is free to ask questions in order to identify the risks and benefits of the contemplated procedure. This process of questions and answers help the patient to make an “informed” decision about whether he or she wishes the dentist to proceed.

Once the dentist has provided all the material information necessary to enable the patient to make an “informed” decision (i.e., informed consent) the question then shifts to the law of evidence and the question becomes whether the dentist can prove that this was delivered. Some form of a written document is essential if at some point in the future a dispute regarding informed consent should arise.

To make the point, the signing of a written document giving consent in the Court’s eyes, is not the be all and end all to prove that the dentist has the patient’s “informed consent.” The dentist needs to be in a position to prove that the patient was provided with all relevant material information in order to make an “informed” decision. There may be other methods to prove that the relevant information was delivered to the patient such as having the patient initial a handout that was provided with standard contemplated procedures and enclosing that signed copy in the chart or writing or dictating the details into the chart and asking the patient to initial that this information was provided at that time.

It all depends on which method the dentist finds most comfortable to convey the necessary information setting out the risks and benefits to the particular patient.

I should explain the concept a little further. “Informed consent” is the legal “nick name” for the patient’s right to be informed about the procedure he/she is about to undergo.

Some legal authors including the Supreme Court of Canada have stated that calling the doctrine “informed consent,” is misleading. It is more accurately described and better understood, perhaps if called the dentist’s duty to disclose material information. Formerly the law considered non consensual touching in this context as a battery. Battery is an intentional tort that usually accompanies an assault. It has moral overtones as intentional torts such as assaults and batteries, at times are also the subject of separate criminal proceedings. The Court found that such (raising the specter of criminal proceedings) was not appropriate in the dentist-patient context and instead considered that the dentist’s failure to provide enough or any material information prior to commencing treatment was better characterized at law as negligence. Negligence arises from want of care and is not regarded as an intentional tort or act.

Getting back then to our discussion of “informed consent”, the patient may sign the document outlining risk and benefit and actually not be given enough “material information” by the dentist to understand and therefore agree to the procedure or give his or her “informed consent,” at all. The Court may find that the consent was not valid as the patient did not receive enough material information, particularly of the kind that brought home the negative aspects or risks involved, and therefore the dentist was negligent, on that basis. The Court may determine that any reasonable person in the patient’s position would not have agreed to the procedure being performed if he or she had fully understood all the risks associated with it.

At a recent Risk Management Seminar given by CDPA it was suggested that making sure that you, the dentist supplies the relevant information to secure the patient’s “informed consent” can be a dialogue or a process. It may make sense to initial letters or treatment plans as you go through them with the patient and have the patient initial them as well or better still: make changes in writing to the document as the patient asks questions and both initial them as you go. This may assist in proving that the treatment plan was thoroughly discussed and understood by the patient.

It is essential that the dentist communicate the necessary material information about the contemplated procedure to the patient to allow the patient to make an “informed” choice. It does not matter how beneficial or necessary the treatment seems to the dentist; th
e law of “informed consent” requires that the patient decide with the benefit of having been provided with all material information, whether he or she wishes to undergo the treatment.

Assuming an appointment has been made by the referring dentist, the next step in the process is a welcome letter from my secretary to introduce the new patient to our office. Within the descriptive of the letter is a disclosure regarding the fee for the first appointment. The time is reserved, no reminder is given the patient and if the appointment is missed we contact the patient and if no reply, the referring DDS. What legal responsibility does either office have to make sure that the patient keeps the arranged appointment?

You cannot force anyone to see you, and at this point in time neither office has a legal obligation to ensure compliance by the patient. But it is good practice and certainly a moral imperative for the specialist to follow up and, as we have already seen with the issue of informed consent, the process is a dynamic one and future demands are changing as new case law evolves.

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If the appointment is critical (infection, life threatening, timing etc.) to their care and for some reason the mail or your method of delivery of the letter is deficient then a telephone call is just good practice sense. The attempt at appointment protocol should be documented and also efforts to rebook after the missed appointment should be made and also documented.

What type of follow up to the initial consultation is required to make each practitioner bullet proof? Are we our brother’s keeper?

If the question is directed at the informed consent issue then the courts approach each situation on their individual facts. What did this patient reasonably understand as a result of the dentist explaining the proposed treatment, its risks, the benefits, the cost etc?

If the question is following up on the attempt to reach a patient when they do not show up for a critical care appointment then the test reverts to what a reasonable dentist would have done in similar circumstances.

Is the onus on the referring dentist to explain the need for a specialty referral and then is a referral letter/ telephone call required along with a copy to the patient?

The onus is on the dentist who is considered the patient’s general dentist to provide the patient with enough material information to make an informed decision (informed consent) to go ahead with referral. The patient should be provided with enough material information from the general dentist to be able to decide if he/she wishes to proceed with specialty referral. The referring dentist may attempt to explain the material information associated with the proposed specialty treatment to the patient but is not required to. I think he or she would be wise to leave it to the treating dentist in your example a specialist, to avoid any contradictions, misunderstandings or mistakes.

On the day of consultation, the quality of x-rays are checked, duplicates are usually of such poor quality that originals are requested right from the get go. If I insist on new x-rays do I need the consent of the dentist who supplied the originals?

The re-ordering of x-rays or obtaining x-rays that show you clearly what you need to see to determine what if anything is necessary and to properly explain the proposed treatment to the patient is between you and your patient. You do not need the consent of the referring dentist. You may wish, as a courtesy only, to give the referring dentist a heads-up call that you decided to order new x-rays before you started the treatment.

The patient is paying for the new x-ray. If the quality of care is materially affected by the poor x-ray then you the treating dentist have no choice. Either the patient consents to the new x-ray or you decide not to proceed as you do not know what you are getting into without the proper equipment/ information (the x-ray) to perform the work. The referring dentist and the patient can be told that the x-ray did not show enough and you re-x-rayed to be careful.

If I insist on new x-rays the patient may report the referring DDS?

That may be so; I think this is very unlikely as you are the specialist and the patient expects you to be thorough in your review. The law requires, on a general basis that experts/specialists in most circumstances perform at a higher standard than generalists. Without hopefully sounding too unsympathetic but simply to make the point; better him/her than you. The x-ray could prove to be your defense in this circumstance and all the more reason to be careful before proceeding. The written consent to obtain the x-ray and the reordered x-ray itself adds to your ability to prove that you fully explained the material information associated with the contemplated procedure to the patient and the patient understood the need for the treatment and the risks of proceeding and gave “informed consent” to proceed with it.

The Get Acquainted Questionnaire is standard but within that document I want to know if the patient has ever used any illegal drugs and if they are involved in therapy (psychiatric or otherwise). Do these questions place the patient or the dentist at risk in any future investigation?

This is a different area of the law, not related to informed consent; essentially criminal law or civil insurance actions focused on the misbehavior of your patient, not you, the dentist. The answer to your question is yes. A defense insurance company’s lawyer or even less likely the Crown may subpoena you to determine if your file discloses anything that may be of use to them in defending a civil claim brought by your patient in another context or prosecuting your patient in a criminal proceeding in some fashion. This question relates to a patient’s rights to privacy and the dentist’s duty to maintain the duty of confidence between himself or herself and the patient. It is wise to seek the advice of a criminal defense lawyer or a civil litigation lawyer in these circumstances prior to releasing this information or for that matter speaking to the individual seeking it.

We also ask permission to dialogue with other health professionals, insurance companies and we request permission to check our patient’s credit through the Credit Bureau. Many times the request for financial disclosure is rejected. If the request for financial disclosure is rejected we simply ask for payment up front, in other words NO CREDIT. What are the legalities of actually checking someone’s credit, do you need their approval? If we deny credit based on a person’s refusal to sign a credit check are we at risk?

Payment up front is the best way to proceed in these circumstances. Having the ability to be paid with a credit card at the time of treatment is also advisable.

To answer the trickier part of your question, it is not necessary to obtain consent to obtain “public information.” An organization may disclose information without the knowledge or consent of the individual if it is for the purpose of collecting a debt owed by the individual to the organization, see: Section 7(3) (b) PIPEDA. There is also an exception that applies in respect of an emergency that threatens life, health or security of the individual that requires disclosure in these circumstances.

The duty of confidentiality does not extend to prevent one health practitioner from disclosing confidential information about the patient to another health practitioner where consent has been provided by the patient or where permitted by law.

Express written consent to disclose information should be obtained under the relevant disclosure legislation. Health information is sensitive. Medical information and income or credit information can readily be defined as “sensitive” within the meaning of the legislation mentioned above.

You could be at risk if you deny credit in certain situations. You may be at risk if you refuse treatment in an emergency or critical health
situation because of a refusal by the patient to agree to disclose credit information. I would recommend the treatment be provided in these circumstances so long as disclosure of all material information about the procedure is provided and the patient provides his or her informed consent. The question of payment should be secondary. It is appropriate to secure a written promise to pay such as a cheque, if possible in these circumstances. While it may not result in your future payment you may have the means to proceed against the patient both in a civil and criminal context in the future, if the cheque fails to clear.

This dialogue is intended to add to your understanding of risk management. Risk management is an area of practice which like emergency procedure needs to be looked at and reviewed. And not unlike emergencies a source of bona fide information must be readily available to help develop protocols and to aid in all matters legal. Placing proper resources and time to risk management is an exercise which will pay handsome dividends in the smooth operation of any practice.

Bruce Glazer is the communications editor for the Canadian Dental Protective Association and the prosthodontic editor to the editorial board of Oral Health.

Robert Tighe is a litigation lawyer who has practiced law in the area of Health Law and Civil Litigation since 1979. He is one of the defence lawyers retained by the Canadian Dental Protective Association.

Oral Health welcomes this original article.


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