May 1, 2013
by Dr. Steve Cohen
After a 13-hour wait in the emergency room with an elderly family member, we presented a consent form by a first-year orthopedic resident during discussion of treatment for two broken bones. The 78-year-old female patient in question was assaulted on her morning walk and suffered a broken knee and wrist, among other injuries. This patient had the recollection of another orthopedic surgeon cancelling a previous surgery years earlier, warning her not to place plates, pins or screws in her bones if she could avoid it due to her degree of osteoporosis. While we had several questions about the need for the procedure and the risks given the health of the bone in my elderly relative, we were told by the resident discussing this that she was not the surgeon performing the surgery, but the head of the surgical team had reviewed the radiographs and they felt this was the best option. On a Saturday night of a long weekend, I imagined the surgeon looking at the X-ray of the knee on his smartphone during cocktail hour somewhere. All of our questions would be answered, but the resident could “consent us” now to get the patient name “on the docket” for future surgery. You can imagine the shock experienced by a dentist at this attempt to be “consented”. I demanded (as a family advocate) that the surgeon performing the surgery physically examine this patient and explain how the risks of placing the screws in her osteoporotic bone compare to the risks of not doing the surgery at all. Can you imagine this in the dental setting?
The nature of examination and diagnosis in dentistry has not changed much, but offering treatment options and achieving informed consent for these treatments has expanded tremendously. Many of us have had the situation where the treatment was so complex, and the patient was so unprepared for the discussion, that once all the questions were answered and the patient was ready to sign the form, they had to be re-appointed as the working appointment time had expired.
Are they different, acquiring informed consent in medicine and informed consent in dentistry? Or is it that we tend to accept the medical field’s opinion? “I’m sorry sir, but you’re going to die.” “Is there anything you can do?” “No.” “Ok then, thanks.” In dentistry, “I’m sorry sir, you’re going to lose your tooth.” “What? Lose my tooth? Whose fault is that? Who can I blame? Who’s going to pay for the replacement?”
Just as there is informed consent, there is informed refusal, and securing either of these helps protect the patient and the clinician. In searching the website for the Canadian Medical Protective Association (CMPA–an organization similar to our own Canadian Dental Protective Association, CDPA), this explanation came up:
Our courts have reaffirmed repeatedly a patient’s right to refuse treatment even when it is clear treatment is necessary to preserve the life or health of the patient. Justice Robins of the Ontario Court of Appeal explained:
“The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlines the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the physician, who ultimately must decide if treatment – any treatment – is to be administered.”
However, difficulty may arise if it should later be claimed the refusal had been based on inadequate information about the potential consequences of declining what had been recommended. In the same way as valid consent to treatment must be “informed”, it may be argued a refusal must be similarly “informed”. Physicians thus may be seen to have the same obligations of disclosure as when obtaining consent, that is, disclosure of the risk to be accepted.
When patients decide against recommended treatment – particularly urgent or medically necessary treatment – discussions about their decision must be conducted with some sensitivity. While recognizing an individual’s right to refuse, physicians must at the same time explain the consequences of the refusal without creating a perception of coercion in seeking consent. Refusal of the recommended treatment does not necessarily constitute refusal for all treatments. Reasonable alternatives should be explained and offered to the patient.
As when documenting the consent discussion, notes should be made about a patient’s refusal to accept recommended treatment. Such notes will have evidentiary value if there is any controversy later about why treatment was not given.
With the continuing education efforts by the RCDSO and ODA on consent, dentists can be well prepared for informed consent and/or informed refusal by the patient. Let’s go one step further and discuss informed refusal by the clinician. What if the procedure is just that difficult or the patient’s medical history is just that complicated? What if the risk of keeping the acutely abscessed, decayed-beyond-restorability tooth is greater for causing bone infection in a patient on bisphosphonates compared to removing the abscessed tooth and risking bisphosphonate-related osteonecrosis of the jaw? Does the location of a pulpitic third molar in a limited-opening patient with tortuous canals, and only in partial occlusion with the opposing 2nd molar, warrant the risk of rotary instrument separation, and the ensuing problems that may bring with it?
I regularly act as an expert, Dental Advisor, and consultant for dentists when treatment goes “wrong”. In one of my cases, a dentist secured informed consent for endodontic treatment on a difficult tooth, and a rotary instrument separated. The dentist could “not believe the audacity of this patient filing a complaint against me. He signed a consent form, and it said on the consent form that an instrument may separate. So, what’s the big deal?” The consent form is not a “get out of jail free card”, it only gives the clinician permission to be in the mouth performing the procedure discussed. One still has to handle the procedural mishaps that occur.
By informing the patient of the difficulties of a procedure unique to that patient, and refusing to try the procedure because of inherent risks, you will be limiting risk for yourself and the patient. Informing the patient of the diagnosis, the options for treatment, and who is best suited to perform the particular option, is also part of consent. The patient-dentist relationship is like any other relationship. The honeymoon is great at the beginning, but under prolonged stress and breakdown of communication, we’ve all heard the stories of how both parties are ready to stab each other in the face over a subway token.
That 78-year-old female, incidentally, exercised her informed refusal at the outset. This triggered a chain of events where she was seen by two staff surgeons over the next 12 hours, transferred at the hospital cost to a rehab hospital within 24 hours (because “if you’re not having surgery, we need the bed”), and was home and walking (with a brace) without surgery on her leg in three weeks. She also, later on, gave her informed consent for corrective surgery (with pins) on her wrist because a thoughtful surgeon took the time to draw her some pictures of how her wrist could heal with limited mobility otherwise. As we all h
ave been advised, consent is a process, ongoing and changing, as the patient needs change.OH