We place a pretty unique amount of trust in the ethics of our dentists given how little we ourselves often know about dentistry. Apart from the large costs associated with most dental procedures, unanticipated and unnecessary dental work can call into question how genuine our consent to a procedure was.
The common practice of fear-mongering in the profession can make us feel pressured to agree to procedures that, in different circumstances, and with more time to process the information, we may not have agreed to. You’re probably all-too-familiar with the anxious feeling of being upside down, giddy from half your blood rushing to your head, at least partially anesthetised, mouth wide open with a dental dam obstructing your breathing and speaking. It’s usually at this point that your dentist makes an ominous or disapproving grunt while saying:
Ooh, yes. Hmmm. Okay, I see you have quite a bit of decay on a few other teeth. While I’ve got you here, let’s get these other teeth sorted. I’ll drill a little and we can see how deep the decay goes. If we don’t do anything today, you could risk losing the tooth completely or we may have to do a root canal at a later stage. What do you think?”
Bewildered, sore and vulnerable you probably respond with something almost unrecognisable as English:
Errrhmm …. Uh huhh …. Oray, ret’s yust do eet now.”
Situations like this – that leave your wallet lighter and your jaw heavier with mercury – have probably left you wondering just what constitutes informed consent when it comes to dental procedures.
Rest assured, dentists must comply with the Dental Board of Australia Code of Conduct for registered health practitioners. The Code of Conduct covers everything from effective communication to non-discrimination in service provision.
What constitutes informed consent?
Doctors are not the only health professionals at risk of being sued for medical negligence. Dentists have a legal obligation to ensure that patients understand the risks and costs (both physical and financial) associated with undergoing a given treatment and are fully informed of any alternatives, including the likely outcome if nothing is done.
- providing you with information in a way you can understand before asking for your consent
- obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency) or involving you in teaching or research, including providing information on material risks
- when referring you for investigation or treatment, advising you that there may be additional costs, which you may wish to clarify before proceeding
- if your capacity to consent is impaired or limited, obtaining the consent of someone with legal authority to act on your behalf and attempting to obtain your consent as far as practically possible
- being mindful of additional informed consent requirements when supplying or prescribing products not approved or made in Australia, and
- documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.
The Australian Dental Association provides even more extensive guidance on informed consent, which you can find here, including the need for your consent to a procedure to be obtained without duress. According to ADA guidelines:
Consent may be given in writing, orally or by conduct. In most routine dental examinations and treatments the patient’s consent is obtained verbally. However, where the proposed treatment involves complex or invasive procedures, anaesthesia or sedation, significant expense and/or is of an elective or cosmetic nature, good professional practice warrants the use of a signed written consent form to document the process of consent and confirming the patient’s agreement to the proposed treatment. A signed consent form does not, by itself, provide conclusive proof of a legally valid consent. Evidence of the dentist’s usual practice, supported by appropriate practice records may be required.”
Informed consent is a voluntary decision made based on knowledge and an understanding of the benefits and risks associated with a given procedure, not simply asking your permission before taking a set of dental pliers to your mouth.
As established by the case Dean v Phung  NSW CA 223, dentists can be sued for medical negligence if they ‘over-service’ a patient. In this case, Mr Dean’s front teeth were injured during the course of employment, and his employer arranged for him to see a dental surgeon, Mr Phung. Over a period of 12 months and 53 consultations, Mr Dean had treatment amounting to over $70,000. Mr Dean subsequently alleged that the treatment was unnecessary and ineffective and that Mr Phung must have known this.
It was found that the treatment Mr Dean received constituted a trespass to the person, because it was not capable of constituting a therapeutic response to Mr Dean’s condition, and was thus unnecessary. This understanding of consent requires that the treatment is “reasonably necessary”, as represented by the dentist in question.
If your dentist makes a false representation that a procedure or treatment is reasonably necessary (or similar), and you agree to that procedure or treatment on the basis of this representation, they may have committed medical negligence.
What is notifiable conduct?
“Notifiable conduct” is a further protection afforded to the public in healthcare provisions. This is a mandatory requirement of health practitioners where they must inform the Australian Health Practitioner Regulation Agency (AHPRA) if they reasonably believe that another practitioner has:
- practised their profession while intoxicated by alcohol or drugs; or
- engaged in sexual misconduct in connection with their profession; or
- placed the public at risk of substantial harm in the practice of their profession because the practitioner has an impairment; or
- placed the public at risk of harm because they have practised their profession in a way that constitutes a significant departure from accepted professional standards.
Making a complaint or report to AHPRA
Patients are not subject to the mandatory notification requirement but you can voluntarily notify the AHPRA about a registered health practitioner on the grounds that:
- a dentist’s professional conduct is or may be of a lesser standard than that which might reasonably be expected by the public or by the dentist’s professional peers
- the knowledge, skill or judgment possessed or care exercised by the dentist in the practice of their profession is or may be below the standard reasonably expected
- the dentist is not or may not be a suitable person to hold registration in the health profession, including, for example, that the dentist is not a fit and proper person to be registered in the profession
- the dentist has or may have an impairment
- the dentist has or may have contravened National law
- the dentist has or may have, contravened a condition of their registration or an undertaking given by the dentist to a National Board;
- the dentist’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.
Once a notification is made, AHPRA is required to refer the notification to the National Board that registered the dentist and to conduct a preliminary assessment of the complaint. Immediate action may be taken if the National Board reasonably believes that because of the dentist’s conduct, performance or health, they pose a serious risk to persons; and it is necessary to take immediate action to protect public health or safety.
Bringing it home
Doctors and dentists may seem incredibly different, but they are held to the same standards of care.
It’s just as important that the risks of undergoing a root canal are explained to you clearly, and that you understand them, as it is that you understand the risks associated with a surgical procedure or taking a new medication.
To make a complaint or report a concern about a dental practitioner, visit the Dental Board of Australia.