01 MarConsent, Causation, Material Risk & Swimming Naked in Dentistry
A recent Court of Appeal decision* has in effect become a game changer in dentistry when it comes to dentists discussing material risks with patients, having completely overturned a Judge’s previous decision on the issue of liability.
Until now the ‘Bolam’ approach had been used in the defence of dental negligence claims and whether a practitioner had ‘acted in accordance with a responsible body of medical opinion’. This has now changed because of Webster V Burton and the position with Montgomery that it has clarified.
‘It is now clear from Montgomery that this (Bolam) is no longer the correct approach’.
How does this affect you as a dentist?
‘Apart from cases where the patient’s welfare would otherwise be damaged, your obligation is to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that will affect their health and well-being on proper information. The significance of the risks and uncertainties, including the possibility of alternative treatment, being sensitive to the characteristics of the patient.’
There is a lot to read into this but perhaps one of the most important implications is the increased emphasis upon getting to know your patients and to explore their characteristics. A one size fits all approach to communication or a script may limit your ability to do this. The essence of this is in GDC Standard 1.1 but its importance in the field of negligence has now been clarified. In the Court of Appeal conclusion, it is noted that the patients actions would have been different had their background, education, behaviours and noted conversations been taken into account.
This all points in the direction of consent and discussing treatment options including material risks, being an ongoing conversation rather than a linear process that has a conclusion and a close. It highlights the importance of getting to know your patients and building trust and for some it won’t require a significant change in behaviours. But with all future cases and those currently being heard now likely to be looked at through the filters of Montgomery, it will reveal where financial self interest has been given priority over patient care.
Any business that puts its interests before those of its customers will fail, that is common sense. Now and in one clear judgement Montgomery has translated directly into healthcare something that consistently successful businesses built upon values have always known, to put their customers first. In other words, do the right thing and do things right.
As we have been saying since 2009 and to use the words of Warren Buffett “It’s only when the tide goes out, do you notice who was swimming naked”.
Montgomery has turned the tide.
July 2019 update – we are hosting 4 workshops later in 2019 that will explore the relevance of patient communication upon obtaining valid consent. You can jump straight to the courses page here.