COVID Challenges in Dentistry: Consent to Treatment
Whilst much has changed since the arrival of COVID, the law on informed consent, and the corresponding GDC standards remain the same. Consent is a frequent theme in both negligence claims and GDC investigations. COVID brings new challenges for dental practitioners in the consent process.
Communication is a two-way process, a factor which has particular importance when obtaining consent. Guidance on social distancing and the use of face coverings will undoubtedly impede the development of rapport, as well as physically impeding communication. The strange and unfamiliar circumstances associated with the resumption of dental practice will only serve to exacerbate issues relating to anxiety associated with dental treatment. Checking a patient’s understanding of the information provided will be of prime importance.
The Patient’s First Decision
Unusually, the first patient decision which will involve engagement with the practitioner and draw on their professional advice will be the decision about whether to come to the practice for face to face assessment. Practitioners face an obvious difficulty in risk assessing patients remotely and will have to be alert to the limitations of that process. That is particularly important where initial contacts post re-opening are likely to be from patients who have postponed attendance for many weeks. Patients may be anxious about the risk of contracting COVID if they attend a healthcare setting and will be, at least partly, reliant on the initial screening assessment in determining whether they ‘need’ to attend, and therefore expose themselves to a risk. It is already apparent that patients with significant healthcare problems have avoided GPs and A&E because of misconceived perceptions about the risk which attendance would pose to their health.
Proper compliance with relevant Public Health England Guidance and NHS England’s Standard Operating Procedures should mean the risk to patients of acquiring COVID by attending the practice will be very low, although non-zero. It will be important to explore such concerns with patients. That is particularly so where the patient expresses an inclination not to attend but the dentist’s preliminary assessment indicates ‘red flag’ symptoms raising the potential for significant harm if formal assessment is delayed. Imagine a scenario where the screening assessment raises a concern about an oral cancer but the patient discloses a perception that they will expose themselves to a high risk of acquiring COVID if they attend a healthcare setting. The dentist must provide a realistic assessment of that risk as balanced against the potentially adverse consequences of non-attendance.
Whilst there is a theoretical possibility of the reverse scenario – a patient attending where their dental risk was low and subsequently acquiring COVID – patients would face obvious difficulties in seeking to persuade a court that they did not appreciate that there would be some risk of coronavirus exposure in attending the practice and/or travelling there. Furthermore, in such a claim the patient would be likely to face a significant challenge in demonstrating a causative connection between their attendance at the practice and their acquisition of the disease.
A decision not to attend for assessment is still a decision which should be informed. It is important to remember that a claim in negligence against a hospital succeeded where the negligent advice of a receptionist about waiting times was found to have caused a patient to leave the A&E department without having been assessed for a significant head injury. Practice owners must be astute to ensure that reception staff are appropriately trained and are not delegated responsibilities for which they are not qualified.
Cutting Corners to Mitigate Risk
Prior to COVID, practitioners will have established their ‘usual’ approach to conducting the range of treatments which they offer. The Infection Prevention and Control [IPC] measures required by COVID may make certain procedures, or certain steps in procedures logistically more challenging, for example taking/processing intra-operative radiographs. Practitioners should not depart from their usual practice without careful consideration of the risks which result. If the logistical challenge of complying with the IPC requirements forces a departure from your usual technique which is material to patient safety then the correct course will be to refer the patient elsewhere. In short, IPC compliance hurdles must not be overcome by cutting corners in important elements of dental treatment protocols.
Compliance with IPC measures may also force departures from normal practice which are not safety critical but impact the prospect of achieving optimal treatment results. For example, practitioners who ordinarily use operating loupes may be unable to do so if they do not have access to specialist visors which are compatible. Where such constraints have a material impact on likely success rates those issues must be discussed with the patient.
Operating a limited range of services
At least initially, practices may not be offering a full range of treatments. There may be good reasons for that; however, it is absolutely essential that practitioners recognise that this does not excuse them from discussing treatment options which may be appropriate to the patient’s needs but are not available at their practice. For example, a practitioner not currently undertaking endodontic treatment would not have obtained informed consent for an extraction if they had not discussed an appropriate option of root canal treatment before the patient elected for an extraction.
Another area which requires caution is the need to distinguish between the generalised aspirations of focusing on stabilisation, postponing restorative and functional treatment and limiting Aerosol Generated Procedures (AGPs), and the patient’s right to make an informed choice of treatment in their own best interests; a right which the practitioner is obliged to facilitate. Consent is essentially a self-interested process. Patients have no obligation to weigh the broader public interest in making decisions about their own treatment, albeit that some may choose to do so.
In the process of shared decision-making the practitioner must assist the particular patient in making an informed choice which best serves that patient’s goals and priorities. The risks which NHS England’s Standard Operating Procedure seek to mitigate, by minimising AGPs, are not risks to the patient undergoing the AGP. It would be a failure of the consent process if a patient either postponed treatment or selected a ‘lower COVID risk’ treatment option because of a mistaken belief that their choice mitigated the COVID risk to them personally.
In short, the treatment options discussed ought not to be any different to those which would properly have been discussed pre-COVID. Indeed, there is merit in first discussing the ‘usual’ options and identifying the patient’s preferred treatment plan and only then discussing the impact of COVID on the availability of that option. This sequencing offers benefits by separating out the influence of availability as a factor in the patient’s decision-making.
Patients’ rights to make informed treatment choices is not abridged by the current COVID Pandemic. Nonetheless, the pandemic creates real issues with access and scheduling and individual practices may be particularly constrained in the range of treatments which they can provide safely at any given phase of the pandemic. Patients avoiding face to face attendance is a risk which needs to be acknowledged. It will be more important than ever for practitioners to keep clear records of the consent discussions which they have with patients and to test patients’ understanding. When a patient has made a treatment choice it would be prudent to ask them what factors have led them to prefer that option. That process may disclose misconceptions which would otherwise not be apparent.
 https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/06/C0575-dental-transition-to-recovery-SOP-4 June.pdf and https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/06/C0586-minimising-nosocomial-infections-in-the-nhs.pdf
 Darnley v Croydon Health Services NHS Trust  UKSC 50
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.