Ethics and Law Book PDF

A GUIDE TO THE ETHICAL AND MEDICOLEGAL ASPECTS OF DENTISTRY
With Reference to the MFDRCSI Examination,

Royal College of Surgeons in Ireland
BY
Dr. ALBERT LEUNG

BDS, LLM, FFGDP(RCS Eng), FPFA,
MGDS(RCS Irel), MFGDP(RCS Eng),
Chairman, MGDS Examination, Faculty of Dentistry,
Royal College of Surgeons in Ireland
Deputy Director, GDP Centre,
Kings College London Dental Institute,
University of London, UK
This publication in any format is intended for the sole use by the enrolled participants in the lecture
series for the MFDRCSI Training Programme organised and delivered by the Faculty of Dentistry,
Royal College of Surgeons in Ireland. No part of this article should be quoted or reproduced in any
format without the prior written consent of the author. Albert Leung 2005
A Guide to the Ethical and Medico-Legal Aspects of Dentistry for the MFDRCSI Examination
Contents
111
INTRODUCTION...........................................................................................................................3
222
MEDICAL LAW AND MEDICAL ETHICS ................................................................................5

2.1
INTRODUCTION ................................................................................................................5
2.2
MEDICAL LAW AND GENERAL LAW ............................................................................5
2.3
MEDICAL LAW AND ITS RELATIONSHIP WITH MEDICAL ETHICS.......................6
2.4
PHILOSOPHICAL CONCEPTS TO NOTE:....................................................................6
333
HEALTHCARE LAW AND THE LAW RELATED TO THE PRACTICE OF DENTISTRY 8

3.1
GENERAL LAW ..................................................................................................................8
3.2
HUMAN RIGHTS LAW ......................................................................................................8
3.3
EUROPEAN LAW...............................................................................................................9
3.4
PROFESSIONAL LAW ......................................................................................................9
3.5
QUASI-LEGAL STATUS....................................................................................................9
3.6
EMPLOYMENT LAW .......................................................................................................10
3.7
DISABILITY DISCRIMINATION .....................................................................................12
444
DEVELOPMENT IN LAW RELATED TO DENTISTRY IN THE UNITED KINGDOM AND

THE ROLE OF THE GENERAL DENTAL COUNCIL (GDC) ..............................................13
4.1
HISTORIC AND CURRENT PERSPECTIVE...............................................................13
4.2
THE ROLE OF THE GENERAL DENTAL COUNCIL (GDC) .....................................14
4.3
REFORMS IN THE HEALTH AND CONDUCT PROCEDURES OF THE GDC.....18
555
THE PRACTITIONER/PATIENT RELATIONSHIP IN RELATIONS TO THE LAW OF

CONTRACT AND TORT ...........................................................................................................19
5.1
ASPECTS OF PRACTITIONER/PATIENT RELATIONSHIP.....................................19
5.2
CONTRACT.......................................................................................................................19
5.3
TORT ..................................................................................................................................20
666
CONFIDENTIALITY AND FREEDOM OF INFORMATION .................................................22

6.1
THE ISSUES .....................................................................................................................22
6.2
FREEDOM OF INFORMATION .....................................................................................25
6.3
CONCLUSION ..................................................................................................................26
777
CONSENT....................................................................................................................................27
7.1
WHAT IS CONSENT........................................................................................................27
7.2
ELEMENTS OF VALID CONSENT................................................................................27
7.3
IMPLIED CONSENT OR EXPRESSED CONSENT ...................................................28
7.4
THE COMPETENT PATIENT.........................................................................................30
7.5
THE INCOMPETENT PATIENT .....................................................................................31
7.6
REFUSAL TO CONSENT TO TREATMENT ...............................................................33
7.7
CONCLUSION ..................................................................................................................33
888
COMPETENCE/NEGLIGENCE................................................................................................35
8.1
INTRODUCTION ..............................................................................................................35
8.2
NEGLIGENCE...................................................................................................................35
8.3
LIMITATION ACT 1980 AND PERSONAL INJURY LITIGATION.............................40
8.4
COMPENSATION IN CLINICAL NEGLIGENCE .........................................................40
999
PROBLEM BASED LEARNING IN LAW IN RELATION TO THE PRACTICE OF

DENTISTRY.................................................................................................................................42
9.1
INTRODUCTION ..............................................................................................................42
9.2
QUESTIONS .....................................................................................................................42
1110
00
CONCLUSION.............................................................................................................................45
11 INTRODUCTION
This is the second edition of the booklet. The aim in writing this booklet remains
unchanged. It continues to be written as a guide and reference to Section 6 of the
syllabus for the MFDRCSI examination in respect of the ethical and medico-legal
aspects of dentistry. This subject is examined in all sections of the examination in
accordance with the Regulations of April 2001 relating to the MFD/S.
So what has changed since the last edition of this text? Firstly there has been a greater
emphasis on the pertinent facets of Employment Law and Disability Discrimination
Law as these latest changes in the law could render these subject popular to raise
examination questions from. Secondly, the recent (late 2004) split House of Lords
judgement in the case of Chester creates a new approach to causation in clinical
negligence by departing from traditional causation principles and gives greater
priority to the doctrine of informed consent. These and other issues are focused in the
relevant sections.
The series of lecturers given by the author of this article as well as the accompanying
series of revision multiple choice questions in the subject of Ethical and Medicolegal Aspects of Dentistry for the MFDRCSI are drawn mainly but non
exclusively from the contents of this article.
Although no syllabus can be comprehensive and no publications can be completely
definitive, this article is intended to cover the requirements as fully as possible.
Readers might also find this booklet useful as a guide similarly addressing the
relevant syllabuses in ethics and law related to the practice of dentistry for many other
postgraduate examinations conducted by the Royal College of Surgeons.
It should also be an interesting and informative read for anyone in other healthcare
professions wishing to know more about the ethical and medico-legal aspects of the
practice of dentistry.
This booklet addresses the following issues:
Medical law, medical ethics and professional accountability in the practice of

dentistry
The dentist/patient relationship in relation to the law of contract and tort
Confidentiality, data protection and freedom of information
Consent to treatment
Competence/negligence
Problem based learning in law in relation to the practice of dentistry to cover

all aspects of the relevant syllabus for the examination
In order to address these issues as fully as possible, an accompanying lecture series

given by the author organised by the Faculty of Dentistry, Royal College of Surgeons
in Ireland covers the following main aspects:
Introduction, medical law, medical ethics and dentistry
The law and professional accountability
Consent, tort, medical confidentiality and freedom of information
Clinical negligence and the practice of dentistry
A practical guide to tackling the law and ethics questions for the MFD/S
examination
Please note that whilst all reasonable care has been taken in the preparation of this
booklet, no liability is accepted by the author or the Royal College of Surgeons in
Ireland in respect of the contents of the article, for any loss or damage caused to any
person(s) relying on any statement(s) or omission in the booklet.
Unless otherwise specified, the legal jurisdiction and consideration in respect of the
booklet refers to the English legal system.
Words expressed in the singular shall where appropriate include the plural; and words
expressed in the masculine or feminine gender shall where appropriate include the
opposite gender.
The law is as stated at 9th February 2005.
Post-script:
Apart from reading this booklet, readers are kindly requested to
attend the latest series of lectures given by the author as well. This
will form an integral part of their training programme for the most
up-to-date information as well as those in respect of section 4.6 of the
new MFDRCSI examination.
I look forward to seeing you all.
22 MEDICAL LAW AND MEDICAL ETHICS

2.1
INTRODUCTION
Medicine is not a stagnant science. Far from it, every day there is news of scientific
advancements that it is hoped will lead to the saving of life as well as improving its
quality.
The medical practitioner in every sense across the cultural divide can be portrayed as
a highly respected citizen, in recognition of the skill of the art of healing and the
ability to cure ills.
However, whether it the performance of any clinical intervention, the development of
a new clinical technique, medication, or the diagnosis of illness suffered, things can
and do go wrong. The adverse result can be due to human error, negligent or not, or
the mere reaction of the patient to any treatment or intervention correctly given.
Furthermore, the human bodies can and do react differently to the same treatment
given, and that the scientific basis behind most interventions may not be evidence
based in most circumstances.
Medical Law concerns itself with the practitioner (and I deliberately use this word
loosely, since dentistry is a specialised branch of medicine, the same legal principles
applying to the medical practitioners can also be applied to a dental practitioner, and
therefore the legal and ethical consideration in this article for both professions can be
looked upon very similarly for the purpose of these seminars, and is also concerned
with the responsibility of members of the medical profession for their actions and
omissions).
Medical law is also about the rights of human beings, moral viewpoints, ethical
concepts, economic demands on society and duties owed.
2.2
MEDICAL LAW AND GENERAL LAW
The general assumption that medical law is a distinct branch of law can be a
simplification of the issues involved in medical law. However, to define what medical
law is would not be easy in itself.
A clear overall concept of the definition of medical law is described by Kennedy and
Grubb, in their definitive book on Medical Law as
a discrete area concerned with the law governing the interactions between
doctors and patients and the organisation of health care. In other words, Medical
law does not respect the traditional compartments with which lawyers have become
familiar, such as torts, contracts, criminal law, family law and public law. Instead
medical law cuts across all these subjects and today must be regarded as a subject in
its own right.
It is also important to note that other aspects of general law, such as criminal law, law
of contract and torts, public and family law, have been strained and bent, if not at
times broken, where medicine (and healthcare) is an issue.
2.3
MEDICAL LAW AND ITS RELATIONSHIP WITH MEDICAL ETHICS
Medical law is a lot more than merely about decisions of the Courts or legislations
laid down by Parliament. It is actually the mechanism which should ideally reflect
ethical considerations and allow a mechanism form which the right thing is done in
the huge arena of medical decisions, which as healthcare practitioners we all have to
make on a day-to-day, patient-to-patient basis.
Good medical law can therefore be argued as ethical law. It would also be difficult to
consider the nature and the scope of medical law without making references to the
concept of medical ethics and human rights. The link between medical law and ethics
is therefore only a starting point.
2.4
2.4.1
PHILOSOPHICAL CONCEPTS TO NOTE:

THE CODES AND DECLARATIONS
The Hippocratic oath is the first ethical code of conduct for doctors, and for the same
reason dentists since dentistry is considered a specialised branch of medicine. The
oath was composed by Hippocrates, who was born in 406BC on the Greek island of
Cos. He was known as the father of medicine. Hippocrates remains the most
famous figure in Greek philosophical medicine but he was not alone and it is probable
that the Oath pre-dates his own school. It therefore indicates a prevailing ethos rather
than a professional edict and can still be regarded as the fundamental governance to
the medical and dental profession.
The oath encouraged the teaching of medicine, acting in the best interests of the
patients, abstaining from whatever was deleterious and mischievous. It also
encouraged the maintenance of patient confidentiality.
The oath also emphasised the concept of paternalism, and can stir up issues on
abortion in modern day medicine by outlawing abortion. The original oath is now
rarely taken in medical and dental schools for their graduates.
The Helsinki declaration (as revised in 1975), and the Geneva declaration (as
amended at Sydney 1968), are widely regarded as more up-to-date and modernised
versions of the Hippocratic Oath). The International Code of Medical Ethics is a good
example of more recent codes of practice. These ethical guidance cover both medical
practice (and by inference dental practice) and research.
It is not too surprising, therefore, that many medical and dental institutes throughout
the world, have developed their own ethical promises base on the original Hippocratic
Oath, which newly qualified doctors and dentists take on graduation.
2.4.2
BIOETHICS
There are four principles of bioethics. All the four principles are compatible with the
codes and declarations discussed above.
6
The four principles are as follows:

1.
Autonomy: the principle of the right to self determination. In other words,
people should be allowed to make their own decisions about what happens to them.
2.
Beneficence: do good.
3.
Non- maleficence: coming from the Latin phrase "primum non nocere", which
means, "above all, do no harm".
4.
Justice: ensuring that everyone is treated fairly and equally.
These four principles of bioethics would actually allow an initial and systematic
consideration in dealing with most ethical problems encountered in the practice of
dentistry. By using the four principles in conjunction with some of the following
ethical concepts, a dentist should be able to give a more complete argument and
therefore a more thorough and effective address to the ethical problems encountered
2.4.3
PATERNALISM
This is a form of practitioner-patient relationship, whereby the practitioner acts as the

patient's "parent", and tells the patient what to do, even making choices on their
behalf.
This behaviour is understandably un-common, and has been replaced largely by
respect for patient autonomy- the patient's rights to self determination.
2.4.4
UTILITARIANISM
Also known as consequentialism, this is a concept developed by John Stuart Mills in

the 19th century, stating that "the greatest good for the greatest number" should
always be the correct course of action. This concept requires the calculation of
outcomes and the predicted benefit that such course of action will provide for
individuals and society.
2.4.5
KANTIANISM
Also known as deontology. This concept is a counter-argument to utilitarinism

developed by Immanuel Kant in the 18 century. He stated that some things are just
"right" and defined all kinds of "rights" or "wrongs".
Kant stated that one should never treat people as a means to an end, but rather as an
"end in itself". By logical implication, therefore, one should never subject a human
being to anything that is not "right", even if more people will benefit by such action.
2.4.6
NARRATIVE ETHICS
This is the concept where people's lives are taken into account in individual contexts
when determining what is ethically correct and incorrect. All rules and principles are
dismissed.
33 HEALTHCARE LAW AND THE LAW RELATED TO THE

PRACTICE OF DENTISTRY
While ethics is concerned about the morals of human conduct which provides the
principles that rule the behaviour of society, the law can be construed as the
enactment of customs or statute which is recognised within the jurisdiction, as
permitting or prohibiting certain omissions or actions, and which can be enforced by
the imposition of penalties.
Given the consideration and development of ethics and the theoretical legal principles
underpinning its ethical consideration, in an ideal world, what is ethical should be
legal, and what is legal would also be ethical. The common strand linking ethics and
law is the fact that it provides the standard expected by society, identified through
ethical considerations, and upheld by legal considerations: in other words, the law.
Reality is quite different from theoretical concepts: what is ethical may not be legal
and what is legal may not be ethical. Where would the balance be? The best practical
compromise between ethical and legal considerations encompassing all the four
concepts of bioethics, namely autonomy, beneficence, non-maleficence and justice,
have been eloquently summed by Lord Chief Justice Coleridge in the case of R v Istan
[1893] 1 QB at 453; that
"it would not be correct to say that every moral obligation involves a legal duty; but
every legal duty is founded on a moral obligation"
Health Care Law encompasses the norms that are binding to health care professionals.
They are complex and are from many sources of law, and can generally be defined as
to contain the following aspects of law (using UK legislation as an example):
3.1
GENERAL LAW
a)
Common Law: unwritten law embodied in judicial decisions
b)
Primary legislation: statute law, i.e. the law enacted by Parliament
Secondary legislation: also known as enabling legislation, embodies rules

c)
and regulations laid down in Parliament for the practical application of the primary
legislation
3.2
HUMAN RIGHTS LAW
Derives from the international agreements on human rights. The most significant of
these is the European Convention for the Protection of Human Rights and
Fundamental Freedoms, originally drawn up by the Council of Europe in 1950. This
document is also the basis of the European Social Charter of 1996. There are
procedures to protect basic human rights in both the European and Domestic Courts.
In the United Kingdom, since 2nd October 2000, it has been possible to rely on the
provisions in the European Conventions of Human Rights directly in English courts.
In practice, the Human Rights Act 1998 now provides the main mechanism for
protecting human rights in the United Kingdom. However, many of the human rights
8
that are important to health care law are subject to limitations and may realistically
have to be balanced against competing interests and rights.
3.3
EUROPEAN LAW
European Union Law is fast becoming a major source of law governing the delivery
of healthcare throughout the member states.
There are four main sources of European Union Law.
a) Treaties: under which the European Community is established and operates (e.g.
Treaty of Rome 1957, Treaty of Maastricht 1991 and Treaty of Amsterdam 1999).
They impose precise and unconditional obligations
b) Regulations: Made by the Council and the Commission. They are binding in
Members State and do not need to be incorporated into domestic law to have legal
force.
c) Directives: Bind Members States rather than individual citizens, are not binding
until they have been incorporated into domestic law of the Member States.
d) Decisions from the European Court of Justice: The Court considers the legality of
actions of the institutes of the European Union and hears cases concerning alleged
failures of Member States (through their respective governments) to meet their
obligations under European law.
3.4
PROFESSIONAL LAW
Dentists working within the European Union, (and by implication for the United
Kingdom and the Republic of Ireland) are subjected to professional regulations. In the
UK, the statute governing the practice of dentistry is the Dentists Act 1984, and the
regulations made under it. Dentists will need to be entered into the Dentist Register
before they can practise and will be liable to have their names removed from the
register if they fail to abide by the standard of professional conduct the dental
profession requires.
3.5
QUASI-LEGAL STATUS
Guidelines, circulars, instructions, protocols and Codes of practice are given by

professional bodies and health authorities to registered practitioners on how they
should carry out their work. These documents are part of quasi-law. They cover rules
which are not usually legally binding, but they may have some legal persuasion in the
sense that practitioners will need good and valid reasons to deviate from them and
therefore in practice have an influence on how registered practitioners act. Some of
these rules must be obeyed because statutory provisions may state that instructions
given under it are legally binding. If not, they are not legally binding.
3.6
3.6.1
EMPLOYMENT LAW
IN GENERAL
Like all employees, dentists (with the exception of self-employed practitioners) are
obliged to follow the lawful and reasonable instructions of their employers. Protocols
and policies are often issued to guide practitioners which indicate the way employees
are reasonably expected to carry out their work. They often constitute part of the
relevant employment contract, or are seen as part of the implied contractual terms of
employment.
As far as the dentist being an employer is concerned, when recruiting staff, the dentist
should not discriminate on grounds of disability, sex, gender reassignment, race,
marital status or religion.
Employers should always put all matters regarding employment in writing. All
employees should receive a contract of employment within eight weeks of starting
work. Employees are also entitled to continual employment after a business
ownership is transferred.
All employees are protected against unfair dismissal after one years employment.
Female employees are entitled to ordinary maternity leave and statutory maternity
pay. Some may be entitled and additional maternity leave. Employees may also have
a right to request a change in terms and conditions to work flexible hours to care for a
young child.
An employer must also have in place written policies related to employment issues,
such as sickness, maternity, discipline, equal opportunities, disability, grievances,
preventing violence at work and redundancy.
The liability of an employer to an employee has two aspects. Firstly, employers are
liable to employees in respect of harm suffered at work. Secondly, employers are
liable for the harm arising from the act or omission of the employees in the course of
their employment, known as vicarious liability.
It must be noted that the employer as well as the employee are each fully liable to the
plaintiff for the employees wrongdoing, if proved.
Employers are required to take up appropriate employers liability insurance in order
to indemnify themselves against liabilities arising from potential claims.
An employer who has been held vicariously liable to the employees negligence is
entitled to seek an indemnity from the employee to recover any damages paid. In
theory, the employers insurer can then exercise the right of subrogation by bringing
an action against the employee for an indemnity. In practice, there is an unwritten
gentlemens agreement that insurers would rarely take advantage of this principle
unless there was evidence of collusion or misconduct.
The pertinent facts and figures are contained in the next paragraph.
10
3.6.2
SOME BASIC FACTS AND FIGURES
3.6.2.1 Maternity
All female employees are entitled to 26 weeks statutory maternity leave

(SML)
Employees employed for 26 weeks 15 weeks before the expected week of

childbirth (EWC) are entitled to additional maternity leave (AML) of 26
weeks, bringing the total to 52 weeks leave
All employees are entitled to 26 weeks statutory maternity pay (SMP). This
works out at 90% of their normal pay for the first 6 weeks, and then 100 per
week for a further 20 weeks
Employers can claim back the outlay through the tax system
3.6.2.2 Paternity leave
2 weeks paid leave at 100 per week
Qualifying period of 26 weeks in service
The leave must be completed within 56 days on which the child is born
3.6.2.3 Flexible working
Parents have a right to request a change to working flexible hours to care for a
young child
Qualifying period is 26 weeks in service
At the time of such request, the child must be below the age of 6
Requests have to be made in writing. Employers must arrange a meeting

within 4 weeks to discuss and then give a decision in writing within 2 weeks
3.6.2.4 Fixed term contract
From July 2002, employees on fixed term contracts are entitled to the same
terms and conditions as comparable permanent employees
A fixed term contract will be converted to a permanent contract on the next

renewal/extension if the employee has been on such contract for over 4 years
counting from July 2002
11
3.6.2.5 Dismissing an employee
A statutory three step dispute procedure came into force on 1st October 2004.
It stated that should an employer contemplate dismissing an employee, the
following steps must be followed (in order to show that the employer has a fair
reason for the dismissal and has acted reasonably within the range of
reasonable responses):
Firstly, write to the other party explaining the issues
Secondly, have a meeting to discuss the issues
Thirdly, have an appeal meeting if required
3.7
DISABILITY DISCRIMINATION
The full provisions of the Disability Discrimination Act 1998 came into force on 1st
October 2004.
All dentists as employers, must not discriminate against a disabled job applicant or
employee. They also have to demonstrate that they have made reasonable adjustments
to assist any disabled employees to perform their jobs to the same level as a nondisabled person.
Good examples of reasonable adjustments are:
Improving access routes throughout the practiced to allow more un-restricted

movement
Modifying equipment or improving lighting to provide safer access and better

working environment to meet the needs for staff/patients with different types
of disabilities
Providing appropriate training for staff to understand the needs of people with
different types of disabilities
12
44 DEVELOPMENT IN LAW RELATED TO DENTISTRY IN THE

UNITED KINGDOM AND THE ROLE OF THE GENERAL
DENTAL COUNCIL (GDC)
4.1
HISTORIC AND CURRENT PERSPECTIVE
Although the history of dentistry dates back to approximately 500BC, it was not until
1858, that the first dental hospital was established in the United Kingdom: before any
dental schools were developed.
In 1860, the Royal College of Surgeons held the first examinations for the Licenciate
in Dental Surgery. The granting of this qualification signifies competency in the
practice of dentistry in the opinion of the Royal College of Surgeons.
It was not until 1878, that the first Dentists Act was passed by Parliament, authorising
the General Medical Council to maintain a register of qualified dentists who could
call themselves Dental Surgeons. The significance of this Act was, that it did not
prohibit those who were unqualified from practising dentistry. As a result, anyone not
trained to the standard of competency as determined by the professional body (The
Royal College of Surgeons) could still practice dentistry without fear of prosecution.
It was not until 1917, during the First World War, that the Government set up an
enquiry and reported into the status of the then current dental practice by those not
qualified under the 1878 Act. On the recommendation of the report, the Dentists Bill
passed through Parliament and became the Dentists Act 1921. The Act offered much
stricter controls over the practice of dentistry and offered the dental profession some
autonomy by setting up a Dental Board run by qualified dentists, although they were
under the control of the General Medical Council. The Act prohibited anyone
unregistered to practice dentistry. For the first time, the Royal College of Surgeons
was designated the competent authority to grant qualifications (in terms of the
Licenciate of Dental Surgery) for registration with the Board. Some well established
but unqualified dentists were also allowed to register through grand-parenting clauses.
For the first time, the profession was granted a measure of autonomy by the setting up
of the Dental Board.
In 1956, an Amendment Dentists Act granted the dental profession self-regulating
status by establishing the General Dental Council (GDC). The GDC was given power
to supervise dental education, maintain the Dentists Register, determine professional
standards and conduct, and enforce professional discipline. A consolidating Dentists
Act was passed in 1957.
When the United Kingdom joined the European Economic Communities in 1972, the
provisions of the Treaty of Rome 1957 became operative and subsequently the
European Dental Directive 1978. This Directive required member states to adhere to
common standards of training for primary and specialist qualifications. It also
enforced the freedom of movement to permit migrant dentists with appropriate
qualifications to be recognised and be free to work in any Member State. In the
United Kingdom, recognition of specialist qualifications was not implemented until
1998.
13
The Dentists Act 1984 updated the 1957 Act. This is the current legislative framework
which the profession still operates.
Under the Dentists Act 1984, the GDC can issue ethical guidelines to all registered
practitioners,
S 60 of the Health Act 1999 enables the Secretary of State for Health to make
amendments to the Dentists Act 1984 by Orders, subject to consultation. As things
stand today, primary legislation is no longer required to amend the provisions of the
Dentists Act.
The Order making power contained in s 60 of the Health and Social Care Act 2001
also has potential influence on the practice of dentistry, as the Guidance issued by the
GDC to dentists has to be in conformance with these provisions (e.g. on aspects of
confidentiality)
4.2
THE ROLE OF THE GENERAL DENTAL COUNCIL (GDC)
Quality and standards are at the heart of the activities of the General Dental Council
through the self-regulatory legislative framework governing the practise of dentistry.
Although the dental profession is in theory self-regulatory with a high degree of
freedom, the government as political master given the mandate through the electoral
process marking the democratic accountability to society, holds the ultimate key to
the rules and regulations concerning all aspects of the practice of dentistry.
As such, the government of the day demands that the dental profession maintains the
highest standard of care and acts for the protection of the public at large. It can also be
seen that any regulatory mechanisms through the work of the GDC should be seen as
supporting high ethical principles of the practise of dentistry in the United Kingdom.
4.2.1
MAIN FUNCTIONS OF THE GDC
The GDC has the following main functions:
Registration
Dental Education
Professional Conduct and Practice
Patient Protection
As the regulatory body of the dental profession, the GDC register all qualified
dentists, dental hygienists and dental therapists who wish to practise dentistry and
provide them with a licence to practise in the United Kingdom. It is widely expected,
subject to the necessary legislative changes, that other Professions Complementary to
14
Dentistry (PCD) will be registered as well. The GDC keeps an up-to-date Register of
qualified dentists and Rolls of Dental Hygienists and Dental Therapists and Specialist
Lists. The up-to-date Register is also available on line at www.gdc-org.uk.
The GDC plays a major role in dental education by virtue of the power given within
the provisions of s 1(2) of the Dentists Act 1984, that It shall be the great concern of
the Council to promote high standards of dental education at all its stages. The
GDC oversees high standards of dental education at all its stages, including
undergraduate and postgraduate education. Compulsory Continuing Professional
Development (CPD) for registered dentists also started in stages from 2002, and that
Registered dentists are now required to undertake no less than 50 hours of approved
CPD every year.
The Council undertakes formal visits to all UK Dental Schools every six years. The
reports on the standards of the UK Schools are sent to the Privy Council following
consideration by the GDC. Formal visits are thorough reviews and the visiting panel
has to judge whether or not the courses offered are 'sufficient' within the meaning of
the 1984 Dentists Act, so that, on graduation, dentists are competent to practise.
The Council publishes requirements for the undergraduate dental curriculum which all
dental schools in the United Kingdom must meet. As part of its role in monitoring
continuing education throughout a dentist's career, the Council also conduct formal
visits of postgraduate courses in the UK.
Two classes of dental auxiliary are currently required within the provisions of the
Dentists Act 1984 to enrol with the GDC - dental hygienists and dental therapists. The
GDC has also recently authorised extended duties for appropriately trained hygienists
and therapists.
There are 17 schools for Dental Auxiliaries in the United Kingdom and these are
subject to a formal visit by the Council once every ten years. Success in the
examinations leads to the award of the Diploma of Dental Hygiene or the Diploma in
Dental Therapy and some students qualify in both.
S 1(2) of the Dentists Act 1984 states that It shall be the concern of the Council to
promote high standards of professional conduct among dentists.
Under the shadow of this provision, and in exercising its self-regulatory status, the
GDC issues ethical guidance to all registered dental practitioners. This guidance to
dentists on professional and personal conduct covers specific areas of practice. The
current ethical guidance entitled Maintaining Standards was first published in 1997,
and has since then been amended. Maintaining Standards focuses on best practice
and guidance as to the professional standard and personal conduct expected of a
registered dentist. It states, amongst other things, what the public expects, what the
patient expects, and what acceptable practice arrangements are. Despite the lack of
formal legal status concerning these ethical guidance, this quasi legal status has been
reinforced in case law, where Courts have consistently shown great regards to the
contents and interpretations of the equivalent ethical guidance issued by the General
Medical Council (GMC). It can be reasonably extrapolated, by necessary logical
extension, that the same principles can be applied to the ethical guidance issued by the
GDC.
15
4.2.2
PROCEDURES TO MAINTAIN PROFESSIONAL CONDUCT
4.2.2.1 Preliminary Screener

The GDC receives reports of criminal convictions, complaints from patients or
complaints from other sources such as public bodies [NHS Trusts, Primary Care
Trusts (PCT) or equivalent].
When the GDC receive such complaints or reports, they are considered by the
Preliminary Screener who is a member of the Council.
The Preliminary Screener has to consider whether the complaint or conviction may be
construed as serious professional misconduct. Although there is not a definitive
definition on professional misconduct, the Privy Council took it as such, that
conduct connected with his/her profession in which the practitioner concerned has
fallen short, by omission or commission, of the standard of conduct expected among
dentists.
However, the word serious is more open to interpretation and is often the bone of
contention in disciplinary cases.
If the Preliminary Screener decides that the issues raised in the complaint or the
conviction notified can amount to serious professional misconduct, there will be a
case to answer. Further information or investigation will be required and the case will
be referred to the Preliminary Proceedings Committee. Otherwise, the case will be
closed and the respective parties informed of the decision. There is no appeals
mechanism for the decisions taken by the Preliminary Screener.
4.2.2.2 Preliminary Proceedings Committee
When the decision has been taken to refer the case to the Preliminary Proceedings
Committee, the dentist concerned will be informed and invited to submit comments
and observations on the complaint.
The complaints and the written response from the dentist will be considered by the
Committee who may decide that there is no case of serious professional misconduct to
answer, in which case matters do not proceed and the interested parties informed of
the decision. Alternatively, the Committee may decide that there may be prima facia
evidence to suggest serious professional misconduct, in which case, the Committee
will then refer the complaint for an inquiry by the Professional Conduct Committee
which sits in public for hearings.
However, if the Committee believes that the case against the dentist is so serious, it
has the power to suspend the dentists registration with immediate effect in the
interim, pending the findings of the Professional Conduct Committee.
If the Committee determines that the matter under consideration does not amount to
serious professional misconduct but the dentists professional conduct causes concern,
it can formally send a letter of warning to the dentist and conclude the case. It should
be noted that this information could be taken into account if similar complaints
against the dentist arises in the future.
16
4.2.2.3 Professional Conduct Committee

The Professional Conduct Committee meets in public and consists of lay and dentally
qualified members. An Order made to the Dentists Act 1984 has changed the
composition of the Professional Conduct Committee completely, in that none of them
are current members of the General Dental Council.
The Professional Conduct Committee now has a dedicated panel consisting of 15
dentally qualified and 15 lay appointed panel members independent of the General
Dental Council. The Committee deals exclusively with disciplinary cases referred by
the Preliminary Proceedings Committee. At the time of writing of this article, it is not
clear whether this panel will also take over the functions of the existing Preliminary
Screeners and the Preliminary Proceeding Committees.
Procedural rules and standards of proof for the hearings are similar to that of the
Court of the United Kingdom. Both sides are legally represented and procedural rules
laid down in accordance with the provisions of the Dentists Act 1984 have to be
followed to the letter. Rules of admissibility of evidence presented to the Committee,
witnesses, cross-examinations and the standard of proof required to established
professional misconduct are set at the same hurdle as that of Criminal Courts. In other
words, the standard of proof required to establish professional misconduct is the
standard of beyond reasonable doubt that would reasonably be delivered by a
reasonable man presented with the same evidence which had been presented in
front of the Committee.
If the facts are found proved, the Committee then has to decide whether or not they
amount to serious professional misconduct.
Since the GDC is a public body, all the decisions it makes have to be reasonable in
accordance with Wednesbury reasonableness as defined by case law, otherwise it
can potentially be successfully challenged in Court who can order remedies in respect
of the decisions made.
If a dentist has been convicted in a Criminal Court carrying a sentence of more than 6
months and/or fined more than 5000 Pounds Sterling (approximately 7000 Euros) by
the same Court, such matter will automatically be referred to the Professional
Conduct Committee for consideration.
If found guilty of serious professional misconduct by the Professional Conduct
Committee, the sanctions available to the Professional Conduct Committee include:
Erasure from the dentist register (the ultimate sanction)
Suspension for a period of time, usually up to one year
Admonishment to the dentist
Postpone of judgement (usually for 1 year, pending reports on the dentists

progress in the meantime)
Conclusion but no further action to be undertaken
17
Referral to the Health Committee for determination
A dentist who is suspended or erased form the Dentist Register has a right to appeal to
the Judicial Committee of the Privy Council within 28 days of the judgement. The
decision of the Professional Conduct Committee does not take effect until 28 days
have elapsed with the exception of cases where the Committee determines that the
case is so serious, that erasure should take immediate effect in order to protect the
public.
4.2.2.4 Health Committee
The Health Committee enables the GDC to consider registered dentists whose fitness
to practice may be seriously impaired because of a physical or mental illness. The
most common examples are related to alcohol or substance abuse.
If the Committee finds that the dentists fitness to practise is seriously impaired, it
may either suspend or impose conditions on his registration. Suspension or conditions
on practice are reviewed regularly, subject to medical opinions or supervision. This
mechanism would allow sick dentists to continue to practise with adequate support
mechanisms in place to protect the public.
4.3
REFORMS IN THE HEALTH AND CONDUCT PROCEDURES OF THE

GDC
S 60 of the Health Act 1999 allows regulations to be laid down in Parliament by the
Secretary of State so that the Dentists Act can be amended by Order. As a result of the
first batch of amendments to the Dentists Act 1984, the GDC, amongst other things,
has been empowered to overhaul its fitness to practise procedures.
These reforms include the introduction of procedures for dealing with dentists who
are poorly performing, to reinforce patients' confidence in registered dentists.
The reforms to the conduct and health procedures include the followings:
The Council's Professional Conduct Committee will be able to take action against
a dentist if he/she is suspended or erased by another regulatory body
The Professional Conduct Committee will have the power to recommend a
minimum period of erasure
The Council will also be able to:
a) Obtain and disclose information about an individual dentist's fitness to practise;

b) Order an immediate suspension or place conditions on a dentist's registration, on an
interim basis, through a new Interim Orders Committee.
Further reforms of the GDC are currently being considered by the Government
through the amendment of the Dentists Act 1984 by a new Order.
18
55 THE PRACTITIONER/PATIENT RELATIONSHIP IN

RELATIONS TO THE LAW OF CONTRACT AND TORT
5.1
ASPECTS OF PRACTITIONER/PATIENT RELATIONSHIP
A patient is owed a legal duty of care by a health carer. This duty is said to be a
single, indivisible duty. Whether or not a duty is owed in any given situation is
determined as an issue of law by the Courts.
A breach of either the terms of the contract or the duty of care (tort) might result in
legal action being successfully taken against the dental practitioner by the patient in a
court of law. Such outcome could be very damaging to the practitioner: this might not
be limited to the financial aspects (since this could well be met through the required
indemnity insurance) or the effects it has on the reputation of that practitioner. He/she
could also face disciplinary action from the General Dental Council under the Dentists
Act 1984 or the Dental Council in Ireland under the Dentists Act 1985.
Since the NHS is a public authority, patients being treated under it would also come
under the provisions of the European Convention on Human Rights 1950 and the
Human Rights Act 1998. Practically, these patients will be able to argue that he/she is
owed these new duties arising from the incorporation of the Convention into English
law.
However, in England and Wales, patients being treated under the National Health
Service (NHS) have no contract with the NHS. They can only look to the law of tort
(in particular the tort of negligence) for redress. For patients treated privately, there is
in addition, a contractual relationship and therefore an additional alternative to
liability in tort.
5.2
CONTRACT
A contract may be defined as an agreement between two or more parties that is

binding in law. A contract can either be verbal or written. However, the faintest ink
is stronger than the strongest memory, it would be unwise for a dentist to rely solely
on a verbal contract in the treatment of patients requiring relatively complex/extensive
procedures.
There are three basic elements in the formation of a valid simple contract, and they
are:
an offer,
an acceptance and
the passing of consideration (money).
In addition, the parties must have the legal capacity to contract and may have to
comply with certain formalities. A contract consists of various terms, both express
and implied. A contract whose purpose is illegal is not valid and cannot be enforced.
19
5.2.1
REMEDIES
When a party to a contract suffers loss as a result of a breach by the other party,
he/she will be entitled to an award of damages. Alternatively, one party may bring a
claim on the basis of quantum meruit (as much as he deserves), which is a claim for
reasonable remuneration on the ground that he/she is prevented by the other party (in
breach) from completing the performance stipulated in the contract.
In the context of the practice of dentistry, if for example, a new set of dentures simply
fails to fit, the practitioner would be required under contract, either to remake the
dentures or to refund the patient. However, if the patient has accepted the set up of the
teeth during the try-in stage and then rejects the dentures on the ground of appearance
upon delivery; strictly speaking, the patient has no option in contract but to accept the
dentures at the denture delivery stage since the patient has already accepted the
denture in reality. However, the onus is on the practitioner to demonstrate that he/she
has given the patient reasonable opportunities and time to reach the decision in
accepting the dentures at the try-in stage in the first place.
5.2.2
UNFAIR CONTRACT TERMS
If an agreement for the patients dental treatment is to be drafted, the dentist must bear
in mind the provisions of the Unfair Contract Terms Act 1977. Under this Act, any
clause containing restrictions or exclusion of liability for death and personal injury
resulting from negligence will render the agreement/contract void. Other exclusion
clauses must be reasonable or they could be excluded as a term of the contract by
the court.
5.3
TORT
Tort means a wrong; so called because it is wrested, wrung, or crooked. To establish

an action in tort of negligence (with negligence being an independent tort), there are
three basic elements:
There must be a duty of care from one party to another
This duty of care must have been breached, and
Damages to the other party must have been caused as a result.
The legal duty of care in the tort of negligence can be regarded as a single duty,
subdivided into individual duties such as a duty to diagnose, a duty to treat or a duty
to disclose the risks involved in the proposed procedures.
There is no doubt that the practitioner has a duty of care towards the patient. If the
patient has been injured as a result of the procedure carried out by the practitioner, the
practitioner can be successfully sued for damages as a result of his/her negligence.
It must be noted that in general, the harm/damages must be foreseeable. For
example, in carrying out endodontic treatment without the use of rubber dam for
protection and isolation; if the patient either swallows or inhales the filing instrument,
the practitioner is negligent. It is not defensible, as the harm is foreseeable.
20
On the other hand, if the needle breaks intra-orally during the administration of local
anaesthetics, provided that the procedure has been carried out properly, the
practitioner cannot be found negligent since it is impossible to foresee that the needle
will break under normal circumstances. However, the patient may have a claim
against the manufacturer of the needle.
5.3.1
REMEDIES
For remedy in tort, the tortfeasor (wrongdoer) must put the other party at the state as
if the tort had not been committed. In real terms, the plaintiffs in tort actions may be
seeking monetary compensation (damages) or perhaps and injunction to prevent
further repetition of the wrongful act by the defendant.
As far as financial compensations are concerned, assessment of damages would
involve a prediction of what would have happened to the plaintiff had the accident not
occurred. The calculation as to the amount of compensation would be based on the
amount of earning, life style and enjoyment, pain and suffering as determined by the
Court or by agreement between the two parties if the matter has not been settled out of
court.
A more detailed analysis of compensation in clinical negligence cases will be made
later on in the text.
21
66 CONFIDENTIALITY AND FREEDOM OF INFORMATION

6.1
THE ISSUES
The maintenance of confidentiality between the patient and the doctor/dentist is the
pillar to a patients trust in the health care professional. Doctors and dentists have a
duty, long recognised by the law, not to disclose any information about their patients
learnt in the course of their professional practice without the consent of the patient.
It has been a vital part of the codes of medical ethics for many centuries, as the
Hippocractic Oath states that All that may come into my knowledge in the exercise of
my profession or in daily commerce with men, which ought not to be spread abroad, I
will keep secret and will never reveal. As modified by the Declaration of Geneva, it
reads I will respect the secrets which are confided in me, even after the patient has
died.
What constitutes the duty of confidentiality is the practitioner/patient relationship
which is built on trust, irrespective of the quality of the information gathered in the
practitioners professional capacity.
The duty to keep such information secret is not absolute. Here are the main exceptions
in law to the duty of confidentiality:
Under a court order from a circuit judge
Police with a search warrant for such a purpose
Under the Public Health (Infectious Disease) Regulations 1985 note that AIDS
and HIV are not classified as infectious disease under the meaning of this
regulation
Details of drug addicts under the Misuse of Drugs (Notification of Supply to

Addicts) Regulations 1973
Under the provisions of the Road Traffic Act 1988
Disclosure on the ground of public interest (the extent of which has been
established in case law as per Hunter v Mann [1974] QB767, AG v Guardian
Newspaper [1990] 1 AC 139: the so called the spy-catcher case, W v Egdell
[1990] 1 All ER 835 and Helliewell v Chief Constable of Derbyshire [1995] 1
WLR 806: details of which are beyond the scope of this article).
Request for disclosure from the patient or an authorised person acting for and on
behalf of the patient with the consent and the instructions of the patient.
Confidentiality can only be breached when the recipient of the information learns
something previously unknown to him. It is not a breach of confidentiality to discuss
implications of medical/dental information already known by the recipient. Logically
it follows that a good practitioner should never discuss any information of his/her
patients in public. A medical practitioner was struck off by the General Medical
22
Council (GMC) for disclosing to the local publican that one of his patients was
adopted as a child: the patient overheard the conversation and reported the matter to
the GMC.
Strictly speaking, a practitioner should not even discuss the treatment of a married
woman with her husband without her consent. After all, the husband cannot consent
to treatment on behalf of his wife.
However, ethical guidance in confidentiality (such as those from the General Dental
Council [GDC]) cannot provide definitive answers to every situation when the issue
of patient confidentiality arises. Much depends on the context of the individual case.
Due to the lack of statute law governing medical confidentiality and the varying
nature of the interpretations of the limited common law cases available, the advice
practitioners may be able to obtain from various professional advisers regarding
confidentiality may need to be periodically updated.
The GDC has, nonetheless made a clear statement regarding confidentiality in their
latest ethical guidance to all registered dentists, that
The dentist/patient relationship is founded on trust and a dentist should not disclose,
to a third party, information about a patient acquired in a professional capacity
without the permission of the patient. To do so may lead to a charge of serious
professional misconduct. A dentist should also be aware that the duty of
confidentiality extends to other members of the dental team.
Where information is held on computer, a dentist should have regard to the provisions
of the Data Protection Act. There may, however, be circumstances in which the public
interest outweighs a dentists duty of confidentiality and in which disclosure would be
justified. A dentist in such a situation should consult a defence organisation or
professional organisation or other appropriate advisor.
Communications with patients should not compromise patient confidentiality. In the
interests of security and confidentiality, for example, it is advisable that all postal
communications to patients are sent in sealed envelopes.
It can reasonably be deduced from the above statement, that the information may be
used relatively freely if the individual patient concerned cannot be identified from the
data disclosed. In other words, it is not ethically necessary to seek consent of the
individual patient to use anonymous information.
The notion of anonymisation is in compliance with common law as in the case of R v
Department of Health ex parte Source Informatics Ltd (2000) 1 All ER 786, when it
was held that the anonymisation of information (with or without aggression) would
remove the duty of confidentiality towards the subject in some well defined
circumstances, in that
the patient (has) no property in the information and no right to control its use
provided only and always that his privacy is not put at risk (Per Simon Brown LJ)
Under the Data Protection Act 1998, a patient has the right to have access to and have
copies of his/her health records. Under the Act, implementing a European Union
Directive (95/46/EC), the processing of personal data has to conform to the principles
(the seven data protection principles) and procedures set out in the Act. All personal
23
data that are stored electronically or in a manual filing system that enables
information about an individual to be identifiable, now come within the scope of the
Act.
Health information is classified in the Act as sensitive personal data and can
therefore only be processed if a series of conditions are met, responsibility of which
lies with the relevant data controller who will have to ensure compliance with the
law. Anyone accessing the data, called data processors will need to abide by the
seven data protection principles, details of which is beyond the scope of this article.
It is worth noting that some aspects of the Human Rights Act 1999 may have a further
major impact on the concept of personal privacy.
The whole complex area of Medical Confidentiality has been eloquently summarised
in a nutshell (by Khan, Robson and Swift in their text on Clinical Negligence) as
follows:
1. Health carers who are treating patients owe both a legal and ethical duty of
confidentiality to their patients. In practical terms this means that the health
carer must not disclose (except in clearly defined circumstances) information
regarding his patient to a third party, whether that third party is a relative or a
stranger.
2. If a Claimants legal claim for an unauthorised disclosure is successful then
the Court is entitled to grant an injunction and/or award damages (In the case
of an injunction, it matters not whether the parties relationship is in contract
of tort, what is required is that the person who possess the confidential
information must be under a legal obligation to maintain that confidence)
3. If a health carer who is treating a patient decides not to disclose information
about that patient he will not be liable to a third party who is subsequently
harmed by the patient.
4. The rule against disclosure is not an absolute rule. There are exceptions to it:
a) A health carer is legally and ethically justified in disclosing confidential
information about his patient if the patient willingly consents to the disclosure
b) The health carer may disclose confidential information to other persons
responsible for the clinical treatment of the patient; ideally the patient should
give his consent to such disclosure
c) When a health carer considers it undesirable for medical reasons to seek the
patients consent or where the patient refuses consent to the disclosure of
information, then, if the health carer considers it to be in the patients best
interests, he may disclosure that information to a third party. (However, he
should be prepared to justify such decisions to his professional body)
d) Information may be disclosed for the purposes of teaching and medical
research; in the latter case the research must have been approved by a local
clinical ethics committee
e) A health carer will have a defence to an action for breach of confidence if it
can be shown that the disclosure of information was in the public interest. In
determining whether or not the particular disclosure was in the public interest,
the Court will balance the harm that would have resulted had the health carer
24
not disclosed the information against the public interest in maintaining the
health carer-patient confidence (where case law have established that in
establishing the parameters of this exception, the Courts have relied heavily
on the ethical guidance from the Professional Bodies [e.g. the GMC])
5. A heath carer will have to breach the confidentiality of a patient if he is
ordered to do so by the Courts or if legislation (primary or delegated) so
requires. (e.g. Court orders, Acts of Parliament or Regulations requiring
disclosure to be made: such as for public health and for the prevention of
terrorism)
6. If the circumstances permit disclosure, a health carer must ensure that the
information is disclosed only to the appropriate person or authority
6.2
FREEDOM OF INFORMATION
The general right of access by individuals to a wide range of recorded information

held by public authorities is enshrined in the Freedom of Information (FOI) Act 2000.
The Act is being brought into force in two stages and all the provisions will have
come into force by the beginning of 2005. Requirements for publication schemes by
public authorities were implemented on 31st October 2003. Individuals right of
access to information came into force across all public authorities on 1st January 2005.
The provisions of the Act would be retrospective.
This Act has been described by the then Lord Chancellor as being challenged with
the task of reversing the working premise that everything is secret, unless otherwise
stated, to a position where everything is public unless it falls into specified excepted
cases
However, such right of access is not without qualifications: the Act also set out
exemptions from that right and places a number of obligations on public authorities.
Subject to the exemptions, any person who makes a request to a public authority for
that information, must be informed whether the public authority holds that
information. If it does, that information must be supplied, subject to certain
conditions.
Every public authority is required to adopt and maintain a publication scheme setting
out how it intends to publish the different classes of information it holds, and whether
there is a charge for the information.
Two codes of practice have been issued under the Act to provide guidance to public
authorities about responding to requests for information, and records management.
Details of the codes of practice and guidance are beyond the scope of this article.
The Data Protection Act 1998 and the Public Records Act 1958 has been amended
accordingly to take into account the provisions of the FOI Act 2000. It is enforced by
the Information Commissioner.
25
6.2.1
PUBLICATION SCHEMES
The FOI Act places a duty on public authorities to adopt and maintain Publication
Schemes which must be approved by the Information Commissioner. Such schemes
must set out:
the classes of information the authority publishes
the manner in which the information is published
details of any charges
In deciding what information should be included in the scheme, public authorities

must have regard to the public interest in allowing access to information.
6.2.2
THE RIGHT TO INFORMATION
Under the provisions of the Data Protection Act 1998, individuals already have the
right to access to personal data held on computer and in some paper files, as described
in the relevant section in this article.
The FOI Act extends this right of access to allow access to all the types of information
held, whether personal or non-personal, including information held about third
parties, although the public authority will have to take account of the Data Protection
Act 1998 before releasing any personal information.
The Act gives two related rights, namely
the right to be told whether the information exists
the right to receive the information
The Act also provide the public with a right to request access to environmental
information held by public bodies the provisions of which is outside the scope of this
article.
6.3
CONCLUSION
The need to maintain confidentiality of any information imparted to dentists in the

professional relationship with patients is of vital importance. The patients trust in the
dentist maintaining confidence is central to the professional relationship between the
two. There are both legal and ethical obligations for the dentist to maintain
confidentiality although such duty is not absolute. Confidentiality should only be
breached with the consent of the patient or if there are justifiable public interests in
disclosure. Otherwise, the dentist would be answerable to Law and to his professional
body for serious professional misconduct. The publics rights to information as
enshrined in the Freedom of Information legislations have also been discussed.
26
77 CONSENT
7.1
WHAT IS CONSENT
Consent is described in the Oxford Concise English Dictionary as to concur, to

assent, to agree, to yield to, and the acquiescence in feeling, thought or action .It is a
state of mind whereby the patient agrees to submit to the proposed treatment.
Consent has been described in law by Lord Diplock in the case of Sidaway v Bethlem
Royal Hospital Governors [1985] 1 All ER 643 as a state of mind personal to the
patient whereby he agrees to the violation of his bodily integrity. In other words,
consent is the voluntary submission of treatment following the understanding of the
nature, purpose, effect, chances of success, alternatives and risks of the proposed
treatment.
The law of consent has three functions in medical law:
7.2
Firstly, it protects the interest of the patient in that an adult patient of sound
mind has the right to determine the nature and extent of any treatment which
they are willing to undergo.
Secondly, it protects the interest of the dentist. If valid consent is obtained,

allegations of battery can be refuted.
Thirdly, it helps to establish, between the dentist and the patient, the
boundaries of treatment recommended by the dentist that are acceptable to the
patient.
ELEMENTS OF VALID CONSENT
For consent to be valid, the following three elements must have been satisfied. The
patient must
Have the capacity/capability to give consent
Have been given adequate information and knowledge regarding the procedure
Have given such consent voluntarily and have not been under coercion or undue
influence
If the requirements for consent have not been met, the patient cannot have consented
to any treatment. Any treatment will be unlawful and possibly a violation of the
patients body even if the patient has signed a consent form.
Consent can either be verbal or written. Although the Courts are relaxed about the
need for written consent to be obtained, they place much importance on the process
within which real consent has been established. Provided that all the required
procedures have been followed, written consent provides the clearest evidence that the
patient does in fact consent, and for that reason is highly desirable as practitioners
may have to defend legal proceedings if anything goes wrong whereby the issue of
27
consent may become contentious between the parties.

The ethical guidelines issued to all registered dentists by the General Dental Council
(GDC) states that
A dentist must explain to the patient the treatment proposed, the risks involved and
the alternative treatments and ensure that appropriate consent is obtained
These guidelines also stipulate that written consent must be obtained for procedures
under General Anaesthesia and Conscious Sedation (Sections 4.11, 4.3 and 3.7 of
General Dental Council: Maintaining Standard November 1998 as amended).
7.3
IMPLIED CONSENT OR EXPRESSED CONSENT
Consent can either be implied (inferred) or expressed. The law does not prescribe any
requirements as to the form of consent required before any treatment can be carried
out.
7.3.1
IMPLIED CONSENT
Implied consent relates to the conduct of the patient, whose action could reasonably
lead to the conclusion that the patient agrees to the treatment.
A very good example is that if a patient makes an appointment, comes into the
surgery and sits on the dental chair, the issue of consent regarding an inspection of
his/her teeth is immaterial. It is implied that by entering the surgery voluntarily and by
opening his/her mouth at the request of the practitioner, the patient must have given
his/her consent for an inspection to be carried out his/her very conduct.
The scope for implied consent should not be too widely construed. It should be noted
that implied consent of the patient walking into the surgery and sitting on the dental
chair stops at the inspection stage. If the practitioner wishes to carry out further
investigations/treatment, such as the taking of intra-oral radiographs, or the scaling of
teeth etc., expressed consent of the patient must be obtained prior to the
commencement of the procedure(s).
7.3.2
EXPRESSED CONSENT
Consent is expressed when the patient explicitly agrees to the treatment. This may be
effected either orally or in writing (following consideration of the nature, purpose,
effects of the treatment proposed, feasible alternative treatments, risks and the effects
of refusal). Standard consent forms are widely used to record expressed consent in
writing.
7.3.3
INFORMED CONSENT
Informed consent, is often described as informed decision and reasoned consent.

It is important to note that the threshold required for informed consent in English
Law is distinctly different form many other jurisdictions such as the USA, Canada,
Australia etc
28
7.3.3.1 In English Law

The case of Chatterson v Gerson [1981] QB432 illustrated in English Law, that the
patient needs only be informed in broad terms as to the nature of the proposed
treatment for any subsequent consent to be real.
The notion of "Informed consent" was clarified in English law (as illustrated in the
case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital [1985] 1 all ER643 by a split 3 to 2 decision in the House of
Lords), as Lord Scarman reaffirmed to the effect that the laws required standard
would in effect be set by the healthcare professions. If a practitioner could show that
the treatment or advice given had reached a standard of care which was accepted by a
respectable and responsible body of medical opinion as adequate, he could not be
made liable in damages if anything were to go wrong. It was therefore
a totally medical proposition erected into a working rule of law.
However, regarding the required amount of information in terms of risks to the
proposed treatment in order for the practitioner to obtain valid consent from the
patient, it will largely but not exclusively be determined by what other responsible
practitioners would have done in similar circumstances (as in the case of Bolam, a
landmark case which will be looked at in greater detail later on in this article).
The variation from these principles arises from the most recent (late 2004) judgement
in the case of Chester v Afshar [2004] UKHL 41, when, in a split decision, the House
of Lords ruled that in cases where a reasonable body of professional opinion might
not disclose particularly remote theoretical risks to the patient, public policy
demanded that the judiciary attached great importance to patient autonomy, informed
choice in healthcare and when evidential, opt for the disclosure of risks where
appropriate.
This judgement appears to slant towards the empowerment of patients in the context
of consent to medical treatment, as Lord Steyn stated, that
A patients right to an appropriate warning from a surgeon when faced with surgery
ought normatively to be regarded as an important right which must be given effective
protection whenever possible. reflects the reasonable expectations of the public in
contemporary society
In effect, this doctrine of informed consent would now take a greater priority even to
depart from the traditional causation principles in tort (as described in the next
Chapter).
For consent not to be vitiated for reasons of non disclosure of risks, practitioners
should devote ample amount of time to enable each patient to make a free and
informed choice in his or her own time about what treatment to accept.
If in doubt as to whether a particular risk to the treatment proposed is to be
communicated with the patient irrespective of how remote it might be, it is now
prudent to state, along with public expectation, backed up by the law, that such risks
should be disclosed and discussed appropriately prior to the patient arriving at an
informed decision.
29
7.3.3.2 In Other Jurisdictions

(Please note that this section is outside the current MFD syllabus. However, it
would serve as useful background reading to help with the understanding some
of the pertinent legal and ethical concepts explained)
The cases of Canterbury v Spence (1972) 464F (2d) 722 in the USA, Rebli v Hughes
(1980) 114DLR (3d) 1 in Canada, and the Australian case as of Rogers v Whittaker
[1993] 4 Med LR 79 illustrate the difference between English law and these
jurisdictions.
In a nutshell, this doctrine of "informed consent" in these jurisdictions have the
particular legal meaning that all material risks should be disclosed to the particular
patient prior to obtaining the patient's consent. Furthermore, a material risk is defined
as
"when a reasonable person, in what the doctor knows or should know to be the
patient's position, would be likely to attach significance to the riskin deciding
whether or not to forego the proposed therapy".
This test in effect is whether in the circumstances of the particular case the Court is
satisfied that a reasonable person in the particular patient's position would be likely to
attach significance to the risk, in other words, What a prudent patient would want to
know rather than what the healthcare profession thinks that the patients should know.
In practice, say in the USA, before consenting to any treatment, the patient will be in
receipt of the information which the practitioner thinks the patient will want to have.
For fear of the financial consequences of getting it wrong, practitioners are more
likely to err on the side of caution and to give more information (often described as
the practice of "defensive medicine")
7.4
THE COMPETENT PATIENT
To be legally competent to consent to treatment, a patient has to be aged 16 or over

(under the provisions of the Family Law Reform Act 1969) and not suffering from
any condition which affects his ability to reach a rational decision. In other words, a
competent patient has to be mentally sound.
The issue on an adults competence is whether the patient is able to understand the
nature and purpose of the care whereas the level of understanding that is required
must commensurate with the gravity of the decision to be taken, with more serious
decisions requiring greater capacity (as illustrated in the cases of F and Re T).
It is the duty of the practitioner to obtain valid consent from the competent patient by
informing the patient the followings:
The reasons for the procedure
All other feasible treatment options/ alternatives/ treatment (including no

treatment) available for the condition, and
The main possible complications and side effects resulting form the procedure.
30
In theory, the patient must take the decision with regards to the choice of treatment on
his/her own. The practitioner has a duty to explain to the patient about each form of
treatment/procedure but not to persuade or influence the patient into reaching a
specific final decision.
Failure to obtain valid consent from a patient would mean that the patient could take
an action for battery against the practitioner as in the case of Appleton v Garrett
[1997] 8 Med LR 75. This is in spite of the fact that English courts have been
consistent in holding that actions for battery should play a very limited role in health
care law.
It would therefore be indefensible in the court of law for a practitioner to have carried
out treatment without the consent of the patient, even though the treatment might have
been in the best interests of the patient.
The argument in the best interests of the patient plays no part in obtaining valid
consent of the patient. The issue remains that a competent patient has every right to
refuse treatment, irrespective of whether the refusal is rational or irrational.
Likewise, if the patient decides to opt for another treatment option for, say, an acute
apical abscess for whatever reason, such as to have the tooth extracted instead of
having an endodontic treatment, the practitioner cannot insist on carrying out the
endodontic treatment by arguing that such treatment will be in the best interests of the
patient.
The patient so far has been assumed to be a competent adult where consent must be
obtained from the person who is to receive care.
English law does not recognise rights of proxy consent on behalf of an adult. This
means that third parties such as relatives and spouses do not have the power to
authorise treatment and any purported consent is invalid. Only in relation to children
(defined as those under the age of 18) can others, providing that they have parental
responsibilities (Under the Family Law Reform Act 1969), consent on behalf of
others.
7.5
THE INCOMPETENT PATIENT
Incompetent patients are those who do not have the capacity to consent to treatment.
They can be grouped into the following three categories:
The minors (patients under the age of 16)
The mentally handicapped adults, and
The unconscious patients
7.5.1
THE MINORS
In general, a patient below the age of 16 cannot consent to surgical, medical and
dental treatment. Parents or legal guardian of the minor would have to consent on
behalf of the minor prior to any treatment being carried out.
31
In accordance with s8 of the Family Law Reform Act 1969, a patient aged 16 or over
is competent to consent to treatment, and the consent given is as effective as it would
be if he were of full age (18 or over). As with adults, they cannot legally consent to
anything which would otherwise be a criminal act.
However, a patient under the age of 16 can consent to treatment without the
involvement of the parents or legal guardian provided that the patient is Gillick
Competent, which means that if he/she has a sufficient understanding and
intelligence to enable him or her to understand fully what is proposed in
contraceptive counselling and advice, as in the case of Gillick v West Norfolk and
Wisbech AHA [1985] 3 All ER 402 HL. The underpinning legal principles in Gillick
should not be construed as being restrictive to contraceptive issues involving those
under the age of 16, as in no stage did the judges attempt to limit it, as such that Lord
Scarman said, I would hold that as a matter of law the parental right to determine
whether or not [a] minor below the age of 16 will have medical treatment terminates
if and when the child achieves a sufficient understanding and intelligence to enable
him or her to understand fully what is proposed. However, a minor cannot refuse
treatment even if he/she is Gillick competent (as in Re W [1992] 4 All ER 627 and Re
R [1991] 4 All ER 177).
It should also be noted that the Courts do not allow parents or legal guardians
unfettered control over the healthcare of their children, especially if it is where the
parents or legal guardians refusing to consent for the treatment required to maintain
life (e.g. life-saving blood transfusion or the separation of Siamese twins). In such
circumstances, if in the opinion of the Court that the treatment is in the childs best
interests, it will be sanctioned by the Court (e.g. in the cases of Re: MM (medical
treatment) [2000] 1 FLR 224; Re: C (HIV Test) [1999]; Re: M and J (Medical
Treatment Siamese Twins) [2001] 1 FLR). The Court also has power to make the
child a ward of court and appoint a legal guardian to look after the interests of the
child.
7.5.2
THE MENTALLY HANDICAPPED ADULTS
Prior to 1983, section 34(1) of the Mental Health Act 1959 allowed a guardian to be
appointed to care for a mentally handicapped adult. This legal guardian could consent
to treatment on behalf of a patient in the same way as parents would on behalf of their
child. Since the enactment of the Mental Health Act 1983, a guardian can no longer
consent to treatment of his adult ward for any physical illness. Adult guardianship
appointment has been rare. Moreover, a mentally handicapped adult can no longer be
made a ward of court.
Section 63 of this Act dispenses with any requirement for consent to treatment of a
mentally handicapped adult detained under this Act. It should be noted that the
treatment is not for any medical conditions, but only treatment in direct relation to
the mental health of the patient.
In F v West Berkshire Health Authority [1989] 2 All ER 545 HL; Lord Brandon
declared that a doctor could lawfully operate on, or give other treatment to, adult
patients who were incapable, for one reason or another, of consenting to his doing so,
provided that the operation or other treatment concerned was in the best interests of
the patient.
32
In the same case, House of Lords also concluded that they had no jurisdiction to
require doctors to apply for a declaration from the High Court before any form of
surgery or treatment on mentally incompetent patients. However, they also held that
as a matter of practice, a doctor contemplating radical and/or irreversible treatment
should normally choose to make an application to the court. Hence, in the case of the
Hillsborough disaster victim Tony Bland, it was necessary for the hospital authority to
apply to the High Court for a declaration to withdraw treatment by switching off Tony
Blands life support machine (as in Airedale NHS Trust v Bland [1993] AC 789).
It must be noted that the state of a patients mental health is irrelevant to his capacity
in consenting to treatment.
7.5.3
THE UNCONSCIOUS PATIENT
Unless the patient is unconscious and that the treatment is necessary in order to
sustain life, real consent of the patient must be obtained prior to the commencement
of treatment. If in doubt, a High Court declaration authorising treatment should be
obtained although it would be rare to the extreme in the context of dental treatment.
7.6
REFUSAL TO CONSENT TO TREATMENT
Acceptance of the principle of respect for patient autonomy and self determination
requires that dentists respects the patients choice even if it is contrary to the
recommended treatment. A true consensual patient has an absolute right to refuse to
receive any treatment, even if such treatment is necessary, in the best interests of the
patient irrespective of any otherwise detrimental effects to the patient.
A patient is presumed to have the necessary mental capacity to consent or refuse
consent to any surgical, medical and dental treatment on offer and the onus is upon
those who argue that such patient is incompetent to do so.
The legal requirements for mental capacity to consent was laid down in the case of
Re: C [1994] 1 All ER 819, where Thorpe J held that to have the mental capacity to
consent, one had to be able to:
1. take in and retain treatment information
2. believe it, and
3. weigh that information, balancing risks and needs
It should be noted that a patients right of self-determination is not a right to insist that
the dentist provide whatever treatment the patient desires. Dentists are also entitled to
respect for their autonomy and can refuse to provide the patients choice of treatment
if such treatment is not in the best interests of the patient.
7.7
CONCLUSION
The law of consent provides an important but symbolic statement of the patients right
to self-determination. However, the commitment of English law to the concept of
informed consent is ambiguous.
33
The adoption of professionally determined disclosure standards as in the case of

Sidaway, means that any moves towards greater involvement of the patient in consent
would have to be through the healthcare professions and not common law or legal
doctrine.
In terms of the practice of dentistry in the United Kingdom, there has been little move
from the General Dental Council in their ethical guidance to dentists, towards a less
paternalistic approach in its promotion of ethical practice.
However, the recent case of Chester illustrates the ambiguity in the manner, by public
policy, that patients autonomy might demand a far higher threshold against nondisclosure of risks, irrespective of what a reasonable body of professional opinion
would suggest, in order for consent not to be otherwise vitiated.
34
88 COMPETENCE/NEGLIGENCE
8.1
INTRODUCTION
It is not difficult for one who works in the health care profession in the United
Kingdom and the Republic of Ireland to have noticed the large increase in complaints
from patients and their relatives about the treatment they have received. Most of these
complaints are resolved at a local level but some turn into litigations. The prospects of
a legal suit of clinical negligence against the practitioner are not what many
practitioners would savour or indeed be looking forward to.
Realistically, in a litigious society, avoidance these events may not always be
possible. Accidents or negligence do occur and they can potentially cause all parties
involved much distress to say the least. Apart from adopting sound clinical practice to
deliver competent service to the patients, familiarity with the law of negligence would
also be of vital importance in order for the healthcare professional to deliver effective
risks management. However, these two principles in combination, should work in
favour of better healthcare for the patients and less clinical litigations for the
practitioner.
8.2
NEGLIGENCE
Negligence in the legal context has a specific meaning. To establish the tort of
negligence, the following three elements must be present:
a legal duty of care
a breach of that duty of care
foreseeable harm has been caused as a result of the breach of duty of care
Clinical negligence is established when the practitioner fails to treat his/her patient to
an acceptable standard of care and injures his/her patient. Such failure can either be an
act performed by the practitioner or an omission, which the practitioner should not
have left out.
Failure to make the correct diagnosis does not constitute clinical negligence.
However, the failure to carry out all the necessary investigations or to refer the patient
to a specialist practitioner as indicated by the signs and symptoms the patient had
would appear to be an omission; and hence the practitioner could be negligent.
8.2.1
THE DUTY OF CARE
There is no difficulty in establishing that the practitioner owes a duty of care to his
patients and that duty is not to harm or injure them.
35
8.2.2
THE STANDARD OF CARE
8.2.2.1 The Bolam Test and the case of Bolitho

The key question is whether the practitioner has acted properly. In other words,
whether they have reached the standard of care required of them by the law of
negligence.
The legal standard required in England and Wales is the application of the Bolam test.
The Bolam test arises from the case of Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582. It was held that the standard of care demanded of the
doctor was the standard of the reasonably skilled and experienced doctor:
The test is the standard of the ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill; the law is well
established that it is sufficient if this man exercises the ordinary skill of an ordinary
competent man exercising that particular art In accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular
area . A man is not negligent, if he is acting in accordance with such a practice,
merely because there is a body of opinion who would take a contrary view.
The essence of the Bolam test is that professionals are to be judged against the
standard of their own peers. It is clear that a practitioner would not be found to be
negligent so long as he conforms to one professional school of thought (even in a
disputed area of treatment) and can be shown to be within the range of acceptable
practice. This means the minimal level of acceptable practice and not what they would
like to have seen happen.
However, the Bolam test had been clarified by the House of Lords in the case of
Bolitho v City and Hackney Area Health Authority [1997] 3 WLR 1151.
Fact: Patrick Bolitho, a two year old boy, suffered a respiratory failure and cardiac
arrest whilst in hospital. While the defendant Health Authority conceded that the
doctors failure to attend after being paged was in breach of her duty of care to the
plaintiff, it denied that the failure had caused the respiratory failure and consequent
brain damage. However, it was accepted that the brain damage would have been
avoided if the doctor had provided an airway before the respiratory failure.
The plaintiff had to prove that the negligent omission to attend caused the injuries
suffered, by showing that:
if the doctor had attended, she would have provided an airway, or
if the doctor had attended, she should have provided an airway because it would have
been a breach of her duty of care not to have done so. This was to be judged by the
Bolam test.
The Court held that the Bolam test applied to causation but only where the breach
of duty consisted of an omission to act which it was alleged to have been done.
Bolitho accordingly depended on whether a responsible body of medical opinion
would not have opened an airway to the child.
36
The House of Lords held that a court was not bound to hold that a defendant doctor
escaped liability for negligent treatment or diagnosis just because he/she had evidence
from a number of medical experts who were genuinely of the opinion that his/her
treatment or diagnosis accorded with sound medical practice.
The court also had to be satisfied that the exponents of the body of opinion relied on
could demonstrate that such opinion had a logical basis.
In particular cases involving, as they often did, the weighing of risks against benefits,
the judge, before accepting a body of opinion as being responsible, reasonable and
respectable, would need to be satisfied that, in forming their views, the experts had
directed their minds to the mind of comparative risks and benefits and had reached a
defensible conclusion on the matter.
Bolitho helpfully clarified this in stressing that responsible qualifies body of
opinion. A court must therefore be satisfied that practitioners who make up a body
of opinion can demonstrate that their opinion has a logical basis. Courts will not
merely delegate the task of setting standards to medical opinion and may, therefore,
influence medical practice.
8.2.2.2 Implications of Bolam and Bolitho
Medical opinion will now have to pass the test of logical analysis before a practice
can be held to be a responsible practice. Bolam has been criticised in the past as
offering too much protection to practitioners who have failed to keep up with modern
developments. The Court will decide whether a gap in professional practice exists
which could easily have been avoided and may, therefore, influence medical practice.
The problem stems from the fact that most disputes between reasonable bodies of
medical opinions are not about logic but about clinical decisions taken in
conditions of uncertainty. The best way to interpret the decision is by deeming
widespread practice to be reasonable unless there are positive evidence-based
scientific proofs against such a practice. This interpretation would leave a significant
area where a court would still bow to the medical experts and will not take the
initiative in finding out-dated practices negligent.
The difficulty with this approach lies with the standard applied to Bolam. It has been
argued that the Bolam test places too much control in the medical profession (and the
dental profession, by necessary logical extension), resulting in the Court not imposing
a more objective standard, which could in itself lead to the conclusion that the
standard clinical procedure in the treatment of the patient may in itself be negligent.
English Courts do not wish to impose their judgement in crucial medical opinions
concerning life and death. They would leave those opinions to the medical profession
and then to reaffirm the legality of such decisions when presented to them and not use
the Courts as the forum to squabble over one medical procedure to another. Crucially,
English Courts have not made any distinctions between the standard required for
treatment and the standard required in the disclosure of risks to patients: They have
left the principles of Bolam to be applied.
37
8.2.3
A NEW APPROACH TO CAUSATION: NON DISCLOSURE OF RISKS
The recent case of Chester v Afshar [2004] UKHL 41 concerns a claim for negligence
on the basis that insufficient information has been provided to the patient about risks
involved in medical treatment which had not been successful, but had been carried out
with due care and skill.
The House of Lords (by a split decision of 3 against 2) ruled that the defendant had
been negligent in failing to inform the claimant of the risks, and that the claimant
would be entitled to damages even though that failure to inform had not, on a strict
application of the but for test, resulted in the injuries suffered by the claimant.
In other words, this case illustrated that it might be possible for a negligence claim to
succeed, solely on the evidence that the claimant wanted to know about the particular
risks attached and such risks had not been disclosed, even though such non disclosure
would be in line with Bolam.
It is important to note the potential implications of this judgement: even if the
treatment had been carried out with due care and skill, and therefore there was no
negligence in respect of the actual treatment, that the practitioner could still be found
negligent in the failure to warn the claimant of some small risk involved, if the patient
suffered as a result of the manifestation of such risk in the provision of treatment.
According to Lord Hope in his judgement, that a claimants right to
dignity and autonomy should be vindicated by a narrow and modest departure
from traditional causation principles
He also stated that the function of the law is to protect the patients right to choose,
and that
the duty to inform is respected by the doctor It will fail to do this if an
appropriate remedy is not given if the duty is breached and the very risk that the
patient should have been warned about occurs .and (the patient) suffers injury
It might be argued that this judgement represents a partial departure from the
traditional narrow and practitioner-based notion as in Bolam; in that English law in
negligence might indeed be moving in the direction of other comparable jurisdictions
as the section below seeks to illustrate.
8.2.3.1 Legal positions in other comparable jurisdictions

(Please note that this section is outside the current MFD syllabus. However, it
would serve as useful background reading to help with the understanding some
of the pertinent legal and ethical concepts explained)
Despite the case of Chester as illustrated above, English Law still differs from many
other jurisdictions (Australia, USA and Canada, to name but a few), as illustrated by
the following Australian case demonstrating a different approach by the Courts
imposing a more objective standard in the practitioners duty to disclose the risks to
38
the patient.
The Australian case used for this illustration is referred to as Rogers v Whittaker
[1993] Med LR 79.
Facts: Mrs Whittaker was 47 year old and had been blind in her right eye from
childhood. She underwent elective surgery to that eye, aimed at improving its
cosmetic appearance and restoring some vision. The operation caused blindness in her
good eye as a result of a complication known as sympathetic ophthalmia. She
complained that the surgeon failed to warn her of the risk of that complication. Expert
evidence established that the risk was small, no greater than one in 2000 and possibly
as low as one in 14,000. Most of the experts accepted that a reasonably competent
ophthalmic surgeon would not (in 1984) have warned a patient of the risk of
sympathetic ophthalmia.
Held: Failure to warn the patient was negligent and Mrs Whittaker was awarded
A$800,000 in damages.
Analysis: The decision in this case appeared to have relied on the attitude of the
patient Mrs Whittaker was keenly interested in learning the possibility of any
complications.
The difficulty for the practitioners was to determine the appropriate amount of
information for each individual patient so as to avoid being accused of clinical
negligence despite the Court giving recognition to the therapeutic privilege
principle.
As far as the Australian Courts are concerned, the Bolam principle is not recognised.
Despite the fact that a responsible body of opinion would not have warned the
patient about this risk, it was clear from the patients state of mind that she would
have demanded the disclosure of such risks although it was as low as one in fourteen
thousand!
One must note that the Australian Court held that the failure to warn the patient of
certain risks associated with the surgical procedure amounted to clinical negligence
and not that of a lack of valid consent.
Given the judgement, it could be argued that that the patient did not give an
informed consent and hence the doctor has committed battery rather than
negligence. The Australian Court viewed that an omission by the doctor in informing
the patient of the amount of remote risks with the patient suffering damages that the
doctor was negligent, although the doctor has done nothing wrong during the
procedure since such a result could be expected from any doctor performing the same
procedure.
This case has clearly illustrated that the Australian Court does not recognise the
Bolam principle and expects a much heavier onus on healthcare practitioners to
disclose all relevant information to the patients in respect of any procedures
undertaken. Similar principles can be illustrated from jurisdictions such as that of the
USA, Canada and others but would be beyond the scope of this article.
39
However, if these principles seem to be much closer to the sentiments expressed as in

the case of Chester as the section above illustrated.
8.3
LIMITATION ACT 1980 AND PERSONAL INJURY LITIGATION
Healthcare professionals are often concerned about the length of time that elapses
between the event of alleged clinical negligence and the hearing of a case. English
law does impose limits on the delay that can exist between an accident and beginning
a mal-practice action.
Under the provisions of the Limitation Act 1980, the time limit imposed on actions
founded on simple contract (s2) or in tort (s5), is six years from the date when the
cause of action was accrued, if personal injuries are not involved.
As far as personal injury litigation is concerned, it is governed by section 11 of the
Limitation Act 1980. Where in any action (whether for negligence, nuisance or breach
of duty, statutory, contractual or otherwise) the plaintiff claims damages which
consist of or include damages in respect of personal injuries to the plaintiff or any
other person the basic period of limitation is three years. However, this reduced
period runs from:
1. The date on which the cause for action was accrued; or
2. The date (if later) of the plaintiffs knowledge.
The expression of date of knowledge is the first date when the plaintiff knew or
might reasonably be expected to have known certain specified facts, including the
seriousness of his injury, its cause, and the identity of the defendant.
Knowledge or ignorance of the law is immaterial. To cover the exceptional hard case,
for example, where a plaintiff knew the facts but did not know his legal rights, s33 of
the Act provides a discretionary power for the courts to override the time limit where
it would be equitable to do so.
Note that for children, this limitation period does not start to run until they have
reached the age of majority (i.e., 18).
Even though these time limits are set to ensure that professionals will not have
potential clinical negligence claims hanging over them forever, the Court retains a
discretion to extend the limitation period. It must consider whether it would be
equitable to permit claims to begin out of time by taking into account the extent to
which the parties would be prejudiced by the lateness.
8.4
COMPENSATION IN CLINICAL NEGLIGENCE
The only remedy for injury in clinical negligence claims is money (damages). It is
usually paid on a once and for all settlement. Claimants are also under a duty to
mitigate their losses.
Claimants are usually awarded one or more of the followings:
40
General damages: awarded for pain and suffering as a direct result of the
injury suffered. The amount of money awarded is calculated based on previous
judgements or guidelines.
Special damages: awarded for damages specific to the claimants injury as a

direct result of the negligence. In the practice of dentistry, they usually refer to
items such as treatment costs, travelling expenses in attending for treatment
and loss of earnings. The major amount of special damages is usually related
to the costs of any remedial/corrective treatment as well as future replacement
costs over an arbitrary expected lifetime of the Claimant, as long as the
specific treatment required would be a new procedure which the Claimant
would not have needed had it not been for the clinical negligence.
Aggravated damages: may be awarded for the damage to the Claimants

feeling of dignity and pride. In practice, they are rarely awarded in cases of
clinical negligence in dentistry unless it is so serious that the Defendant has
been found to have committed a battery.
As far as legal costs are concerned, the fundamental principle is that costs follow the
event. In other words, the loser in a case pays the winners legal costs in addition to
his/her own.
If a Claimant discontinues the case once court proceedings have been issued, he/she is
also responsible for his/her opponents costs. Legal costs can be substantial and can
often be much higher than the amount of compensation awarded.
In accordance with the ethical guidance from both the General Dental Council of the
UK and the Dental Council in Ireland, all dentists must be indemnified against
negligence claims. In any clinical negligence claims, dentists should be assisted and
represented professionally by their defence organisations and not be in direct contact
with the Claimants solicitors. Any applicable legal costs and compensation
subsequently due will be paid for by the defence organisations.
41
99 PROBLEM BASED LEARNING IN LAW IN RELATION TO

THE PRACTICE OF DENTISTRY
9.1
INTRODUCTION
In conjunction with the multiple choice questions (MCQs) exercises presented

separately in the revision section of the lecture series, the following common practical
scenarios are to serve to reinforce the concepts learnt in relation to Section 6 of the
MFD/MFDS syllabus entitled
ethical and medico-legal aspects of dentistry: the interface between clinical dental
practice and the law in the United Kingdom and the principles of professional and
ethical practice
Whilst the MCQs exercises reinforce ones ability in technical problem solving (as
examined in parts A and B of the MFD/MFDS), the practical scenarios below are
designed to stimulate thoughts for deeper understanding of the principles involved (as
in part C of the examination).
They should also provoke thoughts which in turn would reinforce the readers
practical understanding in the ethical and legal aspects of the practice of dentistry for
the examination and beyond.
9.2
QUESTIONS
Q1:
As an assistant dentist employed by my principal dentist, am I responsible for all the
clinical work I undertake?
Q2:
A patient needs to come to you for long term periodontal care which involves the
same repetitive clinical procedures with occasional slight variations over an extended
period of time. Would obtaining his informed consent at the start of the first course of
treatment be sufficient?
Q3:
I know as a matter of fact that a lot of dentists do not use rubber dam or any other
similar device routinely during endodontic procedures, nor would they attach the hand
instrument to a piece of floss or a parachute clip. If a patient so happens then to
swallow a reamer during the endodontic procedure, can I use the behaviour of the
42
majority to justify my omission when faced with a claim of clinical negligence?
Q4:
If on performing a Class II plastic restoration on a patient, I discover another lesion on
the adjacent tooth requiring treatment, wouldnt it be more effective to deal with it as
well at the same time?
Q5:
Do I need to get written consent for all dental procedures?
Q6:
Should I warn all patients who are going to have their impacted lower wisdom teeth
extracted of the possibility of postoperative parasthaesia of the tongue?
Q7:
When an adult patient comes into my surgery and sits on the dental chair and opens
his mouth, does it imply that he consents to any treatment required in his best
interests?
Q8:
A patient of mine would like me to provide him with a very long span fixed prosthesis
but the available support and retention from the abutments are very limited and the
prognosis is limited. Do I have to carry out the requested treatment and where do I
stand in negligence if something goes wrong?
Q9:
A patient who has maxillary and mandibular crowding insists on having orthodontic
treatment. There is no doubt that there is a clinical need for orthodontic treatment
based on the mal-occlusion. However, the plaque control and periodontal conditions
are very poor and the caries rate has been high, despite all reasonable effort from his
dental practitioner. As an orthodontist, I believe that any orthodontic appliance is
contraindicated because of the poor prognosis of the dentition and periodontium. The
patient is willing to sign a disclaimer stating that he wants the treatment done anyway.
What should I do?
43
Q10:
A 16 year old patient attends my surgery on his own requesting treatment for a toothache, can he give real consent for his treatment?
Q11:
An 8 year old child attends my surgery on his own requesting treatment for a toothache, can he give real consent for his treatment?
Q12:
A patient of yours has an aortic coarctation and requires antibiotic cover prior to any
invasive dental procedures. You have been under a lot of work pressure at your
practice and have inadvertently overlooked this fact on the patient's medical history
notes and have undertaken an otherwise uneventful surgical extraction of a retained
root. Unfortunately, the patient subsequently displayed the symptoms for infective
endocarditis and required emergency admission to the hospital for treatment. The
patient survived but you have just received a letter from his solicitors alleging clinical
negligence, threatening legal action claiming substantial damages as well as to
complain to the GDC.
What should you do and where do you stand?
Are you definitely negligent?
What are the consequences?
44
1100 CONCLUSION
This booklet has presented an account of some relevant ethical and legal issues
involved in the practice of dentistry. It has also illustrated that medico-legal issues are
complex and multi-faceted. Like medical sciences, the law is living and dynamic.
Objective reality and codifications are finely balanced in that legal matters change
constantly and require frequent updating.
There is no doubt that the Courts remain the final arbiters of all medical/dental
assessments. It is the legal consideration which prevails in the courts, and it is the
courts that decide. However, as Lord Chief Justice Coleridge eloquently put when he
delivered his judgement in the case of R v Istan [1893] 1 QB at 453, over one hundred
years ago, that
It would not be correct to say that every moral obligation involves a legal duty; but
every legal duty is founded on a moral obligation
by the same token, in a civilised society like ours, one would hope that judgements
from the courts would also be compatible with the underlying ethical principles
involved. This would in turn reinforce the quasi-legal status for the guidance from the
General Dental Council of the United Kingdom and the Dental Council in Ireland.
It is hoped that this booklet (in conjunction with the corresponding series of lectures
and practical exercises given by the author) helps to raise awareness of legal pitfalls,
clarifies some of the legal requirements in the practice of dentistry, promotes safe
practice and provides a good basis for effective clinical risk management. It also
should serve as a useful guide to the requirements of the MFDRCSI examination and
beyond in respect of medical ethics and the medico-legal aspects of dentistry.
Good luck!
45
BIBLIOGRAPHY
1.
Health Care Law; Montgomery, Oxford University Press 2nd Edition 2003
2.
Clinical Negligence; Khan, Robson and Swift, Cavendish Publishing 2nd Edition 2002
3.
Dental Law and Ethics; Ed Lambden, Radcliffe Medical Press, 2002
4.
Clinical Negligence and Complaints: a Clinicians Guide; Green and McConnochie. RSM Press, 2002
5.
Practice Compendium; British Dental Association, 2003
6.
Textbook on Medical Law; Davies, Blackstone Press Ltd, 1996
7.
Healthcare Professionals as Witness to the Court; Holburn, Bond, Solon and Burn, Greenwich Medical
Media, 2000
8.
Doctors, Patients and the Law; Ed Clare Dyer, Blackwell Scientific Publications, 1993
9.
Clinical Confidentiality; Foster and Peacock, Monitor Press, 2000
10. The Practical Guide to Medical Ethics and Law; Baxter, Brennan and Coldicott, Pastest, 2002
11. Negligence in Healthcare; Harpwood, Informa Publishing, 2001
12. Medical Law; Kennedy and Grubb, Butterworth, 3rd Edition 1999
13. Principles of Tort Law; Harpwood, Cavendish Publishing, 3rd Edition 1997
14. Tort; Bermingham, Sweet and Maxwell, 1996
15. Medical Law Monitor; issues from 1997-2005 Informa Healthcare
16. Medicolegal Essentials in Healthcare; Payne-James, Dean and Wall, Chruchill Livingstone 1996
17. Medical Confidentiality and Dentistry; Leung, LLM Dissertation, Cardiff University of Wales, 1998
18. Law and General Dental Practice: A Discussion of Some Relevant Legal Issues, Fan and Leung, GKT
Dental Institute, University of London, 2000
19. Aspects of Risk Management in General Dental Practice; Leung and Davies, GKT Dental Institute,
University of London, 2003
20. Problem Based Learning in Some Aspects of The Law in Relation to the Practice of Dentistry; Leung,
GKT Dental Institute, University of London, 2000
21. Medicine, Patients and the Law; Brazier, Penguin books, 1992
22. Contract in a Nutshell; Duxbury, Sweet and Maxwell, 4th Edition 1997
23. Law and Medical Ethics; Mason and McCall Smith, Butterworth, 4th Edition, 1996
24. Employment Law; Lockton, Macmillan Publishing, 2nd Edition, 1996
25. Personal Information, Privacy and the Law; Wacks, Clarendon Press, 1993
26. Treatment Without Consent; Fennell, Routledge Publishing , 1996
46

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A GUIDE TO THE ETHICAL AND MEDICOLEGAL ASPECTS OF DENTISTRY

With Reference to the MFDRCSI Examination,

Dr. ALBERT LEUNG

MEDICAL LAW AND MEDICAL ETHICS ................................................................................5

HEALTHCARE LAW AND THE LAW RELATED TO THE PRACTICE OF DENTISTRY 8

DEVELOPMENT IN LAW RELATED TO DENTISTRY IN THE UNITED KINGDOM AND

THE PRACTITIONER/PATIENT RELATIONSHIP IN RELATIONS TO THE LAW OF

CONFIDENTIALITY AND FREEDOM OF INFORMATION .................................................22

PROBLEM BASED LEARNING IN LAW IN RELATION TO THE PRACTICE OF

Medical law, medical ethics and professional accountability in the practice of

The dentist/patient relationship in relation to the law of contract and tort

Confidentiality, data protection and freedom of information

Problem based learning in law in relation to the practice of dentistry to cover

In order to address these issues as fully as possible, an accompanying lecture series

Introduction, medical law, medical ethics and dentistry

The law and professional accountability

Consent, tort, medical confidentiality and freedom of information

Clinical negligence and the practice of dentistry

I look forward to seeing you all.

22 MEDICAL LAW AND MEDICAL ETHICS

MEDICAL LAW AND GENERAL LAW

MEDICAL LAW AND ITS RELATIONSHIP WITH MEDICAL ETHICS

PHILOSOPHICAL CONCEPTS TO NOTE:

The four principles are as follows:

Justice: ensuring that everyone is treated fairly and equally.

This is a form of practitioner-patient relationship, whereby the practitioner acts as the

Also known as consequentialism, this is a concept developed by John Stuart Mills in

Also known as deontology. This concept is a counter-argument to utilitarinism

33 HEALTHCARE LAW AND THE LAW RELATED TO THE

Common Law: unwritten law embodied in judicial decisions

Primary legislation: statute law, i.e. the law enacted by Parliament

Secondary legislation: also known as enabling legislation, embodies rules

HUMAN RIGHTS LAW

Guidelines, circulars, instructions, protocols and Codes of practice are given by

SOME BASIC FACTS AND FIGURES

All female employees are entitled to 26 weeks statutory maternity leave

Employees employed for 26 weeks 15 weeks before the expected week of

3.6.2.2 Paternity leave

2 weeks paid leave at 100 per week

Qualifying period of 26 weeks in service

3.6.2.3 Flexible working

Qualifying period is 26 weeks in service

Requests have to be made in writing. Employers must arrange a meeting

3.6.2.4 Fixed term contract

A fixed term contract will be converted to a permanent contract on the next

3.6.2.5 Dismissing an employee

Firstly, write to the other party explaining the issues

Secondly, have a meeting to discuss the issues

Thirdly, have an appeal meeting if required

Improving access routes throughout the practiced to allow more un-restricted

Modifying equipment or improving lighting to provide safer access and better

44 DEVELOPMENT IN LAW RELATED TO DENTISTRY IN THE

HISTORIC AND CURRENT PERSPECTIVE

THE ROLE OF THE GENERAL DENTAL COUNCIL (GDC)

MAIN FUNCTIONS OF THE GDC

The GDC has the following main functions:

Professional Conduct and Practice

PROCEDURES TO MAINTAIN PROFESSIONAL CONDUCT

4.2.2.1 Preliminary Screener

4.2.2.3 Professional Conduct Committee

Erasure from the dentist register (the ultimate sanction)

Suspension for a period of time, usually up to one year

Admonishment to the dentist