CASE LAW – How Dentists Can Avoid Legal Problems
DENTAL BULLETIN, ISSUE 22
Fitness to Practice Hearing – Failure to Obtain Proper Consent
Dr Darfoor, a dentist, appeared before the Professional Conduct Committee (PCC) on 18th January 2016. The allegations against him concerned the treatment of three patients during the period 2011 to 2014. The charges against Dr Darfoor ran over three pages of the judgment and included allegations of failing to adequately explain and/or record explaining to the patients the treatment they were to receive, and thus failing to obtain proper consent.
The most serious allegation against Dr Darfoor was an allegation that he had failed to obtain consent, and was dishonest in his failure to do so. We are going to focus on this alegation in this article.
Dr Darfoor was carrying out treatment on Patient C for composite restorations and bone grafting. Dr Darfoor informed Patient C that the bone would be “synthetic”. In fact the bone was xenograft, which is bovine derived. Dr Darfoor had made the same assertion to Patient B, however, what made the allegation against Patient C more serious was the dishonesty element. Patient C had informed Dr Darfoor on a couple of occasions that he was a vegetarian and did not want animal products to be used on him.
Dr Darfoor denied knowing Patient C was a vegetarian. The Fitness to Practice Committee found that he did know this but went ahead with the procedure using xenograft in any event. The allegation of dishonestly failing to obtain consent was therefore found to be proven.
On 22nd April 2016 the Fitness to Practice Committee was reconvened to consider if Dr Darfoor’s fitness to practice was impaired as a result of his dishonesty. Dr Darfoor had previously been before the GDC in relation to allegations of failing to obtain consent and this factor was taken into account. The Fitness to Practice Committee determined that Dr Darfoor’s fitness to practice was impaired and he was suspended for 12 months.
Every dentist should know the importance of obtaining consent from a patient. In our article ‘Importance of consent’ we set out the legal issues surrounding consent. In order for consent to be valid it must be given voluntarily and freely, by an informed person and by a person who has capacity to give consent. In the recent case of Montgomery the court put a greater burden on dentists when obtaining consent. It held that a medical professional will need to look at what a reasonable person in the patient’s position would consider was a material risk. This places a duty on the medical professional to advise on that material risk. Therefore if the dentist has knowledge of a patient’s wishes or beliefs, he must take this into account when providing information as to the procedure that is being undertaken.
Dr Darfoor had also failed to provide Patient C with other information about his treatment. However, it was the knowledge of Patient C’s vegetarianism and his failure to inform the patient he was using animal material that made his actions dishonest and significantly more serious.
This case highlights the importance of having open and frank discussions with patients about the treatment being provided. Make sure you listen to any concerns or queries raised by the patient, as this could affect the information you provide to them. Dr Darfoor also failed to keep adequate notes. Therefore, if a patient does raise an issue, it should be noted along with any advice you have provided in response and the patient’s final decision.
Challenging the CQC – Mr Corney and Mrs Webb v CQC
This is an interesting case in which the CQC’s decision to cancel registration was challenged at the HESC Tribunal. It highlights that the CQC’s decision is not final and can be reviewed by an independent body.
However, we would not recommend following the approach taken by Mr Corney and Mrs Webb when deciding if you should challenge the findings of an inspection report.
The couple purchased a care home in 1994 and described their philosophy of care as being based on the ‘European Style’; which they say meant living in the home with the residents and caring for them as if they were their relatives.
The home registered with the CQC in October 2010. Between January 2013 and April 2015 there were six inspections carried out. Each recorded a finding of ‘inadequate.’ On the last visit by the CQC the couple and staff refused to speak to the inspector or show him any documentation; his visit lasted just 17 minutes. In August 2015 the CQC issued a notice of proposal to cancel registration.
In addition to the action taken by the CQC, in November 2013 Dorset County Council ceased to commission the care home due to safeguarding concerns they had with the home.
Mr Corney gave evidence on behalf of the couple. He was adamant that the findings of the CQC were wrong, but produced no additional or expert evidence to support his case. He maintained throughout that the CQC and the local council were working together to shut his business down. The couple failed to make any changes to their practices or procedures despite having clear recommendations from the CQC.
The HESC Tribunal found that the couple were unwilling to change and to keep up to date with current standards and regulation. They went so far as to say ‘Mr Corney also has an unmoveable conviction that he is right.’ The cancellation of registration was therefore upheld. The full judgment can be found here.
We consider this is a rare case; most providers when issued with an inadequate report will do all they can to improve standards. Not wait for a further five inspections to take place. However, what it does highlight is that if you can challenge the CQC’s findings, with say additional or expert evidence, you can pursue the matter via the HESC Tribunal.
It also shows the importance of accepting where errors may have been made and looking to improve on standards or change procedures. Mr Corney clearly did not like change and we consider this factor and his failure to work with the CQC played a part in the removal of the couple’s registration.
We would comment that with the new regime for inspection that came into force last year for dentists, there is less of a focus on a ‘tick box’ exercise. Inspectors have five key questions to consider and should be taking into account all relevant factors when assessing if the regulations have been met.
In our article ‘Challenging a Decision from the Practice Committees’, we highlighted the steps you can take if you disagree with the decision of the Fitness to Practice committee.
If you need help preparing for a CQC inspection or putting in place procedures to help you and your staff with obtaining consent, please contact Laura Pearce on 0207 388 1658 or at email@example.com. The cost of putting in place polices at the start is far less than the cost of dealing with the consequences of failing to prepare, which could also result in a loss of livelihood.#
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Laura Pearce, Senior Solicitor