Dr. Tenacious, the College and the Board each retained lawyers to prepare for the Application for Review from the Board decision to the Divisional Court. It was heard by a panel of three judges.
What standard of review was appropriate to apply to the Board’s decision?
The court considered the standard of review for a decision from a Complaints Committee in the context of a non-disciplinary procedure. The standard they applied was found in a case involving an inappropriate breast examination by a doctor. In that case the Complaints Committee directed that a physician be cautioned.
That Court stated:
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In our view, both the Committee and the Board are entitled to considerable deference in their deliberations, both with respect to their determinations as to the facts as well as to the disposition to be imposed. Whether the standard of review is that of "patent unreasonableness" or "reasonableness simpliciter", we see no basis upon which this court can interfere with the decisions under review. |
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The Roles of the Complaints Committee and Board
The court described the roles of the Complaints Committee and Board. As a committee of a professional governing body, the Complaints Committee is in possession of expertise, not shared by the court, as to the appropriate standards of professional skill and conduct. As a tribunal appointed by the Province to oversee such Committees, the Board has expertise in the supervision of such bodies. It is composed of members appointed for renewable three-year terms, who are in frequent contact with the relevant legislation. The Board conducts a review, without a hearing, and does not have the advantage of contact with the witnesses, but relies on the investigation of the Committee staff. Nevertheless, its findings of fact, and those of the Committee, are entitled to deference from us.
The Question before the Committee, the Board and the Court: mixed fact and law
Did Dr. Tenacious take adequate steps in the circumstances to obtain the legally effective consent of the patient to the treatment? Since persons are deemed to be able to give such consent unless there are reasonable grounds to doubt capacity, what grounds existed? The court held that such a question is one for which the Board is eminently suited and on this basis as well, its decision should attract deference.
The Law The standard of review is either patent unreasonableness or reasonableness simpliciter. In the absence of full argument on the point, and since it makes no difference in the result, the court stated this was not an appropriate case in which to rule on the appropriate standard. Taking the standard that is the most favourable for the applicant, that of reasonableness, they were of the view that the application must be dismissed.
The Facts of what occurred are not in serious dispute. The applicant got the patient's son to sign a consent document after the treatment was largely complete. He did not obtain any written consent from the patient herself. He knew that the patient had suffered for some time from Alzheimer's disease and obtained the history that it was getting worse and that she had recently moved from living on her own to a nursing home.
The Committee and the Board found that these facts gave rise to a need to inquire more closely into the capacity of the patient. They found, as noted above, that it was reasonable to infer that Dr. Tenacious did not feel that the patient was capable of giving the consent herself but began the treatment regardless. This was not appreciating the need to be vigilant to obtain such consent from the proper person.
Argument by Tenacious' Lawyer Able counsel for Tenacious submitted that there was no evidence that the patient was actually not competent. The court agreed. This was true, but it would be more relevant if Dr. Tenacious had taken her consent and relied on it, which he did not. The argument that the investigation was inadequate because it was not established that the patient was incapable was not persuasive; the issue was whether there were reasonable grounds to alert Dr. Tenacious that he needed to be more inquisitive on the subject. In his letter to the College he explained his position:
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The appointment schedule that I had to follow that day indicated that the hygienist at the Nursing Home reported caries, denture irritation, and heavy plaque. Since the patient was brought into the office, it was natural that necessary work that had been previously explained should be done at that time. The issue of not having informed consent is not reasonable as her son had everything explained to him in a conversation that lasted at least ten minutes, which our employees can verify. |
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The court stated This letter makes it very clear that Dr. Tenacious was not relying on any consent given to him at the time of treatment by the patient. There is simply no basis for thinking that he had raised the matter of consent with the patient. The treatment had been explained previously, that is, by the hygienist, and not by him. Nor is there any indication that the ten-minute conversation included any inquiry into the son's legal capacity to give consent to treatment on behalf of his mother. It may well be that the Dr. Tenacious believed in good faith that in discussing the matter with Mark, he was doing all that prudence and good practice required. But the relevant legislation and proper standards of practice require more. That this dentist had no actual knowledge of the existence of the Power of Attorney for Personal Care does not assist him. The facts known to Dr. Tenacious revealed a need for caution and vigilance in obtaining consent and he failed to make the requisite inquiries.
The Judgment The court found that the Committee and the Board were entirely reasonable in believing that Dr. Tenacious needed to be “cautioned” in respect of the obtaining of informed consent from patients where there was doubt as to the patient's capacity to give it herself. They were also reasonable in concluding on the evidence that there were circumstances that created such a doubt and in drawing the inference that the reason for obtaining Mark's signature was just such a doubt.
At the conclusion of the hearing the court dismissed the Application by Tenacious. The Board did not ask for costs and none were awarded.
You can avoid such situations by practicing preventive and defensive dentistry!
Implement a protocol in dealing with the incapable patient, consistent with the health care consent to treat legislation in your jurisdiction.
In Ontario, Canada, practitioners are required to obtain an informed consent from, or on behalf of, their patients before providing treatment. In some circumstances, there will be reason to believe that a particular patient is not capable of providing or refusing consent, likely because she/he is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision with regard to treatment. In these circumstances, and provided that the Health Care Consent Act, 1995is followed, the decision of another person can be relied upon. This other person is often referred to as a substitute decision maker.
The dental licensing and regulatory college suggests that in any circumstance where it is determined that any adult is incapable, you should record the following in the patient record:
• the circumstances which gave rise to the forming of that view;
• the advice that was provided to the patient; and
• the name and the relationship of the person whose consent was obtained in substitution for the consent of the patient.
A record including this information will assist in defending against a law suit for negligence in which lack of informed consent is alleged.
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