DR.  TENACIOUS AND CONSENT TO TREATEMENT  or “Now for a Complete Change in Pace”

Teddy Tenacious truly enjoyed his diverse general practice. He prided himself on the special attention and care he provided to elderly patients.  He had a referral arrangement with Susie, a dental hygienist who visited residents in a local nursing home.  

Mrs. Drew was 81 years old. She now lived in the local nursing home associated with Dr. Tenacious. Susie visited Mrs. Drew.  She recommended an office visit with Dr. Tenacious.  She spoke to her daughter, Laura who held a Power of Attorney for Personal Care from Mrs. Drew. A referral was made to Dr. Tenacious.

In August, 2000, Mrs. Drew was taken to Dr. Tenacious’ office by her son Mark, for a 9:30 a.m. appointment. While his mother was in the dentist's treatment room, Mark waited in the outer office for about half an hour and then went in to see what was happening. Dr. Tenacious then told him what treatment had been undertaken and asked him to sign a consent document, which Mark did.

Coincidentally Dr. Tenacious had last seen Mrs. Drew in 1999 when he had noted that she had "mild Alzheimers", but she signed the consent to release information herself on that occasion.

At the August appointment, a history was recorded by Dr. Tenacious  in which he noted: she needed cavities filled; she was not in pain; she had come because the hygienist said to come; she was not living on her own anymore; her Alzheimer's and arthritis were getting gradually worse and there were no other changes. He did not have her sign a consent to treatment form. On her return to the nursing home, the staff recorded that she had required repairs to her upper plate and that six fillings had been done.

Dr. Tenacious had been instructed to send his account to Laura and he did so. It was not paid. In due course he referred the unpaid bill for collection. About April 2001, a complaint arrived at the dental licensing and regulatory college ( the College) stating that the work had been done without an estimate and without a consent and the fees were too high.  Laura, the complainant also reported that Dr. Tenacious was harassing her about the bill. She said she was willing to pay something but not all and would not deal with Dr. T. directly.

Dr. T. responded to the complaint explaining that he had done all the work at one appointment because the patient did not attend the clinic on a regular basis; that he had spoken to Mark Drew who did not question the treatment; and that he had called the complainant, Laura only once to explain the bill and that  Laura  was  harassing him and his staff.

The College appointed an investigator to review the matter. She obtained relevant information from Dr. Tenacious, from the nursing home and from Mark Drew. She reviewed Susie, the hygienist's records. These revealed that Susie had observed one cavity requiring work in August 2000, and had recommended an appointment to deal with it and with irritation caused by the patient's plate. Mark advised that he had signed a form for Dr. T. but only after all the work had been done. Much of the work had been done before Dr. T. even knew that Mark was waiting in the office reception area. It was Mark Drew’s impression that his mother was there to have one cavity filled. He also expressed to the investigator that his mother was not capable of giving consent as her short-term memory was bad and she had Alzheimer's disease. The nursing home records revealed that both the complainant, Laura and Mark had expressed the family's concern at the cost of the dental work. The investigator filed her report.

The College delivered its decision in March, 2002. It concluded that the document signed by Mark Drew was not signed before the treatment. It said:

We are of the opinion that the signing of this document by Mr. Drew does not constitute informed consent, especially as it was signed after treatment was completed and was not signed by the individual that has Power of Attorney for the patient, Laura. The College therefore requires Dr. Tenacious to attend before it to be cautioned. We will caution Dr. Tenacious that when a Power of Attorney situation exists, the patient has legally delegated someone else to make decisions for them with respect to their personal care, the dentist must be vigilant in obtaining informed consent prior to treatment from the individual with the authority to authorize treatment. In this case, it does not appear that Dr. Tenacious did so and therefore he will be cautioned in this regard.

The College found that the fees charged were reasonable and took no further action on that issue. Similarly, the College considered the mutual charges of abusive calls and found itself unable to make a determination and decided to take no further action.

Dr. Tenacious was not satisfied with the outcome of the complaint. In April 2002, he requested that the Review Board review the College’s decision. The grounds for the request related to the Power of Attorney for Personal Care and the fact that Dr. T was unaware of the existence of this document when the patient was brought to him for treatment.

Dr. Tenacious was advised that a Board does not provide an opportunity for a fresh or further investigation and no hearing is held. It considers the adequacy of the investigation conducted and/or the reasonableness of the decision.

The Board released its decision and reasons in February 2003. It found that the College had acquired all the relevant records and the Board was not aware of any additional information that might reasonably be expected to have affected the College's decision. It found the investigation had been adequate. It found that Dr. T’s conduct and actions regarding the acquisition of the patient's consent were problematic. Dr. T sought the consent of Mark Drew for his mother's treatment. It was reasonable to conclude that Dr. T did not feel that the patient was capable of giving the consent herself. It continued:

Dr. Tenacious felt the Board’s decision was not just. He applied to Court to review the Board's findings that the investigation was adequate and that the College’s decision was reasonable. The focus of his Application would be on the issue of informed consent.