Patient treatment, records and consent issues

If your relationship with a patient has broken down, PLP or the RCDSO Practice Advisory Service can assist you in properly dismissing the patient from your practice.

RCDSO has produced a Practice Advisory on Maintaining a Professional Patient-Dentist Relationship which offers guidance to dentists. 

When the circumstances of the dismissal may also lead to a demand for money by the patient, you should report the matter to PLP. 

Special considerations apply to dismissing an orthodontic patient from a dental practice.

If the situation involves a refund of the orthodontic fee, contact PLP. 

While patients have the ultimate right to make health care decisions based on their personal values and beliefs, your professional, legal, and ethical obligations may preclude you from acquiescing to a patient’s demands. The following recommendations will assist you in striking the right balance between the patient’s desires and your duties as a dental professional:

• Provide patients with evidence-based information about all reasonable treatment options.
• Consider whether the treatment requested by the patient may cause harm or is likely to fail.
• If the requested treatment is not ideal but does not breach the standards of practice, you may proceed after informing the patient of its risks and limitations. You should also ensure the patient has realistic expectations about the potential outcome.
• You should NOT provide treatment that you judge to be below the standards of practice and/or believe is not in the patient’s best interests. Explain your reasons for refusing the patient’s request to him or her.
• You are NOT obligated to provide treatment that is beyond your expertise or that you do not feel comfortable providing. Explain your reasons for declining treatment to the patient and offer a referral to other appropriate providers. Let the patient decide whether to proceed with the referral.
• If a patient rejects your treatment recommendations, explain the rationale for and the consequences of refusing your recommendations. If you feel the treatment refused by the patient is the only reasonable option, you should decline to treat the patient.
• Carefully document the informed consent discussion in the patient’s chart.
• If a breakdown of the patient-dentist relationship occurs, you may want or need to dismiss the patient from your practice.

It is important to note that a waiver in advance of treatment being provided will not protect you from the legal consequences of providing inappropriate treatment. Rather than obtaining a waiver of liability from a patient who refuses your professional advice, the best course of action may be to provide no treatment at all.

Read more: Dismissing a Patient 

Capable patients are entitled to copies of their dental records, including radiographs, photographs and models.  Unless required or authorized by law, records should only be provided to a third party with a patient’s express authorization. Original records should not be given to patients or third parties – duplicates only.  Information and documents relating to a member’s communications with the Professional Liability Program (PLP) are not a dental record and do not belong in a patient’s chart. Care should be taken to ensure PLP communications are not included  when responding to a request for records.

A request for records that was not obviously triggered by a geographic move, or a pending or potential claim against someone else, may suggest that the patient is unhappy with your services. Consider whether you should contact PLP to report the incident. 

Read more: Releasing Patient Records

Knowing when to treat, when to consult and when to refer is essential to the successful practice of dentistry. Generally speaking, referral or consultation is required when:

• You are unable to diagnose the patient’s condition;
• The patient is not responding adequately to your treatment;
• You cannot continue to treat the patient (e.g. because you are ill or on vacation); or
• The patient’s clinical needs are beyond your capabilities.

Of the above situations, the fourth is often the most difficult to assess. When determining whether a specific procedure or course of treatment is beyond your expertise, consider the following questions:

• How much experience do I have with the treatment or procedure in question?
• Were those previous treatment outcomes favourable?
• When did I last receive training in this area?
• How comfortable do I feel providing the treatment?
• Do I intend to offer this as a regular service or is it a one-off?
• Am I proceeding with this treatment because I feel capable of providing it or because the patient wants me to do it?
• Would I be comfortable performing this treatment or procedure on a close family member?
• Could my lack of expertise or experience become an issue if treatment does not turn out as expected?
• Would the chances of a good result be significantly improved if I referred the patient to a specialist?

An unfavourable answer to any of these questions does not always lead to the conclusion that a patient must be referred out. But in the aggregate, your responses should give you a pretty clear indication of the right course of action. If you have considered all of these questions and remain unsure, it would be prudent to discuss the matter with an experienced colleague or mentor or contact the Practice Advisory Service.

Although patients have the ultimate right to make health care decisions based on their personal values and beliefs, there are times when a patient is incapable of providing valid consent due to age, illness or disability. When dealing with a patient who may lack capacity to consent to treatment, you should consider the following:

• The test for determining capacity to consent is whether the patient is able to understand the information relevant to the proposed treatment and to appreciate the reasonably foreseeable consequences of either consenting to or refusing treatment.
• When applying this test, you should remember that:
• patients are presumed to be capable unless there are reasonable grounds to believe otherwise,
• capacity is specific to the treatment, i.e. a patient may be capable of providing consent for some routine procedures, but not to other, more invasive procedures, and
• capacity is not static, i.e. a patient may be incapable at one point, but capable of consenting another time.
• A patient who is found to be incapable has a right to appeal that finding to the Consent and Capacity Board and should be informed of that right.
• If a patient is incapable, you must obtain consent from someone else who is authorized to make treatment decisions on the patient’s behalf, i.e. a “substitute decision-maker” (SDM).
• Ontario’s Health Care Consent Act provides a hierarchical list of those who may act as an SDM.
• When obtaining consent from an SDM, you should remember that:
• SDMs must act in accordance with the incapable person’s “advance directive”, i.e. legally significant wishes previously expressed by the patient with respect to the treatment, if any, and
• in the absence of an advance directive, the SDM must act in the patient’s best interests.
• A health care provider who believes an SDM is ignoring a patient’s advance directive or failing to act in a patient’s best interests may ask the Consent and Capacity Board to intervene.

It is important to note that a patient’s refusal to accept dental advice is not necessarily a sign of incapacity. A patient has the right to make treatment decisions that are unwise, dangerous or even life-threatening, so long as he or she understands the nature of the proposed treatment and its consequences or the consequences of non-treatment.

Read more: Informed Consent, Health Care Consent Act, 1996.

When treating a child of separated or divorced parents, it is important to know who can consent on behalf of the child and who will be responsible for payment.

Generally speaking,

• a separated or divorced parent will either be a joint custodian of the child, sole custodian or an access parent.
• for incapable minors, a custodial parent usually has the power to make important decisions about the child’s care; an access parent does not.
• a custodial parent may consent to treatment, but an access parent may not.
• unless there is a court order or separation agreement stating otherwise, a parent who has only right of access to the child is entitled to make enquiries and be given information about the child and receive copies of the child’s records.

In obtaining consent to treatment of a child of divorced or separated parents,

• the most reliable means of establishing legal authority is to obtain a written statement from the parents outlining who may make treatment decisions for the child and what information can be conveyed to each parent.
• the dentist should try to secure consent from each joint custodian, particularly if the treatment is invasive or risky.

It is important to note that, according to Ontario’s Health Care Consent Act, 1996, a dentist must obtain consent from a capable minor directly even when he or she is accompanied by a parent or guardian. However, since an agreement to pay by someone under the age of eighteen may not be enforceable, it is unwise to act on a minor patient’s instructions alone, except in an emergency.

A dentist should identify upfront who is responsible for payment of the account. Ideally, both parents should sign a financial agreement for the child’s treatment; otherwise, the parent who consents should be responsible for payment. If one parent is the decision-maker and the other is covering the costs of treatment, it is prudent to confirm the plan and payment arrangements in writing in order to avoid collection problems.

Read more: Children and Consent to Treatment, Health Care Consent Act, 1996