The Montgomery Case and You
When is consent not consent?
For many years I have been teaching dental practitioners how to present their treatment options to best advantage. And, in these sessions I have always advocated that we use plain English and never talk to the patient in dental jargon. I stand by this advice, not just because I offered it but, because it is entirely unfair of us to expect patients to understand the weird language with which we often communicate amongst ourselves. To our patients there may be a glimmer of recognition in some of the words we use but that may not mean that they will fully understand what those words really mean. And, in reality, many patients are too shy or feel too out of their depth to ask exactly what the term we have used means or may erroneously believe they do understand. This will mean that the patient has no comprehensive understanding of the explanation we have just given but, we assume , as they do, that as they seem to understand, they really do understand and, therefore, can make decisions based on the information we have just delivered. Obviously, this is erroneous.
In reality, the in-depth comprehension will not be there, which means that a so called ‘informed’ choice cannot be made by the patient because their understanding is flawed.
Once the above is understood by the professionals themselves then we begin to see that the information we impart, though comprehensive by our standards, may well fall short in lay terms. One of the consequences of this lack of understanding by our patients has been that we sometimes do not pass on the information on the less likely hazards relating to routine procedures. One simple example of this might be that we do not normally advise patients that a ‘straightforward’ extraction could, possibly, result in a fractured jaw. According to the interpretation derived from the Montgomery case by one of the Professional Indemnity (PI) providers, we should be mentioning this possibility though, of course, doing our level best to avoid such an eventuality. What we do in practice is based on many years of collective experience which indicates that the likelihood of such an adverse result is so minimal in a normal healthy adult that it is actually not fair to create unnecessary anxiety about an event which is so unlikely. Such a paternal/ maternal approach, it appears, is no longer acceptable. This negates the ‘Bolam’ test which has been the accepted standard with minor variations for many years and which states that the action taken by the professional should be what any reasonable professional would do in similar circumstances. The GMC’s comment on the outcome of the Montgomery case is that the doctor should make time to ensure that the patient is given all the relevant information so that he/she can make an ‘informed’ decision about what treatment they wish to endure or not.
See the Montgomery case judgement via link below:
That might be fine in hospital practice but, in NHS general dental practice time is at a premium because the system rewards us only for production/ output and certainly does not reward us for ‘care’ of the patient; though it does expect that this will happen. As professional people we have some responsibility to give the best care we can – but what that may be will be up to the individual and may well be challenged in a court of law or at the GDC.
In a letter to a colleague a PI provider states that the Montgomery case has altered the rulings such that a patient must be given sufficient information to be able to make an informed decision in the consent process. It then goes on to say:
“In practical terms, this means that patients, in addition to the consent form, should have a specific treatment planning document which mentions the risks and possible problems specifically related to their individual case – in other words, a customised consent document rather than just a generic one.
The question of what should be included in that document very much depends on the nature of the individual case, and therefore I cannot advise you further on the specific content of such a document. In any event, even if all the risks are fully laid out and agreed to by the patient, it would remain for the Courts to ultimately decide in the event of a negligence claim, whether the patient had sufficient information to consent to the treatment.”
Given that in the first paragraph of this article I discussed why there may well be a confusion of what the patient thinks they understand and what they should understand in order to make informed decisions, where does that leave this rather nebulous advice?
This raises lots of questions and provides no practical answers. A customised consent form may be impractical and the NHS treatment plan form (FP17DC) indicates what is to be provided and the agreed NHS fees applicable but, cannot possibly cover all eventualities. As an example, a filling proving to be deeper than it appeared requiring some pulpal treatment or an undermined piece of enamel coming off during treatment converting a class 3 restoration into a class 4 with the accepted aesthetic deficiencies can be added onto the form but not always predicted.
It seems to me that the PI providers are increasing their charges to all versions of practitioners to cover claims but, are unable or unwilling to give practical, comprehensive advice or to challenge the ruling of the court in how dentistry should present the necessary information to the patient so that any invalid claim can be rebuffed. For instance, as a lay person, despite having signed a consent form for treatment which states that I fully understand the proposed treatment and which is accompanied by a detailed treatment plan with possible risks, I can later claim that I did not really understand the implications of such a plan. Detailed notes on the patient record explaining precisely what was said seem not to be sufficient to defend such a claim.
When a claim of this nature arises, it appears that some PI providers simply bounce the problem back at the practitioner and decline to fight the claim. They imply, in the advice that I have seen, that there is no way they can defend the practitioner. They do not however, offer any definitive advice on how this sort of accusation can be avoided in the future.
But, they have to do something to stem the tide of spurious complaints.
If a signed consent form stating that the patient has understood and agreed to the procedure is valueless even when accompanied by a comprehensive treatment plan outlining the possible hazards and talked through with the patient by a qualified member of staff, what do they suggest that will cover us and justify the fees they charge?
At present, these charges do not seem like reasonable value for money even though, at long last, the GDC insists that proof of such cover is necessary to be granted an annual practicing certificate. If we are paying this money to a ‘Mutual not for profit Society’ in order to cover our legitimate practicing errors ie not any criminal actions, then I believe we deserve solid, practical, unequivocal advice on these matters and we deserve that the PI providers will take up the cudgels on our behalf in order to defend us properly and not simply pay out because a ‘Bloggs & Co’ Solicitors makes a claim on behalf of a patient and the less costly option is to simply pay out or, preferably, bounce the complaint back to the practitioner.
If the PI Providers don’t fight for us how will we know what information should or should not be included in any situation in order to defend ourselves against a malicious claim.
Case law is established by being contested in the courts.
So simply paying out because it is less costly than a challenge is short-sighted — in the long run it will be more costly because the ‘Bloggs & Co’ ‘No Win No Fee’ copycats will see it as easy money — and there is some evidence that this is happening.
Lester Ellman Dec 2016
Oralign Supplies Limited
Oralign Dental Services Limited
F29 The Innovation Centre
January 17, 2017
To Whom It May Interest
Tender requirement: “to complete the Minimal Viable Product for USB connectivity between our specified tablet and independent camera”.
Please let us have your quotation for the supply of the following products/services:-
- Eviid to confirm specification of the Tablet.
- Consultation to assess and procure (trial) new tablet.
- Working with Japan, to assess Bugs and fixes to new version of USB code and camera.
- Test and make changes to simplify where possible the User Interface between tablet and camera.
- Test API’s with BFI.
- Test viability for the use of video/audio capture from the tablet for all patience treatment records for Insurance purposes.
- Complete Janet and John instructions for use of the Tablet / Eviid APP.
- Assess market solution to provide a lock down / branding of the Tablet such as SOTI.
- Gain trial version.
- Test with the Clinic-i / Eviid to ensure viability.
Please could you provide your total cost for delivery of this project.
We would require your time line for delivery within 1 week of date of order. Kindly confirm that this is possible.
We look forward to hearing from you. Responses need to be received within one month of the day of this Letter
For and on behalf of Oralign Supplies Ltd