The standard for the duty to inform patients

about risks: from the responsible dentist to the

reasonable patient
W. G. Brands
1
Complaints or claims against dentists by dissatisfied patients usually consist of three parts: the dentist did not perform
the treatment as s/he should have done; the dentist did not inform the patient properly about the risks involved with
the treatment; the dentist did not keep records. In most cases it is not too difficult for a judge or dental board member, if
necessary with the aid of an expert witness, to decide whether the treatment was indeed below standard. The same applies
to dentists record keeping. The recrimination concerning the information given is something else. This deals with the extent
of the duty to inform a patient as well as the proof that sufficient information was given. These difficulties do not only
appear in court, but also in dental surgeries. This article will focus on the evolution in the jurisprudence concerning the duty
to inform patients about risks as well as on the recently changed guidelines of the General Dental Council (GDC) regarding
informed consent. Finally some simple tests will show that informing patients about risks does not have to be a risky and
time consuming business for the dentist.
1
Part time General Dental Practitioner / Part time Judge,
Civil Section, Court of Utrecht (Netherlands) / Part time
Assistant Professor at the University Medical Hospital in
Nijmegen, Department of Social en Preventive Dentistry,
P. O. Box 9011, 6500 HB Nijmegen, Netherlands
Correspondence to: Dr Wolter Brands
Email: w.brands@dent.umcn.nl
Refereed Paper
Accepted 9 March 2006
DOI: 10.1038/sj.bdj.4813883
British Dental Journal 2006; 201: 207210
Informing patients about risks, the pros,
de contras and the standards
The GDCs Standards for dental profes-
sionals advises dentists to find out what a
patient wants to know or what s/he needs
to know about the risks and benefits of
the proposed treatment.
1
It is obvious that
in general, a dentist should answer his or
her patients questions, but as a patient is
a layperson in dentistry, it is difficult for
him or her to ask about risks if they are
not aware of any. So, in daily practice it is
not the patient who has an extensive list
of questions, but the dentist who tells the
patient what s/he thinks the patient needs
or wants to know.
Extensively informing a patient takes
a lot of time and does not give the den-
tist absolute certainty that s/he has gone
into enough detail. Perhaps the dentist told
the patient about the risks of nerve injury
during extraction of a lower third molar.
But should the dentist also have informed
the patient about the risk of the operating
lamp falling down? Another argument
for the limitations of informing patients
of risks is that they might become wor-
ried and refuse essential treatment. On the
other hand, when dentists give too little
information, they are in danger of violat-
ing the law, which may result in a legal
complaint or a claim. It is therefore essen-
tial to have some simple tests in order to
decide whether the dentist has to inform
the patient about risks.
As mentioned earlier, in daily practice a
dentist will give the information s/he thinks
the patient needs to know or the informa-
tion s/he thinks the patient wants to know.
From a legal point of view this is not the
same. When a dentist gives a patient the
information s/he thinks a patient needs to
know, the standard for informing a patient
is what a responsible dentist would do.
When a dentist provides the information
s/he thinks the patient wants to know, the
standard is dependent upon the reasonable
patient, or even the individual patient.
The responsible dentist in jurisprudence
In 2001 King stated: The consent in this
country remains in the professional domain,
judged by what a responsible medical opin-
ion would tell people about their treatment.
2

For a long time the test for the standard of
care required of, for instance, a dentist, was
the direction to the jury given by MacNair
in Bolam v. Friern Hospital Management
Committee: I myself would prefer to put it
this way, that he is not guilty of negligence
if he has acted in accordance with a practice
accepted as proper by a responsible body of
medical men skilled in that particular art
Putting it the other way round, a man is
not negligent, if he is acting in accordance
with such practice, merely because there is
a body of opinion who would take a con-
trary view.
3
This test to determine whether
a dentist had behaved in a responsible man-
ner was named the Bolam test.
I N BRI E F

Draws attention to the duty to inform patients about risks.

Explains the latest guidelines and jurisprudence.

Indicates a shift towards a more patient-centred approach.

Suggests some simple tests to identify the considerations of the reasonable patient.
VERIFIABLE
CPD PAPER
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In a more recent case, Bolitho v. City and
Hackney Health Authority 1997 the House
of Lords underlined the word responsi-
ble. Based on this case, Jones stated that
an expert medical witness should be pre-
pared to defend their evidence and it must
be seen by courts to be reasonable and
logical.
4
The reasonable patient in jurisprudence
As mentioned earlier, when the ques-
tion of whether the dentist should inform
a patient about a particular risk arises,
the Bolam test is applied. In this test the
responsible dentist acts as a benchmark.
In some more recent cases judges men-
tion the reasonable patient as a possible
benchmark. In Pearce and Anor v. United
Bristol Healthcare NHS Trust (May 1998) a
passage in the speech of Lord Woolf reads:
In a case where it is being alleged that a
plaintiff has been deprived of the opportu-
nity to make a proper decision as to what
course he or she should take in relation to
treatment, it seems to me to be the law, as
indicated in the cases to which I have just
referred, that if there is a significant risk
which would affect the judgement of a rea-
sonable patient, then in the normal course
it is the responsibility of a doctor to inform
the patient of that significant risk, if the
information is needed so that the patient
can determine for him or herself as to what
course he or she should adopt.
5
In this
case it seems to be the responsible den-
tist who decides whether a risk is that
significant that a reasonable patient would
refuse treatment.
In Chetser v. Afshar (2004), Lord Steyn
goes even further:
A surgeon owes a legal duty to a patient
to warn him or her in general terms of
possible serious risks involved in the pro-
cedure. The only qualification is that
there may be wholly exceptional cases
where objectively in the best interests of
the patient the surgeon may be excused
from giving a warning. This is, however,
irrelevant in the present case. In modern
law medical paternalism no longer rules
and a patient has a prima facie right to
be informed by a surgeon of a small, but
well established, risk of serious injury as a
result of surgery.
6
In this case, the standard support-
ing the responsible dentist is replaced by
the standard supporting the reasonable
patient.
Do recent standards indicate a shift
from a responsible dentist to a
reasonable patient?
In the GDCs Maintaining standards docu-
ment, article 3.7 advised the responsi-
ble dentist: A dentist must explain to
the patient the treatment proposed, the
risks involved and alternative treatments
and ensure that appropriate consent is
obtained.
7
The starting point in this article
is the duty of the responsible dentist.
In 2005 Maintaining standards was
replaced by Standards for dental profes-
sionals.
8
Article 2.4 of this document illus-
trates a slight shift towards a more impor-
tant role for the patient:
Listen to patients and give them the
information they need, in a way they can
use, so that they can make decisions. This
will include:

communicating effectively with patients;

explaining options (including risks and
benefits);

giving full information on proposed
treatment and possible costs.
Articles 1.2 and 1.4 of the Principles of
patient consent show even a greater shift:
1.2: You should give patients the infor-
mation they want and need, in a way they
can use, so that they are able to make
informed decisions about care.
1.4: Find out what your patients want
to know, as well as telling them what you
think they need to know. Examples of
information which patients may want to
know include:

why you think a proposed treatment is
necessary;

the risks and benefits of the proposed
treatment;

what might happen if the treatment is
not carried out;

other forms of treatment, their risks and
benefits, and whether or not you con-
sider the treatment is appropriate.
9
It is obvious that in recent standards
there is a shift from tell them what they
need to know (the responsible dentist)
towards find out what they want to know
and what you think they need to know
(a combination of the standard for the
responsible dentist and the standard for
the reasonable patient).
The findings of the Professional Con-
duct Committee in a recent case show
a similar shift from the paternalistic
dentist knows best approach to a more
patient-centred approach. In a case where
a dentist was, among others, accused
of not properly informing a patient, the
Committee stated:
It is clear to the Committee that the
problems in this case arose partly as a
result of communication breakdown, but
also as a result of a more deep-seated
intractability in your practice. This overly-
paternalistic approach resulted in a lack
of choice for your patient and clear disre-
gard of your patients interests, autonomy
and dignity.
10

The shift mentioned above does not
mean that the standard supporting the
responsible dentist is entirely replaced
by the standard supporting the reason-
able patient, but one may say that in the
guidelines as well as in civil jurisprudence
they are now acting on the same level. In
fact one can conclude that the new rules
of the GDC concerning informed consent
do not create new duties for dentists, but
they are the reflection of a development
in British civil jurisprudence that started a
decade ago.
What does a reasonable patient want
to know?
When speaking about risks, the judges who
were cited earlier in this article tended to
look at the likelihood of the damage. In this
view a reasonable patient will only accept
risks under a certain probability. This
maximum is called a significant or a well
established risk. This gives the dentist a
clear benchmark for informing the patient.
The only thing the profession has to do is
make an extensive list of the likelihood of
complications or risks during certain pro-
cedures. The problem is that there is a huge
variation in the risks which judges deem
to be acceptable. In the Sideway case, Lord
Bridge refers to a significant risk as being
a risk of something in the order of 10%.
In Pearce v. United Bristol Healthcare NHS
Trust, a risk of 0.1-02% is considered not
to be significant.
11
In the Canadian case
Arndt v. Smith, Mr Justice Lambert finds
that a 2.3% risk of a significant birth
abnormality, and a 0.23% risk of a very
serious birth abnormality ... might well
have persuaded a significant number of
reasonable and prudent prospective moth-
ers acting rationally in assessing the risk,
and having the opportunity to discuss the
matter with their loved ones, to undergo an
abortion and to try again.
12
Between the figures rated as signifi-
cant there is a wide gap. The question aris-
es, however, whether the wish of a reason-
able patient to be informed is dependable
on more factors than just the likelihood of
the damage.
In Ireland the reasonable patient was
adopted as a benchmark in Geoghegan
v. Harris.
13
In this case Mr Justice Kearns
states: Each case it seems to me should be
considered in the light of its own particular
facts, evidence and circumstances to see
if the reasonable patient in the Plaintiffs
position would have required a warning of
the particular risk.
In the view of Mr Justice Kearns the
question of informing the patient is rather
complicated, as it is dependable on the cir-
cumstances. This would bring us back to
the British Bolito case, in the sense that
at the end the judge decides whether it is
logical for a reasonable patient to need
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certain information. The New Zealand
Dental Disciplinary Tribunal gave a deci-
sion which illustrates this train of thought:
Ms A was treated by Dentist B. Den-
tist B prepared several teeth for crowns
and bridges. Ms A was dissatisfied with
the work of Dentist B, so she charged him
under the Dental Act 1988. These charges
partly concerned the technical quality of
the dental work. Ms A also stated that Den-
tist B had failed to obtain Ms As informed
consent as to the nature and extent of the
treatment that he had carried out.
In relation to whether Ms A gave
informed consent for the treatment the
Tribunal found:
We are satisfied that Ms A did not
understand the treatment she received.
The treatment required was substantial
in terms of complexity, and also financial
commitment. The Tribunals view is that
Dr B was obliged to explain fully to Ms A
the underlying state of her dental health
Having heard Ms A give evidence the Tri-
bunal is satisfied that Ms A placed trust in
Dr B as a professional person with exper-
tise, and Dr B failed to explain adequately
the treatment she was to receive, the risk
involved and the full cost of the treatment.
It is unlikely that Ms A would have con-
sented to the treatment had she been ade-
quately informed.
14

In this case we see a combination of
factors:

the obligation of Dr B (the responsible
dentist);

the relation between the information
and the consent of Ms A (the reasonable
patient). The Tribunal decides whether
it was unlikely that Ms A would have
consented.
Some deliberations of a reasonable patient
In daily practice the dentist wants to know
as clearly as possible what his legal duties
are. So if the duty to inform the patient is
not exclusively dependable on the like-
lihood of the risk, it would be helpful to
have some aid to predict whether a judge
would consider it logical that a reasonable
patient needs certain information.
The Dutch High Court provided some
insight into the concerns that a reasonable
patient may have, while considering to
refuse or to allow medical treatment.
15
It
is clear that British dentists are not subject
to Dutch law, but as the High Court test
appears to be an elaboration of the afore-
mentioned article 1.4 of the British Princi-
ples of patient consent, the test could also
be considered by British surgeries in situa-
tions such as:

what is the probability of the complica-
tion or risk;

how would the situation have developed
if the patient had refused treatment;

were other ways of treatment possible
and what was their chance of success?
Based on the Irish case of Geoghean v. Har-
ris one could add a fourth factor:

what is the severity of the complication?
It is obvious that a reasonable patient
would accept a severe complication when
s/he needs a life-saving operation. In den-
tistry most operations are not a matter
of life and death, so dentists and judges
will have to deliberate about these
factors, while questioning whether a rea-
sonable patient would have refused a spe-
cific dental treatment.
Deliberations of a reasonable patient
applied on everyday dental practice
To show the value of these criteria in eve-
ryday practice, we can apply them on a
hypothetical case. A dentist plans peri-
odontal treatment in the mandible. In
order to make this bearable for the patient,
the dentist considers giving mandibular
anaesthesia. His question is, do I have to
inform the patient about the risks of man-
dibular anaesthesia?
What is the risk of nerve injury?
The risk of injuring the lingual nerve while
giving anaesthetic is very low. A recent
investigation found that injuring the lin-
gual nerve while giving mandibular anaes-
thetic occurred in 1 of 2,667 cases.
16
What if the dentist had stopped the
treatment?
The anaesthetic is to be given for perio-
dontal treatment, which is hardly bearable
without anaesthesia. Without the anaes-
thesia there would be no treatment and
without treatment a probable loss of teeth
because of periodontal disease.
Are there alternative ways of treatment
available with the same results?
The answer to this question may be yes.
The nerve was injured when giving man-
dibular anaesthesia in order to make gum
treatment bearable. If the anaesthesia had
been given directly into the periodontal
ligament or the gum, the risks of nerve
damage would have been much lower and
the quality of the anaesthesia would have
been good.
What is the seriousness of the
complication?
Nerve injury may not be life-threatening
but it can be very annoying.
The outcome of this test is that a rea-
sonable patient will refuse the anaesthesia,
as there is a better alternative.
If the anaesthetic had to be given for
the extraction of a wisdom tooth the out-
come would have been different, as perio-
dontal anaesthesia will probably be insuf-
ficient to remove the tooth without pain.
Depending on whether it was necessary to
remove the tooth, a reasonable patient
would have accepted the small risk associ-
ated with the anaesthesia.
If on the other hand the anaesthesia
was given for a purely cosmetic inter-
vention, the reasonable patient would
have wanted to be informed in order to
weigh up the small risk of a nerve rup-
ture against the gains of the not medically
indicated intervention.
The reasonable patient or the
individual patient
Dentists should consider that the reason-
able patient is an imaginary standard-
patient, used in cases in which dentists and
patients did not communicate properly
about risks or did not record their commu-
nication in the patient file. In many cases
the dentist has more information about his
or her patients, for instance about their
profession. This can influence the out-
come of the test mentioned above if a
patient is for example a teacher or a vicar,
he is severely handicapped when he suf-
fers lingual nerve damage. More than, for
example, a lorry driver. This means that a
reasonable teacher will accept a smaller
risk for lingual nerve damage than a rea-
sonable driver, because of the seriousness
of this complication.
The more the dentist knows about his
or her patient, the more s/he has to indi-
vidualise the test. In an ideal situation the
dentist informs the patient properly, and
the patient makes his or her wishes clear
and asks the right questions. The next step
would be to record the arrangements and
the information given in the patients file.
As long as most dentists and patients do not
record their communication extensively,
there will always be a risk for a legal strug-
gle about the gap between the information
given and the information required for
consent. So, until we reach the ideal situa-
tion, lawyers and dentists will always need
a standard like the reasonable patient.
CONCLUSION
The standard for informing patients
about risks has shifted partly from
the responsible dentist to the reason-
able patient. Based on this shift, a dentist
should in the first place answer patients
questions regarding dental treatment.
In practice however patients do not ask
many questions, so the dentist has to
give the information that a reasonable
patient might need in order to give their
consent to treatment. As there is no law
or guideline that describes exactly how
a reasonable patient should be informed
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about possible risks, providing them
with information is like playing
Russian roulette. However, this article
shows that by doing some simple tests
a dentist can limit legal risk when inform-
ing patients.
1. General Dental Council. Principles of patient consent.
No.1.4
2. King J. Consent: the patients view-a summary of
findings from a study of patients perceptions of their
consent to dental care. Br Dent J 2001; 191: 36-40.
3. Bolam v. Friern Hospital Management Committee
(1957) 1 W.L.R. 583, 587.
4. Jones J W. The healthcare professional and the Bolam
test. Br Dent J 2000; 188: 237-240.
5. Pearce v. United Bristol Healthcare NHS Trust (1998)
EWCA 865.
6. Chester v. Afshar (2004) UKHL 41.
7. General Dental Council. Maintaining standards.
Revised 1999.
8. General Dental Council. Standards for dental
professionals. June 2005.
9. General Dental Council. Principles of patient consent.
May 2005.
10. General Dental Council. Conduct hearings. 23
September 2005.
11. Pearce v. United Bristol Healthcare NHS Trust (1998)
EWCA 865.
12. Arndt v. Smith, 1995 CanLII 1370 (BC C.A.)
13. Geoghean v. Harris (2000) IEC 129; (2000) 3 IR 536.
14. Dental Council of New Zealand, ms A vs dr G, Dentist
Disciplinary Tribunal Decisions and Orders, 13 August
2002, http://www.dcnz.org.nz
15. Hoge Raad, 23 November 2001, Nederlandse
Jurisprudentie 2002, nr. 387.
16. Dam B, van Bruers J, Langdurige sensibiliteitsstoorni
ssen bij patinten, Nederlands Tandartsenblad 2004;
59: 36-37.
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