Consent and Clinical Negligence

• Why we need the MCA (Mental Capacity Act 2005):

  • Consent to care and treatment - in order to be a valid consent it must be: voluntary, fully informed, and requisite mental capacity
  • Lack of capacity = lack of consent
  • In broad terms: following the MCA provisions grants lawful authority to treat
• MCA and dentistry:

  • Dental practitioners, like all other health professionals who routinely administer treatment to mentally incapable patients or those with declining mental functioning will be governed by the MCA and will need to be familiar with its relevant provisions and its code
  • The MCA will affect how and when dental practitioners may treat a range of people who suffer incapacity due to dementia, learning disabilities, depression, brain injury, and other forms of mental disorder
• MCA & dentistry:

  • It's usually the responsibility of the attending dental practitioner to assess a pt's capacity to consent to treatment. This will be a matter for clinical judgement, guided by professional practice & subject to legal requirements.
• MCA & dentistry:

  • The GDC Standards, Principle 3 says you must:
  • 3.1 Obtain valid consent before starting treatment, explaining all the relevant options & the possible costs.
  • 3.2 Make sure that pts (or their representatives) understand the decisions they're being asked to make.
  • 3.3 Make sure that the pt's consent remains valid at each stage of investigation or treatment.
• MCA assessment and decision making: the essentials

  • Section 1: five key overarching principles
  • Sections 2-3: definition of incapacity, test for capacity
  • Section 4: best interests checklist
  • Section 5: authorisation of care/treatment
  • Section 6: limitations on authority
  • Note also: LPAs (lasting powers of attorney), IMCAs (independent mental capacity advocates), advance divisions, etc.
  • And see the MCA Code of Practice for guidance
• Section 1 of MCA: key principles

  • A person must be assumed to have capacity unless it's established they lack it
  • A person is not to be treated as unable to make a decision unless all practicable steps to help them do so have failed
  • A person is not to be treated as unable to make a decision merely because they make an unwise decision
  • An act done/decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
  • Before the act is done/decision made, think about whether the purpose can be achieved in a way that's less restrictive
• Section 2 of MCA: incapacity definition = "a person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain." Examples may include patients who have had a stroke, brain injury, dementia, mental health problems, a learning disability, substance misuse or under anaesthetic.
• Section 3 of MCA: testing/assessing capacity:

  • Cannot be based on age, appearance, condition, behaviour
  • The impairment or disturbance can be permanent or temporary
  • Reference to the "material time" means that a person can lack capacity even if the loss is temporary or if capacity fluctuates
  • Definition covers a range of problems including psychiatric illness, brain damage or a drug/alcohol-induced state of confusion
  • Questions to consider: can the person: communicate, understand, retain, and evaluation the information
• Section 3 of MCA: testing/assessing capacity:

  • Example 1: Pt has been diagnosed with the early stages of Alzheimer's and is reasonably competent but mildly communicative. Pt refuses to wear full upper denture and family insist on implant supported bridges. You are unsure as to whether pt has capacity to consent to this.
  • Does this pt have a mental impairment - yes, Alzheimer's
  • Can pt communicate, understaned, retain or evaluate the information? If yes, consent can be obtained. If no, best interest decision.
• Section 4 of MCA: treatment on basis of "best interests"

  • Any act done or decision made on behalf of a patient who lacks capacity must be in their best interests (section 1(5))
  • Best interests checklist
  • Code of Practice acknowledges that you cannot give an exhaustive account of best interests but checklist includes factors that must always be considered
• Section 5 of MCA: authority to treat

  • Acts in connection with care or treatment
  • Allows for a person to do an act in connection with the care or treatment of another person if they take:
  • Reasonable steps to ascertain the person's capacity, and
  • Reasonably believe that
  • The person lacks capacity and
  • It will be in their best interests for the act to be done
• Section 6 of MCA: limitations on authority

  • Exceptions
  • LPA acting within authority
  • Valid and applicable advance decision
  • But can still give:
  • Life-sustaining treatment and/or
  • Treatment to prevent a serious deterioration
  • Whilst a court decision is sought
• Consent and children:

  • Young people aged 16 and 17 are presumed to have the competence to give consent for themselves
  • Younger children under 16 can also give consent (Gillick competence) although their parents will ideally be involved
  • Parental responsibility - who would this be?
  • If a competent child consents to treatment, a parent cannot usually over-ride that consent
• Key messages:

  • MCA section 5 gives health and social care professionals the authority necessary for lawful care/treatment of incapacitated people
  • Authority depends on the test set out in the MCA being properly and reasonably applied
  • And is subject to section 6 restrictions and later provisions (LPAs, deputies, advance decisions, etc.)
  • Not applying the MCA correctly could mean no authority to treat
  • No authority = assault
  • This is a fundamental part of patient care
• Key messages:

  • The MCA only applies to patients who lack capacity
  • Capacity is decision specific: don't make sweeping generalisations or broad assumptions
  • Don't take family consent (unless LPA/deputy)
  • Document the capacity assessment/best interests decision clearly
  • Don't look at this as a chore or hindrance: the MCA enables you to do what is in your patient's best interests and protects you from liability
• Basic principles of clinical negligence:

  • Common law of negligence seek to define the circumstances in which A is held civilly liable for unintended harm suffered by B.
  • Liability usually turns on the relationship between A and B.
  • Usually this is a direct relationship.
• Basic principles of duty of care:

  • Cannot be confused with vicarious liability. Vicarious liability is liability of one person for the acts or omissions of another.
  • The most frequent form of vicarious liability is that of an employer for the acts and omissions of an employee.
  • An employer is not liable for all acts of an employee and a question of law applies to determine whether the employer or the employee will be vicariously liable. The employer will be liable for acts and omissions of the employee during the "course of their employment".
• Basic principles of duty of care:

  • Independent contractors will usually be liable for their own acts and omissions. In the medical context this means that if a doctor is employed by an NHS Trust, the Trust will be vicariously liable for the actions of that doctor, however the duty is still between Dr A and patient B.
  • Generally GPs, GDPs and surgeons acting in a private capacity will still remain liable for their actions.
• Indemnity: All GDC registrants are required to make sure there are adequate and appropriate arrangements in place so that patients can claim any compensation that they may be entitled to. Individual cover can be obtained via:

  • MPS/Dental Protection
  • MDU/DDU
  • MDDUS
  • Other providers
• Professional Standards - General Dental Council

  • There are 6 principles around which the guidance is built. These should be at the centre of everything you do as a healthcare professional. They are:
  • Put pts' interests first and act to protect them
  • Respect pts' dignity and choices
  • Protect the confidentiality of pts' information
  • Co-operate with other members of the dental team and other healthcare colleagues in the interests of pts
  • Maintain your professional knowledge and competence
  • Be trustworthy
• Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
• Ascertaining the Standard of Care:

  • Whilst there are professional guidelines the requisite standard of care must be determined by a legal standard framed by the Courts, rather than by the medical professional.
  • However considerable respect is paid to the practices of the profession and judicial notice is taken of them.
  • It is a rule of practice or evidence. It is not a rule of law. It will change as accepted practice progresses.
  • It is not for the profession to determine legal liability it is for the Court.
• Particular aspects of standard of care:

  • The specialist is expected to achieve that standard of care of the reasonably competent specialist practitioner.
  • In a general dental claim we need to consider the test as what a reasonable general dental practitioner would have done. It is not appropriate to ask what a reasonable orthodontist/periodontist would have done in those circumstances.
  • Therefore the BOLAM test is applied by substituting surgeon, dermatologist, general practitioner, etc.
• Particular aspects of standard of care:

  • Inexperience - the test is objective - inexperience is no defence
  • Junior doctor working in an intensive neonatal unit inserted a catheter into a vein rather than an artery, thereby causing, together with the Registrar failing to check, serious injury to the infant patient's eyesight.
  • The Court of Appeal held that the junior doctor had to be judged to the same standards as a more experienced colleague.
• The BOLAM test:

  • The key test in clinical negligence cases
  • "A doctor is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art... A doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view."
• Establishing breach of duty:

  • Legal burden lies on Claimant
  • For causation the standard of proof required to discharge that burden is on balance of probabilities
  • Claimant must establish either: that the accepted practice was so improperly accepted OR that no reasonable doctor could have behaved in the way the Defendant did
  • Expert evidence - independent review of care provided
  • Compliance with an accepted practice will usually satisfy the Bolam test
  • Facts speak for themselves - usually shifts burden to Defendant - would be for them to prove how injury arose in the absence of negligence.
• Types of dental claims:

  • Consent
  • Extraction of wrong tooth
  • Damage to adjacent teeth during extraction
  • Inappropriate treatment, e.g. Implants when contraindicated
  • Failure to diagnose and treat periodontal disease
  • Failure to prescribe prophylactic antibiotics
• The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
• Consent:

  • Duties set out in GDC Standards Guidance
  • Consent must be informed - they must have been given enough information to make the decision
  • The information must be what they want and need, in a way that they can use, so that they are able to make informed decisions about their care
  • Giving and getting consent is a process, not a one-off event. It should be part of an ongoing discussion between you and the patient.
• Consent:

  • It is important to consider whether the patient has the capacity to consent.
  • Why you think proposed treatment is necessary.
  • The risks and benefits of the proposed treatment.
  • What might happen if it is not carried out.
  • Other forms of treatment, their risks and benefits, and whether or not you consider the treatment is appropriate.
  • Consent MUST be recorded in the notes.