The wisdom of informed choice
When I was 12, in common with my friends, I went for my first appointment with the orthodontist. However, unlike my friends, this did not result in me sporting a brace for a few years; instead, I ended up in hospital having all four of my unerupted wisdom teeth taken out under general anaesthetic.
I was told by my orthodontist that there was no clinical need for any orthodontic work, though a brace might bring some minor cosmetic improvement, but if my wisdom teeth came through naturally, they would push all of my teeth forward and, potentially, I would end up needing a brace later in life. The suggestion was therefore to have these teeth removed before they became a problem. Well, as an image-conscious pre-teen desperate not to have a brace then or in the future, this seemed a small price to pay and agreed to have the operation.
Come the day, everything went smoothly, until I woke up from the anaesthetic and became very ill. I’d had an allergic reaction to one of the drugs I’d been given, and was very sick for several days, meaning I had to stay in hospital for much longer than expected.
And, though I gloried in having my teenage years un-blighted by what I and my peers considered to be horrific, disfiguring braces, as their smiles improved, I became aware that I had retained the same rather imperfect teeth I had started with. I was left with huge regrets, but I and my parents had, of course, ‘consented’ to it all.
This consent, however, was far from informed. An allergic reaction to anaesthetic drugs is rare, but it is a risk. There is also a risk with every GA of dying, but nobody had told me that. No one had discussed with me how it might feel to see my friends emerge from their brace-wearing cocoons with beautiful straight teeth. Though I was warned about the swelling and the discomfort, it had certainly been down-played from the post-operative effects that I experienced. Even more upsettingly, over the years, I have been reliably informed by many different dental professionals, that the whole operation was entirely unnecessary, and would never be done now.
I don’t know what I would have chosen to do if I had been presented with all of the risks and options, but at least I would have been able to make an informed choice. And that is, in essence, what lies at the heart of the question of consent, at least from the perspective of the patient. For the practitioner, it is a more complicated issue entirely. The Montgomery ruling laid down that the practitioner has a duty to provide information about all ‘material’ risks; they must disclose any risk to which a reasonable person in the patient’s position would attach significance. But how does any clinician make that judgement and, pertinently, how do they prove that they have done as required, should the worst occur, and they end up in a FTP hearing, or in court? Those in primary dental care can have the small advantage of an established relationship with their patients, but what about those, particularly in secondary care, who are meeting a patient for the first time? What about when a proxy is involved, or translation is required?
In my case, I know I would have attached significance to the risk of an adverse reaction, or the risk of death – however small those risks were – I think most ‘reasonable’ people would. I would also have liked to be able to discuss what my orthodontist really meant when he referred, dismissively, to the outcome of having a brace as ‘minor cosmetic improvement’, before he shut down the conversation entirely.
I had a bad experience, but I think the dental profession has always communicated well and has a strong history of involving patients in discussions about their treatment. To that end, it could be argued that Montgomery has really only put into law what good practitioners have been doing for years.
I’m not sure whether all patients understand this though, and there is a risk that patients now think their right to choose overrules clinical expertise and knowledge. In an industry facing increasing litigation, where practitioners openly discuss living in fear of their regulator, Montgomery could be seen not as the law catching up to good practice, but as a blunt instrument used to punish people who have done everything right, expect keep their paperwork in order.
Ultimately, yes, a patient has the right to consent, or not, to treatment. The duty of the practitioner is to lay out and explain the clinically recommended option or options.
As Montgomery’s own counsel put it: “Decisions about diagnosis and treatment must necessarily, and by definition, be made by the medical practitioner by reference to his special skill, learning and experience in an expert field which is not shared by the patient. By contrast decisions by the patient as to whether to submit to proposed treatment are his to make as of right, and his to make by giving whatever weight he thinks it right to put upon the risks and benefits which the options available bring.”