INSIGHTS: Fast-tracked orthodontic treatments give rise to informed consent and scope of practice issues

January 22, 2016

Dental scenario: A patient raised concerns about his smile during a routine consultation with his general dentist. He wanted to improve the alignment of his front teeth and to have his upper central incisors moved inwards. He had seen advertising regarding some proprietary fast-tracked orthodontic treatments and enquired about options.

The practitioner discussed the option of a minimally invasive treatment that can produce alignment within 2–4 months. The practitioner told the patient that a workup would be required including radiographs and impressions, and that he would be guided by the proprietary supplier regarding treatment option/recommendation. The practitioner mentioned there would be limitations in terms of moving the upper central incisors, and mentioned the option of a referral to an orthodontist.

The practitioner implemented a fast-tracked orthodontic treatment plan, which involved partial banding of upper and lower teeth from 24 to 14 and 34 to 44.

The patient made a notification to the Australian Health Practitioner Regulation Agency (AHPRA), complaining about the treatment outcome (specifically the lack of movement of the central incisors) and the lack of information provided by the practitioner regarding the treatment and the treatment expectations. The patient also complained that no information had been provided regarding the post-treatment retention requirements.

Question

What are the informed consent and scope of practice issues that arise?

Response

Practitioners have a duty to obtain informed consent from a patient prior to proceeding with treatment. In the context of the treatment described above, this might extend to providing sufficient information to the patient regarding:

a.   the pros, cons, risks and limitations of the treatment;
b.   alternative options including full banding and referral to a specialist orthodontist (if the practitioner is a general dental practitioner);
c.   anticipated treatment duration;
d.   matters relating to compliance and the importance of compliance and the risks of non-compliance;
e.   cost of treatment;
f.    post-treatment retention requirements and expectations (including costs);
g.   the practitioner’s qualifications and experience to enable the patient to make an informed decision whether to proceed with treatment with the practitioner.

Practitioners should keep good records of discussions and make notes of information provided to the patient during the treatment planning/informed consent stage.

The Dental Board of Australia’s Guidelines on Dental Records require a practitioner to document informed consent and to document treatment plans and alternatives. The Guidelines do not specify how these things should be documented, but the more information that is put into the records, the better.

Where the practitioner is embarking on a higher risk or more contentious treatment plan, or perhaps the least recommended of a number of treatment options, the practitioner should be even more vigilant to carefully document all relevant information that has been exchanged and obtain informed consent.

Clause 2.2 of the Dental Board of Australia’s Code of Conduct deals with scope of practice. The Board has also written specific Guidelines for Scope of Practice, which state as follows regarding dentists (i.e. non-specialists):

Dentists work as independent practitioners and for the purpose of registration may practise all parts of dentistry within their competency and training. They provide assessment, diagnosis, treatment, management and preventive services to patients of all ages… (Dental Board of Australia’s Guidelines for Scope of Practice, June 2014, p. 3). (emphasis added)

Practitioners should ensure they are satisfied that treatments they are performing fall within their competency and training, which the Dental Board of Australia has referred to as the practitioner’s ‘individual scope of practice’.

In the above case scenario, the practitioner’s records were deficient and non-compliant with a number of record keeping guideline requirements, and did not support a finding that sufficient information had been provided to the patient in order for the patient to have made a properly informed decision regarding treatment options.

The AHPRA/Dental Board investigation resolved on the basis that the practitioner was ‘cautioned’ to follow the Board’s Code of Conduct and the Board’s Guidelines on Dental Records, and will undergo further education relating to informed consent.

For further information, please contact: Tamir Katz, Senior Associate or Kellie Dell’Oro, Principal