Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 55
Finding The Ideal Dental Expert
For Your Next Case
By Professor Paul Tipton
there is now legal obligation to do the same. Consent
is not a matter of bombarding the patient with
technical information or a smorgasbord of choices
that are either speci昀椀cally related to the patient
or tossed into the conversation simply to ful昀椀ll the
ethics of giving all the options or appropriate for the
clinical situation.
Introduction
One of the biggest problems facing the legal
profession currently is the inability to 昀椀nd suitable
experts for a case.
According to research conducted for the British
Dental Health Foundation, consumer con昀椀dence in
Dentists is at 88%, far higher than that of doctors
and twice as many people value their relationship
with their dentist over their doctor (19.7% to 9.9%),
yet dental litigation 昀椀gures are going through the
roof.
The best known de昀椀nition of ‘consent’ comes from the
Department of Health which says it is “the voluntary
continuing permission to the patient to receive
particular treatments, it must be based upon the
patient’s adequate knowledge of the purpose, nature,
likely e昀昀ects and risks of that treatment including
the likelihood of its success and a discussion of any
alternative to it including no treatment.” Montgomery
replies that clinicians translate their professional
knowledge into something meaningful for the
average patient. The dentist is required to inform
their patient about risks, which the individual sitting
in the chair would be likely to attain signi昀椀cance to.
Unless the patient is informed of the comparative
risk of di昀昀erent procedures, they would not be in the
position to give their fully informed consent to one
procedure rather than another. However, dentists
are not paid for treatment planning and giving
alternatives, but only for treatment.
Dentists are now twice as likely to be sued than they
were 10 years ago according to 昀椀gures from Dental
Protection. This is despite reports from the Care
Quality Commission that dental patients are at
lower risk than those being seen by any of the health
provider.
The current clinical negligence landscape has arisen
due to the current NHS system of payment and a deskilling of new dental graduates.
Dentists face an ethical imperative to promote what
is best to the patients and this bene昀椀cial approach
to care is balanced with a desire to avoid harm if
possible.
The consent checklist involves:
NHS Payment System
One of the factors that drive dental decisions is the
payment system. In the UK, the NHS payment system
primarily revolves around activity payments (either
fee per item or units of dental activity – UDA’s). The
current remuneration scheme (UDA’s) in Health
Service Practice in England & Wales impacts the
daily decisions that dentists make. Quite simply, if
your payment mechanism encourages prevention,
then prevention will be provided. On the other hand,
if your payment approach encourages restorations or
extractions, then restorations or extractions will take
place. To give an example, a dentist receives the same
payment for an extraction as he/she does for a root
昀椀lling. Whilst an extraction may take 5-10 minutes, a
molar root 昀椀lling may take one hour.
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Consent
There is a professional and ethical obligation to 昀椀nd
out what our patients want to know as well as what
you think they need to know. Following on from the
Supreme Court judgment in the Montgomery case,
EXPERT WITNESS JOURNAL
Is the patient old enough and capable of making
decisions?
Have I given the patient su昀케cient information
about the treatment?
Does the patient understand what treatment
they have agreed to?
Does the patient know their risk susceptibility
status?
Does the patient know what his or her own
involvement is?
Does the patient understand the risks and
bene昀椀ts of the treatment?
Has the patient been given alternatives?
Does the patient understand all the costs
involved?
Have I provided any written information about
the treatment and preventive procedures?
Breach of Care
A patient must prove there was a breach of duty of
care in failing to reach the standard of care expected
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