Complaint about the Healthcare Commission
Jump to
Flawed investigation of a patient’s complaint about a dentist
Background to the complaint
On 18 June 2004 Mr G attended a dental practice (the Practice) for a routine examination. He saw Dr L, whom he had not seen before. By Dr L’s account, during the examination she noticed that Mr G was suffering from sensitivity in the lower left part of the mouth, and that the filling in the lower left second permanent molar tooth (LL7) may have been leaking. She advised Mr G that it needed replacing. Mr G returned for the planned treatment on 5 July. Dr L anaesthetised the lower jaw, but before the dental work began, Mr G told Dr L that the sensitivity was in the upper left part of his mouth, and that this was where he had understood dental work was going to take place. Dr L found that the upper left part of the mouth was sensitive to cold air, and she administered anaesthetic in the upper left part of the mouth. She replaced a filling in the upper left second molar tooth (UL7), but did no work on the LL7 tooth. By Dr L’s account she indicated to the reception staff that a further appointment was needed for the work on the LL7 tooth.
Complaint to the Practice and to the Primary Care Trust
In July 2004 Mr G complained to the Practice that Dr L had administered an unnecessary anaesthetic in his lower left mouth. In her reply, Dr L explained that she had done so because during the 18 June examination she had found that the filling of the LL7 tooth needed replacing. She said that Mr G had first mentioned sensitivity in the upper left part of his mouth on 5 July. Dr L said that rather than go ahead and restore the LL7 tooth on 5 July, she had administered anaesthetic to the upper left part of his mouth and repaired the UL7 tooth instead. Mr G complained to the Primary Care Trust, disputing Dr L’s account of events.
Complaint to the Healthcare Commission
Mr G then complained to the Healthcare Commission (the Commission), which took advice from its Dental Adviser (the Dental Adviser). The Dental Adviser referred to the General Dental Council’s publication Principles of Patient Consent and the National Health Services (General Dental Services) Regulations (the Regulations). He took the view that providing a written treatment plan to all patients returning to a dental practitioner was a professional requirement under the guidance in Principles of Patient Consent, and that providing a written treatment plan was a requirement for all dentists under the Regulations. The Dental Adviser concluded that Dr L had failed to obtain Mr G’s consent on 18 June to repair the lower filling and his consent to administer anaesthetic in the lower part of his mouth. In reaching this finding, the Dental Adviser considered Mr G’s dental notes for the consultation of 18 June, in which it was recorded that he had complained of sensitivity in the lower part of his mouth and that a filling had been prescribed for the LL7 tooth. He also noted Mr G’s assertion that what he had actually been complaining about was pain in the upper left area. The Dental Adviser concluded that although it was ‘one word against another’, it was his professional opinion that Dr L had not ‘adequately secured’ Mr G’s consent to administer the anaesthetic as Mr G was ‘probably unaware that Dr L had prescribed a filling’ in the lower part of his mouth. The Commission accepted the advice of the Dental Adviser and upheld Mr G’s complaint. It recommended to Dr L that she apologise to Mr G and suggested changes to her working practices.
A Senior Dento-Legal Adviser at Dental Protection (Mr B) wrote to the Commission on Dr L’s behalf. He contended that some of the advice given by the Dental Adviser was factually incorrect, and that the decision that Dr L had not obtained patient consent was not supported by the evidence. At the time Dr L had examined Mr G, the Regulations relating to treatment plans did not stipulate that a plan was necessary when a patient was transferred from one dentist to another in a practice under a continuing care arrangement. The Regulations only required a dentist to provide a plan if carrying out three or more permanent fillings or any other specified treatments. Mr B pointed out that the Principles of Patient Consent had only come into force around one year after the events complained about. He argued that Dr L had neither a statutory nor ethical obligation to provide a written treatment plan. However, it was unlikely that she would not have told Mr G about the treatment he was to undergo, having recorded the outcome of the 18 June examination. The Commission obtained further clinical advice and replied, apologising for ‘the distress caused by the provisions cited’. Its position remained that the ‘consent [was] not as robust as it could [have been]’.
What we investigated
Mr B complained to the Ombudsman that the Commission’s findings about the treatment plan were inaccurate and flawed, and its finding about consent was incorrect and unjustified.
We investigated whether the Commission’s investigative process was flawed, and had led to an unreasonable decision. We studied the papers provided by Mr B and the Commission, and took clinical advice from our own Dental Adviser.
What our investigation found
We found that the Commission did not adequately explore or explain why Mr G’s case required a written treatment plan, and that the additional material used in the consideration of this aspect of this case (the Principles of Patient Consent) post-dated the June 2004 consultation.
We had concerns about the basis of the Commission’s conclusion about consent, as it was not clear why it had given more weight to Mr G’s account than to that of Dr L. Given the absence of a clear explanation – and the view of the Commission’s Dental Adviser that this aspect of the complaint rested on ‘one word against another’ – we did not consider that the basis for the Commission’s conclusion was adequately or persuasively explained. The Commission’s response to Mr B’s complaint about its report was cursory and superficial. Although it took additional clinical advice in response to his representations, its subsequent response did not address Mr B’s specific points. Moreover, although that response was less critical of Dr L than before, the Commission’s recommendations to her remained unchanged. It was disappointing that the Commission did not take the opportunity presented by Mr B’s complaint to resolve matters before it came to the Ombudsman. Had the Commission shared a draft of the report with Mr B – thereby giving him the opportunity to comment – it is likely that the issues he identified would have been brought to its attention much earlier, and would have stood a better chance of being satisfactorily addressed at the time.
The Commission’s investigation was maladministrative and we upheld Mr B’s complaint. Our investigation was concluded in April 2007.
Outcome
At our recommendation, the Commission agreed to:
- reconsider Mr G’s complaint and review its recommendations (and consider if any tangible recognition of its failings was appropriate for Mr G or Dr L as a result); and
- apologise to Dr L for the failings we had identified.
Principles of Good Administration
The Principles of Good Administration were not referred to in our report but this case summary serves to illustrate the following Principles:
- ‘Getting it right’ (taking reasonable decisions, based on all relevant considerations).
- ‘Acting fairly and proportionately’ (treating people impartially, and ensuring decisions and actions are proportionate, appropriate and fair).
- ‘Putting things right’ (acknowledging mistakes and apologising).
