Introduction

This chapter introduces some of the medico‐legal and ethical issues that surround sedation and the practice of dentistry. It is impossible to cover the subject in its entirety and for more detailed information the reader is advised to search the medico‐legal literature. Medico‐legal issues are a necessity of modern clinical practice. It is essential that clinicians practising sedation have a good understanding of medico‐legal issues relating to clinical practice: the basic principles will be addressed in the following chapter.

The Legal System in the United Kingdom

There are principally two parallel legal systems in the United Kingdom – the criminal system and the civil system.

Criminal System

In the criminal system, charges are usually heard in the magistrates and crown courts and the issue at stake is on the question of guilt. The choice of court is usually dependent on the seriousness of the charge and prosecutions may start in a lower court before being transferred to a higher court.

Civil System

In civil cases the question concerned is of injury to a person or his/her property and the issue to be determined is whether or not compensation should be paid. Cases will be heard by a judge or registrar (a junior judge) and there will be no jury present. In the civil system, small claims are usually heard in the county courts while the High Courts and ultimately the Supreme Court oversee all the lower courts.

Dentists face the possibility of actions in either the criminal or the civil systems. There are fundamental differences between the courts and the ways they work and there are differences within the United Kingdom, particularly in Scotland which has its own judicial system. As implied earlier, one of the principal differences is on the question of guilt. In the criminal courts, the concept of guilt is absolute; a person is either guilty or not guilty and will be judged and punished accordingly. Mitigating factors may be taken into account but in general terms these relate to the circumstances surrounding a situation rather than the details of the crime itself.

In the civil courts decisions are based on the ‘balance of probability’ and compensation is determined accordingly. There are appeal systems for both the criminal and civil courts, referred to as the Court of Appeal, although it is actually comprised of two distinct courts. In neither case are witnesses called but rather legal arguments are put forward as to why the original decision was wrong. Finally, appeals against the decisions of the Court of Appeal can be made to the House of Lords although this process has to be applied for (or ‘leave given’) and these appeals are usually only allowed on contentious issues.

Clinical staff are well advised to understand the basic principles of law and how they may be affected by any charges brought against them. In this regard, both patient and dentist have certain rights and responsibilities and these are considered below. In other countries, legal systems vary considerably and the differing ways of administering the law can have a profound effect on the way justice is determined.

Rights and Responsibilities of a Patient

The primary and fundamental rights of all patients relate first to the principle of self‐determination (autonomy) and second to the expectation that any medical or surgical intervention offered should, above all else, safeguard the health of the recipient. In general terms, this means that the benefit of any procedure should substantially outweigh any associated risks. In extreme cases, for example where a potentially lifesaving operation may carry a high risk of mortality, the patient should be made aware of the consequences of intervening or not intervening. In essence, this is the basis on which the principle of consent operates and this is explained more fully below. It requires that all health professionals always put the patient’s interests first and that they do not let themselves become unduly influenced by their own personal preferences. (A classic example where this approach sometimes is seen to be lacking is in oncology clinics, when the views of radiotherapists and surgeons on the treatment of cancer frequently appear divergent and not always related to best‐known clinical practice.) It is important to consider the patient expectations considered in the following sections.

Patient’s Best Interests

With the requirements for sedation, the patient’s best interests must be served by any decision to recommend or withhold the offer of sedation. In this regard, the concept of the ‘sedation practice’, where everybody has sedation all the time, is not a good one. It is self‐evident that any patient who does not require sedation for a particular procedure should not have it offered or administered.

Expert Advice

Patients also have the right to expect expert advice. Because of the privileged nature of the dental profession and its protected status in law, patients must be given appropriate, accurate and current information regarding any condition they have or treatment they are to receive. This can only be achieved by practitioners keeping up to date with modern developments through education and self‐improvement. Where a dentist is unable to provide accurate details on a relevant subject the information should be obtained from a third party.

Quality Care

This combination of expert advice based on safeguarding the patient’s health as a primary responsibility, should automatically lead to the third area of expectation – the receipt of quality care. Quality care is difficult to define but readily understandable. It is the prospect of having treatment which will be both effective and durable. There can be little doubt that the majority of all dental treatment performed in the UK fits the above criteria but there are times when this is not the case. On occasion this may be due to inadequate treatment or failed materials and sometimes it is due to mistakes being made.

The law does not deny the likelihood of mistakes occurring but it does expect mistakes to be corrected and patients can expect the support of the law in this regard. The question as to whether a ‘mistake’ is of such severity that it would be considered negligent is not the same issue. The primary question in law to be answered first is whether the practitioner making the mistake was using reasonable skill when the accident occurred, and second, was the opportunity given to remedy the error. Many cases have been lost by plaintiffs on this latter point.

Plaintiffs in negligence cases also have a duty to submit themselves for examination by an expert witness for the defence, if required so to do. This is supposed to prevent the malicious pursuit of a claim against a practitioner when, if such access was not agreed, the patient could effectively frustrate a reasonable defence. The same principle would apply to any medical records held on behalf of a patient which may relate to an incident and these can be requested by the defendant or the plaintiff.

Duties and Responsibilities of the Dentist

Direct Patient Care

The converse of the above section clearly applies. In delivering care to a patient, the dentist must safeguard:

• The patient’s health
• Provide the patient with expert information
• Deliver quality care
• Remedy any mistakes that may occur.

A dentist does not have to conform to a single opinion with reference to a particular technique, method or procedure. There may even be disagreements on the matter of diagnosis and again this possibility is recognised by the courts.