Dentistry and incapacity

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Although many adults willingly seek dental help when they have toothache, some prevaricate in the hope of spontaneous resolution, going to the dentist as the very last resort. In these cases, a capacitous choice is being made; whether that appears 'wise' is highly subjective. But adults who lack capacity must be helped with dental pain by those who care for them; prompt dental treatment is rarely controversial in terms of where the patient's best interests lie. Provided there is complete consensus that dental treatment is necessary and proportionate, and that the Mental Capacity Act 2005, through its Code of Practice, is followed, then no further authorisation is required. Even if general anaesthesia will be necessary, provided such serious medical treatment is in accordance with the Act, hospital Trusts may in some circumstances consult their solicitors, but would not necessarily seek the approval of a court.

It was therefore instructive when the case was reported of SA, a 22-year-old with severe learning disabilities, communication difficulties and attention deficit hyperactivity disorder who required treatment. SA had lived for 10 years in a 24-hour supported care setting, with two other people requiring similar care. He usually had two care workers to support him. He frequently had trips out and saw his parents briefly each weekend. He was at times able to follow simple instructions but could not understand complex information. His language was described as at the level of a 2-year-old, making only one or two unintelligible sounds, largely communicating by pointing.

Recently, SA had been observed being in discomfort, pain seemingly coming from his mouth or the right side of his face. At a dental appointment, his carers reported that he was hitting his right jaw and striking his head on a sideboard. It was impossible to examine him due to his agitation. In the absence of external inflammatory signs, eruption of a wisdom tooth was suggested. Four days later he was holding the right side of his face and his right ear, picking at his teeth with his fingers. Again, his agitation precluded examination, but antibiotics were started, perhaps due to the progression of symptoms, since tooth or gum infection was now considered. A full examination and then treatment under anaesthesia was proposed.

This was put to his mother, who did not set out a clear position on the dental treatment, but made it clear she wanted SA to have his tongue tie divided, since she considered it could improve his communication and ability to eat.

Having heard submissions from a speech and language therapist, the court was told that '...there was no evidence that SA was trying to produce a significant amount of speech...that could not be understood because of his tongue tie.' No real benefit would derive from division. 'He is eating and drinking well and his communication problems...are due to the nature of his language difficulties and learning disability'.

The case did need to be heard in the court, however, due to the mother's alternative request for tongue tie division, since this was at odds with clinical advice; and perhaps her choice not to engage with the question of dental treatment. The court found that whilst dental treatment under anaesthesia was in SA's best interests, together with some investigation and possibly treatment of a recurrent ear infection, the case for division of the tongue tie was not made out. The judge found that it was 'very likely' that SA would interfere with a frenulotomy wound in his mouth, where sutures were envisaged; and this risk had to be balanced against the reality that he would obtain no tangible benefit from surgery.

For these reasons, the dental and ENT treatment under anaesthesia were held to be in his best interest, but not the division of tongue tie.

Robert Wheeler
Department of clinical law