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DATE OF DECISION: 7 DECEMBER 2011
In the absence of a clear determination by a fitness to practise panel as to which evidence they preferred in relation to expert evidence, their finding on misconduct is quashed.
Mr Rimmer, an experienced dental practitioner, had between 2003 and 2006 administered intravenous polypharmacy sedation to fifteen child patients, to enable him to carry out dental procedures on them.
Following a complaint by the local Primary Care Trust about this sedation practice, the matter was put before a Professional Conduct Committee (‘the Committee’) of the General Dental Council
The Committee found the following heads of charged proved;
The Committee found that the facts as had been found proved amounted to misconduct and that his fitness to practice was impaired. They ordered that his registration be subject to conditions for twelve months. Mr Rimmer appealed against this decision.
Failure to explain risks
Mr Justice Mitting considered the current state of the law in relation to advising patients of risks as laid down by Lord Steyn in Chester v Afshar; ‘a surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure…In modern law, medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery’. He considered that it was implicit in that statement that the law does not impose on a medical/dental practitioner an obligation to warn a patient about the risks involved in a procedure if those risks are non-existent or not serious, or are not a risk, however small, of serious injury or harm.
During the hearing, evidence was given to the Committee about intravenous polypharmacy by two experts. Professor Strunin for the GDC had given evidence that it was ‘potentially dangerous’, ‘much more potentially hazardous that using local anaesthesia’ and that ‘the parents should have been informed of that’. Dr Robb for Mr Rimmer disagreed, his view being that the risks have never been quantified. Clearly the view taken as to whether there were risks or not was crucial to the issue of whether a warning should have been given.
Mr Justice Mitting expressed his regret that the Committee had made no express finding about which view it had preferred and therefore that the finding on the lack of warning issue ‘does not hold water’.
The finding of the Panel that the failure to explain the risks amounted to misconduct was therefore quashed.
The finding of the Committee that the failure in record keeping also amounted to misconduct was upheld. Although Mr Rimmer had argued that he was not the note-keeper - that was the job of a doctor he worked with -this was rejected; ‘the obligation is on the dental practitioner who conducts and is responsible for the dental practice. It cannot be divested or subcontracted to an outside specialist’.
Considerations as to fitness to practice and sanction were remitted back to the Committee to redetermine.
This case highlights the importance of fitness to practise panels clearly stating their determination on key issues in dispute. It also serves to reaffirm the important autonomous duty on health professionals to ensure adequate records are kept.
Sarah Harris, Barrister
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