Importance of Confidentiality in Dentist-Patient Relationships

 

Like other healthcare providers, dentists have a fiduciary duty to their patients. This principle, developed through key legal cases, underscores the trust patients place in their medical professionals. The landmark case of Norberg v. Wynribintroduced the concept of fiduciary duty in Canadian law.

In Norberg, the plaintiff, Ms. Norberg, suffered severe headaches and jaw pain and was prescribed pain medication while doctors investigated the cause. It was later discovered that an abscessed tooth was responsible for her pain. By this time, however, she had developed a dependency on the medication. Dr. Wynrib, aware of her addiction, exploited this vulnerability by proposing a “sex-for-drugs” arrangement, which Ms. Norberg felt pressured to accept. Following treatment for her addiction, she pursued legal action against Dr. Wynrib, claiming a breach of fiduciary duty.

The Supreme Court of Canada examined the nature of fiduciary duty in this case, identifying three key aspects:

• The fiduciary (in this case, Dr. Wynrib) has a level of discretion or power.

• This power or discretion is exercised unilaterally and can significantly impact the patient’s interests.

• The patient is uniquely vulnerable and reliant on the fiduciary's power or discretion.

The Court further highlighted that patients’ vulnerability is amplified by the trust placed in medical professionals, as they share confidential information that fosters a deep reliance on the healthcare provider.

The Court concluded that Dr. Wynrib owed a fiduciary duty to Ms. Norberg due to the inherent nature of the doctor-patient relationship. This relationship has since been legally recognized as fiduciary in nature for dentists as well.

In R. (J.) v. White, the court addressed a similar issue involving a dentist. The plaintiff sought damages for misconduct by a dentist that began when the plaintiff was a minor. The dentist claimed he did not owe a fiduciary duty since no confidential information had been shared. However, the court upheld that the dentist-patient relationship, like that of a doctor-patient, carries an inherent fiduciary responsibility, irrespective of whether the professional is a dentist or a physician. Thus, dentists are held to a fiduciary duty to protect the welfare of their patients.

  

 

A fundamental aspect of the fiduciary duty that dentists owe to their patients is maintaining patient confidentiality and privacy. This expectation was confirmed by the Ontario Court of Appeal in  Re Axelrod , where Dr. Axelrod, a dentist, faced financial difficulties and secured a loan from Medi-Dent, using his practice as collateral. When he declared bankruptcy, Medi-Dent sought to recover its investment by acquiring Dr. Axelrod’s patient records and list. Dr. Axelrod objected, arguing that transferring these files would breach his professional duty to protect patient confidentiality.

 

The court allowed Medi-Dent to transfer the files to a qualified dentist, but it underscored the importance of confidentiality within the fiduciary duty owed to patients. This ruling clarified that while patient privacy must be protected, there are circumstances, such as practice sales, where patient files may be transferred to another professional, provided that the transaction respects confidentiality standards. The court highlighted that Dr. Axelrod's duty extended beyond direct medical care, encompassing broader obligations, including the protection of patients’ privacy and personal information. 

 

  Confidentiality Standards and Regulatory Requirements  

 

In Ontario and across Canada, dentists are bound by both professional regulations and provincial privacy laws to safeguard patient information. For example, Ontario’s Professional Conduct Regulations specifically require dentists to keep patient identities confidential, reinforcing that confidentiality in the dentist-patient relationship includes protecting even the existence of the relationship. Unauthorized disclosure of any personal information can lead to findings of professional misconduct.

 

Furthermore, various provincial privacy laws and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) mandate that dental practices manage patient information with the utmost confidentiality. PIPEDA applies nationally to organizations handling personal information, setting minimum standards for safeguarding, collecting, and sharing information in dental offices. Each province may also have additional regulations, such as Alberta’s Health Information Act and Ontario’s Personal Health Information Protection Act, that outline strict guidelines for managing patient information securely.

 

  Securing Patient Records and Addressing Privacy Breaches  

 

Dental practices must take proactive steps to protect patient records, whether they are stored in paper, electronic, or other formats. Security protocols should be in place to prevent unauthorized access, copying, or modification of patient data. For example, in Alberta, dentists are required to inform affected patients and notify the Alberta Privacy Commissioner in cases where a data breach presents a “real risk of significant harm.” PIPEDA also includes amendments that, once implemented, will impose similar reporting requirements for data breaches across Canada.

 

Patients also have the right to seek damages for privacy violations. Under PIPEDA and provincial privacy acts, a patient may file a legal complaint if their privacy rights are violated, potentially leading to court-awarded damages. This framework encourages dental offices to prioritize strong privacy practices.

 

  The Role of Informed Consent in Dental Care  

 

  A. Evolution of Informed Consent Standards  

 

Historically, Canadian law was paternalistic, favoring medical practitioners when consent was in question. This approach shifted in 1980 with the Supreme Court of Canada’s decision in  Reibl v. Hughes , which emphasized the importance of “informed consent.” Informed consent is an ongoing process requiring full, transparent discussions between the healthcare provider and patient about the material, special, or unusual risks involved in a procedure, as well as any reasonable treatment alternatives.

 

Dentists must ensure patients are fully informed, which includes discussing treatment goals, success rates, potential risks, alternative options, and the risks of not proceeding. Dentists are encouraged to attend continuing education courses to stay updated on advancements and standard treatment options, which helps them fulfill their duty to offer well-rounded care options to patients.

 

  Documenting Consent Discussions  

 

Recording these informed consent discussions in patient records is essential. Proper documentation provides legal and ethical validation, showing that the patient received and understood pertinent information, thereby making a reasoned choice about their care. This record of consent is critical in protecting both the patient’s autonomy and the dentist from potential liability.

 

These professional standards are embedded in provincial regulations and are supported by both provincial and federal privacy legislation. Together, these regulations reinforce a dental practice’s commitment to confidentiality and respect for patient autonomy, two fundamental pillars of dental care ethics.

 

To obtain valid consent for a medical procedure, a practitioner must comprehensively inform the patient of essential factors, including the nature of the procedure, its importance, material risks, and any specific or unusual risks associated with it. This duty is often measured by the following three criteria:

 

   - Was the risk significant, unusual, or specific to the procedure?

   - Should the practitioner have communicated that risk?

   - If not disclosed, did this failure cause the patient’s harm? 

 

The concept of materiality in consent focuses on what a "reasonable person" in the patient's situation would consider essential to know in order to make an informed choice, not solely on what another practitioner might deem relevant. This duty compels practitioners to provide information on all risks that might significantly impact the patient's decision to proceed with treatment.

 

For this reason, practitioners must maintain accurate and current patient records and ensure they engage in ongoing discussions with their patients. For example, if a dentist knows that one in every 100,000 wisdom tooth extractions results in a jaw fracture, the likelihood is so minimal that warning may not be required unless specific factors, such as unique bone density, elevate the risk for that individual.

 

  Material, Unusual, or Special Risks

Significant risks—those that could seriously impact the patient’s health or quality of life—are considered "material." Whether a risk is material depends on balancing the potential severity of harm with the probability of occurrence. Unusual or special risks, by contrast, are less common and typically less dangerous than material risks, though they should still be disclosed when relevant.

 

For instance, during a root canal, a drill bit might break off and remain lodged in the tooth’s root. While this occurrence is rare, it could be considered material if the consequences outweigh the original reason for the treatment. If removal of the drill bit is impossible without damaging the tooth, the dentist must then inform the patient of their further options.

 

  The Duty to Communicate Risks

While medical expertise provides insight into risk levels, the duty of disclosure extends beyond established standards to include each patient's individual circumstances and concerns. To determine if disclosure was adequate, courts will consider various factors, including:

 

   - Severity and likelihood of risk

   - Patient’s specific health condition

   - Available alternative treatments

   - Benefits and gravity of the recommended treatment

   - Intellectual and emotional capacity of the patient

   - Patient’s stated concerns and questions 

 

Most Canadian provinces further define informed consent obligations in their health legislation, affirming patients' right to be well-informed about their care choices.

 

  When Lack of Disclosure Leads to Injury

For a claim to succeed based on insufficient disclosure, it must be shown that the patient, fully informed, would likely have chosen not to undergo the procedure. Courts often weigh this against the "reasonable person" standard, taking into account the patient’s particular circumstances, such as preferences, concerns, and questions raised.

 

The practitioner’s detailed clinical notes are invaluable in these cases to demonstrate the extent and nature of the disclosure provided.

 

  Informed Refusal

The right to refuse treatment, even against medical advice, is paramount. For instance, if a patient declines a blood transfusion on religious grounds and has documented this preference, the practitioner must respect the refusal or potentially face liability for battery. Unlike informed consent, there is no requirement for a practitioner to verify that a refusal represents the patient’s current or well-considered choice. If a patient’s decision not to accept a recommended treatment is based on the practitioner’s clear explanation of risks and options, liability does not generally follow.

 

In summary, the duty to disclose is essential in providing patient-centered care, and the practitioner’s responsibility extends to informing patients of any viable alternatives that offer potential benefits.

 

Emergency Treatment

 

In life-threatening or urgent situations, when a patient is unable to give consent due to unconsciousness or severe illness, a healthcare provider can proceed with treatment without formal consent, provided it is immediately necessary to protect the patient’s life or health. In such cases, it is not considered battery for the provider to administer necessary care, given the emergency nature and inability to obtain consent.

 

For a medical professional to justify proceeding without consent, detailed documentation in the clinical records must demonstrate:

   - The inability to obtain the patient’s consent, presuming the patient is an adult of sound mind; and

   - The immediate necessity of the procedure to safeguard the patient’s health and life.

 

  Importance of Complete Clinical Notes  

 

Accurate and comprehensive clinical notes are essential to establish informed consent. Clinical records must detail the risks discussed, the patient’s understanding of the risks, and specific acknowledgments from the patient. Simply obtaining a signed consent form does not constitute sufficient informed consent; it should only complement a documented conversation about risks and options.

 

A healthcare provider may delegate discussions about material risks to a clinician, but the practitioner holds ultimate responsibility to ensure the clinician is informed and capable of accurately conveying information. When specific patient concerns arise, they must be addressed directly by the medical professional. Clinical records should also adhere to best practices: using ink, crossing out errors without erasing, initialing and dating corrections, and avoiding any alteration of records after a complaint or notification of an issue arises. Legibility is equally important, as it reflects professional standards.

 

An example of a comprehensive record for a dental procedure, like a root canal complication, would include:

   - Appointment date and patient details;

   - The fact that a drill bit broke off in the root canal and couldn’t be removed;

   - A referral to a specialist for drill removal;

   - Additional treatment recommendations due to the complication.

 

Similarly, records for wisdom tooth extraction should document the necessity of extraction, risks discussed, consent provided, details of the treatment, costs, and the patient’s signature.

 

Complete, detailed notes can be decisive in court, showing that the patient was adequately informed and made their own choice regarding the treatment.

 

Age of Consent

 

In most Canadian provinces, there is no set age for medical consent, meaning minors can consent to medical or dental treatment if deemed competent to understand the risks and benefits. If a minor is not competent, a legal guardian or substitute caregiver must give consent on their behalf.

 

  II. Vicarious Liability  

 

Medical practitioners may be held vicariously liable for the wrongful acts of their staff if such acts are closely related to the authorized work. The Supreme Court of Canada has ruled that an employer can be liable for an employee’s wrongful acts if there is a significant link between the authorized tasks and the wrongful act. Vicarious liability applies even if the employer is not at fault, as employers are considered responsible for managing risks associated with their operations.

 

In cases like  Bazley v. Curry , vicarious liability was imposed when an employer’s establishment and employee’s role created or increased the risk of misconduct. The court considers several factors to assess liability, including:

   - The employee’s power and opportunity to commit the act,

   - Whether the act furthered the employer’s objectives,

   - The nature of the relationship with the victim, and

   - The vulnerability of the victim.

 

For instance, in  Weingerl v. Seo , an ultrasound technician’s assault on a patient led to vicarious liability for the clinic due to the private nature of the procedure, which increased the risk of abuse. This case illustrates the expectation that employers mitigate such risks when possible, such as by requiring a third party to be present during intimate examinations.

 

These principles emphasize the courts’ focus on policy objectives: providing adequate remedies and deterring misconduct by holding employers accountable for situations they could have managed or prevented.