Dental Self-Regulating Bodies and the Board of Inquiry
The specialized field of dental care has led most provinces and territories in Canada to delegate the oversight and enforcement of professional standards to self-regulating dental bodies.
These self-regulating entities include provincial colleges of dental surgeons ("Provincial Colleges") and dental associations ("Associations"). The Provincial Colleges are responsible for creating specific practice standards that align with relevant legislation, while the Associations focus on promoting the educational and professional interests of dental practitioners.
On a national level, the Canadian Dental Association (CDA) has developed a Code of Ethics, which outlines professional principles that dentists should follow in serving patients, the public, and their profession. Nova Scotia is currently the only province that has adopted the National Code of Ethics by regulation.
In British Columbia, Prince Edward Island, Alberta, and the Yukon, provincial self-regulatory bodies manage investigations and enforcement of practice standards. These bodies are empowered to investigate and discipline members for professional misconduct.
In the Northwest Territories and Nunavut, the "Board of Inquiry" interprets and enforces dental practice standards. Under section 49 of the Dental Profession Act (RSNWT 1988, c. D-3), this board includes at least one licensed dentist nominated by the Northwest Territories Dental Association, one dentist eligible to practice in another province or the Yukon, and a public representative, with a maximum of five members.
In provinces like British Columbia, the Health Professions Act (RSBC 1996, c. 183) allows the inquiry committee to investigate potential misconduct among registrants based on violations such as criminal convictions, non-compliance with practice standards, professional misconduct, or competency issues. The act empowers the British Columbia College of Dental Surgeons to establish and enforce rules governing professional conduct and prohibited practices.
Saskatchewan’s Dental Disciplines Act (SS 1997, c. D-41) includes general definitions of professional competence and misconduct, noting that incompetence is determined by whether a dentist lacks knowledge, skill, judgment, or consideration for public welfare, rendering them unfit for practice. Misconduct is broadly defined and includes actions that harm public interest, damage the profession's reputation, breach legal or regulatory standards, or fail to comply with professional disciplinary orders. The College of Dental Surgeons of Saskatchewan enforces these standards.
In the Northwest Territories and Nunavut, section 63 of the Dental Profession Acts (RSNWT 1988, c. D-3; RSNWT (Nu) 1988, c. 33 (Supp)) defines "professional misconduct" and "unskilled practice" as behaviors detrimental to public interest, harmful to the profession's reputation, or indicative of inadequate knowledge, skill, or judgment. The Board of Inquiry enforces these standards.
Ontario and Québec have codified detailed ethical and practice standards by regulation, but these are intentionally broad and defer specific standards to the provincial regulatory body. In Ontario, the Professional Misconduct Regulation lists over 60 forms of misconduct, including failure to uphold practice standards. Cases of misconduct in Ontario have involved providing unnecessary services, exceeding competency, charging excessive fees, and falsifying records, among others.
In Alberta, disciplinary actions under the Health Professions Act have addressed issues such as inadequate knowledge or judgment, poor treatment practices, failure to refer to specialists, lack of informed consent, poor record-keeping, excessive sedation, and inappropriate prescriptions.
Every province (though not all territories) has established legislation to define and enforce professional standards of care. These standards are then developed and managed by self-regulating bodies or boards of inquiry.
In Alberta, dentists and dental hygienists are governed by the Health Professions Act (RSA 2000, c. H-7), specifically under Schedule 7 for dentists and Schedule 5 for dental hygienists. Dentists are represented by the Alberta Dental Association and College (dentalhealthalberta.ca), while dental hygienists are overseen by the College of Registered Dental Hygienists of Alberta (crdha.ca).
In British Columbia, both dentists and dental hygienists are regulated under the Health Professions Act (RSBC 1996, c. 183). The College of Dental Surgeons of British Columbia (cdsbc.org) oversees dentists, while the College of Dental Hygienists of British Columbia (cdhbc.com) regulates dental hygienists.
In Manitoba, dentists are regulated under The Dental Association Act (CCSM, c. D30), and dental hygienists are regulated under both the Dental Health Workers Act (CCSM, c. D31) and the Dental Hygienists Act (CCSM, c. D34). Dentists are represented by the Manitoba Dental Association (manitobadentist.ca), while dental hygienists are represented by the College of Dental Hygienists of Manitoba (cdhm.info).
Newfoundland and Labrador regulates both dentists and dental hygienists under the Dental Act (SNL 2008, c. D-6.1). The Newfoundland and Labrador Dental Board (nldb.ca) oversees dentists, and the Newfoundland and Labrador College of Dental Hygienists Inc. (nlcdh.com) oversees dental hygienists.
In New Brunswick, there is no specific legislation for regulating dentists or dental hygienists. However, the New Brunswick Dental Society (nbdental.com) represents dentists, and the New Brunswick College of Dental Hygienists (nbcdh.ca) represents dental hygienists.
In the Northwest Territories, dentists are regulated under the Dental Profession Act (RSNWT 1988, c. 33 (Supp)), while dental hygienists are regulated under the Dental Auxiliaries Act (RSNWT 1988, c. D-3). Both professions are overseen by the Government of the Northwest Territories, Health and Social Services (hss.gov.nt.ca/professional-licensing).
In Nova Scotia, the Dental Act (SNS 1992, c.3) regulates dentists, while the Dental Hygienists Act (SNS 2007, c. 29) regulates dental hygienists. The Provincial Dental Board of Nova Scotia (pdbns.ca) represents dentists, and the College of Dental Hygienists of Nova Scotia (cdhns.ca) represents dental hygienists.
In Nunavut, both dentists and dental hygienists are regulated under acts from the Northwest Territories, including the Dental Profession Act (RSNWT (Nu) 1988, c. 33 (Supp)) and the Dental Auxiliaries Act (RSNWT (Nu) 1988, c. D-3). Oversight is managed by the Government of Nunavut, Department of Health and Social Services (gov.nu.ca).
In Ontario, dentists are regulated under the Dentistry Act (SO 1991, c.24) and the Regulated Health Professions Act (SO 1991, c.18), while dental hygienists are regulated under the Dental Hygiene Act (SO 1991, c.22) and the same Regulated Health Professions Act. Dentists are represented by the Royal College of Dental Surgeons of Ontario (rcdso.org), and dental hygienists are represented by the College of Dental Hygienists of Ontario (cdho.org).
Prince Edward Island regulates both dentists and dental hygienists under the Dental Profession Act (RSPEI 1988, c. D-6). The Dental Association of Prince Edward Island (dapei.ca) represents dentists, while the Prince Edward Island Dental Hygienists’ Association (peidha.ca) represents dental hygienists.
In Québec, dentists are regulated under the Dental Act (CQLR c. D-3) and the Professional Code (CQLR c. C-26). Dental hygienists are regulated solely by the Professional Code (CQLR c. C-26). The Ordre des dentistes du Québec (odq.qc.ca) represents dentists, and the Ordre des hygiénistes dentaires du Québec (ohdq.com) represents dental hygienists.
In Saskatchewan, both dentists and dental hygienists are regulated under The Dental Disciplines Act (SS 1997, c. D-4.1). The College of Dental Surgeons of Saskatchewan (saskdentists.com) represents dentists, and the Saskatchewan Dental Hygienists Association (sdha.ca) represents dental hygienists.
Lastly, in the Yukon Territory, dentists and dental hygienists are regulated under the Dental Profession Act (RSY 2002, c.53). Oversight is provided by the Government of Yukon, Department of Community Services (community.gov.yk.ca/consumer/pl.html).
Use of Disciplinary Findings in Civil Claims
When self-regulating dental bodies exercise their authority to investigate or discipline members, questions often arise about the role of these disciplinary records in related civil cases.
There are three issues: First, whether findings from self-regulatory bodies or boards of inquiry can serve as evidence of the common law standard of care in civil proceedings. Second, whether a patient can use a dentist's previous misconduct to suggest a tendency toward such conduct. Finally, it explores whether a patient may access and utilize evidence collected by a self-regulating body to support a negligence claim against the dentist.
Generally, courts do not allow disciplinary records to serve as direct evidence of misconduct in civil cases. In Sawchuk v. Lee-Sing , the plaintiff sued two dentists for negligence after previously filing a complaint with the College of Physicians and Surgeons (the “College”). The plaintiff sought to introduce the College’s findings as evidence in the civil trial. However, the court deemed the disciplinary findings hearsay and excluded them, citing a risk of prejudice, particularly if presented before a jury, as it may unfairly influence their decision-making by deferring to the expert judgment of the disciplinary panel.
Nevertheless, there are exceptions. A plaintiff may cite the outcomes of disciplinary committee findings in their pleadings. Additionally, if a disciplinary committee’s findings favor the medical practitioner, they are often admissible in civil court since they present minimal risk of prejudice to the defendant. This approach is significant for defending malpractice claims.
In some cases, a plaintiff may introduce past disciplinary records as “similar fact evidence.” The Supreme Court of Canada, in R. v. Handy , outlined a three-step test to determine the admissibility of similar fact evidence.
Whether this test is satisfied depends on each case's specifics. For instance, if a plaintiff accuses a dentist of sexual misconduct, past complaints of sexual harassment may be admissible based on the prejudice versus probative balance. Unlike criminal law, civil cases do not have an absolute bar on the use of similar fact evidence.
Importantly, even if the admissibility of certain documents is uncertain, self-regulating bodies or boards of inquiry must still disclose the results of their investigations, including witness statements or investigator notes, upon request. Privacy legislation governs document disclosure, so these bodies cannot refuse disclosure based on their own assessment of admissibility. In El-Bayoumi v. Wade , for example, the New Brunswick Dental Society was required to release recordings of a disciplinary hearing related to the plaintiff’s complaint, though the recordings might not have been admissible in court.
Additionally, a defendant in a civil or criminal case may request to delay disciplinary proceedings until the resolution of the civil case, regardless of whether disciplinary records would be admissible in the civil proceedings.
A. Standard of Care
The standard of care for dentists, similar to other professionals, requires them to deliver dental services with reasonable skill, diligence, and judgment. This standard applies equally, regardless of the dentist's level of experience or location of practice, and mandates that they perform procedures to the same level as their peers. If a dentist falls short of this standard during any part of a treatment, and this leads to harm, they may be held liable for negligence.
In Kangas v. Parker , a patient, Mr. Kangas, sought dental treatment involving the extraction of eleven teeth under general anesthesia. Tragically, during the procedure, he choked on his own blood and died after ten teeth were removed. Both the dentist and the anesthetist were found negligent: the anesthetist for failing to maintain the patient’s airway and the dentist for not adequately monitoring the situation. The failure to prevent blood aspiration breached the duty of care, ultimately causing the patient's death.
In negligence cases, plaintiffs typically need another dentist’s expert testimony to demonstrate that the defendant breached the standard of care and caused the injury. As outlined in Drougov v. Apotex Inc. , a plaintiff must provide evidence (often expert testimony) establishing (1) the standard of care, (2) a breach of this standard, and (3) causation. Courts often dismiss cases lacking this expert evidence since dentistry involves technical knowledge outside the expertise of the court.
B. When the Standard is Unreasonable
Adhering to common practice in the field does not exempt a dentist from liability if the standard itself is found to be unreasonable.
For example, in Rossman v. Sas , a patient alleged that her dentist negligently perforated her sinus during a dental procedure, leading to chronic infections. Additionally, she argued that the dentist had failed to inform her about the risk of sinus perforation before treatment. The court found that although the dentist followed standard procedures, the standards themselves were insufficient. A simple technique, such as blowing air into the mouth to check for perforations, would have mitigated the risk. Therefore, even established practices can be deemed negligent if reasonable alternatives exist that could prevent harm.
Together, Kangas and Rossman underscore the court's emphasis on protecting patients. Dentists must not only meet the standard of the average practitioner but also ensure that these standards evolve to safeguard patients.
C. Common Claims in Dental Negligence
Typical negligence claims against dentists often involve:
1. Poor Craftsmanship : Issues like poorly constructed crowns, cuts, retained root fragments, or chemical burns.
2. Neglect of Patient Care or Records : For example, extracting the wrong tooth, failure to diagnose dental diseases, or complications from inadequate medical history review.
3. Communication Failures : Such as failing to secure informed consent or communicate treatment complications.
4. Injuries from Treatment : Post-treatment infections or inhalation of foreign objects like crowns.
5. Performing Specialist Work : General dentists may face claims for failing to refer patients to specialists for complex cases or undertaking procedures beyond their training.
D. Prescribing Medications
Dentists can possess, administer, and prescribe certain drugs but must adhere to legal and professional standards. Federal and provincial laws, including the Narcotic Control Regulations and Benzodiazepines Regulations, guide these practices.
Prescriptions must be limited to dental treatment needs, documented, and paired with a proper diagnosis. Dentists are responsible for secure storage of controlled substances and must report any losses to the Federal Minister of Health within ten days. Furthermore, any disposal of controlled substances requires witness verification, with records maintained for at least two years.
Dentists struggling with substance abuse must report it to their regulatory body, which may enforce treatment requirements or limit their prescription privileges.
E. Effective Dental Practice Management
Professionalism is essential in dental practice, and maintaining clear clinical notes is crucial. Accurate documentation of patient history, examinations, diagnoses, and treatment is important both for patient care and as a defense against malpractice claims. Dentists should communicate openly, address complications honestly, and refer patients when necessary.
Dentists should avoid overpromising results, allowing patients to dictate treatment, or discussing other professionals negatively. If a relationship with a patient deteriorates, it is wise to discontinue treatment.
F. Referrals to Specialists
Dentists should recognize their own limitations and refer patients to specialists when cases are complex or require specific expertise. Common referral reasons include:
- Case complexity
- Specific treatment objectives
- Patient medical conditions
- Specialist equipment needs
To provide the best patient care and meet legal standards, dentists should stay updated on advancements in the field and, when needed, refer patients to professionals with specialized knowledge.