Capacity to consent to dental treatment: Re TE [2020] 5 WLUK 300

The judgment of Mrs Justice Knowles last week illustrates potential difficulties dentists may face if a patient lacks capacity.

The facts of the case involve a 57-year-old woman, who lacked mental capacity and resided in a 24-hour care supported living facility. She had refused dental treatment on a number of occasions and would not tolerate her teeth being brushed. Having experienced dental pain for a period of time, it resulted in the woman refusing to eat, causing weight loss.  Following a dentist’s attempt to examine the woman’s mouth, periodontal issues were identified.

The applicant, a hospital trust, therefore applied to the Court of Protection for a declaration that the woman did not have mental capacity to conduct legal proceedings or to make decisions concerning her dental treatment. The woman was represented by the Official Solicitor.

The Trust’s application was granted on the basis that the woman did lack capacity to conduct the legal proceedings and to make decisions about her dental treatment. It was also determined that it would be in her best interests to undergo dental treatment. Due to the woman’s dental anxiety and the potential of causing distress to her if she were to leave her residence, the Court of Protection determined it was in the woman’s best interests for sedation to be administered covertly for her to then undergo the necessary dental treatment.

This is an interesting case where the issue of capacity and consent is considered in a dental context. Of course, dentists deal with issues around capacity and consent every day, particularly in respect of children undergoing treatment. This case reminds us of the importance of considering the necessary steps when an adult lacks capacity to make a decision about their own dental care and makes clear that the Court of Protection will consider applications about sedating a patient to provide dental treatment if the adult does not have capacity and the court considers the dental treatment is in the patient’s best interest.

If you have any concerns when treating an adult patient who you consider lacks capacity, then please get in touch or seek advice from your indemnity provider.

Citation: [2020] 5 WLUK 300