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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 1996 issue of the Journal

Question: Our office was recently presented with a Christian Scientist patient who objected to periodontal probing and charting. She has a moderately active case of periodontitis and has had deep scaling and some curettage. Red flags went up on her part when she was told we were "probing to monitor her disease condition." She explained that she had sought treatment and cleaning because she considered it a mechanical breakdown and physical build-up of accretions. She took the position, however, that probing was contrary to her religion and objected to the treatment. What should dentists do under these circumstances?

Answer: A competent adult has a constitutional right to refuse treatment. This right was affirmed by the United States Supreme Court in Cruzan vs. Missouri Department of Health, 497 U.S. 261 (1990). It applies to the entire spectrum of health care, whether the refusal of treatment could result in death or a lesser health problem. This constitutional principle therefore encompasses all forms of dental treatment.

The right of a patient to reject treatment is also based upon the common law doctrine of informed consent. Therefore, a dentist cannot legally treat a patient against the patient's wishes. The dentist should, of course, advise the patient of the nature of the treatment and the consequences if the treatment is not performed. It is the dentist's legal obligation to provide information to the patient consistent with the standard of practice for informed consent, but the decision to accept or reject treatment rests with the patient. The dentist should carefully note in the patient's chart all information conveyed to the patient, and should further note the patient's rejection and the specific basis for the rejection. In this instance, the reason is the patient's Christian Science religion.

Question: Would the result be different of the patient was a minor?

Answer: A parent or guardian has the legal authority to make these types of decisions for minors. Under Michigan's Child Protection Law, such a parent or guardian legitimately practicing his or her religious beliefs who thereby does not provide necessary treatment for a child, for that reason alone, may not be considered a negligent parent or guardian. This law does not, however, preclude a court from ordering the provision of health care for a child where the child's health requires it; nor does it abrogate the responsibility of a person required to report child abuse or neglect.

Nevertheless, the decision is up to the parent or guardian, and the dentist is obligated to abide by that decision. Again, the dentist should carefully note in the patient's chart the fact that the parent or guardian was given information consistent with the law of informed consent and the specific reasons for the parent's or guardian's decision to reject treatment for the child.

This answer would not be complete without discussing the child abuse statutory reporting requirement. Health care professionals, including dentists, who have reasonable cause to suspect child abuse or neglect must make an immediate oral report to the Department of Social Services and, within 72 hours after the oral report, must file a written report. "Child neglect" includes the failure to provide health care.

If there is evidence of failure to provide adequate health care for a child, a report of child neglect should be made by the dentist, even if the treatment is rejected for religious reasons. The Department of Social Services will inform the reporting person of the required contents of the written report. Except in isolated instances, the identity of the reporting person is confidential, and a person who makes a report in good faith is immune from civil or criminal liability. A person who is required to report an instance of suspected child abuse or neglect who fails to do so is civilly liable for damages proximately caused by the failure.

Clarification: In my "Dentistry and the Law" column published in the March, 1996 Journal, answers were made to certain questions regarding dentists prescribing drugs. The law was accurately stated that there are no restrictions on dentists prescribing drugs so long as the prescription is within the scope of the practice of dentistry. Prescribing drugs for non-dental reasons would, however, be illegal. In specific questions regarding prescriptions for hormone replacement, Ritalin and decongestants, my answers suggested that such would be beyond the scope of practice of dentistry and therefore illegal. The question regarding decongestants related to a patient who could not see his physician on that day, and my answer therefore assumed that the decongestant was prescribed for medical rather than dental purposes. A member has suggested that decongestants are an active part of dental treatment and that should have been clarified in the answer. The connection between the drug and the dental condition must be based upon the standard of practice of dentistry. Therefore, if the prescription for a decongestant in a particular situation is for dental reasons based upon the dental standard of practice, a dental prescription in that case would not be illegal.

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