Access to care, legal and moral consequences

Wolter Brands
Radboud University Medical Center, Nijmegen, The Netherlands

Access to heath care is a hot topic in both the US and the UK. In these discussions the finger is often pointed to the government, the social security system and the legal duty to care of dentists. This may be rightly, but one might wonder whether dentists have moral duties to help patients that go beyond their legal duties. In this contribution we will discuss the legal duty to treat in the US and we will discuss the pitfalls and the advantages of Dutch system, worked out by the dentists.

Duty to treat patients of records

One of the more common causes for complaints against dentists is the refusal of (further) treatment. In most US jurisdictions the dentist-patient relationship is seen as a contract and as in most states there is a freedom to enter into a contract, a dentist is not obliged to help a patient who is not under his care. In these jurisdictions the dentist has only a duty to help patients in distress, when he is obliged to do so because of a contract with the insurer of the patient, or the patient him self. In daily practice the only duty to treat is the duty to treat patients of records. The next article of a Florida rule gives an example of this rather limited duty to care:

Law concerning emergency care (Florida-USA)  64B5-17.004 Emergency Care.|

It is the responsibility of every dentist practicing in this State to provide, either personally, through another licensed dentist, or through a reciprocal agreement with another agency, reasonable twenty-four (24) hour emergency services for all patients under his continuing care.

Terminating the relation with a patient of records

When a dentist wishes to terminate the relation with a patient of records and refuses to help these patients any further, he has to have a legally acceptable reason. This reason may vary depending the circumstances. An important factor is the condition of the patient on the moment of the termination of the relationship.  If the patient is in no direct need of help, a dentist could terminate the relationship because of:

A dentist has to be very careful, at least in North American countries to terminate the relationship because the patient has AIDS or is HIV infected, as this can be seen as an act of discrimination of someone with a disability.

Accessibility and availability

When a patient of record seeks help, two factors decide whether he will be treated: accessibility and availability. Decreasing his availability and thus refusing further treatment is in most cases a conscious choice of the dentist in which mostly only one patient is involved. For terminating a relationship during treatment a dentist must have very grave reasons, such as very rude behavior of the patient. Normally if a patient complaints that the dentist did not finish treatment without a valid reason, the complaint is accepted. Dental boards assume that, if a dentist cannot finish treatment without a grave reason, he has to refer the patient to a colleague.

Limiting his accessibility is in many times not a conscious action, limited to one patient. It is merely a question of bad practice management and affects thus all patients of records. The next case shows how a dentist can also stop taking care of his patients by limiting his accessibility.

Case from Great Britain: Continuous care:

The Professional Conduct Committee found that during the period from about March to November 2004, the dentist was in the process of relocating practice without making satisfactory  arrangements to notify his patients of this event. He failed to make appropriate arrangements for his patients to receive routine dental treatment and to obtain emergency dental treatment. This lack of notification and appropriate arrangements for making appointments caused serious inconvenience to at least two of his patients. Patient 1 had difficulty making appointments, and was eventually forced to seek emergency dental treatment with another practitioner. Patient 2 repeatedly had her appointments cancelled and was unable to see the dentist to receive dental treatment which she was rightly anxious to receive because she was pregnant. The dentist did not write to his patients to inform them of the relocation of his practice, preferring instead to contact them as and when the need arose, or wait for them to contact the practice. He used an answering machine but had no organised system for the collection of, and response to, patients’ messages. The answering machine was frequently full, depriving patients of the ability to leave messages. The Committee accepts that the answering machine gave a message providing two telephone numbers, but this did not prove adequate. The dentist also failed to respond appropriately to letters of complaint from his patients and from their solicitors. The evidence showed a clear and ongoing pattern of poor management and a degree of arrogance in relation to your non-clinical dealings with your patients. This attitude and poor management was such that his patients’ need for up-to-date information about his practice was ignored, causing them considerable inconvenience. The dentist consistently worked very long hours, ran late on appointments, and cancelled appointments without informing the patients.

The Committee heard that despite requests from XX that he update his practice protocols and systems, he failed to do this, ignoring their prompts and failing to take remedial action when shortcomings had been highlighted.

The Committee considered whether to postpone judgment, and decided that in this case it would be appropriate to postpone judgment for a period of 12 months. The Committee did consider whether the sanctions of suspension or erasure would be appropriate and proportional, and concluded that this would not be the case. Both these sanctions would remove your services from the community, and would be disproportionate to the facts proved against the dentist. Postponing judgment should be regarded as an opportunity to improve performance.

Besides the fact that the Committee seems to be remarkable lenient, it strikes that the charges only concern the patient of the record of the dentist.

Responsibilities

The system in which the dentist has only legal duties towards her own patients has some clearly advantages for the dentist, as she can plan her work and perhaps select her patients more or less. On a national level there may be another advantage of the limiting the duty to treat. In a system in which the dentists as a profession have the duty to care for the whole community, the dentists as a profession take the burden for a problem that is only partly theirs. Resolving the problem by the dentists will not urge the other stakeholders, the insurers and the government, to come into action.  For instance by adjusting the care that can be insured or raising the number of care takers. On the other hand, if the dentists as a profession do not participate in the solution of the problem, they force the stakeholders to seek their own solution, for instance by educating more dental hygienist and by licensing them to treat patients even without supervision.    

 In some countries, for instance the Netherlands, dentists have the duty to help patient in emergency situations, regardless their relation to the patient.  

The Dutch system

The Dutch BIG-law requires care takers to help patients in need. When refusing help in these circumstances, Dutch dentists will most certainly be disciplined. The code of the Dutch dental association (NMT) defines an emergency as: “help that cannot be postponed”.  Dutch dental boards assume that patients in pain, patients who had an accident or patients who bleed excessively after an extraction are in need of emergency treatment. Like their American or British colleagues Dutch dentist have to provide emergency help 24/7 to their own patients. In order to provide this help they set up emergency services. However the service offered during this emergency services is not limited to emergency service for their own patients and it is even not limited to emergency service:

Advantages and disadvantages of the Dutch system

In the Dutch system every patient who is in need of help will get help, especially in emergency situations. Earlier was suggested that, when dentists solve the problems concerning access to healthcare the other stakeholders will not feel obliged to take their part of the burden.

We see this Holland too. Every Dutchman is obliged to have a basic health insurance. In the past this basic insurance contained also dental help like fillings and extractions for the lower income classes. When the basic insurance was extended to the whole population, dental care for adults, even emergency care was excluded from coverage. By far, most Dutchmen have privately insured their dental treatment. The duty to treat the small group that has no additional insurance or, like illegal immigrants have no insurance at all, can pose a certain financial risk to Dutch dentists. Dentists may have been affected, but there are no reports that they lost a substantial part of their sales because of helping the underserved during emergency services. This is partly because the treatment is given during emergency services, so the risk is spread over all dentists in town.

In this way the Dutch system has two important advantages, one for the patients and one for the dentists. The advantage for the patients is that the solution is structural and not depending on the individual dentist who treats voluntarily underserved groups in society. The advantage for the dentist is that the extra effort is spread over several dentists, which makes it for them easier than for the individual dentist who treats underserved patients and may be over asked being the only dentist in town who is concerned about the wellbeing of his fellow human beings.            

Contact address: 

Dr. Wolter Brands
 Department of Preventive and Restorative Dentistry
Radboud University Nijmegen Medical Center
Box 9101
6500 HB  Nijmegen
The Netherlands
Tel.: +31 (0)24 - 361 6410
Fax: +31 (0)24 - 354 0265
Email: w.brands@dent.umcn.nl