A dentist (“Dr. Drake”) was unsuccessful in his application for judicial review of the decision of the Health Professions Appeal and Review Board (the “Board”). The court found that the Board was acting reasonably in finding that the Complaints Committee of the Royal College of Dental Surgeons of Ontario (the “Committee”) had conducted an adequate investigation into a complaint that Dr. Drake had not been diligent in obtaining consent to treatment from a patient.

Administrative law – Dentists – Disciplinary proceedings – Investigations – Judicial review – Mental health – Consent to treatment – Substitute decision maker

Drake v. Royal College of Dental Surgeons of Ontario, [2005] O.J. No. 755, Ontario Superior Court of Justice, March 2, 2005, G.D. Lane, A.M. Molloy and D.J. Power JJ.

The mother of the complainant was a patient of Dr. Drake. She was 81 years old and resided in a nursing home. She had been seen by a dental hygienist at the home and was referred to Dr. Drake for treatment after the hygienist had conferred with the complainant who held a Power of Attorney for Personal Care from the patient. On July 22, 2000, the patient was taken to Dr. Drake’s office by her son, Mr. Boyle. While his mother was in the dentist’s treating room, Mr. Boyle waited in the outer office. Approximately half an hour later, Mr. Boyle went in to see what was happening and at that time was advised by Dr. Drake that treatment had been undertaken and he was asked to sign a consent document, which Mr. Boyle did.

Dr. Drake had last seen the patient in 1999 when he noted that she had “mild Alzheimer’s”. On that occasion, he had asked the Plaintiff to sign consent forms herself. At the July 2000 visit, he did not have the patient sign a consent form. On return to the nursing home, the staff recorded that the patient had required repairs to her upper plate and six fillings had been done. Dr. Drake sent his bill to the complainant. It was not paid and was referred to a collection agency. On March 21, 2001, the complainant sent her complaint to the College stating that the work had been done without an estimate and without consent.

The complaint was investigated by the Committee. The Committee’s investigator reviewed the hygienist’s records which revealed that the hygienist had observed one cavity requiring work in June 2000. Mr. Boyle advised that he had signed a consent form for Dr. Drake, but only after all the work had been done. Apparently, much of the work had been done before Dr. Drake even knew that Mr. Boyle was waiting in the office reception area. The Committee delivered its decision on February 14, 2002, finding that the signing of the consent document by the patient’s son did not constitute informed consent, especially as it was signed after the treatment was completed and was not signed by the individual that had Power of Attorney for the patient. The panel therefore required Dr. Drake to attend before it or another panel of the Committee to be cautioned. Dr. Drake requested that the Board review the Committee’s decision.

The Board released its decision and reasons on January 30, 2003. It found that the Committee had acquired all relevant records and that the investigation conducted had been adequate. The Board also concluded that the Committee was entirely reasonable in cautioning Dr. Drake regarding the need to acquire informed consent prior to the commencement of treatment and the need to be vigilant in obtaining informed consent from an individual with appropriate authority. Dr. Drake then applied to the court to review the Board’s findings that the investigation was adequate.

The parties did not provide full argument on the appropriate standard of review. In the absence of such argument, the court determined that the standard of review was either patent unreasonableness or reasonableness simpliciter. In this case, it made no difference in the result and the court determined that it was not an appropriate case in which to rule on the appropriate standard.

The court considered Dr. Drake’s argument that there was no evidence that the patient was actually not competent. It agreed that there was no such evidence, but noted that this fact would have been more relevant if Dr. Drake had taken the patient’s consent and relied on it, which he did not. In reviewing the totality of the evidence, the court held that the Committee and the Board were entirely reasonable in believing that Dr. Drake needed to be cautioned in respect of obtaining informed consent from patients where there is a doubt as to the patient’s capacity to give it herself. In the result, Dr. Drake’s application was dismissed.

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