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A starting point to this discussion must be the recognition within this paper (and confirmed in the accompanying commentary 'A UK Perspective' by Graham Manley) that the use of restraint combined with conscious sedation would not be acceptable practice in the United Kingdom. The authors justify the use of this technique primarily on the grounds that they say it is a preferable alternative to general anaesthetic which carries a higher risk of mortality/morbidity.

The legal issues this paper throws up include:

Consent

This is not the place for a detailed review of the law of consent as it impacts upon children. However, put briefly, a practitioner is not entitled to treat a patient without the consent of somebody authorised to give that consent.

If he does so, he will be liable in civil law for trespass to the person and may also be guilty of a criminal assault (Re R (A Minor) (Wardship: Medical Treatment) [1992]).

A child over 16 is presumed by law to be competent to give consent to treatment under the Family Law Reform Act 1969, Section 8 (ie unless proved otherwise).

A child under 16 who is considered to be 'Gillick competent' can give consent to treatment on his or her own behalf.

The question of competence is a matter of fact in each case and requires the demonstration of sufficient maturity and intelligence to understand the nature and implications of the proposed treatment.

The general position is that anyone with 'parental responsibility' (defined in the Children Act 1989) for a child can give valid consent to the treatment of that child.

In practice, a dentist considering the use of this technique is likely to encounter a number of potentially difficult problems in relation to consent issues. These are likely to include facing a situation in which the child's consent is not forthcoming and the practitioner will need to consider whether that refusal can be overruled by parental consent. Further complications may arise if two parents disagree between themselves. These types of issues would require consultation with the practitioner's defence organisation to seek appropriate advice, before treatment is provided.

In order to give valid consent a patient (or perhaps parent in the relevant circumstances) needs to understand, in broad terms, the nature and purpose of the procedure being proposed (Chatterton–v- Gerson (1981)). If the person giving their consent has this broad understanding and is both acting voluntarily and is competent, then their consent will be real.

Compliance with professional guidelines relating to consent issues is also mandatory (see further below). The GMC, for example, now offers specific guidelines on 'Seeking Patient's Consent: The Ethical Considerations'.1 The General Dental Council's guidance on professional and personal conduct 'Maintaining Standards'2 has this to say about obtaining consent:

'3.7 A dentist must explain to the patient the treatment proposed, the risks involved and alternative treatment to ensure that appropriate consent is obtained.

If a general anaesthetic or sedation is to be given, all procedures must be explained to the patient. The onus is on the dentist to ensure that all necessary information and explanations have been given either personally or by the Anaesthetist/Sedationist. In this situation written consent must be obtained'.

There is also further reference to consent issues elsewhere in the Guidance.

Applying the above principles to the use of restraint with conscious sedation in children, it is essential to understand and emphasise that such treatment could only be provided once valid (or real) consent had been obtained (and subject to other considerations set out below). If such consent has not been obtained, or has been refused, then for a practitioner to proceed with such treatment would render him potentially liable to both a civil claim and a criminal charge.

The professional regulatory position

Even if valid consent is obtained, a practitioner providing treatment of this type would have to recognise that according to the commentary 'A UK Perspective' this form of treatment would not be acceptable in the United Kingdom. The General Dental Council's 'Maintaining Standards' needs to be considered in light of this background.

'Maintaining Standards' includes a requirement that a dentist must act to protect patients when there is reason to believe that they are threatened by a colleague's conduct, performance or health and notes that the safety of patients must come first at all times and should override personal and professional loyalties. Arguably, if a colleague became aware that a practitioner was pursuing a type of practice which was unacceptable in the UK, they would need to take steps under this Guidance.

Secondly, 'Maintaining Standards' notes that a dentist has a responsibility to put the interests of patients first and the assumption must be that a dentist will act in the best interests of their patient. It could be argued that by adopting practice techniques that are not acceptable in the UK, this duty is being disregarded.

Thirdly, and perhaps most importantly, 'Maintaining Standards' states that:

'3.10 There can be no justification for intimidation or, other than in the most exceptional circumstances, for the use of physical restraint in dealing with a difficult patient. When faced with a child who is uncontrollable for whatever reason, the dentist should consider ceasing treatment, making an appropriate explanation to the parent or representative and arranging necessary future treatment for the child, rather than continuing in the circumstances'.

Thus the GDC's own guidance on professional conduct specifically states that only in the most exceptional circumstances could the use of physical restraint be justified. This appears to mirror the commentary 'A UK Perspective' in relation to the use of restraint and in the writer's view would make any practitioner adopting this technique in the UK vulnerable to both inquiry and potential sanction by the GDC.

Further points

The above commentary is intended only to highlight some of the relevant issues and is not exhaustive. It does not, for example, include reference to potential NHS complaints, NHS disciplinary procedures or Human Rights issues that could arise from the use of this treatment technique.

Summary

In summary it is suggested that any practitioner considering the use of this technique in the UK should seek advice from their defence organisation in the first instance.