Canada: Free Advice For Non-Patients: An Ethical/Legal Case Discussion

Last Updated: August 9 2017

Just ask Andy

Andy is a general dentist who is on very good terms with his neighbours. He coaches the local hockey team, and several of the neighbours' children are on the team. He has a snow blower and on snowy days he helps his neighbours clear off the front of their driveways after the snowplow has gone by. None of the neighbours is Andy's patient, since Andy's practice is 30 kilometres away from his home — and yet, they seek his professional advice. One neighbour comes over with her six-year-old son, who has his permanent tooth growing in behind the primary one; she wants to know if this is normal. Another neighbour comes over seeking a prescription for antibiotics for an abscessed tooth; his own dentist is out of town. Another day, one of the hockey parents asks Andy if his 10-year-old needs braces. It seems the more Andy helps out his neighbours, the more people show up at his door for advice. Andy reassures himself that he's just being a good neighbour, and goes on with his day.

Like Andy, many of us find ourselves in awkward situations when non-patients discover that we are dentists and then seek out advice for their problems. The purpose of the above case is to allow you to reflect on some of the benefits and potential problems that can arise in these situations, and to be better prepared to manage similar experiences effectively.

As we know, dentists have a duty of care towards patients in their practice; however, non-patients who approach dentists seeking clinical advice and/or a diagnosis and treatment present a number of challenges to the dentist-patient relationship. Many dentists would assume that since this was a casual "dry finger" encounter, no dentist/patient relationship was ever established and therefore no problems could possibly ensue. But would that assumption be correct?

Legal concerns

Of chief concern to dentists is whether they may be liable should their advice be incorrect and/or injurious to a patient. In order for a negligence claim to proceed in courts, it must be established whether there has been a "duty of care" owed by the dentist toward the patient. Duty of care is generally established by virtue of demonstrating that a doctor(dentist)-patient relationship existed. Forming a diagnosis is a controlled act under the Regulated Health Professions Act, 1991. The first article identifies a controlled act as "communicating a diagnosis identifying a disease or a disorder as the cause of those symptoms of the individual, in circumstances in which

 it is foreseeable that the individual will rely on the diagnosis"1. The Dentistry Act, 1991, specifies an authorized act as "Communicating a diagnosis identifying a disease or disorder of the oral-facial complex as the cause of a person's symptoms"2. Therefore, courts could conclude that when a dentist offers a diagnosis to a person, then that dentist has established a duty of care with that person.

There is legal precedent that providing an opinion establishes a doctor-patient relationship. In Mead v. Adler, in Oregon, a doctor who gave advice saying that no surgery was necessary, was sued when it became evident that this diagnosis was wrong and surgery was indeed required. The doctor claimed, in his statement of defence, that a doctor-patient relationship had not been established. The court held that "in the absence of an express agreement by the physician to treat the patient, a patient-physician relationship was still formed because the physician took an affirmative action in rendering an opinion on the course of the patient's care"3.

In an Ontario case, Stone v. Hipp, the family plaintiffs sued various defendants, including the defendant psychiatrist, for ineffective and harmful psychotherapy provided to the wife at an unlicensed and experimental counselling centre, which the defendant psychiatrist recommended during a telephone call. The defendant psychiatrist did not provide any actual counselling, but commented on and approved of the counselling received at the counselling centre. On this basis, he was alleged to have entered into a doctor-patient relationship with the wife. However, the defendant psychiatrist brought a motion to dismiss the claim on the basis that there was no doctor-patient relationship established4.

In the above case, the Court determined that a greater evidentiary record was required to determine if the duty of care (i.e., doctor-patient relationship) should be extended to these circumstances. In reaching this finding, the Court commented on the "risks" inherent in providing telephone or "casual" advice:

Providing advice, making recommendations, giving referrals or diagnosing an illness on the phone is dangerous for a professional. Medical professionals, indeed all professionals, are held to a high standard and those who are untrained, especially the vulnerable, rely upon their advice5.

The Court also commented that "just" telling the person that they are "not" a patient may not absolve the medical professional of responsibility:

A standard disclaimer to the person that they are not a patient may not absolve a medically trained professional when dispensing harmful advice5.

Based on the above regulations and legal precedents, when providing advice and/or a prescription, a dentist-patient relationship may have been technically established, even if no fees are charged for those services.

Ethical concerns

There are a number of ethical principles at play in this case: Beneficence (doing good for other people); Non-maleficence (causing of harm to patients and others); Justice (upholding regulations); and Autonomy (ensuring complete informed consent and allowing patients the opportunity to make choices for their care).

Patient benefits (beneficence)

It is certainly convenient for patients to get advice instantly and not to have to take time off work to make a dental appointment. Taking kids out of school or parents having to leave work for a five-minute appointment may be perceived as a waste of time by some parents. Patients often think simple things are always simple, and sometimes they are. Altruism is an important professional trait for dentists to aspire to, and helping others, without any fees, is quite altruistic. We can therefore conclude that there are inherent benefits to the patient in such a case, as well us upholding an important professional value, such as altruism.

Potential for patient harms (non-maleficence)

In a normal office encounter, complete patient records, including a medical history, is secured so that any potential harms can be mitigated or prevented. Treatment notes identify the patient's condition, and diagnostic services such as radiographs, which are taken when required, help to strengthen clinical decision-making. Once a diagnosis has been established, proper informed consent is obtained so that a patient can make an autonomous choice when presented with all of the costs, risks, benefits and treatment options, as well as the risks of non-treatment (Autonomy). The ability to formulate a proper diagnosis is severely limited in a casual encounter, and the potential for patient harm is therefore raised. A misdiagnosis becomes ever more likely when necessary steps, such as a review of the medical history, allergies, radiographs and other diagnostic tests, are skipped.

Most people have a relationship with an existing dentist, which might become compromised when another dentist interferes in their care. Different treatment advice may be perceived by a patient as a negative comment on their existing dentist. This can affect the patient's ongoing relationship and trust with their current dentist, which can have a negative impact on the patient's continuity of care. Patient confidentiality may also be put at risk when dentists offer advice in front of other people, which often occurs in social settings such as a hockey arena.

Potential for dentist harms (justice)

The record-keeping guidelines from our professional regulator state that dentists must keep complete records for every patient, which would include "free" treatment and diagnoses to "non-patients." Dentists who offer free advice are not immune to liability claims when things go awry. When cases are misdiagnosed or when outcomes do not meet patients' expectations, not only is there concern about malpractice claims, but these disappointments can affect the personal relationships and make social situations awkward — not only for the dentists, but for the families as well.

In the example where the patient requests an antibiotic for an abscess, it is the patient who made the diagnosis. Prescribing or dispensing a drug is another controlled act under the Regulated Health Professions Act, 1991, and it is covered under professional misconduct regulations: "... prescribing, dispensing or selling a drug for an improper purpose or otherwise using improperly the authority to prescribe, dispense or sell drugs"6. Failing to keep records when a prescription is provided by a dentist is another professional misconduct regulation7. This presents with a host of potential problems to both the patient and the dentist as to the appropriateness of this treatment. The dentist could potentially face regulatory penalties for violations of professional misconduct regulations.

Maintaining objectivity

Maintaining objectivity certainly becomes more challenging when personal and professional relationships are combined. Dentists must be mindful of the potential for conflicts of interest when close personal relationships exist with patients. Treatment is not advisable when boundaries cannot be maintained, except in cases of an emergency8. When personal friendships cloud decision-making, mistakes can happen more readily.

Conclusion: balancing harms and benefits

Proffering advice to neighbours and friends can, on the surface, appear as an innocuous event or even a neighbourly act. It upholds the ethical value of beneficence and an important professional value (altruism). However, when we weigh the beneficence in this case, with autonomy, justice and non-maleficence, the potential for patient harm and dentist harm and the potential harm to the relationships of families and friends, one should think carefully about before doling out free advice to non-patients. In our estimation, the potential consequences clearly outweigh the benefits of providing "free advice."

Regarding the cases involving Andy, there is a risk that the "informal" advice he is giving out could be seen as evidence of a dentist-patient relationship in the event of problems, and litigation could ensue. However, if Andy wants to take the risk and still provide dental advice to his neighbours, there are ways he could reduce the chances of having his advice misconstrued as "treatment" and/or being seen as forming a dentist-patient relationship. For example, he can qualify what he tells these individuals by stating that they should not take what he is telling them as actual diagnosis/treatment and, also, he should instruct them to see their own dentist or suggest they book an appointment to see him at his office.

Footnotes

1 Regulated Health Professions Act, 1991, S.O.1991 c.18, Prohibitions, Controlled Acts, 1.

2 Authorized Acts for Dentistry. Section 4 of the Dentistry Act, Regulated Health Professions Act.

3 Mead v. Adler, 231 Or App 451, 220 P3d 118 (Or 2009). As described in AMA Journal of Ethics. Blake V. When is a Patient-Physician Relationship Established? 2008;14(5)403-06.

4 Stone v. Hipp, 2008 CanLII 10529 (ON SC), paras. 1-2.

5 Stone v. Hipp, 2008 CanLII 10529 (ON SC), para. 37.

6 Health Regulations, Regulation Advisory Council, 2008. Section 2 Article 10.

7 Health Regulations, Regulation Advisory Council, 2008. Section 2 Article 25.

8 College of Dental Surgeons of British Columbia (CDSB). Standards and Guidelines: Boundaries in the Practitioner-Patient Relationship. Vancouver: CDSB, 2016. https://www.cdsbc.org/CDSBCPublicLibrary/Boundaries-in-the-Practitioner-Patient-Relationship-Guideline.pdf.

Authored by

Dr. Barry Schwartz is Course Director for Practice Administration at the Schulich School of Medicine & Dentistry, Western University, London, Ont.

Dr. Gary Srebrolow is a partner at the law firm, Blaney McMurtry, LLP, Toronto, and Chair of the Health Law Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Clark Wilson LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Clark Wilson LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions