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Toothache and incapacity

P is 17 with severe autism, living with his parents. He is unable to communicate in any consistently effective way. He receives respite care at the weekends. As part of his routine dental surveillance he underwent a CT scan under general anaesthetic in January 2019, underlining the impossibility of conventional dental care in his circumstances. The CT was accomplished after venous access was obtained, a procedure which required two minutes of restraint, a proportionate step that caused no difficulties. Although he was asymptomatic at this stage, the scan revealed both dental decay and impacted wisdom teeth.

Nine months later P started to bang his head violently on walls. Having relied throughout their son’s lifetime on a whole raft of clues in the absence of direct communication, his parents came to an intuitive conclusion that he was suffering dental pain. Whether his parents sought help at this stage is unknown, but there is no suggestion that they failed to do so. Within a few weeks P had been taken to the local emergency department with an obvious bruise on his forehead and his parents were concerned that his head banging had led to serious injury, and was indicative of persistent severe toothache.

By February 2020 no dental examination or cranial investigation had occurred, and the case had been passed to the Court of Protection, in view of P’s evident incapacity. The judge found that the lack of any clinical response to P’s likely dental pain was despite the fact that his parents were ‘vigilant to articulate his needs’. P’s father is a mental health nurse, well placed to act as an advocate for his son, yet seemingly unable to galvanise the medical authorities to act. Faced with these allegations in court, those authorities made no effort to defend what the judge described as an ‘indefensible’ situation.

It never became clear to the court why it had been possible to perform a routine anaesthetic with modest restraint in an asymptomatic young person but not a very similar procedure for dental examination and treatment when he was suspected of having toothache. The judge made a number of declarations and orders to encourage P’s treatment but acknowledged that further suffering would occur in the interim. The judgement reflects the despair of the judge at a case which was ‘little short of an outrage’.

Further evidence of the prolonged suffering caused by toothache and endured by incapacitated patients, should that be in any doubt, was handed down by the court in June. Q is 57 with profound lifelong learning difficulties and epilepsy, and is registered blind. There was a wealth of evidence indicating her incapacity to make decisions about dental care. Living for the past 14 years in supported accommodation, she has resisted any form of dental hygiene. Throughout 2018 there were increasing concerns about dental pain which was markedly reducing her enjoyment of eating, identified in evidence as one of her great pleasures in life.

After a year or so of pain, a full dental clearance under general anaesthesia was planned. But her reaction to being invited into the ambulance which was to take her to hospital prompted a six-minute epileptic seizure which caused her surgery to be postponed. During the ensuing five months a series of ‘best interests’ meetings were held, culminating in agreement that covertly administered ketamine sedation to and from hospital, with dental clearance under general anaesthetic intervening, would be necessary and proportionate. After this two year delay a declaration that this plan was lawful was finally set before the court, perhaps because the new plan involved prolonged chemical restraint.

The judge agreed to the order, finding Q’s enjoyment of food and pleasure of eating painlessly was in her urgent interests, and overcame the risks and discomfort involved.

These cases reinforce the notion that incapacitated people are entirely dependent on those who care for them to deal with dental symptoms. Furthermore, that there are unaccountable delays in presenting these patients for treatment which seem less easy to circumvent than in the case of more serious, yet considerably less grievous, illness.


Robert Wheeler
Department of clinical law, July 2020