Sydney Dentist (Case Study Sample)

Sydney Dentist
(Author’s Name)
(Institutional Affiliation)
Sydney Dentist
Sydney dentist Andrew Istephan was accused of assaulting elderly patients of while working for the Elderlink Consolidated Services which was a Commonwealth-funded and government-endorsed scheme. The dentist undertook key dental work on elderly patients which was uncalled for without obtaining consent from them. Istephan was involved in systematic, callous and deliberate exploitation of patients, the families of the patients and the society in general with the aim of being rewarded financially. The dentist has also brought shame to the health profession by engaging in illegal and unethical activities while undertaking his duties as a dentist. This paper will analyze and discuss the main legal issues arising from the acts of the dentist like assault, causing bodily harm, consent of patients, the statutory law dealing with the criminal offence of liberty deprivation and the Enduring Powers of Attorney Act of 1998. The article will also deal with ethical issues raised in the dentist’s case like beneficence, non-maleficence and autonomy (Wixxyleaks, 2014).
Legal Issues
Andrew Istephan was involved in assault causing bodily harm, obtain involuntary consent from patients who do not have capacity to consent, the criminal offence of liberty deprivation and Enduring Powers of Attorney Act of 1998. The Criminal Code under Section 245(1) defines assault as involving a person who moves, touches or strikes, or otherwise uses any kind of force on another person either indirectly or directly without the consent of the other person or with the consent of the other person if such consent is obtained through fraud; or a person who through any bodily gesture or act threatens or attempts to apply any kind of force to another person without the consent of the other person under such situations that the person attempting or threatening has apparently or actually a present ability to achieve his/her purpose. The Criminal Code under Section 245(2) provides that applying force involves applying odour, gas, electrical force, light, heat or any other thing or substance applied in such a level as to lead to personal discomfort or injury. Under Section 339 of the Criminal Code, a person who causes assault occasioning actual bodily harm is liable for 7 years’ imprisonment. Andrew Istephan assaulted his patients causing actual bodily harm by filing down the teeth of elderly patients without obtaining consent from them, their families or their guardians. This amounts to assault as defined in Section 245(1) of the Criminal Code and the dentist is liable to 7 years imprisonment if the assault is adequately proved ( Darison, 2000).
The second legal issue arising from Andrew Istephan’s case was consent. Under Section 348(1) of the Criminal Code, consent means consent voluntarily and freely given by a person who has the cognitive capacity of giving consent. Section 348(2) provides that a person is not considered to have voluntarily and freely consented if the consent is obtained by use of force, by intimidation or threat, by fear of bodily harm, by exercising authority, or by fraudulent and false representations about the act’s purpose and nature, among others (Miola & Nils, 2007). In this case, some of the patients of Andrew did not have the capacity to consent to the acts of the dentist hence there was no valid consent. Some of the residents did not have the ability to make informed decisions because they had dementia. Contracting dentist working under the scheme were required to consult with a GP and get the patient’s consent, or their next of kin’s consent, before starting any dental work. In the case the other nine guardians of the residents and others were never consulted about the dental work that was being carried out on their relatives. As a result, consent was not gotten from the continuing power of attorney otherwise known as the next of kin contrary to the Enduring Powers of Attorney Act of 1998. Majority of the residents were not able to give consent because of their medical condition or age, and the families of the residents were also not consulted.
For there to be valid consent to treatment for elements of consent must be met. The first element is that the decision must be made voluntarily. This means that the decision should not be given under duress, that the person giving the consent must be acting on their own behalf and that no form of coercion should be used in obtaining the consent. Secondly, the patient has to be given information concerning their condition, the proposed treatment the risks of the proposed treatment and the available alternatives. Thirdly, the decision must be related to the treatment. Lastly, the person giving the consent must have the capacity to give such consent (Miola & Nils, 2007). From the above elements of consent, it is evident that the dentist was guilty of assaulting patients and causing bodily harm through performing surgery without the patients’ consent. This is because the dentist did not meet all the elements required for consent to be valid. In the case only three of the patients were mentally fit to give valid consent meaning that the rest of the patients were not capable of making decisions. Istephan’s believe that he was consented by the nursing home staff to carry out the procedures was also illegal.
Lastly, Section 355 of the Criminal Code provides that unlawfully detaining or confining another person against the will of that person or otherwise unlawfully depriving another person’s personal liberty amounts to a misdemeanor which attracts 3 years imprisonment (Lambden, 2002). In this case Andrew Istephan unlawfully deprived the liberty of the patients because he did not give them a chance to make a decision on what forms of treatment should be given to them. He made a decision on their behalf without obtaining their consent hence acting unlawfully and liable to deprivation of liberty under Section 355 of the Criminal Code.
Ethical Issues
The ethical issues raised by this case are autonomy, beneficence and non-maleficence. The first ethical issue autonomy requires the ability to decide for oneself without being controlled by others and with a level of understanding that is sufficient to give a meaningful choice. This requires a person to be in a position of deliberating a cause of action and putting the plan into action (Marcia &Carol, 2012). Istephan did not respect the rights of others to make a choice and did not get consent for procedure. By Istephan telling the court that he believed to have had consent from the nursing home staff to carry out the procedures, he went contrary to the requirement of autonomy.
The second ethical issue is beneficence. Beneficence requires that we should make a contribution to the welfare of others. When Istephan was found guilty of assault to elderly patients through carrying out major dental work that was uncalled of without obtaining consent from them or using sedatives, he did not make a contribution to the wellbeing of others American (Dental Association, 2012). The dentist instead traumatized and distressed the patients. In a recorded interview played during the proceedings, one of the victims Ealinor Huxley, who was in a position of consenting for procedure stated that if she could have been asked by Istephan whether she needed a new crown, she would have not accepted. She was about to turn 100 years old in a few months time and did not see the need of having a crown. She also stated that she was not asked by Iste...