The New Zealand Dental Services
Refusal of Treatment
Refusal of Treatment
In dealing with the large number of sailors, soldiers and airmen it is not surprising that there were some who, for various reasons, refused to submit themselves to the treatment prescribed. In many cases, by tactful handling, the dental officer managed to overcome these prejudices, especially where the cause was apprehension, but he could go no further than persuasion and, if the refusal was persisted in, had to refer the case to the man's commanding officer. To the commanding officer of the old school the answer appeared simple. An order was an order, and if it was disobeyed there were enough unpleasant penalties to see that it did not happen again. This view, however, was founded more on custom than on sound law, and the old soldier's philosophical observation that there was only one thing that could not happen to him in the Army was proved to be inaccurate. The history of the dispute is interesting.
In April 1940 the dental officers' instructions were:page 108
Any soldier refusing treatment will sign a declaration to this effect on NZ War 361 (overseas 361A) dated and countersigned by the dental officer concerned. Refusal to undergo treatment will not be regarded as sufficient cause for discharge although as a result of such a refusal he may not be up to the required standard unless a Medical Board, which will include a dental officer, be of the opinion that without such treatment the soldier is, or may become, physically unfit to carry out his duties.
The Deputy Adjutant-General summed up the position at the time in commenting on a specific case on 8 March 1940:
There does not appear to be any disciplinary action which can be taken in this case as it does not appear to be an offence. In future, provision could be made to ask the recruit if he is willing to undergo treatment before accepting him. In this case the alternatives are to let him go overseas as he is (probably unfit) or have him declared unfit by a board and discharged.
This was most unsatisfactory as it was bad policy to send unfit men overseas, where they might become unfit for duty and have to be sent back to New Zealand, and the alternative of discharge by a medical board in New Zealand eased the path of the obstructionist and malingerer. An attempt was therefore made to increase the authority of commanding officers.
In 1941, Regulation 41 of the National Service Emergency Regulations 1940 was invoked. This made it an offence for a man to refuse to submit to treatment by a medical or dental practitioner on being required to do so by an officer having authority over him, if that treatment was deemed necessary for the purpose of rendering him fit for service. Before going into camp the offence was tried in the civil courts, and after entering camp, in military courts under Article 1417 of King's Regulations and Admiralty Instructions, Section 18 of the Army Act or Section 18 of the Air Force Act (Imperial). Everything then rested with the man's commanding officer, and the dental officer, apart from taking a signed and witnessed declaration and entering it in the paybook and on the dental history sheet, had no further worry about it, or so it seemed. In practice it was found that commanding officers were chary of using their powers under the Act, with the result that men who refused treatment in some cases apparently had their refusal backed by authority. This put the dental officer in an awkward position. To quote the DDS:
There is the straight out malingerer who definitely refuses treatment. He willingly signs a statement on his dental history sheet that he refuses necessary dental treatment and this fact is reported to his commanding officer. Nothing happens. Hours are wasted in many instances endeavouring to persuade these men, but they are conscripts and do not want to be made fit for service, though the dental officers persuade a few. This is a tragic waste of valuable time which is a big factor when so much dental treatment is required and I regret to say that territorial officers in a few cases have encouraged them. Prior to this period men were anxious to go overseas and knew that they had to be dentally fit, but this incentive is gone and evasion is increasing, which is causing grave concern.
Obviously something had to be done. To invoke a law without sanctions was to undermine discipline and invite ridicule. There was much legal argument which it is not proposed to analyse as it is outside the scope of this history, but the position may well be crystallised in the words of the Assistant Adjutant-General of the Southern Military District:
To allow the refusal to go unpunished would undoubtedly be prejudicial to discipline but so also would a trial by Court Martial if it failed to result in a conviction.
A strategic withdrawal from an untenable position was carried out and on 7 August 1942 the provisions of the National Service Emergency Regulations as affecting refusal to submit to treatment by a medical or dental practitioner, with the exception of the section dealing with vaccination and inoculation, were suspended. Nobody was to be prosecuted or charged and no proceedings or other steps were to be taken to require submission or to punish for not submitting. Any prosecutions already started in the civil courts were to be withdrawn, or if the magistrate refused permission for them to be withdrawn, no evidence was to be offered.
It speaks well for the tact of the dental officers and the good reputation of the NZDC as a whole that the number of men and women who persisted in their refusal to undergo treatment was very small. Those who did persist were no longer any concern of the Corps, except that certified copies of their signed refusals were kept at Headquarters to refute any claims they might make in the future to have dental work done for them at the public expense, and to exonerate the Corps from responsibility for their dental condition.
It is now proposed to discuss some aspects of dental treatment as they were affected by service conditions and requirements.