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Capacity, consent and the older patient

26 October 2018

Dr Warren Shnider, Specialist in Special Needs Dentistry, The Royal Dental Hospital of Melbourne, discusses the key steps in assessing whether a patient has the capacity to make decisions about their treatment.

Each assessment of an individual’s capacity should relate to a specific decision – a patient may, for example, be incapable of understanding the complex implications of a major procedure, but still be able to comprehend the risks and benefits of a simple intervention. 

Mrs Brown, who has been a regular patient at the practice for years, attends for her first appointment in a year, accompanied by her daughter, and says that she has a sharp tooth that’s digging into her tongue. On examination, there is an ulcer the size of a five-cent piece that is associated with an enamel shard of a grossly carious tooth 36. An x-ray film shows periapical pathology and numerous other teeth with recurrent carious lesions. Mrs Brown says she just wants the edge smoothed over.

While discussing the treatment options with her, you sense that she does not have a full understanding of the potential complications that the treatment entails. You feel a little uneasy and question whether she has the capacity to provide informed consent for the necessary treatment.  

Decision-making capacity1

Under the Medical Treatment Planning and Decisions Act, a person has decision-making capacity to make a decision if the person is able to do the following:

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make the decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means. 2
A person is taken to understand information relevant to a decision if they understand the explanation of the information given to them in a way that is appropriate to their circumstances, whether by using modified language, visual aids or any other means.

An adult is presumed to have decision-making capacity unless there is evidence to the contrary.

A person:

  • has decision-making capacity if it is possible for that person to make a decision with practicable and appropriate support
  • may have decision-making capacity to make some decisions and not others.

If a person does not have decision-making capacity for a particular decision, it may be temporary and not permanent. 

It should not be assumed that a person does not have the capacity to make a decision:

  • on the basis of the person's appearance
  • because the person makes a decision that is, in the opinion of others, unwise
A health practitioner needs to record on the patient’s clinical records the reasons they were satisfied the patient did not have decision-making capacity.

So, for Mrs Brown, it is clear that you need to proceed with the procedure today to alleviate the pain. However, there should be further investigation into her cognitive function. The steps that you may need to take will be to initially speak with her daughter, as she has accompanied her mother today, and her GP, to illustrate your concerns about her ability to consent to treatment or decline treatment. It should also be noted that Mrs Brown’s capacity is situation-specific. The greater the complexity and/or conflict within the decision-maker’s environment, the higher the level of cognitive function or emotional stability/mental health necessary in order to be considered capable. So for Mrs Brown, the considerations about the periapical pathology and the recurrent carious lesions would suggest that she is incapable of making her own treatment decisions.3  

The dentolegal consultant’s perspective

From Dr Raj Dhaliwal, dentolegal consultant at Dental Protection, Melbourne 

We would like to thank Dr Shnider for his interesting case study. Dr Shnider raises some very pertinent points, particularly with our increasing ageing population. We should not be quick to judge and remember that patients may still have the capacity to make certain choices. When patients are lucid, you should try to gain their consent to speak to their next of kin and GP. They may be able to provide information of when it would be best for the patient to attend the practice, as they are more lucid during certain times of the day and so are able to give consent. 

Dr Shnider has also raised a very important point of making clear clinical notes and documenting what was discussed. It is important to be able to justify your decision, should the case arise, on why a patient may not have the capacity to give consent, or equally taking consent from those who are in the early stages of dementia.  


1. Office of the Public Advocate, Definitions. Available from:
2. Department of Health & Human Services, State Government of Victoria, Medical Treatment Planning and Decisions Act 2016. Available from:
3. Shulman KI, Peisah C, Jacoby R, Heinik J, Finkel S. Contemporaneous assessment of testamentary capacity. International Psychogeriatrics 2009;21(3):433–439. 


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