Have you ever been confused about what exactly consent is? Have you ever been mystified how something seemingly so straightforward can be made to sound so complex? Have you ever heard the horror stories from friends and colleagues about when things go wrong? Dr Benjamin Khoury says he certainly has
In my early studies and career, consent seemed such a vague concept. For a while it didn’t seem that relevant to me and I certainly didn’t know how to apply it in practice. Here, I hope to clarify the significant confusion that surrounds consent, and show you its components – and how to apply it as part of your best practice.
What is consent?
Consent is the final outcome to a two-way dialogue between the practitioner and patient about their dental healthcare. It finds its origins in personal autonomy, the right to determine what happens to one’s own body. Simply put, consent is the acceptance of the general nature of the procedure, not the consequences – eg a patient is informed that a tooth needs to be reduced to fit a cover over the tooth.[i]
As long as the acceptance is freely given by an adult of sound mind over the specific procedure, it is valid.[ii] However, it is not difficult to appreciate how the right to personal autonomy – which is at the centre of consent – can be at odds with the practitioner’s duty to act in the best interests of a patient – primum non nocere. This may be when a patient requests oral antibiotics when surgical treatment is required or the patient outright refuses treatment.[iii]
Core aspects of consent
Consent must be freely given for a procedure without any undue influence from family or staff. The key is the qualifier “undue”, because it is quite normal for family to help a patient make a free and independent decision.[iv] However, consent procured under influence of drugs (legal or otherwise) or sleep deprivation to the extent that it impairs thought processes may be invalid. This is particularly the situation when a patient happily tells you that they have smoked 30 cones of cannabis before their appointment, or when the practitioner adds time pressure or promotes one form of treatment over another alternative.[v] In such circumstances, the patient may not be able to make a considered and informed decision, even though the procedure has been explained.
An adult patient must also be of sound mind, that is, have capacity to make an informed decision. Capacity may be lost due to poor health, age or illness. Mental illness of itself is not an automatic presumption of incapacity. The impairment, whether health or age-related, must be directly linked and impact the decision to accept or refuse treatment before incapacity can be established.[vi] In Australia, the courts have adopted four key features in assessing capacity that practitioners can keep in mind during an appointment: the ability to absorb, retain and process the information, and evaluate and assess the risk to make a fully informed decision.[vii] This can be elicited through asking patients to reiterate information disclosed and feedback on the how the risks may impact their lives.
Finally, a patient’s consent must cover the specific procedure, eg consent for restoration of an abrasion lesion without preparation is not consent for a larger filling or root canal treatment.[viii] To avoid legal implications, and as part of the information sharing process, patients should be notified of foreseeable changes to treatment that may be encountered during a procedure, including pulp capping, otherwise additional consent will be required for the extension of procedure not anticipated.
Why so difficult?
I think the confusion arises from the inclusion of consent in the requirement of competent practice and warning of foreseeable risk under the term ‘informed consent’. Informed consent finds its origins in the USA and implies that consent needs to be informed, which is not the law in Australia.[ix] For this reason, the High Court of Australia in Rogers v Whitaker (1992) rejected the use of the term and stated that it was “apt to mislead”. Arguably, it is best to separate consent and legal obligation to provide competent treatment and warn of foreseeable risk in practice. This saves time during an appointment and is less confusing for all, especially those with a ‘low dental literacy’ – although the latest research is discounting this impact on oral health.[x]
So what should I do?
Communication is key. I cannot count the number of times I have heard patients claim dentists have ‘filed’ their teeth without telling them. Therefore, saying the right things at the right time is essential. We must remember that more detailed explanations do not mean consent.
However, in practice, a patient is usually informed of the diagnosis, treatment options and alternatives, risks and costs together. As a young practitioner, this is particularly difficult to manage all at the same time. Since consent is more concerned with treatment options than the risks and complications, it is useful to separate out the discussion of treatment options and costs to that of risks and complications. For example, if a tooth has irreversible pulpitis, two likely options are open to the patient: root canal treatment or extraction.
Only after the patient has consented to the procedure should the discussion of risks and complications associated with that treatment be pursued. If the patient chooses extraction then before starting the procedure it is necessary to inform the patient of the foreseeable risks, such as a fracture of the tooth or need for surgical repair of an oral-antrum communication, and warn of risks the patient is likely to attach particular significance to, always giving the option for a specialist referral (documented in contemporaneous clinical notes).
This separates the acceptance of treatment from discussion of risks/complications and narrows the discussion of risks/complications to one treatment modality. This keeps dental explanations to a minimum, unless requested by the patient, eliminating confusion while informing the patient of the essential information they need to know as a patient. What must always be remembered, no matter how much information is shared with a patient, is that they will never be in the position to fully understand the complexities of their case compared to that of a practitioner.
Dr Benjamin Khoury graduated from Charles Sturt University in 2017 and currently works as a dentist in private practice in Seaford metropolitan, South Australia
[i] Khoury B & Khoury J, Consent: a practical guide. Australian Dental Journal, 60(1), pp 138-141 (2015)
[iii] Secretary, Department of Health Community Services (NT) vJWB and SMB (1992) 175 CLR 218 at 233-4
[iv] Re T (Adult: Refusal of Treatment)  Fam 95 at 113
[v] Beausoleil v La Communitie des soeurs da la Providence  53 DLR (2d) 65
[vi] Stewart C, Advanced directives, the right to die and the common law. Melbourne: Melbourne Law Review, 23(1), pp 161-183 (1999)
[vii] Re C (Adult: Refusal of Medical Treatment) (1994) 1 WLR 290 at 291-5
[viii] Candutti v ACT Health and Community Care  ACTSC 95 at -
[ix] Rogers v Whitaker (1992) 175 CLR 479 at 490
[x] Firmino R T et al, Association of oral health literacy with oral health behaviors, perception, knowledge, and dental treatment related outcomes: a systematic review and meta-analysis. Journal of Public Health Dentistry, p1 (2018)