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Articles

The core of consent

24 June 2019
There is a common misconception that if a patient puts their signature to a ‘consent form’ that they have automatically agreed to the proposed treatment. This could not be further from the truth, and Dr Joe Ingham, dentolegal consultant, explains why.

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before their consent can be obtained."

This was the judgement of Benjamin Cardozo in the case of Mary Schloendorff v the Society of New York Hospital in 1914.The patient was admitted to New York Hospital and consented to being examined to determine if a diagnosed tumour was malignant. However, she withheld consent for removal of the tumour. The doctor examined the tumour, found it malignant,and then disregarded the patient’s wishes and removed it. The court found that the operation to which the plaintiff did not consent constituted medical battery.

THE PROCESS

It is important to realise that consent is a process and not a one-off event. Treatment plans often change mid-course. This is more likely to happen if the proposed treatment is extensive and complex. A tooth that had originally been planned for root canal treatment may, once treatment is embarked upon, be found to have sclerosed canals, rendering it unsuitable for the proposed endodontic procedure. 

It would not be appropriate to simply go ahead and extract the tooth without first discussing this with the patient. This stand seven if extraction is the only reasonable alternative and in the patient’s best interests.

Failure to revisit the consent process could place the dentist in the same position as the surgeon who removed Mary Schloendorff’s tumour back in 1914. The patient could claim that they had been assaulted and seek compensation.

The absence of detailed clinical records is often a major obstacle in defending a dentist against a claim in negligence. It is important that a record of discussions that have taken place with the patient, with regards to the consent process, are made.

THE DEFINITION

A reasonable definition of consent is: “The voluntary and continuing permission of the patient to receive a particular treatment. It must be based upon adequate knowledge of the purpose, nature and likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it.”

Touching another person without permission is the definition of battery, so the patient’s consent is a necessary step prior to starting any treatment. A patient who willingly enters the surgery, lies down on the chair and opens their mouth can reasonably be assumed to have consented to a dental examination. This is referred to as implied consent.

Dentists and patients should work together through a process of supported decision making, with the dentist providing the information the patient requires to make a decision and ensuring that the patient has understood the details and implications of what is involved. This includes any fees that may be charged.

Remember that consent is not a transitive verb: it is not something that a clinician does to a patient.

"I consented the patient for surgical extraction" is factually and grammatically incorrect.

"I obtained the patient’s consent for the surgical extraction" is a more appropriate statement.

An individual has a right to self-determination and consequently only if they have capacity to make that decision. A wife, for example,cannot give consent for her husband’s treatment irrespective of how well intentioned the attempt may be!

However, if the individual lacks capacity then their next of kin or the person who has power of attorney for decisions on their health can make that decision in their best interests.

THE VALIDITY

There are three components to valid consent:

1. Information
The patient must be in possession of sufficient information to make an informed decision.

2. Capacity
He/she must be able to understand that information and weigh it in the balance to make a decision.

3. Autonomy
The patient must be free from duress from the dentist.

INFORMATION

The question is: ‘How much information does a patient need to have to enable them to give full informed consent?’

There are some patients who, when presented with treatment options, simply lie back in the chair and say ‘you are the expert– you decide!’ Whilst this may be taken as a welcome validation of the trust the patient places in you, pursuing the ‘doctor knows best’ route can be fraught with difficulty.

The amount of information in relation to dental treatment that a patient has access to, especially on the internet,is overwhelming. This has generated increasing numbers of patients who attend consultations with preconceived ideas about exactly what type of treatment they are prepared to accept. It goes without saying that the consent process for these individuals needs to be particularly robust and more time should be spent explaining all options.

When discussing options for treatment, these must always be compared with the option of not receiving any treatment. Patients should be given the relevant information to make a decision as to whether they wish to undergo any available treatment or allow the condition to remain untreated.

CAPACITY

Unless there are good reasons to believe otherwise, it is assumed that adult patients are competent to make decisions about their treatment themselves. This includes the assumption that they have the capacity to give or withhold their consent to dental treatment.

Patients cannot be automatically considered lacking in capacity just because they do not agree with a recommendation made by the dentist. For the purposes of consent to treatment, capacity is both decision-specific and time-specific. It refers to the patient’s ability to make the specific decision at the relevant time at which it is made and for the particular treatment in question. Because of this, the person who assesses capacity is the dentist providing treatment and not a mental health expert.

AUTONOMY

All patients should be treated as individuals and assisted in making decisions. Consideration should be given in respect of their own beliefs and values. Remember that a patient is allowed to make an unwise decision about their treatment. In the event that an upper incisor needs a crown the patient may opt for gold rather than porcelain. The fact that the treating clinician,if they were the patient, would not choose that option should not be a factor.

MINORS

The consent process for treatment involving children presents its own difficulties both from a capacity and authority perspective. Providing they are capable of understanding what is proposed, and of expressing their own wishes, minors should be regarded as having the capacity to consent to dental treatment.Much will obviously rest on what is being proposed.

For example, a child may be competent to consent to a check-up with few ramifications, but may lack the capacity to understand the complexities of orthodontic treatment involving extractions that may have profound implications for their future wellbeing and appearance. Generally speaking, only the child’s parents are able to provide consent.Grandparents, siblings and child-minders do not have the necessary authority to give consent. There may be instances where the parental responsibility has been transferred by the courts from the biological parents to someone else. In these situations it is prudent to ask to see any relevant paperwork in order to verify the validity of the claim.

In an emergency situation it may be necessary to make a decision about the treatment for a child without the consent of the parent/guardian, but acting in the child’s best interest. For example, it may be inappropriate to delay the replantation of an avulsed incisor, where time is of the essence,if those with parental responsibility cannot be reached.