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Consent - Legal requirements

16 October 2015

A helpful way to think of consent is that it is a voluntary and continuing agreement of a patient to receive a particular treatment. 

Such agreement must be based on an adequate knowledge of the purpose, nature, likely effects and outcome risks of that treatment.

This should include the likelihood of success or failure and an awareness of what the alternative options may be.

The key to an appropriate and effective consent process is to ensure that a clear explanation is provided. If the consent process is to be considered successful then the patient (or the person agreeing to treatment on their behalf) will have a firm understanding of what it is that he/she has agreed to and if asked, would be able to explain it to someone else. 

An individual who, having “agreed” to treatment, cannot tell you what it is that they have “signed-up for” raises the question as to whether there is actually valid consent.  

The patient’s autonomy must be respected and it must be remembered that it is not for the clinician to limit what options to tell the patient about. Although there may be treatment options which the clinician is not in a position to provide or to recommend, the choice as to whether or not to explore these options is one for the patient to make. 

The clinician’s duty is to advise of the possibility in order that the patient can make a decision based upon all of the relevant information on the options. 

If, for example there is a treatment which is available privately but which is not provided under HSE arrangements, the patient must be made aware of this in order to ensure the treatment decision is based upon a sufficiently informed understanding of the situation. 

For example, although a child patient may be able to access certain treatments via the HSE there may also be the possibility of a particular specialist treatment available elsewhere on a private basis in which case the parent should be advised of this option. Even if the clinician is of the view that they are unlikely to choose to proceed in this way, the parent needs to be aware of the choice.

An important part of the information to be weighed when the patient/parent/carer makes a decision on care is that relating to the comparative risks and benefits of the various options. 

There is a duty on the dentist to ensure the patient is well-informed and when discussing treatment risks the onus is on the dentist to warn of known and foreseeable complications of a carefully carried out procedure.

There is a particular “patient centred” approach taken in Ireland to the duty imposed upon a clinician to warn the patient of treatment risks.

The Supreme Court has made it clear that :

  • A patient has a right to know of all material risks
  • The practitioner has a duty to warn of all material risks

A dentist will therefore be in breach of this duty if the risks of treatment are not clearly explained and if the patient has not been appropriately warned prior to treatment.

A risk is “material” if a reasonable person in the patient’s position would be likely to attach significance to it. In other words, something the patient (or their parent/carer) would feel is important to know before making a decision. There is, therefore, a duty to ensure that before proceeding with any treatment the patient is warned of any material risk which may affect the judgement of a reasonable person.

Such warnings and disclosure of risks are of course of particular importance when a patient is undergoing elective treatment as in such cases the option of no treatment essentially carries no risk.
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