What is consent? 

Consent is the cornerstone of ethical and legal dental practice. At its core, consent is a communication process where the clinician receives the voluntary and continuing permission of a patient to a particular procedure. The key aspect, therefore, is having a good conversation or two-way dialogue with the patient, and, most importantly, capturing the salient points of these discussions in the patient’s clinical notes.

Potential pitfalls 

In our experience, an increasing proportion of clinical negligence claims include allegations of failure to obtain valid consent. This is not always because clinicians are failing to have the relevant discussions but often because those discussions are not adequately documented. For example, it can often be the case that clinicians have had discussions with the patient about their different options, but unfortunately there is often little captured in the notes regarding what exactly was discussed eg the pros and cons of each option or what advice or warnings were given to the patient in respect of the possible outcomes. So, although the clinical notes regularly capture in some detail what was ‘done’at each appointment, they frequently capture little if anything of what was ‘said’ at these appointments. Consequently, patients (or their third-party representative, like a solicitor) may be able to argue that they did not have sufficient information for their consent to be ‘valid’. Although consent forms are often used to try and help in this regard, misunderstandings persist around the role and validity of such forms.

The role of consent forms 

In relation to the use of consent forms, it is important to highlight that such forms, in and of themselves, are of limited value. The general line of argument often used to challenge such forms by a third party, eg a plaintiff lawyer, is that while their client (the patient) doesn’t dispute having signed it, they do dispute that the contents were either (a) ever discussed, or (b) were discussed in a meaningful way and in terms that they understood. In essence, requesting patients to sign such forms is often viewed and argued as a ‘tick box’ exercise in the absence of any evidence of the relevant discussions having also taken place.

Consent forms can, however, be helpful as an aide memoire in relation to the points a clinician may wish to discuss with a patient, ie acting as a framework to help guide the conversation while also hopefully helping to prevent leaving something important out. Arguably, they could also prove useful, from an evidentiary point of view, not just of a signature, but if they contained some contemporaneously captured comments/notes/words – to demonstrate that the dentist went through and discussed each of the items on the form in turn. This could be something as simple as underlining or circling a dental jargon term that the patient might not understand (eg ‘vitality’ or ‘prosthesis’) with an arrow to a note in the margin explaining its meaning. 

When do consent forms have to be used? 

In the first instance, it may be helpful to know that it is not a requirement to have signed patient consent forms for all patients. The Dental Council recommend getting written consent if patients are undergoing extensive treatment but mandate it when treatment is being carried out under general anaesthetic or conscious sedation.

Does format matter? 

The short answer to whether a digital version of a signed consent form will carry the same weight as the equivalent in hard copy format is ‘yes’ – just like with digital versus analogue radiographs or written versus electronic patient records. The format, therefore, is somewhat irrelevant. 

Best practice with consent 

In relation to how best to protect yourself in regards to the consent process, in addition to any signed consent forms, you should also capture in the patient’s record the salient points of any discussions you have with them – whether that’s in relation to providing treatment (or not), offering a referral, the risks associated with treatment, costs, etc. 

On a practical level, what a lot of practitioners find useful is using their dental surgery assistant/nurse to capture or summarise these discussions contemporaneously as they are happening. It is completely appropriate to delegate this task, with the caveat that you, as the clinician, check and amend, if necessary, the content to ensure its accuracy. Such an approach can not only be very time efficient, but can potentially add weight in defending a challenge by demonstrating that the notes of the conversation were written/typed by a third-party present in the surgery at the relevant time, before being checked by you. 

Conclusion 

So, in summary, while it would not be wise to rely solely on signed consent forms (digital or hard copy) in relation to the patient’s consent, they can, however, be used as an adjunct to the clinical notes in helping to demonstrate that the necessary conversations and two-way discussions did in fact take place.

For more learning on consent, Dental Protection members can visit The Learning Hub.