What is ‘valid consent’? Is it different from ‘informed consent’?
The GDC has very sensibly adopted the term ‘valid consent’ which helps to avoid the incorrect perception that giving patients information (‘informed consent’) is sufficient to achieve a proper, valid consent. It isn’t.
Valid consent is much wider than simply providing information, and it comprises a number of considerations, the most significant of which are briefly summarised below.
- First you must determine that your patient has capacity to consent to treatment. ‘Capacity’ means the ability to use and understand information to make a decision.
- Even when you apply the 'capacity' test and you consider the patient isn’t capable of consent then you may still be able to treat the patient provided that you act with their best interests in mind. If they are under 16, you will either need to involve parent(s) or assess whether the child’s capacity to consent can be considered as ‘Gillick’ competent.
- Your next consideration is to establish what your patients wish to know about treatment, as well as telling them what you think they need to know. You should always respect your patients’ autonomy, it is their right to decide what happens to their body and they may decline your advice.
- What would a reasonable person expect to be told about the proposed treatment? What facts are important and relevant to this specific patient? (What risks might be specific to this planned procedure)?
- You may want to discuss why you think a proposed treatment is necessary; the risks and benefits of the proposed treatment; what might happen if the treatment is not carried out; and other forms of treatment, their risks and benefits, and whether or not you consider the treatment is appropriate.
- Do I need to provide any information for the patient in writing? Has the patient expressed a wish to have written information for consideration before they consent? (Remember consent is viewed as an ongoing process and not just about a signature on a consent form).
- Does the patient understand what treatment they have agreed to, and why? Have they been given an opportunity to have any concerns discussed, and/or have their questions answered?
- Does the patient understand the costs involved, including the potential future costs, in the event of any possible complications?
- Does the patient want or need time to consider these options, or to discuss your proposals with someone else? Can you/should you offer to assist in arranging a second opinion?
Although not part of the consent process, you should also ask yourself whether you have made accurate records that are sufficient to demonstrate (or reconstruct) all the key communications between the patient and me?
A full exploration of the subject of consent can be found in the dental advice booklet on consent that can be downloaded from the publications section of the website.
What could be considered to be 'a reasonable period of time' for a patient to think about their treatment options?
There is no definitive answer to this question because the consent process is ideally a detailed conversation between two individuals of sound mind. But the length of time needed for an individual patient to comprehend, weigh up and make an informed choice from their various treatment options will vary depending on the complexity of the treatment proposed and the risks and consequences of each procedure.
Plastic Surgeons, when offering elective cosmetic procedures, are expected to leave a two-week interval between the consultation and the treatment visit. It might be prudent for dentists offering elective cosmetic treatments to work to a similar system.
In the case of a patient seen in an emergency or on referral for the uncomplicated extraction of an infected/carious or broken tooth which is producing severe symptoms, any offer to press on with the procedure immediately means that the preceding consent process must be detailed.
It should also include the offer of a less restrictive option, such as treating the cause of the pain but not extracting the tooth at the initial visit.
The less well you know the patient, the greater the need for caution – but every patient needs sufficient time and opportunity to consider their options without feeling in any way pressured into making a decision before they have had sufficient time to consider.
Such an idea may seem impractical in the real world situation of a busy surgery where you are confronted with a patient who has been fitted in without an appointment because of their acute pain. The law, however, views such situations dispassionately and with a forensic mind set. The time that patients are given to consider their options is very likely to become a key issue in a nerve damage case, when the patient could have/should have had longer to think about the risks involved. In such situations the contemporaneous notes of the conversation will be invaluable evidence that the standard has been met.
In the case described above it might be sensible to offer the emergency patient a seat in the waiting room whist they consider the various options. The next patient can be seen before the emergency patient returns to say which treatment option they would prefer.
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