Dr Joe Ingham, dentolegal consultant at Dental Protection, looks at the importance of consent

Consent is a process, rather than a form-filling exercise. The ethical and legal rationale behind this is to respect patients’ autonomy and their right to control their own life and what happens to their own body.

Failure to take consent properly can lead to dentolegal problems including complaints, claims and disciplinary proceedings. If your actions are scrutinised, you’ll need more than a signature on a consent form to fight your corner.

You cannot make assumptions about the information a patient might want or need. When obtaining consent, you should address the specific needs of that patient and the specific care that you are providing.  

It is the discussions that take place with the patient before and during treatment that determine whether the consent is valid, and it is important to document the discussions. Furthermore, it is important that you check on an ongoing basis that patients or their representatives have understood the information you have given and give them the opportunity to ask questions to ensure an understanding of all aspects of the care that is proposed. 

Survival tips

Always act in your patient’s best interests.

When you take consent, record in the notes what the patient has been told.

Use your common sense – consent is patient-specific and depends on the individual’s circumstances, including age, lifestyle, occupation, expectations etc.

Patients are presumed competent to consent unless proved otherwise.

Any competent adult can refuse treatment.

Where an adult patient is deemed to lack capacity to make decisions, reasonable steps should be taken to find out whether any other person has legal authority to make decisions on their behalf. If so, you should seek that person’s consent to the proposed treatment.

Just because a patient lacks the capacity to make a particular decision does not mean that they are unable to make other decisions in the future.

If you don’t record discussions with patients and warnings in the records, how can you hope to defend against a claim for negligence?

Scenario

Patient A attended as a new patient to Dr B. She was complaining of pain in her upper right first molar. After a clinical and X-ray examination Dr B explained to the patient that there was dental decay in this tooth, which needed to be removed and a filling placed. She offered to carry out the treatment during the same appointment and informed the patient of the charges for the examination and a filling. She did not discuss the options for treatment or the risks of the treatment. 

Several weeks later the patient returned and reported that, although the pain had initially resolved, it had returned, and she had seen another dentist who had informed her that she needed root canal treatment and a crown placed. 

Even though the death of a pulp and the need for further treatment is not an uncommon occurrence after the removal of deep decay, an allegation was made against Dr B that she had failed to obtain valid consent as she had:

Failed to inform the patient of her findings and the possibility that the tooth may become non vital.

Failed to inform the patient of the treatment that may be necessary and the costs involved.

Failed to give the patient options for treatment and give her time to consider the options.

Failed to document the discussions that were had with the patient.

This demonstrates the importance of obtaining valid informed consent, even in a case where you are trying to address the immediate concerns of a patient presenting with pain.