Obtaining valid consent
For general dental practitioners, gaining valid consent and recording it properly is absolutely vital before any treatment is undertaken
As a dentist working in general practice it is imperative to ensure that valid consent has been obtained for each individual patient. Following on from the judgement in the Montgomery case in March 2015, which brought the law of consent up to speed with what the GDC’s ethical and professional guidance expected registrants to do, this article looks at the responsibilities of the general dental practitioner. The importance of excellent communication is highlighted in order to provide sufficient and relevant information to the particular patient you have sitting in your dental chair.
The GDC has set out nine principles in their Standards for the Dental Team document. One of the key principles is obtaining valid consent. This document sets out the standards of conduct, performance and ethics that govern you as a dental professional. The guidance applies to all members of the dental team.
Why do we obtain consent?
For a GDP, there are ethical and moral obligations to ensure that your patient understands the treatment proposed and for consent to be valid. Consent is important because any investigation or treatment carried out without a patient’s consent or proper authority may be regarded as assault. This can lead to further investigations resulting in criminal proceedings, an action for damages, a breach in the duty of care and a finding of impaired fitness to practise by the GDC. There are cases where this is exactly what has happened.
Adults with capacity
The test for capacity and the ability of a patient to undertake decisions is set out in the Mental Capacity Act 2005 (MCA) and are supported by the code of practice established under the act, which dental professionals are expected to follow.
In the case of a patient undergoing a dental examination, consent is the expressed or implied permission of a patient to undergo this check-up, investigation and treatment. It is essential that consent is given freely and with adequate understanding of the condition to be treated, the procedures involved, other treatment options and the health implications of giving and withholding consent. It is also important to check that the patient understands the information given.
Adults without capacity
When making decisions on behalf of adults lacking capacity there are a number of points to consider. In Scotland, under the Adults with Incapacity (Scotland) Act 2000, a competent adult can nominate a welfare attorney to make decisions on their behalf should they lose capacity to make those decisions themselves. The law also provides general power to treat a patient who is unable to give consent.
The dental professional responsible for treatment must have completed a certificate of incapacity before any treatment is undertaken, other than in an emergency. Put simply, decide what constitutes a patient’s best interests by taking into account factors other than just their dental condition – treat the patient holistically. Consider consulting with others, including getting a second opinion from a colleague before starting treatment.
Consent and children under the age of 16
Children under the age of 16 can give valid consent to treatment if they are deemed to be Gillick competent. The ability for a child to give valid consent depends on their maturity and understanding. To be Gillick competent, a child must understand the proposed treatment, risks and alternatives, they must be able to retain that information and be able to weigh up the pros and cons of the treatment. The child must be able to communicate that their decision to have the treatment.
If a child is not deemed to be Gillick competent then someone with parental responsibility must provide this authority. It is important to note that emergency care should not be delayed in order to prevent serious harm. In deciding whether or not to treat, the child’s best interests must be considered. Even if a child is Gillick competent, I always encourage an open dialogue between parents and children when it comes to making decisions regarding their health.
Criteria for consent
It is fundamental that valid consent is obtained before starting any treatment. You must make sure that your patient understands the decisions they are being asked to make and that the consent is valid at each stage of the treatment or investigation. Having good communication with your patients is vital in order to obtain valid consent. The way consent is obtained must be tailored to suit the patient’s needs.
As the Standards for the Dental Team states, patients must be given: options for treatment, risks, benefits, why a treatment is necessary and appropriate, consequences and risks of the proposed treatment, prognosis and consequences of not having the treatment, whether the treatment is guaranteed and for how long. Failure to give correct or sufficient information may result in a breach in your duty of care and if proven there was a negligent failure to inform and, as a direct result the patient suffered harm, the patient may take further action.
The cost of any examination, investigation or treatment should also be explained before it starts. It is important to note that a patient who pays the bill has not necessarily consented to treatment. If a patient’s condition changes, causing a change in the proposed risks, then consent must be obtained again, any changes in cost must also be reviewed with the patient. Duress of any form, such as influence from someone else can invalidate consent.
The advice from the Dental Defence Union is to ideally have a ‘cooling off’ period in which the patient can think over their decision and can seek further advice on this if they need to do so. It is best to re-confirm consent with a patient immediately before any treatment. You should also include as much information in your notes about those discussions as possible.
By developing a logical approach in your daily practice you can ensure that the consent obtained is valid. The patient should be aware of the purpose, nature, and likely effects, risks, chances of success of a proposed procedure, and of any alternatives to it. It is important to note that consent is not open ended and must be obtained again at subsequent occasions. Consent must be obtained for specific procedures, on specific occasions. When the patient is in your dental chair you need to be certain that valid, informed consent has been obtained.
The following checklist is reproduced from the Consent – Scotland publication from Dental Protection Limited (http://bit.ly/DPLconsent)
- Is my patient capable of making a decision? Is the decision made voluntary and without coercion in terms of the balance/bias of the information given, or the timing or context of its provision?
- Does my patient need this treatment? Remember, if it is an elective procedure then the onus upon a clinician to communicate information and warnings become much greater. The procedural steps, risks and recovery should be discussed in detail prior to the treatment appointment and the patient should be given adequate time to consider the information given.
- What will happen in the circumstances of this particular case – what will happen if I proceed with the treatment? Is my patient fully aware of my assessment in clear terms? Can I predict the outcome accurately? If not, then what are the areas of doubt and what are the possible alternative outcomes?
- What should a reasonable person expect to be told about proposed treatment? In this case, is there anything specifically important or relevant about my patient? (If in doubt then you are not ready to proceed with the proposed treatment).
- Does information for my patient need to be provided in writing or has my patient requested a wish to have written information? Remember, if you are relying on providing information through marketing material, it is important to make sure that it is presented in a balanced and unbiased manner.
- Accurate and contemporaneous records are imperative. Do my records accurately reflect the conversations with my patient? Will these notes allow me to show what information was given to my patient? On what terms and what was said at what time?
- Does my patient understand what treatment they have agreed to and why? Have they been given the opportunity and adequate time to consider the treatment and its implications, and time to raise concerns and/or have their questions answered?
- Does my patient understand the costs involved? As well as the potential future costs in terms of complications?
- Does my patient need time to consider the treatment options proposed or is my patient wishing to discuss proposals with someone else?
- If I am inexperienced at carrying out the procedure in question, does my patient know that? Is my patient aware that their prospects of a successful outcome if they choose to have the procedure carried out by a specialist or a more experience colleague? Is the technique being used relatively new/untried and does my patient understand this?
1. General Dental Council. Standards for the Dental Team. Guidance of obtaining valid consent. GDC; 30 September 2013. Available at https://www.gdc-uk.org/api/files/NEW%20Standards%20for%20the%20Dental%20Team.pdf [Accessed on 21/10/17]
2. Dental Protection. Consent – Scotland. Dental Protection Limited. Available at http://bit.ly/DPLconsent [Accessed on 22/10/17]
3. ISD Scotland. Dental Statistics – NHS Registration and participation. A National Statistics Publication for Scotland; 2017. Available at: www.isdscotland.org/Health-Topics/Dental-Care/Publications/2017-01-24/2017-01-24-Dental-Report.pdf?49161928893 Accessed 30/10/2017
4. Dental Defense Union Guide – Consent guide [Accessed 25/10/17]
5. Harris J, Sidebotham P, Welbury R. Child protection and the dental team. An introduction to safeguarding children in dental practice. Sheffield: Committee of Postgraduate Dental Deans and Directors, 2006. Available at: bda.org/childprotection [Accessed 15/10/2017]
6. Department of Health. National Institute for Clinical Excellence – Consent, procedures for which the benefits and risks are uncertain. Available at https://www.nice.org.uk/guidance/ipg56/documents/consent-procedures-for-which-the-benefits-and-risks-are-uncertain2 [Accessed 30/10/2017]
About the author
Aisha Shafi is a general dental practitioner with a special interest in cosmetic dentistry and facial aesthetics, currently working in clinics based in Glasgow, London and Portsmouth. She was a finalist for Dentist of the Year at the Scottish Dental Awards 2017 and shortlisted for ‘Best Professional’ with the Scottish Asian Business Awards.
Aisha helps run the British Smile Foundation, a group that actively promotes oral health education in the community and is now pending charity registration with the OSCR.
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