The essence of consent
Round table: Montgomery has cast a spotlight on the primacy of informed consent, but does anything really have to change in dentistry? Is this not just the law catching up on existing good practice?
The requirements, legalities and practices around obtaining informed consent are now a major part of the teaching in all the dental schools, but what about those who were trained before Montgomery, does this mean that the way they consent their patients is risky or even illegal?
There is certainly a lack of clarity in the profession as to how much Montgomery should affect existing practices and relationships with patients, if at all. This has led to concern and confusion but is this really something to be concerned and confused about? What is the truth of the matter, and what does ‘informed consent’ really mean to dental professionals three years after the ruling was passed down?
This is a complex and nuanced topic and it is hard to separate fact from fiction. Certainly, consent impacts every area of dentistry and is an issue where unforeseen factors can crop up at unexpected times. At Scottish Dental magazine, we wanted to look at the topic in more depth and discuss it with those for whom it is an everyday reality.
Consent is a dynamic process rather than a one-off event
Therefore, with the support of the Royal College of Physicians and Surgeons of Glasgow who have been looking into the issue in detail, we brought together a group from across the dental world in a round-table discussion on what consent means in a post-Montgomery world. The group considered what “informed consent” means from all their perspectives and how it impacts them on a day-to-day basis. They discussed the reality of record-keeping and explored the consent pathway between primary and secondary care as well as what it means for different members of the dental team, the extra considerations when consenting children and vulnerable adults, and the complications when payment is thrown into the mix.
So how worried should people be in the dental profession about the Montgomery ruling? This was the opening gambit to the round-table discussion to see if it had changed people’s approach to obtaining consent and the general opinion was “not much, but keep good notes just in case!”. It was pointed out that new dentists coming through dental schools were very aware of the consent issue, but there could be issues with others who are not fully aware of the ramifications of Montgomery. However, the good and long-standing relationships that dentists have with their patients puts them on a more solid foundation compared to their clinician colleagues in the medical sector who can be seeing people of whom they have no prior knowledge.
Helen Kaney: I don’t think we should really be worried at all. It has brought case law into line with the advice and guidance of the regulatory bodies, but it has not really changed how clinicians should proceed and treat patients following the GDC guidance that came out in 2013.
I think we get very exercised about consent, and, of course, clinicians have to have consent from their patients, but, in terms of Montgomery, I don’t think people should worry overly. They should just carry on doing what everyone has been doing in terms of record-keeping.
Douglas Hamilton: Montgomery essentially concerns the interaction between a patient and a clinician in shared decision-making, and this is something that GDPs have been doing intuitively for many years. They see their patients regularly so they do know them well and have a relationship with them. The requirements of Montgomery are perhaps less onerous on GDPs than medical clinicians who are seeing patients on a less regular basis and have no pre-existing insight into these patients, particularly their values, preferences and wishes.
Dentists are good communicators, but where they can fall down sometimes is in recording information. We often see notes that say very little. They may say ‘examine, scale and polish’ but it’s not clear what the actual treatment options were.
If a complaint goes into a more formal setting, be it the ombudsman, GDC or court of law, you need the back up of your notes. It’s important to get that message across to dentists about taking quality notes that show consent.
All the panel agree that newly qualified dentists have a better understanding of the need to obtain and record consent, but many have seen that these dentists can end up writing too many notes, and there is a danger that this becomes the norm when it is not required, as Christine Goodall pointed out: “We certainly need to reach a happy medium, but we also need to have confidence in what we say to people and what we write down – not writing 10 pages, that’s ridiculous.”
Douglas Hamilton: The point here is that one of the essences of consent is that it is a two-way process, but if it comes to a complaint, it is a harsh reality of the situation that the patient is more likely to believed. Even if dentists consider record-keeping as excessive or onerous, it is a matter of fact that this type of defence does need to be exercised because it will come down to patient’s recollection or yours.
Helen Kaney: I spend a lot of my time talking with clinicians about how they discuss things with a patient in order to agree the treatment provided. I think, in theory, everyone agrees that record-keeping has to be good so that if anything goes wrong then you have evidence in your records. I’m jumping for joy when I’m helping someone with good records!
Everyone agrees that records should be as good as they can be – but ‘as good as they can be’ means different things to different people. What was fine five years ago may not now be sufficient if they had to go through a forensic examination.
Douglas Hamilton: We have to accept there is a lag of getting in front of the GDC of usually two to three years in the case of a complaint. I fully accept there will be cases where you can remember the situation perfectly well for a number of reasons, but you are caught ‘betwixt and between’ if you sit there and claim to recall with great clarity something that occurred two-to three years ago – you can actually come across as being unreliable. Therefore, being able to refer to records is the best defence.
Sharon Letters: To be honest, I don’t think Montgomery has really changed what GDPs do in terms of consent because, on the whole, we were very good at it before, and if we are following GDC standards we are already involving the patient in the process. The difficulty is in recording all this and making sure that is enough to defend us should we need it.
The difficulty comes where we have those relationships with patients where they say: “Well, you know me, you know best – you choose what you think is the right.” That is where you can start to get into difficulties because obviously it has to be their choice and not ours.
Andrew Leitch: I agree in terms with your relationship with the patients. Because you have been involved with them over a number of years you do know what would be relevant to them in terms of the consent process.
I do vocational training and I almost always have to edit the notes that new graduates are writing as they write so much! But it has helped my notes to become naturally better.
My concern would be for the GDPs who are not involved in VT or the Faculty as their notes may not be good enough.
Peter Ommer: One of the aspects that runs through my mind is that most everybody is on computers now so they can have pre-notes, and they will produce standard forms. This can be just a tick-box exercise, and I’m not really sure this is actually recording consent.
Helen Kaney: The advice we would give is that the records have got to be tailored to the patient as much as possible and we can’t just have notes with auto text which is not relevant to that patient – no one is going to buy that.
Helen Patterson: Without resting on our laurels, as a profession we do fairly well, but since Montgomery came out there is a question of what do we tell patients about a treatment, because we cannot tell them absolutely everything. For example, for every anaesthetic there is technically a risk of death but what percentage of patients get told this? So I think that is where people will have a bit of difficulty with Montgomery.
Roger Currie: Montgomery may be a blunt instrument but the refinement will come from case law and going through the GDC, but, you are right, do we need to tell everyone about the risk of death for every treatment?
Helen Patterson: We need to interpret Montgomery appropriately for each patient.
Douglas Hamilton: That’s the essence of it. You’d have a far greater feeling for a patient’s wishes if you have been treating them for the past 20 years, but you cannot make paternalistic assumptions – you still have to have consent, but you probably are one step further forward in primary care than in secondary.
The panel discussed the issues concerning the consent pathway from primary to secondary care via referrals, and all agreed the onus was on the GDP to firstly prepare their patient with the right information about the treatment and, secondly, the quality of their referral letter. However, once the specialist has seen the patient there was also the issue that they may not progress with the original referral request if the situation did not warrant it.
Christine Park: Although there has been a discussion in primary care where the patient has been referred for general anaesthetic, we may well change the treatment plan partly because of our investigations and partly because we have different skills. So they come in expecting to be consented for something, and then we give them all this other information, and sometimes they can’t make the decision on their own. They have to go away and come back.
Peter Ommer: We put the onus back on the GDP – it may be defensive from our aspect but it’s to make sure the patient is informed as early as possible. We want to move it downstream but we will follow it up with a phone call to the dentist to explain that we need more information.
Christine Goodall: We will also send things back, and I don’t think that is unreasonable.
Douglas Hamilton: This leads into one of the wider issues with Montgomery as it can be over-interpreted, particularly by the younger dentist who thinks they have to give the patient autonomy and what they want. I think that some patients believe that the ‘new age’ of Montgomery is a bit of a free-for-all; patients say “I want this done, I understand there are alternatives, the risks and procedure, therefore I consent and you have got to do it”, but consent will not make up for bad dentistry.
The panel agreed there was a growing paranoia from dentists about being sued, and some people feel somewhat intimidated by Montgomery and that they have to agree to whatever a patient desires. Consultants say they are getting an increasing number of referral letters with the correct diagnosis and asking for a second opinion, which is some cases creates unnecessary delays.
Douglas Hamilton: That is going beyond what is strictly reasonable, simply from a fear of a complaint or a claim, but the point is you cannot acquiesce to patient rights to deliver a treatment that is contra to your professional judgement.
The panel next discussed consent where a patient group may not have the capacity to give their consent and it would have to come from proxies.
Helen Patterson: It is difficult if you have never had consent from a patient and you have to go through proxies for judgement, which sometimes come with personal prejudices.
When prejudices have an impact on your own care that’s fine, but when your own prejudices have an impact on someone else’s care it is a little bit more complicated and can lead to unreasonable expectations. The individual proxy wants the best but their best comes with their own views on things.
Christine Park: It’s important to have the conversations about the treatment now and the risk of not having the treatment later, like talking about a carious tooth that is going to give the patient pain in a year’s time. It’s important to explain that in an emergency situation the treatment options will be different – particularly for a child.
It’s also difficult when we need to do treatment but there is no one to get consent from because there can be some very sad cases where the parents have passed away or there is a fight over custody. In this situation when someone says ‘yes’ you are worried that whoever finally gets parental custody will not agree with the treatment.
Helen Patterson: Dementia cases are difficult too, as I have known patients and what their views were before they got dementia and now the proxy wants another thing to happen.
Peter Ommer: From a paediatric point of view we have that same issue where you have that consent for the back teeth to be removed but you are not allowed to touch the front – you have to explain it’s all or nothing and we can’t be constrained. That is a really difficult conversation. Quite often if social work is involved you don’t know who is legally allowed to consent for that child – and you might need translators. I feel more comfortable in a room doing consent under those circumstances as I can actually have a conversation with someone – you can’t do it over the phone.
Roger Currie: One thing we have in Scotland that is a major advantage is the Adult Incapacity Act. It’s a huge advantage when it comes to consent compared to what they have in England.
Douglas Hamilton: That is right as it expressly references a patient’s best interests – not those of the proxy – without being regarded as too paternalistic. The difficulty is where you have the opinion of the patient before treatment and the proxy/guardian who has parachuted in later has a different view. It’s always going to be a ‘push me, pull you’ situation.
Helen Patterson: Everyone has the right to make bad decisions, but not to make bad decisions for someone else!
Another issue that was raised was consent over payment, as dentistry is not free at point of entry, as is the case with the rest of the NHS. It’s another hoop that GDPs must go through to get consent and then, in the case of proxies, find out who is going to pay for the treatment.
Douglas Hamilton: It places the onus on practitioners to get consent not only on the clinical aspects of treatment but also the financial aspects and more specifically on the basis on which it is going to be delivered. We have terrific issues over NHS v private fees and whether people are being misled regarding the quality and availability of treatments – it’s a component of consent.
You have the additional responsibility of discussing costs and recording it so if they subsequently turn around and query any private treatment you can take them back to the document they signed.
Who will pay in cases of incapacity? That’s a minefield but, again, it is a necessary component of the consent process.
Andrew Leitch: The time it takes to consent someone properly is huge: you know you have to present the options and risk for each individual thing and show the private options. The patient goes out with many different treatment plans and bits of paper and you worry that you are giving the patients too much information. We will show them everything from the X–rays on screen, give them printouts of the treatment plans and talk them through it, and often they will leave and then ask the receptionist all about it. Can they really go away and process all that information and make the correct decision?
Roger Currie: That’s a good point, as I recently came across an illiterate patient who was only spotted thanks to my senior nurse. I was consulting the guy in my clinic, talking him through it all and I knew something was not right when we were looking at the paperwork. It’s a big unrecognised risk as people are often ashamed to admit it, and we are not always good at picking it up.
Peter Ommer: It’s an issue with prisoners too. I will always go though everything verbally as ultimately you do not know who can or cannot read, and they are not going to admit it most of the time. I even change the language I’m using sometimes to make sure they understand – it’s all about putting it into a language they can comprehend.
Douglas Hamilton: Montgomery and GDC standards state that things need to be explained in a way, which is comprehensible to that patient – you have to tailor your discussions to the patient.
So far the discussions have been focused on the dentist-patient relationship, but now the panel looked at how consent should look with other members of the dental team.
Christine Park: Clinicians think if they have a form that’s ticked and signed that this will protect them, but, as we have said already, consent is more around the conversations that they had or what is obviously recorded in the notes. I think sometimes it is difficult for patients to understand why they are being sent to a DCP or a hygienist because, historically, they are so used to just seeing a dentist. So it’s a mind-set change and I think it does take quite a lot of change to explain to the patient that this person is qualified and they are GDC registered and they are going to look after them.
Douglas Hamilton: I think you have two models here – a DCP who is working under direct access who is entirely responsible for consenting patients within their scope of practice and recognising when it is outwith their scope of practice. You also have the situation where the DCP is working on prescription and the consenting will primarily be carried out by the primary clinician/dentist.
But even in the second case, bearing in mind that consent is a dynamic process rather than a one-off event, I would expect the professionalism of the hygienist would meant they would ask the patient about the treatment to see they had any questions and are still happy to continue.
They are not the primary consenter, but they are effectively reinforcing that consent process even when they are working from a prescription.
Christine Goodall: I quite often see patients in my consultant clinic but I do not do the treatment, as I pass them on to a member of my team. Most people don’t question that but I am aware that patients don’t always understand who is who and why I am not personally carrying out their treatment. It is not an unreasonable question for them to ask about the experience and qualifications of people whose job titles are unfamiliar so we have created something to show what experience all the different grades of staff have got so that people can understand.
If a parent does not want a student to work on their child, then that is fine, although we do make it perfectly clear that we are a teaching hospital.
Roger Currie: But if they don’t want a core trainee then that becomes a different matter in my book, as that person is a fully registered practitioner with the GDC. I would want to hear a valid reason why they would not want treatment from this person.
Christine Goodall: You are right. I would have a discussion with the person why they were concerned about it but if they insisted on me doing it then I would explain they would be waiting quite a while as I only have one surgical session a week.
Sarah Allen: Could it be argued that this issue of who does the treatment is part of the consent process, i.e. consenting to this person giving me the treatment? Or is the biggest misunderstanding about Montgomery among patients that it gives them the right to choose whoever they want to do the treatment?
Christine Goodall: Most people are quite reasonable about it and we’ve never had a situation where we have had to say: “Well, you are not getting the treatment and you will have to wait six months for it”.
Helen Patterson: However, you are quite right that there is a misunderstanding about the parameters around your right to choose, but this is the NHS and in the NHS we work as a team. You have every right to have appropriate treatment delivered by that team.
Christine Park: We will get requests for a particular consultant, and sometimes they are appropriate and understandable requests, so we will try to meet those requests.
After the wide-ranging subjects covered by the roundtable, Sarah asked for the panel members to define what ‘informed consent’ means to them.
Douglas Hamilton: I would define it as a neutral, professional and comprehensive description of the procedure, the alternatives, the risks and benefits and an indication of the likely costs.
Christine Goodall: I would definitely describe consent as a process and not just a one-off event, but it has to be based on your professional and/or expert opinion of what would be most appropriate treatment in the clinical circumstances you are faced with and without bias. You also have to take into account the patient’s likely understanding of what you are going to be saying to them and also – and this is difficult for us – their likely expectations and desires of the outcome of the treatment.
Sharon Letters: It’s involving the patient in the process. It’s a conversation, and it’s working in their best interests within your own scope of practice and referring on where appropriate. It’s giving them the risks and the benefits as well as the options of no treatment, and making sure they understand what the conversation is and what the treatment proposed is – putting it in terms they understand.
And, as others have said, it is an on-going process, so revisiting it at each examination or treatment appointment to make sure they still consent to what they agreed to at the previous appointment.
Round the table
- Sarah Allen, Editor of Scottish Dental magazine (Chair)
- Helen Patterson, Consultant in Special Care Dentistry at NHSGCC and Honorary Secretary of the Dental Faculty at the Royal College of Physicians and Surgeons of Glasgow
- Douglas Hamilton, Dental Adviser at MDDUS
- Helen Kaney, Lead Dento-legal Consultant and Head of Dental Services, Scotland at Medical Protection Society
- Roger Currie, Consultant Oral and Maxillofacial Surgeon, NHS Ayrshire & Arran and Member of Council of the Royal College of Surgeons of Edinburgh
- Christine Park, Senior Clinical Teacher at University of Glasgow and Paediatric Dentistry at NHSGCC
- Sharon Letters, GDP and Clinical Director with My Dentist, board member of the Faculty of General Dental Practitioners West of Scotland Group
- Andrew Leitch, GDP and VT Advisor
- Peter Ommer, Clinical Director Dental Services at NHS Ayrshire & Arran
- Christine Goodall, Honorary Consultant in Oral Surgery at Glasgow Dental Hospital and Vice Dean of the Dental Faculty at the Royal College of Physicians and Surgeons of Glasgow.