Chapter 5

Consent and Communication

Consent is a key element of any relationship between a dental healthcare professional and a patient. It is the cornerstone of the professional relationship and is essentially based upon mutual trust.

There are many definitions of consent and many terms used. In most countries the term “informed consent” is used although the use of this term may be misleading. It is defined as consent after telling the patient:

• the diagnosis

• the nature of the proposed treatment

• the type and name of the procedure

• its description in layman’s terms

• the risks associated with the treatment

• the alternatives and associated risks

• the risk of no treatment.

Although the definition is simple enough, the process of informed consent is far more complex. The clinician might be inclined to think that consent is all about providing information and therefore only concentrate on the details to be given to the patient. Thus they may ignore some of the more fundamental aspects of consent, including authority, voluntariness and capacity (these are explained below).

What is Consent?

Consent is essentially the communication process whereby the clinician receives the voluntary and continuing permission of a patient to a particular procedure. In order to take a decision and provide consent, the patient must have a reasonable knowledge of:

• Why you are providing treatment (their need).

• The nature of the treatment (in broad terms).

• The likely consequences (i.e., what is likely to happen as a result of the treatment).

• Any adverse risks anticipated (these will be discussed later in this chapter).

• The prospect of success.

• Who will provide the treatment.

• The alternatives to a particular form of treatment.

• The costs of the treatment.

Consent is based upon the principle of patient autonomy (i.e., the right of everyone to choose what is appropriate for themselves) (see Chapter 4). A good consent process involves the clinician respecting the patient’s right of autonomy and the relationship of trust that subsequently develops between the dentist and the patient.

Authority

When we are born we do not have the ability to look after ourselves. This is predominantly the responsibility of our parents. In the UK parents have rights of authority over their children up to 18 years of age (i.e., the age of majority). In some countries the age of majority is 21. The law allows parents to give authority for dental treatment up to the age of majority. It is also an accepted legal principle in many countries, however, that children develop sufficient maturity to take decisions in relation to their own care. In the UK and Ireland, this is at the age of 16. In other words the law allows patients to give consent for their own treatment provided they are over 16 years of age.

Who can provide consent?

• Anyone over 16 years of age.

• Parents (provided the parent has parental responsibility). In the UK parental responsibility can be with:

  • the mother

  • the father (if his name appears on the birth certificate)

  • the legal guardians

  • persons with a residence order

  • the Local Authority with a Care Order designation

  • the Local Authority with an Emergency Protection Order.

In theory, no one has the right to give consent on behalf of an adult in the UK (i.e., over the age of 18). This, however, is impractical in certain situations.

Risk Management Tip

Always try to ensure that the person giving consent for a child to have treatment has the appropriate legal authority to do so. If you are in any doubt then advice should always be taken.

Capacity

Capacity is the ability to comprehend, to assimilate information and to take a decision based upon such information.

Ozar and Sokol in their book Dental Ethics at the Chairside outline five distinct categories of the human capacity for autonomous decision-making. These are:

1. The ability to understand the relationship of cause and effect.

2. The ability to see alternative courses of action available and to choose between them.

3. The ability of a person to conceive of himself/herself as one who can choose between the alternatives in a given situation.

4. The ability to reason comparatively about the alternative courses of action and to reach a moral judgement about them.

5. The ability to form and choose values, principles of conduct and personal ideals to guide ones moral judgements and to shape one’s moral reflections and conduct accordingly.

The above are all ways of assessing whether the patient has the capacity to provide consent. There are many patients who are incapable of giving consent either by virtue of mental impairment or following trauma. In some cases, incapacity may be total and in others it may be partial (i.e., a patient may be able to understand some aspect of the care and treatment to be provided). Most legal tests rely upon whether the patient is able to comprehend and retain the information that is material to the decision to treat, in particular as to the likely consequences of receiving or not having the treatment. An assessment needs to be made by the clinician as to whether the person is able to use the information provided and weigh it in the balance as part of the process of arriving at their decision.

In the UK the law allows patients with the capacity to give consent for treatment. As a consequence it is possible for a child under the age of 16 to give consent for treatment provided they have the capacity to do so. This follows the case of Gillick – children being capable of giving consent being termed “Gillick Competent”. Capacity in one sense is more important than authority because capacity underpins the concept of patient autonomy (i.e., if a person is capable of taking a decision in relation to themselves, then they should be allowed to do so).

What Affects Decisions About Capacity?

Age

Young children are unlikely to be regarded as having capacity for consent. As children reach their teenage years, however, many are able to reason a cause/effect relationship and to fulfil the various tests outlined above. As a child nears the age of 16, it could be argued that the child has capacity to consent to treatment. Some children of 14 and 15 years of age may not be living at home or with parents and may have sufficient capacity to consent to dental care. In these situations, it is important to make an assessment of the child’s capacity. The clinician does not have to be a psychiatrist, but a reasonable lay assessment needs to be made.

If it is possible, the child should be encouraged to involve his/her parents or any other person responsible for the child’s care in the decision to treat provided that person themselves has capacity. In most situations the child is perfectly happy to involve their parents, in which case there is unlikely to be any difficulty with authority. When the child does not wish his/her parents to be involved then the clinician must make a decision as to whether to proceed with treatment. It can be helpful to share such decisions with colleagues, or the child may be happy to involve another adult, perhaps a relative or their general medical practitioner. If in doubt, always consult with your indemnity provider.

Maturity

Maturity may be an indication of capacity. We have all experienced situations where a young person of 14 or 15 years of age comes across as very mature. Similarly, there can be situations where, for example, a 20-year-old may be quite immature. Some persons may have been assessed to have a mental development age that is different from their biological age.

The Complexity of the Procedure

Clearly the level of understanding required for a maxillofacial reconstruction is very different from that required for a scaling and cleaning of a patient’s teeth. Whilst a person might be perfectly capable of giving consent for an oral hygiene procedure, they may not have sufficient capacity for a more complex procedure. The time, care and effort taken in ensuring that the patient has understood the consent process is more onerous therefore when a procedure is more complex.

Temporary Incapacity

Some patients may be rendered incompetent by virtue of illness (e.g. mental illness), unconsciousness, alcohol or drugs misuse, or extreme dental phobia. In these situations the clinician needs to make an assessment of what, if any, treatment is required by the patient and whether there is the possibility of waiting for a temporary situation to pass in order to allow the person to regain sufficient capacity to make a decision. There will be emergency situations where this is not possible but in many instances it may be. Consent taken when a patient is under the influence of alcohol or drugs is unlikely to be valid on the basis of the patient’s temporary incapacity.

Dental anxiety may give rise to temporary incapacity and great care being required with patients who are extremely anxious. Many of these patients do not see themselves as being incapable of taking a decision for themselves, or to choose between alternatives on a rational basis. Some of these patients might place the clinician in the position of taking the decision for them by asking the clinician to choose what he/she considers best for the patient. The work of Covello was cited in Chapter 1 to indicate the importance of trust in the dentist-patient relationship when the patient asks the dentist to do what is considered “best”. From a consent perspective, this is not always advisable. It is important to obtain consent at a time when the patient has the necessary capacity and will not feel adverse pressure.

Common Pitfall

Some clinicians might confuse capacity with reasonableness of the patient’s decision. Some patients have unusual value systems and may take a decision in relation to their own care that the practitioner would not take in the same circumstances. Patients have the right (autonomy) to make decisions even if they are unreasonable and indeed wrong. What is important is to try and make an assessment of whether the patient has made a decision based upon an unusual value system or a misconception of reality. The latter gives rise to a capacity problem.

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