Informed consent involves the conversation between the dentist and the patient prior to treatment regarding the alternatives/options, risks, benefits, and costs of the treatments discussed. Informed consent is required by law and should be documented. It is the protection of the patient’s rights to self-determination in accepting or rejecting the proposed treatment. This, in turn, ethically keeps patient autonomy intact. The written form that the patient signs prior to treatment is not the informed consent. It is a documentation or memorialization of the conversation that took place. Without an informed consent, the dentist may be held accountable for assault and battery, which may not be covered by malpractice insurance.

The dentist has a duty to give enough information to the patient to allow the patient to make an informed decision. How much is enough? And what kind of information is sufficient?

There are two standards that are prevalent: the professional community standard and the reasonable person standard.

The professional community standard states that the dentist needs to give the same amount of information that dentists in the same community are giving to their patients. This standard is slowly being replaced by the reasonable person standard due to the fact that if all the community practitioners practice below the standard of care by not properly informing their patients regarding a certain procedure, pockets of substandard care would exist. Additionally, more patients are educated and can understand the treatment and the options being offered. With easy access to information on the Internet, patients have become more knowledgeable. Therefore, it does not matter what others in the dental community are saying to their patients regarding informed consent. What matters is that enough information was told to the patient such that the patient could make an informed decision. And having such information, would a reasonably prudent person undergo the procedure knowing what the patient knew? Hence, it is called the reasonable person standard.

There are two parts to informed consent: the information part and the con­sent part.

The information part consists of six elements that must be told to the patient for an informed decision to be made:

Due to the outcome of this case and others, be sure to tell the patient the cost of each procedure. It is the patient’s right to decide on whether to proceed with the treatment, seek an alternative, or not to treat at all.

There are some situations that need not be explained to the patient. Risks that are too commonly known to the reasonable person or too remotely possible need not be told to the patient. Keep in mind that the informed consent is patient- and treatment-specific. In other words, the information given to a parent for an extraction of a loose deciduous tooth on their child and the information for an extraction given to an elderly female patient with a highly atrophied mandible and who takes a bisphosphonate medication would be different. You do not need to inform a normally healthy patient of the risk of possible death from local anesthetic because of the extreme rarity. Nor do you need to inform a normally reasonable patient of soreness after a routine extraction, because a reasonable person would have already known. It is advised to inform the patient of all directly related and reasonably foreseeable risks. The patient may waive his or her consent by assuring the dentist to proceed regardless of the risks or the patient may indicate that he or she does not want to be informed. These two situations should raise a red flag to the dentist. The dentist should fully record the patient’s wishes or even possibly refuse treatment if the malpractice risks are too high. These are one of the many “setups” that occur in dental malpractice. The “patient setups” will usually be something similar to:

“Whatever you say, you’re the doctor.”

“You are such a good dentist, I trust you to do what is right.”

“You don’t have to tell me, I’ve had this done before.”

“Just do the best you can, I trust you.”

(Doctor setups will be discussed in Chapter 12.)

If obtaining consent is not reasonable, such as when a patient is under any type of sedation and requiring additional treatment or in the case of an emergency, it is not needed. However, be aware that extending treatment far beyond and not connected to the treatment agreed upon prior to sedation may not be covered. Hence, prior to any sedation, be sure to cover all possible changes to the planned treatment that may need to be addressed.

The final situation that may relieve the dentist of obtaining an informed consent is usually hard to come across in a normal dental setting. Consent is not needed if the doctor is using reasonable discretion and reasonably believes that disclosure of the risks would adversely and substantially affect the patient’s condition. In a normal dental setting, we do not normally see such fragile patients, to whom revealing their dental needs would cause adverse effects. In the case of an emergency, consent is not needed if the delay in obtaining consent would result in substantial risk of further injury or even loss of life.

The consent part is composed of eight elements: