Importance of Consent
DENTAL BULLETIN, ISSUE 5
Every dentist knows how important it is to obtain consent from a patient before conducting any physical examination or undertaking treatment on a patient. In this article we look at the legal issues surrounding consent, namely the definition and consequences of not obtaining it.
Valid Consent
There is no statute setting out the definition of consent; the principles for consent have developed through case law.
For consent to be valid it must:
- Be given voluntarily and freely;
- By an informed person; and
- By a person who has the capacity to give consent.
Voluntarily and freely means the person giving consent must not be put under any undue pressure or influence to either accept or reject treatment. Such pressure may come from partners or family members. If you have concerns about this, you should see the patient alone in order to obtain valid consent.
A dentist must provide the patient with all the necessary information about the treatment so the patient understands the nature and purpose of it. If it is alleged by a patient that proper informed consent was not obtained, the Courts will consider whether the dentist has taken reasonable care to ensure the patient is aware of the material risks of the treatment and of the reasonable alternatives to the treatment. The Courts look at what a reasonable person in the patient’s position would consider was a material risk, by looking at whether a reasonable person in the patient’s position would attach significance to it. The Courts will also consider whether the dentist had knowledge, or should reasonably be aware that their patient would be likely to attach significance to the risk.
It is therefore advisable for dentists to give information to patients about all possible outcomes and make a record of the information given. Furthermore to engage in an open dialogue with their patients regarding any treatment offered.
Other Issues Surrounding Consent
Consent obviously needs to be obtained before treatment is performed. When the treatment is intrusive the consent should be obtained well in advance to give the patient time to ask questions and you to provide the information.
There is no set form in which consent must be obtained, but it is always advisable to have the consent confirmed in writing, usually by signing a consent form, as this can be used as evidence should any questions arise.
Consent will normally last indefinitely, unless new information comes to light that could affect the patient’s decision or the patient’s health has changed such that the risks have changed. A patient can withdraw consent at any time, even part way through treatment. In these circumstances, the dentist should stop treatment to see what concerns the patient has and should only continue if consent is re-established. Unless to stop the treatment would cause the patient greater harm.
Legal Consequences
There are two potential legal avenues a patient could take if consent is not obtained or not obtained properly.
Firstly, touching a patient without consent can constitute both the civil and criminal offence of battery, namely unlawful physical contact.
Secondly, if a healthcare professional fails to obtain proper consent and the patient later suffers harm as a result of any treatment, the patient may have a claim for negligence.
It should be noted that informing people of the nature and purpose of treatment is likely to be sufficient to defend a claim of battery. However, a failure to provide all necessary information about the treatment could lead to a claim for negligence.
Remember, alongside these legal principles, there are also ethical principles surrounding consent. Whilst there will be some overlap between the two, you should refer yourself to the GDC’s guidance on consent.
Patient’s capacity
One of the key elements of valid consent is the patient’s capacity to give that consent and the Mental Capacity Act 2005, which came into force in October 2007, deals with all issues surrounding mental capacity.
First and foremost the Act imposes a duty on all healthcare professionals to have regard to the Mental Capacity Code of Conduct. It is therefore important to read and understand this document when considering whether a patient has capacity to provide consent.
A person lacks capacity if:
- They have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works; and
- That impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
It is very important to note that capacity is to be assessed at the time the specific decision is required. Therefore, a patient may have capacity to consent to some treatment but not to others, or may have capacity at some times but not others.
Under the Act you must assume the patient has capacity unless you can establish that they do not. And simply because a patient’s decision to refuse treatment is unreasonable does not mean they lack capacity.
Assisting Those Who May Lack Capacity
If you are unsure whether a patient does lack capacity, all practical and appropriate steps should be taken to assist the patient in making the decision before you determine they actually do lack capacity. This will mean changing the way you provide information to the patient; giving the patient all alternatives to treatment; and considering whether there is a time in the day they have more understanding to make the decision.
Best Interests of the Patient
Under English Law no one is able to give consent to the examination or treatment of an adult who lacks the capacity to give consent, even parents, relatives and healthcare professionals. The exceptions to this are where there is a Lasting Power of Attorney or a court appointed deputy.
However, the Act protects healthcare professionals from civil and criminal legal liability if treatment is provided in the patient’s best interests. The Act states that you must take the following steps before acting in the patient’s best interests:
- Consider whether the person is likely to regain capacity and if so whether the decision can wait;
- Involve the person as fully as possible in the decision that is being made on their behalf;
- As far as possible, consider:
- the person’s past and present wishes and feelings (in particular if they have been written down).
- any beliefs and values (eg religious, cultural or moral) that would be likely to influence the decision in question, and any other relevant factors.
- the other factors that the person would be likely to consider if they were able to do so.
- As far as possible, consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially:
- anyone previously named by the person lacking capacity as someone to be consulted.
- anyone engaging in caring for or interested in the person’s welfare.
- any attorney appointed under a Lasting Power of Attorney.
- any deputy appointed by the Court of Protection to make decisions for the person.
- For decisions about serious medical treatment, where there is no one appropriate other than paid staff, healthcare professionals have to instruct an Independent Mental Capacity Adviser;
- If the decision concerns the provision or withdrawal of life-sustaining treatment, the person making the best interests decision must not be motivated by a desire to bring about the person’s death.
If you need advice on dental or employment law, please contact Julia Furley on 020 7388 1658, or email her at jfurley@jfhlaw.co.uk.
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Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
