Towards a proper and robust consent process for dental practitioners.
Consent in the days before the National Law was really an issue about negligence. It was whether someone consented to having treatment at all (battery) and whether they understood and were warned of the risks (negligence).
Informed consent is really an American term. Writing “Informed consent given”… or simply completing a consent form is not evidence of valid consent. Informed consent is really pretty much meaningless in the current health practitioner regulation jurisdiction.
In 1992, the High Court in Rogers v Whittaker said that informed consent has no role in Australian health negligence law, and further that patient warnings about treatment need to be given about material risks and each patient is different and even if the body of other practitioners agree you did not need to give a warning, that does not not mean you did not have to give thought to the actual patient circumstances.
This was about ‘failure to warn’ cases of negligence as opposed to procedural negligence. In these cases the onus of proof could be said to lie at least initially with the claimant (patient) to show they were not warned and therefore did not consent.
Consent is a bit like happiness. Everyone disagrees on what it is until we see it. Then we know that we have it.
Anon – or really – Wright B
Since 2010, consent has been an issue for dental practice regulation. The concepts are similar, and there is little case law about dental practice consent in relation to regulation. Arguably the onus of proof is on the practitioner as opposed to the patient, meaning the dentist has to evidence that the consent process was valid.
Notwithstanding that, many regulators still use the term informed consent to try and convey that a patient must be able to make an informed decision. Some regulators now use the terms ‘shared decision making’ (SDM) which is part of the process as well as informed consent. Some people even use the term as a transitive verb – as in “to consent a patient” which is probably offensive against the english language – if nothing else.
To satisfy regulators, a proper and robust consent process for dental practitioners for most patients is comprised of at least the following elements. These are to some degree taken from common law.
(I emphasise that this is the process that should be ideally followed. Some patients are low risk (unlikely to complain by disposition, and/or a having a procedure that is not risky or particularly elective)).
- A consideration of the patient’s particular circumstances.
- A consideration of and discussion of:
- The available options for the treatment;
- The costs of those options;
- What the results of inaction might be;
- Whether a referral to a specialist should be given;
- Risks of the procedure that are material to all patients;
- Risks of the procedure that may be material to this particular patient;
- Risks of the procedure that as a practitioner you consider are material; and
- What the costs and outcomes might be for known sequelae (e.g endodontics on a supporting tooth after the prosthodontics have been placed).
- An opportunity for the patient to ask questions about all of this.
- A final consideration by the dentist as to whether the patient truly has understood by asking the patient questions.
- A consent form or checklist -or both, demonstrating this process in writing or at the least some written evidence in the clinical notes of the process – preferably a checklist of the above for each patient
If you can think about the process and think about what you would like to know yourself for an elective procedure (which is pretty much all dentistry) you will be on the way.
Another way of looking at it at it is that consent is about more than providing information. It is about asking the patient questions to ensure that you reasonably believe that they understand.
The more elective, expensive, and the more irreversible the procedure, the more you should consider this. The more difficult the patient or procedure, the more you should follow the procedure closely.
By way of example, your consent process might be somewhat briefer for restorations where the patient has had these before, and is obviously necessary for reasons such as decay. But if it were for possibly elective replacement of older amalgams the process might be more involved. For implant surgery it will be significantly more robust.
But in each instance the process must followed to ensure that an allegation of invalid consent cannot be made out.
All you can do is satisfy YOURSELF that the patient is making an informed decision to have the treatment done and understands the material risks, likely benefits, and actual and possible costs.
If the process is robust and evidenced in writing – a regulator will likely agree with you !
A check list is available here if you want one to get you started… you can modify it, but it is really there to make you think about the process.
If you think you need assistance with your patient consent process, then it is a comparatively simple task, if you understand the elements listed above.
If you have a complaint or notification anywhere in Australia and are unsure how to deal with it, then please feel free to call me at chambers on 07 3007 1777 or email at brad@bradwright.legal for an initial assessment and conversation.
The above commentary is not intended and should not be relied upon as legal advice. Every situation is different and these generalities are merely observations. If you need advice about your particular situation, then seek individualised advice from an appropriately experienced and qualified legal practitioner.
