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 blog we look at the legal issues surrounding consent, namely the definition and the consequences of not obtaining it.
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:
1. Be given voluntarily and freely;
2. By an informed person; and
3. 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.
This test follows the decision handed down by the Supreme Court on 11th March 2015 in the case of Montgomery v Lanarkshire Health Board, which has been a feature in a recent forum discussion on GDPUK.com. As pointed out by many of you, the discussion in Montgomery simply re-iterates what best practice is, as advised by the GDC.
Prior to this the leading case on consent was Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital or, as it is referred to, the Bolam test. The decision said it was a matter for clinicians to judge how much information was to be disclosed to a patient. Provided the doctor explained the risks of a given treatment, to the extent that it accorded with a responsible body of medical opinion, liability would not attach.
However, Judges had been moving away from the Bolam test in any event, but these cases had not reached the highest court in England, so they did not overturn the Sideway’s decision.
Given the decision in Montgomery, it is now 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.
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 to the GDC guidance highlighted above for more information. As you all know, failing to follow the Standards for Dental Professionals may result in an investigation by the GDC in relation to fitness to practice.