Introduction to decision making and consent

Patient autonomy and the right to make decisions about their care and treatment, if they are able to do so, is a fundamental legal and ethical principle in healthcare. Dentists and other healthcare providers must therefore be satisfied that they have a patient’s consent or other valid authority before providing care or treatment.

Capacity

The starting point with all adult patients is the presumption that the patient has the capacity to make decisions about their care and treatment. A patient's capacity is assessed on their ability to understand, weigh up and communicate the information relevant to a specific decision at a particular point in time.

"Patients whose ability to consent is impeded should still be supported to make their own decision where that is possible"

Mental capacity is therefore decision specific and time specific, and a patient can only be judged to lack capacity to make a decision after an appropriate assessment. Assessing capacity is a core clinical skill and doesn’t necessarily require specialist input. However, it may be advisable to seek input from healthcare providers familiar with the patient.

Patients whose ability to consent is impeded should still be supported to make their own decision where that is possible. The choice of treatment or care for patients who lack capacity must be of overall benefit to them - and the decision should be made in consultation with those who are close to the patient or advocating for them. Only those with legally appointed roles have the right to consent to treatment on behalf of a patient who lacks capacity. Where family are consulted and do not have legal powers it is important they understand that they are assisting with best interest decision making by providing information relating the patient’s values as opposed to their own views. 

Although rare in dentistry, in an emergency, if a patient lacks capacity and it’s not possible to find out their wishes, treatment that is immediately necessary to prevent a serious deterioration of their condition can be provided. If there is more than one option, the treatment provided should be the least restrictive of the patient’s rights and freedoms, including their future choices. Once the patient regains capacity and is sufficiently recovered to understand then they must be informed about what has been done and why.

Information

A patient must be provided with enough information to make a decision about their care, this requires a meaningful dialogue between the healthcare provider and the patient, involving an exchange of relevant information specific to the individual patient.

"It is important to try to find out what matters to the patient..."

The patient should be given information in a way that they can understand it and be given the time and support they need to make their decision. Essential information will include information about the proposed treatment, the benefits and risks and reasonable alternatives, including the option to take no action. Information provided should be up to date, evidence based and presented in an objective way.

It is important to try to find out what matters to the patient in terms of their dental health so that the patient can be better supported in the consent making process. It is also helpful to explore a patient’s needs, and values and the priorities that influence their decision making, their concerns and preferences about treatment options and their expectations about what treatment or care could achieve.

It wouldn’t be possible to share every possible risk of harm, potential complication with a patient and any discussion should be tailored to each individual patient, guided by what matters to them. It would usually be considered advisable to discuss with the patient recognised risks that the patient would consider significant for any reason, and any risk of serious harm, even though that may be unlikely to occur.

There may be situations whereby a patient refuses to listen to the relevant information but wishes to proceed with a treatment; great caution must be exercised by the dentist as the consent may be deemed not to be valid. It of course must be documented but it would be wise to explore the reasoning behind this and any concerns, so that a valid informed decision can be made by the patient.

Obtaining consent

Consent may be implied or express. In respect of minor and non-invasive treatments, consent can usually be implied from a patient’s conduct in consulting the doctor for his or her illness. Oral consent is acceptable for minor invasive procedures. Documenting oral consent in the patient’s dental records offers protection to dentists, in case of subsequent dispute as to whether consent has been given.

Patients have the right to withhold their consent, provided they are competent to do so.

Express and specific consent is required for major treatments, invasive procedures, and any treatment which may have significant risks.

All discussions around consent should be clearly documented, including the options available (including the option of taking no action), associated risks and benefits, any concerns or queries raised by the patient, and decisions reached.

Documenting decisions

Keeping good records about a decision made by a patient regarding their care or treatment is important for continuity of care and it is also important from a medicolegal perspective, particularly if the patient or someone on their behalf later wishes to ask questions or has concerns about the decision made or the decision-making process.

Patients have the right to withhold their consent, provided they are competent to do so.

The information recorded should include details of the dialogue that took place, including the information provided to the patient and any questions asked or concerns expressed by the patient. If information documents or aids were provided then these should be retained with the notes where possible or clearly referenced. If the patient was supported by a relative and or another healthcare worker at the discussion or in reaching their decision then this should be documented.

Consent forms are a standard way of recording a decision and a useful way of documenting essential elements of the care or treatment provided. However, filling in a consent form isn’t a substitute for a meaningful dialogue tailored to the individual patient’s needs and shouldn’t be relied on alone as evidence that the patient made an informed decision specific to their individual circumstances. 

If there is any dispute over whether informed consent was provided: the key issue will not be whether the patient signed a form or not, but whether they were given all the information they needed in a way that they could understand it to make a considered decision.

Scope of decisions and reviewing decisions

It is important that patients understand exactly what they are consenting to and that the scope of a patient's consent is not exceeded, except in a rare emergency situation.

"If the treatment is ongoing there should be regular opportunities to review care"

Consent is an ongoing process - and so it is essential to ensure that a patient’s consent is reviewed at appropriate times. This includes immediately before a procedure or treatment, if some time has passed between the initial decision-making process, and the treatment itself.

If treatment is ongoing, there should be regular opportunities to review care and treatment. Reviewing a decision to consent to treatment is especially important if the patient’s condition or situation changes or care and treatment options alter. Patients have the right to change their minds at any point and to withdraw consent given previously.