A patient’s informed consent to investigations or treatment is a fundamental aspect of the proper provision of dental care. Without informed consent to treatment, a dentist is vulnerable to criticism on a number of counts, not least those of assault and/or negligence – which in turn could lead respectively to criminal charges and/or civil claims against the dentist. Furthermore, the question of consent arises increasingly at the heart of complaints made under the NHS Complaints Procedure, and complaints to the General Dental Council on matters on professional ethics and conduct.
It is self-evident, therefore, that every practising dentist, therapist and hygienist needs not only a thorough understanding of the principles of consent, but also an awareness of how to apply these principles in the wide variety of circumstances that can arise in the practise of dentistry.
The law is continually changing and developing, as the courts interpret both the common law and legislation. The doctrine of precedent means that judgements from a higher court will bind a lower court. At the same time, clinical knowledge and ability have developed, and this makes the interpretation of what constitutes informed consent and who can give it, a constantly changing perspective.
Clinicians have a responsibility to ensure that every effort is made to keep abreast of changing standards, to show not only that the optimum treatment is being given to their patients, but also that the patients themselves have had the best opportunity to be involved in decision making about the care of their bodies.
Nearly eighty years ago, Judge Cardozo in a case in America declared:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body”
The concept of patients’ rights, adult responsibility and a mind sound enough to understand, are embodied in the principles of consent. In 1990 The Department of Health, in its advice booklet on obtaining consent, has defined consent as;
“The voluntary and continuing permission of the patient to receive a particular treatment. It must be based upon adequate knowledge of the purpose, nature and likely effects and risks of that treatment, including the likelihood of its success and any alternative to it”.
The current version of the Department of Health’s guide to consent was revised in July 20093
When considering consent, it is important to ask a number of questions.
■■What does the patient or the patient’s carer need to know and understand?
■■Is the patient capable of understanding?
■■Does the patient have capacity to give consent?
■■If not, is the carer not only capable, but also qualified to consider the best interests of the patient?
■■Is consent given voluntarily?
■■Does the law of the land give any guidance on the value of the opinion of dentists, patient or carer?
■■Does the law resolve any conflict between patient and carer?
The Human Rights Act 1998 came into force in October 2000, putting into effect in English Law, the European Convention of Human Rights. Courts are expected to take into account case law from the European Court of Human Rights in Strasbourg as well as English Law. An understanding of the law concerning consent must bear in mind the relevant articles which might be invoked in medical law cases, notably Article 2 (protection of right to life); Article 3 (prohibition of torture, inhuman or degrading treatment or punishment); Article 5 (right to liberty and security) Article 8 (right to respect for private and family life) and Article 9 (freedom of thought, conscience and religion)
These Articles may seem somewhat distant from dental practice but a dispute about consent to treatment or the right to withhold or withdraw consent, might involve consideration of a number of these Rights.
The subject of consent, then, can be rather more involved than it might first appear – although mercifully we in dentistry are spared many of the most complex and sensitive dilemmas that are faced by some of our medical colleagues.
Aspects of autonomy
Depending on where one goes in the world, autonomy can mean different things. In most western countries, the moral principle of consent is reflected in a respect for personal autonomy as soon as a person is able to make decisions for him/herself. Here, the growing emphasis on patient autonomy in recent years contrasts with the historical position – sometimes described as the “Doctor knows best” era of medical paternalism.
In some countries, although certainly no longer in the UK, medical paternalism is alive and well and patients may still be happy to defer to whatever their treating clinician is recommending for them, with little or no questioning or challenge. In some cultures personal autonomy may not be regarded as being quite so important and the roles of the families or elders within families may have a far greater influence.
These national and cultural differences become all the more significant now that both patients and healthcare professionals have become more mobile, and dentists find themselves treating more and more patients from different cultures. The UK, in particular, has become highly multi-cultural at quite a rapid pace, and yet few dentists have undertaken any specific training to help them to understand and prepare themselves for the possible implications – this is another reason why consent has again become such a hot topic medico-legally.