Competence

In order both to understand the information provided, and to give the necessary authority for consent, a patient must be competent. “Competence” in this context means the patient’s ability to understand the explanations given, about:

• The nature and purpose of a particular procedure;
• Its likely effects and risks; and
• Any alternative treatment and how these alternatives might compare.

Only if a patient is competent to consent, can the patient’s consent be considered valid. The patient may lack competence for a number of reasons; they might be unconscious or suffering some temporary or permanent form of mental impairment. On the other hand, a very young child will clearly not have the competence to consent to a dental procedure.

On the subject of children, many dentists mistakenly assume that because a child is allowed to sign a NHS form at age 16 then he/she is therefore competent to consent (and indeed, is giving a valid consent in the very process of signing the NHS form). Such assumptions are misplaced, and reflect a lack of understanding of the underlying principles.

Firstly, a signature on a NHS form is not consent at all, but merely a request to be treated within the NHS, rather than on a private basis.

Secondly, most children eventually reach an age where they can grasp relevant facts about their body and about proposed treatment to their body. A few children are never, even when adulthood is reached, capable of properly understanding the information given to them and then must therefore be considered incapable of giving consent.

In order to protect children, laws exist in many countries defining the age at which children can normally be considered capable of making their own decisions in this respect. In England and Wales, the relevant legislation is to be found within the Family Law Reform Act 1969. It permits an individual of 16 or over, and of sound mind, to give a legally valid consent to dental treatment; it does not preclude children under 16 from also giving consent.

Many members will be familiar with the Gillick5 case, which related to the provision of contraceptive aids to girls under 16 years of age without parental consent. As a result of this case, the view is generally held that children, if they can fully understand the proposed treatment, can give consent to that treatment. Dentists should always try to confirm that both the child and the parent understand the treatment to be given. Even in cases where it is believed that the child may be capable of giving consent which (according to Gillick) would negate the need to obtain parental consent, it is still wise to try to seek the child’s permission for a discussion with the parent to confirm their agreement.

If a parent is not available when children under 16 years of age are examined, then extreme caution is advised. A few years ago, the Court of Appeal in the case Re-R6 decided that where a child under 16 refuses consent to treatment, that consent could be obtained from a parent.

“The failure or refusal of the “Gillick Competent” child is a very important factor in a doctor’s decision whether or not to treat, but does not prevent the necessary consent being obtained from another competent source.”

This decision could only lead to further confusion and difficulty. As a result, consideration should be given to refusing treatment (except in an emergency) if concern remains about the quality of the understanding and agreement of both child and parent.

Whilst a child of 16 or 17 can consent to treatment in accordance with the Family Law Reform Act 1969 a person with parental responsibility can also consent to the treatment of a child aged 16 or 17. If a child of 16 or 17 consents to treatment, consent cannot be withdrawn by the person with parental responsibility. A person with parental responsibility can consent to the procedure where the 16 or 17 year old refuses treatment; however, in dentistry, in the majority of cases treatment is unlikely to be successfully provided where the patient at age 16 or 17 refuses. Dental Protection would thus advise that it is appropriate to try to encourage the patient and consenting adult to reach a consensus.

Authority

Competent adults

Clearly, in the case of an adult aged 16 years or over who is of sound mind, he/she has the authority to give or withhold consent to any treatment proposed for himself/herself, and it could be held to be an act of assault to violate the patient’s autonomy and right of self determination by providing treatment against his/ her declared wishes.