Consent, Capacity and the Law

Question 1

why do we need consent?

Answer 1

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient’s consent commits an assault

Anything to a patient without agreement can be classified as assault

Question 2

define consent

Answer 2

The voluntary and continuing permission Of an appropriately informed person who has the capacity to consent To the intervention in question Based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment
Including the likelihood of its success and any alternatives to it Acquiescence under any unfair or undue pressure Or where the person does not know what the interventions entails Is NOT consent

Question 3

is consent a once off agreement?

Answer 3

no

it is a continuing process

Question 4

list the 9 standards of the GDC

Answer 4

1. Put patients’ interests first
2. Communication effectively with patients
3. Obtain valid consent
4. Maintain and protect patients’ information
5. Have a clear and effective complaints procedure
6. Work with colleagues in a way that is in patients’ best interests
7. Maintain, develop and work within your professional knowledge and skills
8. Raise concerns if patients are at risk
9. Make sure your personal behaviour maintains patients’ confidence in you and the dental profession

Question 5

What does standard 3 of the GDC standards say about consent

Answer 5

• 3.1: obtain valid consent before starting treatment, explaining all the relevant options and the possible costs
• 3.2: make sure that patients (or their representatives) understand the decisions they are being asked to make
• 3.3: make sure that the patient’s consent remains valid at each stage of investigation or treatment

Question 6

what are the conditions needed for consent

Answer 6

consent must be both valid and legal

Question 7

what makes consent valid

Answer 7

remember it is like a bus / train ticket

• Specific to the proposed dental treatment only
• Remains current (patient still agrees)
• Was obtained recently enough

Question 8

how long does consent remain valid?

Answer 8

• Consent should be perceived as a continuing process rather than an irrevocable, one-off decision
• Where there has been a significant interval between the patient agreeing to a treatment option and its start, consent should be renewed
• In the intervening period, the patient may have changed his or her mind or there may have been clinical developments
○ Need to check patient is still ok with their decision
It is therefore important that the patient is given continuing opportunities to ask further questions and to review the decision

Question 9

name the 3 principles of legal consent

Answer 9

1. Ability
   - The patient has the ability to make an informed decision
   - Capacity
2. Informed
   - The patient has enough information to make a decision
   - Properly informed
3. Voluntary
   The patient has made the decision

Question 10

what is needed to for consent to be legal / valid / accepted

Answer 10

• Valid and legal
• With capacity
• Informed
• Voluntary
• Not coerced
• Not manipulated

Question 11

what is needed for capacity

Answer 11

• To act (ie to decide)
• To make a reasoned decision
• To communicate a decision
• To understand a decision
• To retain the memory of a decision

Question 12

who has the ability to consent

Answer 12

• Any patient with capacity has the ability to give or to withhold consent
• There is a presumption of capacity in all patients from age 16 unless they are assess otherwise
• Parental responsibility ends at age 16 (in Scotland))
• No other person may lawfully give consent on behalf of a patient who has capacity

Question 13

can patients under 16 have capacity

Answer 13

Patients under 16 with sufficient maturity and intelligence to understand the nature and implications of the proposed treatment are deemed to have capacity

Question 14

who has parental responsibility

Answer 14

• Mum has automatic parental responsibility
• Dad must be married to mum OR be named on the birth certificate after
  § 4th May 2006 (Scotland)
  [Ie if the child was born on the 3rd May 2006 the father does not have automatic parental responsibility unless married to the mother - needs to go through a legal process to get parental responsibilities]

Question 15

when is parental responsibility lost

Answer 15

lost when giving children up for adoption

kept after divorce

Question 16

does the dentist need consent from both parents

Answer 16

no legal obligation to the dentist to seek consent of more than one person with parental responsibility, even when they are in disagreement

Question 17

can someone who is not a parent give consent for a child

Answer 17

Although parental responsibility can be handed over to another person, it is possible for someone looking after the child to act on behalf of the person with parental responsibility when given explicit permission to do so and this authority can be made in spoken or written form

A person who otherwise has the care of a child may do what is reasonable for the child’s welfare such as arranging treatment for dental trauma when a parent cannot be contacted provided the parent would not refuse

Question 18

what is included in informed consent

Answer 18

• Sufficient information must be communicated (not given) so that the patient can make an informed decision about whether or not to accept the proposed treatment based on appropriate knowledge and understanding
• Specific questions must be answered fully and honestly

• Information given should be documented carefully
- If it is not in the notes then it didn’t happen

• Treatment should exceed the consent given

• Patients individual needs and wishes should be checked
- To do with materials risk

[guidance 3.1.3]

Question 19

what are material risks

Answer 19

Material risks are where:
• A reasonable person, if warned of the risks, would be likely to attach significance to these
- Ie what would a reasonable person expect to be told about this particular procedure
- Not being able to go into work the next day etc
• The dentist is aware, or should reasonably be aware, that the particular patient if warned of the risks would be likely to attach significance to these
- Ie what is important to this particular patient

5 years ago this became a legal requirement

Question 20

when is implied consent sufficient

Answer 20

minor procedures

Question 21

when is explicit consent required

Answer 21

for major or invasive procedures

Want to have this for most of the time

Question 22

what are the modes for obtaining consent

Answer 22

• Oral and written consent are equally lawful - the most important factor is a properly documented record showing all the pre-treatment steps have been taken
• Written consent is required for general anaesthetic or conscious sedation
• Ensure written consent is filed safely
• But remember a signature is only a signature

Question 23

when is consent not required

Answer 23

• When an emergency arises in a clinical setting and it is not possible to find out the patient’s wishes, you can treat the patient without consent, provided the treatment is immediately necessary to save their life or to prevent a serious deterioration of their condition
• The treatment you provide must be the least restrictive of the patient’s future choices
• For as long as the patient lacks capacity, you should provide ongoing care; if the patient regains capacity while in your care, you should explain what has been done, and why, as soon as the patient is sufficiently recovered to understand