Like all healthcare professionals, dentists have a legal and professional responsibility to inform their patients about the material risks, benefits, and clinically appropriate alternative treatment options available, before commencing any dental treatment. This also includes advising of the option that no treatment be performed and the associated consequences, if this were a reasonable alternative.
The healthcare team at DWF frequently represent dentists both in regulatory investigations and clinical negligence claims where there are disputes around the issue of informed consent and this legal insight provides some practical guidance as to how dentists might seek to avoid these types of claims.
The legal position on informed consent
Following the recent Supreme Court decision in McCulloch & Others v Forth Valley Health Board ('McCulloch') the process of obtaining informed consent is a two-strand test in which dentists will need to consider:
- Have all clinically relevant treatment options been provided to the patient (McCulloch)?
- Has the patient been informed of the material risks in respect of those relevant treatment options (Montgomery)?
Whilst the material risks for all clinically appropriate treatment options should be explained to the patient, there is no need to set out treatment options and risks for those options which a responsible body of dentists would not consider clinically appropriate to offer.
The importance of informed consent
Ensuring that informed consent is obtained before carrying out any treatment / no treatment of a patient not only reduces the risks of a dental practitioner being sued for dental negligence, but it is also a professional obligation.
The GDC Standards set out nine principles that must be followed by registered dental professionals at all times. Principle 3 requires that dental professionals 'obtain valid consent'. It is therefore vital that patients have properly consented to any dental treatment they receive to ensure that registrants are complying with the requirements of their regulator.
A negligence claim can be made if a patient suffers harm / injury due to a procedure for which they claim they did not provide their informed consent. In situations where there is limited or no documented clinical records evidencing that fully informed consent was given, a patient's testimony will be based on their recollection of events and may be favoured by the court in the absence of any clinical notes to support the practitioner's recollection or usual practice, the classic 'factual dispute'.
Where a dental professional has documented the consent process in detail, this can help rebut conflicting accounts from a patient. Such documentation can include:
- Signed consent forms;*
- Signed treatment plans with costings;
- Patient information leaflets logged as given, read and understood / with no questions asked;
- Notes of treatment discussion/s in the dental records where the risks / benefits of each treatment option have been outlined and the Claimant's preferred treatment option is recorded.
It is important to note that informed consent is a process, so a signed consent form does not necessarily mean that informed consent has been obtained, even if it records the risks of treatment. Patients can still allege that they did not have all the required information before signing the consent form. A signed consent form alone is not proof that informed consent was obtained, it is merely a documentary record that the patient was presented with the consent form for the relevant treatment (with aims and risks as set out on the form) to be performed.
Common consent allegations and practical steps to avoid them
We regularly see these types of allegations involving issues of informed consent being advanced by claimants:
1. 'I didn’t understand the information / clinical jargon so I cannot have provided my informed consent'
Dentists should avoid complex technical terminology when describing a procedure or treatment plan. The use of visual aids can sometimes be more effective in helping patients to understand some of the more complex types of dental treatments – this includes using diagrams, study models, posters or patient information leaflets to demonstrate what treatment is being proposed and why. Dentists should encourage patients to ask questions during the consultation/s and to clarify what they understand by the treatment options. In dentistry, in particular, patients should be given clear information as to the cost of the available options including NHS and private. A cooling off period, if possible, to allow the patient to go home and think about what their preference is for treatment may be appropriate particularly where the treatment is significant / expensive. All discussions should be recorded in the clinical records, to avoid misunderstandings about the consent process, and these should also document the patient's understanding of the options and that they have made an informed choice.
2. 'I wasn't given enough time to be able to consider all of the options or provide my informed consent'
Working in a busy dental practice can mean that appointments do not run to time and there may not be adequate time to discuss the procedure or treatment plan in detail and / or discuss the alternative options. One way of overcoming this difficulty is to consider scheduling a further appointment/s with a focus on discussing the various treatment options and obtaining the patient's informed consent. Whilst this means that further time will need to be spent discussing the options with the patient on another occasion, this will ultimately help improve the patient's experience and trust in their dentist and also reduces the potential risk of any subsequent regulatory investigation and / or negligence claim being brought.
The key take-aways
Investing time in providing information and options to patients and documenting patient involvement in their dental treatment decisions will be time well spent. Not only does this help to build patient trust and ensure a shared understanding of the decisions reached and treatment plan to be deployed, it also minimises the scope for complaints, claims and regulatory investigations in the future.
