from ASO Industry Newsletter | Issue 4

with Dr Faye Goodyear

Dr Annalene Weston

Senior Dentolegal Consultant and Dental Advisory Team Lead at Dental Protection

Australia

The Dental Board of Australia defines consent in the Code of Conduct as ‘a person’s voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved'1 and goes on to expand on the considerations a clinician needs to have when obtaining consent. While I would strongly encourage you to read this, it can also be helpful to consider consent through a variety of other lenses to ensure that we understand what it is, how we document it, and critically, how we know if we have it.

Consent is a conversation, not an administration process. During that conversation the clinician needs to convey to the patient the nature and purpose of the treatment proposed, any meaningful alternatives (including the alternative of no treatment where appropriate) and the risks and warnings associated with each of these options. There needs to be a lightbulb moment whereby the patient understands what the treatment really means for them, the costs of treatment, and any additional costs that may be incurred if the treatment does not go to plan.

The conversation cannot meaningfully take place until the clinician knows the patient sufficiently to understand their values and treatment wishes. It is a recipe for disaster to treat a patient before that as most complaints arise from ‘treating strangers’. Suffice to say, achieving consent is not as easy as whipping out a six-page document and asking the patient to ‘sign here’.

From a legal perspective, for a conversation of consent to be valid, there must be three components in place.

1.Information

2. Capacity

3. Voluntariness

Information

There are three standards of information that need to be considered; the professional standard which is the information WE feel a patient needs to know about their care, the objective standard which is what an ‘average’ patient would want to know about their care and finally, the subjective standard which is the specific information that a particular patient would want to know about their treatment based on their unique needs.

The latter is the tricky one and it led to the lead case of Rogers v Whitaker [1992] HCA 58-175 CLR 479 which put the concept of failing to warn a patient of things of a material risk as a negligent act firmly on the map. 2

Never confuse the concept of ‘informed’ to mean ‘giving the patient a heap of information’ –the messaging needs to be MEANINGFUL to the patient, so they understand what it means to them. This was crystallised in the UK case of Montgomery 3

Capacity

From a legal perspective, this means the mental capacity for a person to be able to make a decision about themselves. In dental matters, this means that the patient needs to understand what the treatment means for them, which alternatives (if any) are suitable, the likely consequences of proceeding with any of these treatments, and also the consequences of no treatment, known as ‘informed refusal’ – this can be particularly relevant in things like refusing x-rays.

Broadly, adults are assumed to have capacity unless determined otherwise, while young children are not, and require a substitute decision maker. Of note are teenage patients who can, in certain circumstances, be deemed to have capacity to make decisions about their own treatments.

The lead case relating to decision makers for minors is that of Gillick. A very helpful resource which discusses the case of Gillick, and decision making for minors in general, can be found here: https://www.dcssds.qld.gov.au/resources/ dcsyw/protecting-children/guide-for-healthprofessionals.pdf

Voluntariness

There can be no consent in coercion. While we like to think we would never coerce a patient, it is important that we ensure that we are providing the patient with their options in a balanced and unbiased way – this is not always as easy as you would think.

Once the conversation of consent has taken place, it is prudent practice to check the patient’s understanding. This can be done by a simple retell e.g. “just to be sure I have explained this clearly, what do you understand your options to be… and what things was I worried about…?” Alternatively, for more complex cases, it can be helpful to refer a patient to an entity such as ‘Choosing Wisely Australia’4 for some guidance on questions they may wish to ask/things they may wish to consider.

(Continued on page 7)

Spark Aligners

80% Better Printing Resolution More Uniform Surface

Better contact between the aligner and the tooth.* + =

80% Better Printing Resolution More Uniform Surface

Better contact between the aligner and the tooth.* + =

80% Better Printing Resolution More Uniform Surface Better contact between the aligner and the tooth.* + =

*Data

The contact points between the aligner and the tooth are much closer with Spark than with the leading aligner brand.*

Over 98% of Spark doctors surveyed agree that better aligner contact predicts better outcomes*

The last piece of the puzzle once the conversation has taken place, the patient has had sufficient opportunity to ask their questions, and these have been summarily answered, is documenting that consent was obtained. Consent forms can be helpful for this, but too much reliance on a piece of signed paper has led to the downfall of many practitioners when they find it to be a paper shield.

Contemporaneous documentation of the conversation of consent in the clinical notes, perhaps typed by the DA in real time while the clinician and the patient are talking, is a reasonably robust way of documenting consent, as it is time and date stamped. Remember to check what is written, and amend at that time if required, as amendments down the track (and after a complaint) cast a shadow over the practitioner’s honesty and integrity, and the veracity of the entry.

Consent will always be complex and multifaceted. Open communication with our patients and giving them the genuine ability to ask questions and consider the information will stand a practitioner in good stead when it comes to ensuring valid consent was obtained. And, at this time, documenting in our clinical records remains the best way of evidencing anything.

References:

1. Ahpra & National Boards: Shared Code of conducthttps://tinyurl.com/j69tj7b7

2. A summary of the case can be found here https://pubmed.ncbi.nlm.nih.gov/11648609/

3. Montgomery v Lanarkshire Health Board [2015] AC 1430, [2015] UKSC 11- a helpful summary can be found here https://mcbridesguides.com/wp-content/ uploads/2016/09/montgomery-v-lanarkshire-healthboard.pdf

4. https://www.choosingwisely.org.au/

This article is produced by a third party (not the ASO) for guidance purpose only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances.