It goes without saying

WHEN a patient sits in the dental chair and opens their mouth for a checkup, most dentists would agree this demonstrates they are consenting to treatment.

The patient may not explicitly say the words, but their actions suggest they are happy for you to proceed. This is implied consent or “consent that is inferred from signs, actions, or facts, or by inaction or silence”. Without it (and similarly oral consent), many general dental practices would likely grind to a halt under the burden of securing formal written consent for each and every treatment.

But while it serves a useful purpose, it has its limits and practitioners should not become complacent. MDDUS has dealt with a number of cases where dentists have proceeded with a course of treatment on the assumption the patient is in agreement, only to be subject to a complaint afterwards when the patient claims they had not in fact agreed.

In Principles of patient consent, the General Dental Council advises dentists that “giving and getting consent is a process, not a one-off event,” that “should be part of an ongoing discussion between you and the patient.” When circumstances change, i.e. if agreed costs are likely to increase, then the patient must be asked to consent to any further treatment/extra costs.

The GDC requires dentists to provide patients returning for treatment following an examination or assessment with a written treatment plan and cost estimate, adding: “Make sure that you are clear how much authority they have given you. For example, whether the patient agrees to all or only part of a proposed treatment plan.”

The most important element about implied consent (and similarly, oral consent) is that it is appropriate only in relation to minor or routine investigations or treatments – i.e. a basic dental check-up. For anything involving invasive techniques, such as periodontal probing, radiographs or blood tests, you should explain the need for the proposed procedure and any potential risks/consequences and secure the patient’s oral consent. Anything that involves higher risk requires written consent to ensure that everyone understands what was explained and agreed.

Implied consent does not just apply to dental treatment but also when sharing information with other dental care professionals. Less common are situations where a patient can’t be informed about the disclosure of information, such as in an emergency. In these instances you should only pass on relevant information to those providing care and inform the patient once they are able to understand.

The most important step in any consenting process is to be satisfied that the patient has all the information they need and that they understand the implications of what is proposed. This is what is meant by “informed consent”.

The GDC’s Principles of patient consent advises: “You should give patients the information they want and need, in a way they can use, so that they are able to make informed decisions about their care.

“Satisfy yourself that the patient has understood the information you have given them. Consider whether they would like more information before making a decision, and whether they would like more time before making a decision. Respond honestly and fully to any questions the patient has.”

It is important to be as clear as possible and not to assume that simply because the patient sits in the dental chair, for example, that you have free rein to carry out any treatment you believe is necessary. Obtaining consent is part of managing the patient’s expectations within a consultation. For dentists, asking a question such as “Do you mind if I examine your gums more thoroughly?” is both reassuring to the patient and a part of ensuring oral and implied consent.

The crucial question is whether the person understands the procedure that is being proposed and can weigh up the relevant information surrounding it. Any question over a patient’s mental capacity further complicates the issue and there is more detailed advice available in the MDDUS Essential guide to consent.

Remember that patients have a right to refuse consent for an investigation or treatment and you must not pressurise them to accept your advice. Once the patient has given their consent, they are entitled to withdraw it at any time, including during the procedure. It’s important that the patient understands how to go about reviewing any decision they have made with whoever is providing their treatment.

For more complex or invasive treatments that go beyond implied consent, be sure to record in the patient’s notes any discussions about treatment and if consent has been agreed or refused by the patient.

If in doubt, contact your dental defence organisation for further assistance.

Joanne Curran is an associate editor of SoundBite