Dentist obligation and informed consent

Lecture objectives: Know the dentist obligations Understand what is meant by informed consent (IC) to accept or refuse treatment Identify the types of IC Define the elements of IC Understand the details of IC

Dentist obligation The dentist's primary obligation is service to the patient and the public-at-large. The most important aspect of this obligation is the competent and timely delivery of dental care within the bounds of clinical circumstances presented by the patient, with due consideration being given to the needs, desires and values of the patient. The same ethical considerations apply whether the dentist engages in fee-for-service, managed care or some other practice arrangement. Dentists may choose to enter into contracts governing the provision of care to a group of patients; however, contract obligations do not excuse dentists from their ethical duty to put the patient's welfare first.

Dentist’s Standard of Care Be properly licensed. Use reasonable skill, care and judgment. Use standard drugs, materials and techniques. Use standard precautions in the treatment of all patients. Maintain patient confidentiality of all information. Obtain and maintain patient medical and dental histories.

Dentist’s Standard of Care Make appropriate referrals; request consultations when warranted. Maintain competence and knowledge in dentistry by keeping up with contemporary technology. Do not exceed the scope of practice. Do not allow allied health members to practice outside assisting/hygiene scope of practice. Complete dental care in a timely manner.

Dentist’s Standard of Care Refrain from use of experimental methods or procedures. Obtain informed consent from patient or guardian before beginning examination or treatment. Arrange for patient’s care during temporary absence. Give sufficient instructions to patients. Achieve reasonable treatment outcomes.

The main ethical elements of patient consent: Informed consent - the patient has enough information to make a decision. Voluntary decision-making Ability - Patient is competent to make an informed consent

Informed consent and refusal Ethical concerns regarding the process of informed consent and refusal extend beyond the level required for compliance with the law. The ethical consideration imposes: Comprehensive knowledge on the part of the practitioner; Uncompromising veracity; Unbiased presentation of all reasonable alternatives and consequences, including costs and the probability of outcomes; The ability of the practitioner to communicate clearly on a level assuring comprehension by the patient or appropriate authority;

Reasonable assurance by the dentist that the patient is competent and has sufficient understanding to render decision. Both the severity of a harmful result and the likelihood of its occurrence should be considered when deciding which information to include in informed consent discussions. The dentist must be aware of applicable laws, regulations, and standards regarding the nature, scope, and depth of informed consent and refusal discussions.

What is informed consent? It is the process whereby a patient voluntarily agrees to proposed treatment after a discussion of advantages, disadvantages, risks, and alternatives. Most countries require that patients provide informed consent before dental treatment is commenced.

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” (Schoendorff vs. Society of NY Hospital; 211 N.Y. 215; 1914)

“The informed consent discussion represents the first step in managing the patient’s expectations for treatment outcomes and reducing the possibility of a misunderstanding.” Patients are less likely to file a lawsuit if they are fully informed about risks and possible outcomes.

When obtaining informed consent, the dental professional should: Use language that is easily understandable.  Provide opportunities for patient questions, such as “What more would you like to know?” or “What are your concerns?” Assess patient understanding by stating, “If I have not explained the proposed dentistry clearly or if you have difficulty understanding, please tell me so we can discuss anything you do not understand.”

Types of informed consent Written Verbal. Explicit Implicit

Oral consents may be satisfactory for routine procedures that you expect the patient to know about, such as a dental examination. Most risk management professionals recommend using written consent documents for all treatment procedures that are invasive or present a high risk.

There is another concept called implied consent. A patient may imply consent by his actions. For example, a patient presents with a toothache, is examined, and is informed radiographs are needed. The patient allows the radiographs to be taken without any objections. In this case, consent is implied by the actions or non-actions of the patient. The key elements are that the patient was aware of the problem and made no objection when the treatment began. Implied consent is also applicable during emergencies. During a true emergency, a health-care provider can render services without the consent of the patient. Most courts classify an emergency as a situation when care must be rendered at once to protect the life or health of the patient. At such times, consent is implied by law.

Some informed consent documents contain language that attempts to hold the provider harmless in the event the procedure does not go well. Such stated policies are called exculpatory terms and have been deemed invalid in many court cases “I accept this treatment with the understanding that I will hold the doctor harmless for any negligence in the performance of the treatment.” “ Expressed differently, the statement is actually saying, “Either you agree not to sue me should I be guilty of negligence and you are injured as a result of my negligence, or I will not provide the services you need.”

Courts have held that informed consent is irrelevant on the question of malpractice.

1. Informed consent 1.1 For consent to be valid, the patient must have received enough information to make the decision. This is what we mean by ‘informed consent’. 1.2 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. 1.3 Giving and getting consent is a process, not a one-off event. It should be part of an ongoing discussion between you and the patient.

1. Informed consent 1.4 Find out what your patients want to know, as well as telling them what you think they need to know. Examples of information which patients may want to know include: why you think a proposed treatment is necessary; the risks and benefits of the proposed treatment; what might happen if the treatment is not carried out; and other forms of treatment, their risks and benefits, and whether or not you consider the treatment is appropriate.

1. Informed consent 1.5 Always make clear to the patient: the nature of the contract, and in particular whether the patient is being accepted for treatment under the insurance or privately; and the charge for an initial consultation and the probable cost of further treatment. 1.6 Whenever a patient is returning for treatment following an examination or assessment, give them a written treatment plan and cost estimate.

1. Informed consent 1.7 If, having agreed an estimate with the patient, you think that you will need to change the treatment plan, make sure you get the patient’s consent to any further treatment and extra cost, and give the patient an amended written treatment plan and estimate. 1.8 Giving a patient clear information to help them make a decision may involve using written material, visual or other aids.

1. Informed consent 1.9 Try to meet particular communication needs, for example, by suggesting that the patient brings a friend who can sign or interpret for them, or providing a hearing ‘loop’. 1.10 Satisfy yourself that the patient has understood the information you have given them. 1.11 Consider whether they would like more information before making a decision, and whether they would like more time before making a decision.

1. Informed consent 1.12 Respond honestly and fully to any questions the patient has. 1.13 Involve other members of the dental team in discussion with the patient, where appropriate. They may have valuable knowledge about the patient’s background and particular concerns.

2. Voluntary decision-making 2.1 The patient must make the decision. 2.2 Do not pressurize the patient to accept your advice. 2.3 Patients have a right to refuse to give consent for an investigation or treatment. If they do so, you should respect this decision.

2. Voluntary decision-making 2.4 Once a patient has given consent, they may withdraw it at any time, including during the procedure. 2.5 Make sure that once the patient has given consent, they know how to review the decision with the person providing the treatment. 2.6 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.

Ability to give consent 3.1 Every adult has the right to make their own decisions and must be assumed to be able to do so, unless they show otherwise. If there is any doubt, assess whether the patient is able to give informed consent. Consider whether or not the patient understands and can weigh up the information needed to make the decision in question. 3.2 Consult your dental defense organization for up-to-date advice on the law in relation to: children giving informed consent; and assessing an adult patient who you think may not have the ability to give informed consent.

Limitations of informed consent It is important to understand that a properly executed informed consent does not protect against claims of malpractice. If a patient feels h/she has been treated negligently, must prove the four elements of malpractice, which are: The duty of the health-care provider to provide competent care. There was a breach of the duty to provide competent care. An injury occurred. The injury was a direct result of breach of the standard of care (called proximate cause).

Informed refusal Informed refusal is a person’s right to refuse all or a portion of the proposed treatment after the recommended treatment, alternate treatment options, and the likely consequences of declining treatment have been explained in language the patient understands. A patient who refuses to follow the recommendations of the dental provider must be advised of the consequences of the refusal

If a patient is referred to see a specialist and refuses the referral, the clinician should document the refusal thoroughly in the patient chart and have the patient sign the chart or a separate form.

Patients have many reasons for declining a recommended treatment, such as inconvenience, fear, denial, or inability to pay for services. If a disease condition is diagnosed and the patient refuses treatment, the doctor may decide to dismiss the patient from the practice. That is the doctor’s decision.

Depending upon the circumstances, a doctor may not feel it is appropriate to dismiss the patient and may choose to provide alternate treatment (as opposed to ideal) for the short term. As long as the patient understands the ramification of postponing treatment and the goals of alternate treatment, liability risks are minimized. Sometimes, however, the best option is patient dismissal. Thorough documentation cannot be overemphasized. Case decisions must be made on a patient-by-patient basis.

All dental students and clinicians should view the informed consent process as an educational experience with the patient to discuss needed treatment advantages, disadvantages, risks, and alternatives, and ensure such discussions are well documented in the patient record

A patient with a broken anterior central incisor tooth A patient with a broken anterior central incisor tooth. The diagnosis of tooth fracture was made, and the doctor recommends restoration with a porcelain crown. After discussing the cost, the patient asks for other less costly options. So the dentist decided to go for An alternative and less costly treatment which was a large composite restoration as a short term option. The patient made an a verbal consent decision for the treatment proposed by the dentist. Two months later, the composite restoration fails. Discuss the case from ethical point of view. Do you think that the dentist is liable for malpractice?