When dental professionals are trained, the subject of consent is usually taught as part of a jurisprudence or ethics course. It is often the legal aspects of consent that dominate discussions.
The result is that, over many years, the process of obtaining consent from individuals is often more concerned with getting a signature on a form and protecting an individual or an institution, than anything else
A signature on a form is not a real indication that a patient has understood any of the issues involved or indeed given consent for a procedure to take place. The reason for this is that consent is not about protecting those providing the treatment. It is actually intended to create recognition of patient autonomy.
Autonomy
Depending on where one goes in the world, autonomy can mean different things. In western cultures, the principle behind consent is an ethical one; respect for an individual's autonomy as soon as s/he is able to make their own decisions.
In some other cultures personal autonomy may have less importance and the roles of the families or elders of the family may have a far greater influence.
There are a number of aspects of autonomy which could be considered.
Choice
If personal autonomy is the moral stance we wish to take or support, then it follows that a patient has the right to make a choice unimpeded by bias. That choice is made according to the patient's own values and codes of conduct.
A reasonable choice to one person may not be reasonable to another, including the treating practitioner, because the second person may not hold the same core values as the patient making the choice.
This is sometimes evident in dental practice when patients ask dentists (or other dental professionals) to proceed with treatment which conflicts with the dentist's own values and code of ethics.
Free will
A second feature of autonomy is the need to ensure that any decisions taken are made freely and without coercion. Achieving such free will choices is easier said than done. Coercion can be overt or it may be subtle. From an early age humans learn to adapt to situations and to make the best of those situations to their own advantage. Our codes of conduct and values influence the way that we behave and react to situations.
Even with the best intentions we often influence how others act around us. In a clinical situation a patient's decision can be influenced by which treatment options they are told about, and by the manner in which this is done.
An example might be a teenage child who presents with his / her parents for orthodontic treatment.
The parents clearly want the child to have orthodontic treatment for cosmetic reasons and the orthodontic treatment may even be judged to be in the child's best interests by both parents and the treating practitioner(s). The child may have a severe malocclusion and would greatly benefit from orthodontic intervention. Yet, notwithstanding the best of intentions on the part of the parents and the clinician, the child may still feel coerced into having treatment which goes against his/ her own codes and values. In many countries parents may even have a legal right to make a decision on behalf of a child, irrespective of a child's personal preferences.
Another example might be a patient who is told only about the options of a fixed bridge or denture, to replace a missing tooth. If they are not also told about the possibility of an implant, then it might be said that the patient has been denied a free choice of the treatment they wish to receive.
If one examines consent purely from the point of autonomy then any consent obtained in that situation may not be valid if the child has not made the decision with his / her own free will. Even if the child agrees, how can a clinician ensure that there is no undue influence on the child?
These are the types of ethical dilemmas that practitioners face on a daily basis. There are many occasions when patients may feel pressurised by the treating clinician, such that they accept a particular form of treatment. Again, this raises the issue of whether there is direct or indirect coercion.
Similar situations may arise when a patient arrives for treatment with a carer.
Capacity (competence)
The principle of autonomy is based upon the premise that a person is capable of making a decision in the first place. There are however a variety of situations in which a person may not be able to take a decision including:
- Full or partial mental incapacity
- Temporary incapacity caused by unconsciousness, trauma, drugs, alcohol, illness or temporary mental state eg. anxiety.
When assessing capacity there are a number of questions to ask:
- Can the person understand the information being provided?
- Can a person assimilate that information?
- Can the person make a decision?
Some definitions of capacity include the ability of a person to communicate that decision too. In a sense, capacity could be described as the ability of a person to exercise his/her autonomy.
Capacity also creates a dilemma for dental professionals because on occasions it can be difficult to accurately assess a patient's capacity.
For example, a person attends the surgery and indicates that he would like a central incisor extracted as there is a hole in it. Caries is diagnosed and the patient is offered a choice of restorations. The patient fully understands the situation but still requests an extraction in an otherwise intact arch.
In this situation the patient may be fully competent but the treating clinician may view the request as wholly irrational. The irrational stance reflects a different set of core values however the patient may be fully competent to make a decision.
If a dentist were to perform an extraction in such a situation it would be a defensible if the treatment fell within a broad spectrum of acceptable clinical opinion even if it is not what the clinician would have chosen for the patient. Having said that, if a clinician is treating a patient and the treatment being provided clearly falls outside the clinician's own core values and beliefs, then it would be prudent to exercise caution before agreeing to provide such treatment. To provide treatment against one's better judgment is a real dilemma regardless of whether the patient consents.
"I start with the proposition that the law which imposed a duty to warn on a doctor has, at its heart, the right of a patient to make an informed choice as to whether, and if so when and by whom, to be operated on"
Sir Denis Henry
UK Appeal Court Decision - Chester versus Ashfar (2004)
On the other hand, if a patient presents and requests an extraction of the same tooth because they fear that the tooth is picking up messages from a radio station, then one might (should!) suspect a capacity issue and any consent taken in such situations would, almost certainly, be regarded as invalid.
Temporary and partial incapacity Some patients may have partial incapacity ie. able to exercise their autonomy in certain situations but not in others. Issues like age, maturity, complexity of procedure, illness, injury, alcohol and drugs may all have an impact on a person's ability to make a decision at a particular time.
The principle of autonomy is the over-riding feature of consent which suggests that a clinician should, wherever possible, allow patients to exercise their autonomy as far as their capacity will allow.
A person who lacks full capacity might be able to consent to a dental examination or some simple treatment, but not to a more complex procedure or (for example) a general anaesthetic.
This concept is particularly important when working with special needs patients.
"We have, in fact, two kinds of morality side by side: one which we preach but do not practice, and another which we practice but seldom preach"
Bertrand Russell (1872-1970)
The 'best interest' principle
This principle is often applied in situations of special need and where people do not have capacity to take decisions for themselves. It is a way of enabling a clinician to provide treatment that would generally be regarded as being in the best interests of patients who are not capable of making such decisions themselves.
This invites the question, 'Who determines what is in the best interest and what happens if there is a conflict between various parties with an interest in the welfare of the patient?'
The law, in any jurisdiction that recognises capacity, will usually set a particular age over which patients may provide consent for treatment. This can be different to the age of majority ie. when the law recognises a person as an adult. In the UK, for example, the legal age of consent is 16 although the age of majority is 18, and similar differences arise elsewhere in the world.
Parents are usually regarded as acting in the best interests of their children. But where adults are concerned, a practitioner may have a real ethical dilemma in deciding what to do when n adult patient is incapable of making a decision for him/herself.
What is in the best interests of a patient? Whose moral codes are used to determine this?
In many countries there are legal test cases that act as precedents. The following issues may be considered when assessing what might be in the best interests of a particular individual.
- The patient's values and preferences if they were known to have been competent at some time in the past
- The patient's psychological and spiritual well-being
- The patient's physical wellbeing
- The patient's overall quality of life
- The relationship and impact of the patient's condition on family and carers
When an adult lacks capacity, it is particularly important to consider the issues listed above. It is also necessary to determine who has an interest in the care of the patient and whether such people should be involved in discussions taking note of the patient's right to privacy. It is usually beneficial to share any 'best interest' decision with professional colleagues and others responsible for the patient's care.
Information
The term 'informed consent' is used in many countries but it can be a misleading term as it implies that consent is purely about the provision of information rather than a patient's understanding of its meaning and relevance.
Information is a key part of the consent process, however, and often where the communication breaks down.
There is a dilemma in determining just how much information a patient needs to know.
- Who determines this?
- Does a patient need to know everything?
- What if it is not in the patient's best interest to know?
These questions and dilemmas commonly arise in day to day practice. It is at this interface that one finds many ethical dilemmas concerning personal autonomy conflicting with therapeutic judgment (a clinician deciding what information to provide, and what to withhold “ and when) or professional paternalism ('the doctor knows best'). Resolving that conflict unsatisfactorily gives rise to many legal cases concerning consent.
As we noted in the first module (Ethics, values and the Law) the law sometimes embodies ethical principles within the statute and in so doing provides a guide by which dental professionals may be judged. There are three ways in which consent and the level of information can be judged:
- What should the dentist tell the patient?
- What would a reasonable person expect to be told?
- What is important to the individual patient ie. is there anything that this specific patient would want to know?
Depending on where one goes in the world, the balance between these three perspectives may change. At one extreme there is total professional paternalism where 'the dentist knows best' whilst, at the other extreme, the patient's needs and wishes determine what information needs to be provided.
"A strong positive mental attitude will create more miracles than any wonder drug"
Patricia Neal (1926-)
This often poses conflict with the concept of benificience (doing good) where the professional naturally wants to do what is best for the patient, and the patient favours treatment which may not achieve this.
There is no doubt that in the majority of countries in which Dental Protection operates, the balance of opinion favours personal autonomy rather than therapeutic privilege, particularly where elective treatment is concerned.
When there is a true emergency that seriously threatens a patient's wellbeing and it is not possible to obtain valid consent then the law usually affords considerable protection to a healthcare professional who acts in the best interests of the patient. This is not a licence that provides absolute therapeutic privilege, but the protection does usually extend to stabilisation of the immediate emergency.
Such a dilemma might manifest itself when working on a sedated patient. In the middle of treatment you notice that there is a cavity on an adjacent tooth to the one that you are treating. Do you fill it to avoid the need for further sedation, or leave it and run the risk of the patient being inconvenienced? Does it make a difference if the patient has travelled a great distance for treatment? These are questions that are difficult to answer other than by saying that it depends upon the patient. Therein lies the answer, namely it is a patient's choice.
"All truths are easy to understand once they are discovered; the point is to discover them"
Galileo Galilei (1564-1642)
There are ways of pre-empting this by discussing such possibilities with a patient in advance of treatment however not all 'unforeseen' circumstances can be foreseen!
It is the classic dilemma of paternalism against autonomy. In non-emergency cases the emphasis should be on ensuring that a patient has sufficient knowledge in advance of:
- The purpose of the proposed treatment
- The nature of the treatment
- The likely effects and consequences
- Risks and possible side effects
- Alternatives (including that of not providing treatment)
- Costs
If the possibility of extra treatment is foreseeable, then it might be best to discuss this with the patient in advance. Some patients might be more than happy for a clinician to proceed whilst others would want the opportunity to influence and to take a specific decision in relation to a specific item of further treatment.
When patients are not given sufficient information in advance of treatment, they often feel angry, misled or indeed violated or assaulted. These are powerful, destructive feelings that are likely to destroy any relationship of trust upon which consent is founded.
Communication
There is an inter-dependant relationship between the patient and dentist that requires both parties to communicate effectively in order that every decision can be made in line with the principle of patient autonomy. It is also necessary to achieve the dentist's own therapeutic objectives so that the clinician will feel comfortable in providing the patient's care and treatment. Two way communication is therefore fundamental to the consent process.
"Remember this - that there is a proper dignity and proportion to be observed in the performance of every act of life."
Marcus Aurelius Antoninus (121AD-180AD)
Summary
Consent is about effective communication and a trusting relationship between a patient and the dental professional. It relies on a total respect for patient autonomy as far as the patient's capacity will allow. It requires information to be shared so that a patient feels able to make a decision for their own benefit according to their own codes and values.
If these conditions are not met the patient is likely to feel unhappy and perhaps even feel violated or misled.
The 'best interest' principle, whilst having a valuable role in special needs and emergency situations, needs to be applied cautiously in order to avoid the risk of paternalism. Respecting the fundamental rights of patients is an essential ethical requirement for healthcare professionals. A patient's right to determine what will be done with their own body, when, and by whom, lies at the heart of their human autonomy.
What makes sense ethically, and legally, also makes sense at a human level. Patients who feel respected and involved in decisions about their care and treatment, will in turn have greater respect and trust for their healthcare professionals.