Informed Consent “It’s the LAW"

Ontario’s Health Care Consent Act, 1996, provides guidance about the information that must be communicated to and discussed with a patient prior to treatment. This is mirrored in the US and most developed countries. Discussions should include:

· the nature of the treatment
· the expected benefits of the treatment
· the material risks of the treatment
· the material side effects of the treatment
· Alternate options to treat the problem
· the likely consequences of not having the recommended treatment
· Patient has to have the opportunity to ask questions

The patient’s specific circumstances also need to be part of proper informed consent including but not always limited to:

· Sufficient time to think about the options
· Language barriers
· Patient ‘s age
· Patient’s mental capability
· Is the treatment an emergency or elective

Who can Provide Consent?

Often dentists are confused to what is the age of consent. The reason for the confusion is that 18 years is the legal age that a person can enter into contracts.

There is no fixed “age of consent “for medical treatment. It is the mental ability to make a decision about the treatment by the patient is the key to determining whether the patient can provide consent to recommended treatment. As a general rule patients under the age of 12 will need consent from the parents. For patients 16 and above the dentist should assume that the patient can provide consent unless there are specific evidence why they cannot.

The ages 12-15 is the difficult age to decide whether the patient can provide consent . The dentist should initiate discussion first with the patient to see if they are mentally capable of understanding the proposed treatment and then with the patients permission ask to include their parent(s) in the discussion and then obtain consent from both the patient and the parents.

Now a patient who is not 18 years of age cannot enter into a legally binding contract for payment for the treatment . Also it is important to remember that unless the dentists gets consent from the patient under 18 years of age to tell the parents about the treatment and the cost. ( Ontario’s Personal Health Information Protection Act, 2004.) The dentist cannot discuss any medical/ dental information with the parents or anyone else without the patient’s consent.

At the same point there are adult patients that are incapable of providing or refusing consent These patients  are not  able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision with regard to treatment.

In these circumstances, the dentist needs to follow  the Health Care Consent Act, 1996, where , the decision of another person can be relied upon to obtain the informed consent .

This other person is often referred to as a substitute decision-maker.

The dentist now needs to make sure they formulate and record the reasons why they feel that the patient is incapable to provide consent.

In addition the dentist needs to obtain and record in the record of care the name and the relationship of the person who will act as the substitute decision maker and whether this person was given “ the power of attorney” for personal care of for the patient .

The patient can also challenge the dentist’s opinion about their capacity and request a review from the Consent and Capacity Board (www.ccboard.on.ca) within 48 hours. The dentist needs to inform the patient about this option and should refrain from treating the patient during this period.

As if this wasn't confusing enough, if the patient seems able to understand and, in the opinion of the dentist, can provide consent, but there is another substitute decision maker with "power of attorney," then the dentist must obtain consent from that substitute decision maker before providing any treatment or requesting payment.

So how can we make sure we provide proper informed consent for dental patients?

The best way to prevent challenge of not providing informed consent from patients and their lawyers, and provide quality treatment is to:

One can use a checklist or some kind of forms to follow so that the routine is consistent.

Many dentists will be surprised that signing a consent form is not enough to obtain informed consent. If the patient states that they signed the consent  form but did not understand it then the consent form becomes useless.

It is up to the dentist to make sure the patient understands everything they are presented

If the dentist spent an hour explaining everything about replacing a missing front tooth with all the options complication risks advanages etc. gave the patient a consent form to sign , but did not record the discussions with the patient in the record of care he or she did not provide proper informed consent .

If the dentist does not perform dental implant treatment in his office and does not give that option to the patient he or she did not provide proper informed consent.

If the dentist attempted to explain 7 points of discussion of proper informed consent but the patient was still confused . Then the dentist did not provide proper informed consent.

If the dentist did not provide an opportunity for the patient to ask questions and did not have the patient confirm that they understand everything that was presented to them then the dentist did not provide informed consent.

Signed consent forms are a necessity these days but alone not enough. They need to be complemented with a fulsome discussion and confirmation by the patient that they understood everything that was presented to them.

The more complex the treatment plan recommended the more detailed explanation will be needed and of course the more details recorded in the record of care.

Consult-PRO has been around for over 20 years helping dentists provide  proper informed consent to 1000’s of dentists in over 128 countries .

Understanding Informed Consent: Real-Life Legal Cases

Informed consent is a critical aspect of medical and legal practice, ensuring that individuals fully understand the implications of the procedures or agreements they are entering into. This principle is not just theoretical; it has been the focal point of numerous legal cases, each highlighting the importance of clear communication and mutual understanding between parties. For more detailed information on these legal cases involving informed consent, explore the links below.

1. Managing Patients' Informed Consent Refusal 

2. When a Patient refuses X-Rays

3. Inadequate Informed Consent Leads to Legal Action Against Dentist

4. Lack of Detail in Chart Entry Hinders Dentists Malpractice Defense

5. Dentists Records Retention Failure Affects Malpractice Case Outcome