March 4, 2022
by Kiran Madesha, Legal Advisor; Kristy Pilatzke, Risk and Compliance officer
Prior to receiving dental care, patients in Canada have the right to be fully informed. This means that oral healthcare clinicians must advise their patients of all reasonable treatment options, the associated risks and benefits, and the rate of success or failure of each procedure (or test) that is recommended. Informed consent is a legal and ethical duty for dentists and dental hygienists.
More importantly, it is an integral part of building trust within the patient-provider relationship and dentistry as a whole.
Intentionally treating a patient without consent can rise to the level of assault and battery – remember the hover-boarding dentist? – however, most legal actions concerning consent are negligence based. A consent discussion took place, albeit, not an adequate one. In other words, the disclosures made to the patient didn’t meet the standard of care expected of a reasonably prudent dentist. Without informed consent, patients risk making the wrong decision, which can lead to dissatisfaction. That’s the beginning of the snowball. Having a patient-centered discussion will go a long way to support a determination of adequate consent.
Human experience is partially developed by interpreting each interaction while simultaneously attempting to fill in the unknowns. At its core, informed consent is an exercise in communication. You may be the best cosmetic dentist in town – but whether your patients will consent to and be satisfied with your skills depends heavily on chairside manner. Active listening, empathy and being able to connect with the patient in a way that they understand are as important as anything you can do with a handpiece. This means that rushing, speaking quickly or not loud enough, impact the quality of the message a provider is sending to the patient. Paying attention to one’s own as well as a patient’s tone and body language during a consent discussion will also provide important indicators of comfort, anxiety, understanding or confusion. All of these are valuable clues for a dentist looking to solidify rapport with patients.
Informed consent conversations should provide the patient sufficient information about recommended treatment options to enable them to make a fully informed choice about their dental care. At the same time, these conversations allow the dentist to discover the values and concerns of their patients. The transfer of knowledge from a provider to a patient, and from a patient back to a provider, are key steps in the informed consent process. Depending on the dental IQ of the patient, complex concepts may need to be broken down so that they are easily understood by patients. Dentists should also elicit their patients’ feedback to ensure that the patient understood the message given and encourage patients to share their questions, feelings, or concerns. Informed consent discussions, like all forms of communication, are a two-way street.
Informed consent can be obtained through implied or express consent. Express consent is given in writing or orally when a patient directly communicates their positive or explicit consent: “Yes, I would like to proceed with the filling.” Implied consent may be the action or conduct of a patient rather than direct communication through words: after the doctor asks if the patient is ready for an examination, the patient lies back and opens their mouth. The more invasive, complex, lengthy, or expensive the treatment, the more necessary express informed consent becomes. This is where the use of informed consent forms may be helpful. From dental hygiene to surgical procedures, informed consent forms can be used for many types of treatments.
Here are a few elements to include in an informed consent form:
Failure to obtain informed consent can lead to legal and/or disciplinary action against dental practitioners. More often, it merely leads to disgruntled or dissatisfied patients. For all the above reasons, dentists should take adequate precaution and have the appropriate tools in place to obtain and document informed consent. Blanket consents are not effective and will not stand up if challenged. Informed consent must be treatment specific. If the patient receives treatment over a long period of time, informed consent from the patient must be viewed as an ongoing process. The experience of having a dedicated, supportive, and caring dental team that explains all the risks, consequences and alternatives involved with a potential treatment can help patients take control of their own oral health. It will also make them more likely to refer their dentist to family and friends.
About the Authors
Kiran Madesha is a licensed lawyer with the Law Society of Ontario and works on dentalcorp’s Compliance team as a Legal Advisor. She holds a Bachelor of Laws degree from the University of Liverpool and a Master of Laws with a concentration in Health Law from the University of Toronto.
Kristy Pilatzke is a Risk and Compliance officer at dentalcorp with over 14 years experience in regulated healthcare industries. Kristy holds a Master of Science in Healthcare Quality from Queen’s University.