October 31, 2019
by Josh Koziebrocki, LLB, BA
Dentists are responsible for performing procedures that may have some impact, whether major or minor, on the health and wellbeing of their patients. As a means of enhancing the autonomy of patients, provincial regulators such as the Royal College of Dental Surgeons of Ontario (“RCDSO”) require dentists to obtain patients’ informed consent for all treatment. Regardless of the quality of the dental work and the outcome of the procedure, dentists may become subject to formal College complaints if they fail to obtain informed consent. Based on our extensive experience providing legal advice to dentists and representing them in regulatory proceedings, we have prepared the below list of 10 legal tips for obtaining consent in dentistry.
1. Always obtain consent prior to treatment
Dentists are legally required to obtain patient consent for every procedure, no matter how minor. In Ontario, this requirement is included and defined in the Health Care Consent Act, 1996 (“HCCA”). The HCCA identifies the following elements of consent:
1. The consent must relate to the treatment;
2. The consent must be informed;
3. The consent must be given voluntarily; and
4. The consent must not be obtained through misrepresentation or fraud.
According to the legislation and College policies, consent cannot be obtained retroactively, and must be obtained before initiating treatment.
2. Ensure that consent is informed
Dentists are required to obtain informed consent. This means that patients must understand the treatment for which they are providing their consent. Dentists should discuss and explain all reasonable treatment options with patients, as well as all other relevant information, including the risks, benefits, costs, and possible sequelae of treatment. When providing patients with any written forms pertaining to their proposed treatment, it may be prudent to read these forms together aloud. Discussions should be specific rather than general, patients should have the opportunity to ask questions, and dentists should confirm their patients’ understanding.
3. Ensure that consent is obtained for each part of the treatment plan
It is important to explain every stage of treatment to patients, and to obtain informed consent for each stage. As patients generally do not have the same specialized knowledge as dentists, they may consent to one procedure without realizing that their overall treatment plan entails multiple related but separate procedures. This kind of issue may arise particularly in the context of billings or after there is an adverse treatment outcome.
4. Ensure that consent is current
Patients can revoke consent prior to or even during a procedure. Dentists should think of consent as an ongoing conversation with patients, and should take steps to ensure that consent is up-to-date. If there is a gap in time between the date of the initial consent and the date of the procedure, dentists should confirm that the patient continues to provide their consent. Dentists should inform patients of any unforeseen circumstances that may arise during a procedure and seek consent if this change supports altering the treatment plan.
5. Determine when it is prudent to obtain written informed consent
While it may not be practical for every procedure, obtaining patients’ written consent is the ideal practice within the dental office. This may not guarantee that consent is informed, but it will provide some documentary support for the proposition that consent was at least discussed. Dentists should exercise their discretion in determining when verbal versus written consent is appropriate.
6. The more serious/complicated the procedure, the more extensive the explanation
In our practice, we often assist dentists who have performed dental work that may have resulted in an adverse outcome, and are alleged to have done so without obtaining informed consent. Where treatment risks are more significant, dentists should take additional care to ensure that patients understand the possible outcomes, as well as the likelihood of such outcomes. It may be prudent to detail these risks in a document and then obtain the patient’s written informed consent.
7. Record discussions regarding consent in the patient chart
Dentists should keep a record of all consent discussions in the patient chart. If a dentist obtains a patient’s verbal informed consent but makes no record of this interaction, an outside Court of law or a dental College may determine that there was a lack of consent. Overly general notations may also be insufficient for recordkeeping purposes. For example, vague references to “risks and benefits” may not indicate what information the patient used to make their decision. Chart entries should detail the discussed treatment, the specific information provided, the patient’s comments, questions, and decision, and whether consent was obtained for treatment.
8. Generate comprehensive forms that address the matter of consent
Dentists should consider implementing structural and administrative supports that may assist them in obtaining and recording consent. These supports may include office policies and standard forms. Procedures that are more serious should have detailed consent forms. New patient forms may contain a section asking who is permitted to provide consent and whether consent is required from any other individuals. It may also be prudent for dentists to include a section on the new patient form in which patients can provide their consent for the collection and use of personal health information. In Ontario, this may assist dentists in complying with the requirements of the Personal Health Information Privacy Act (“PHIPA”).
9. Obtain consent from the appropriate person
Dentists should determine in each case who the appropriate individual or individuals are that can or must be consulted to obtain consent for a patient’s dental care. The answer may not be immediately obvious. For example, minor children of divorced parents may legally require consent from both parents. Depending on their age and maturity, minor patients may alternatively be capable of providing consent for their own treatment.
10. Review relevant legislation and policies on the subject of consent
It is prudent to review any relevant legislation and policies on the subject of consent. This may assist dentists in determining their specific obligations. For example, Ontario dentists should review the RCDSO’s Practice Advisory “Informed Consent Issues Including Communication with Minors and with Other Patients Who May Be Incapable of Providing Consent”.
About the Author
Josh Koziebrocki, LLB, BA (Hons), is the principal lawyer and founder of Koziebrocki Law. He represents numerous dentists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445 email@example.com | www.koziebrockilaw.com.
Thanks for the very well written article on consent!
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