Consent concerns

In today’s ever-changing world, where social media is omnipresent and our decisions are scrutinised constantly, the thorny issue of consent is now more than ever firmly front and centre, as Dr Paul O’ Dwyer BDS MSc explores.

Consent for dental treatment is at the heart of what we do in terms of dental service and treatment. Current thinking on consent has yielded a helpful definition: “…the giving of permission or agreement for an intervention, receipt or use of a service or participation in research following a process of communication about the proposed intervention”. This is (as with all involved definitions) a little unwieldy (to say the least), but the spirit of its meaning is evident. 

When we examine the elements that constitute consent, we usually see the following domains: decision-making capacity, disclosure of information, understanding, voluntariness and agreement. Each individual element is required to establish consent. 

One tenet which has been given almost certainty is the age of consent – which remains at 16 years of age.

I, more than anyone, understand that pressures of time, time management and patient management mean that the subtle nuances of these elements can be hard to singularly define, identify and satisfy. The busy dental surgery can be a place of constant “go”, but making sure patients are fully informed and capable of reaching a decision is kernel to securing consent ñ and treatment acceptance. It is also self-evident that acceptance of treatment means that alternatives have also been discussed. Our colleagues in the indemnity world are better versed to discuss such intricacies ñ but working at the coal face is a great teacher, too.

The updated Assisted Decision Making (Capacity) Act (2015) commenced in June 2022. A new guidance document, issued by the HSE, it is worth reviewing as it clearly elucidates some of the more involved elements of consent. For those of us working with vulnerable patients, there is significant guidance for ‘Decision Making Representativesî ñ and an entirely new vocabulary/glossary which clearly outlines patients and carers’ roles. 

From close reading of the available material, a review of the new Act, and from discussing this with experts in the field, it appears that there is a concerted effort to allow more autonomy to each patient. Those who, under previous legislation (and practice) may have been considered to lack any capacity, may now have their wishes and consent more appreciated via this new legislation. 

One tenet which has been given almost certainty is the age of consent – which remains at 16 years of age, in keeping with the 2013 Act. Previously in practice, it had been the custom by many to assume that for those under 18, consent is sought from family, next of kin, carer, responsible person etc.

As the law commences, time will tell the full impact and consequence of these changes.

At the heart of all of the advice on consent rest two important, fundamental truths – information and the ability to absorb/understand and reflect. A review of the Royal College of Surgeons” Advice (England) will show that they advocate that consent is obtained “…prior to surgery…(with)… sufficient time and information to make an informed decision.” They also strongly suggest “…the timing and duration of the discussion should take into account the complexity and risks… and a written (version)… which enable(s) them to reflect and confirm the decision”. 

This idea of a “cooling off period” is akin to mortgage purchase. The literature is quite specific on this, and directly correlates the complexity/risk to the amount of information and (importantly) time between consent and procedure. This can have implications for treatments “on the day”. There is much debate in legal circles on this very topic – and when to proceed to intervention (if merited), having just met the patient. While less involved and lower risk procedures can certainly support immediate intervention (particularly when treatment need is clearly demonstrable), it can be harder to justify for elective interventions which hold a higher risk threshold, particularly of permanent injury. Giving the patient time to reflect, with written information or even a second review, can safely eliminate that challenge.

As the law commences, time will tell the full impact and consequence of these changes.

Published: 30 July, 2022 at 09:00