Tips: Informed Consent

Carol Tekavec, CDA RDH

Aspects of Informed Consent

Informed consent laws vary from state to state, however parameters concerning what constitutes consent are fairly consistent. According to the ADA Division of Legal Affairs in the Journal of the American Dental Association November 2005 issue, “more than 15 states obligate dentists to obtain informed consent before placing patients under certain forms of anesthesia.” Some states specify by statue or regulation that the consent should be obtained in writing. Even, if it is not mandated by jurisdictional law, a written informed consent form can be an effective risk management tool for your dental practice.

It is important to remember that having a patient sign a written consent form does not excuse the dentist from the responsibility of having an adequate discussion with the patient about proposed treatment and explaining the risks of, benefits of, and possible alternatives to the proposed treatment.”

Consent might more correctly be described as a process rather than just a form. Discussions and explanations are crucial to fulfill the dual goals of understanding by the patient, and protection for the dentist.

According to the American Medical Association the first cases involving informed consent were based on a tort (which is a statute involving a “civil” wrong), of battery. Under a battery tort, there is frequently a liability for un-permitted touching. While it is conceivable for dental treatment to come under a “battery” allegation, consent now primarily centers around whether or not a patient was provided with sufficient information to give permission for a procedure on his/her body.

Since informed consent lawsuits are typically based on negligence (negligence to inform), a dentist’s liability insurance generally covers such a claim. Conversely, a battery claim would likely not be covered under liability insurance.

What standards, if any, exist about the quantity and quality of information that needs to be provided for a patient to give “informed consent”? Most literature indicates one of three “standards”.

Reasonable physician (dentist) standard: What would a typical dentist explain about the treatment and how it was to be performed? (Usually not considered as desirable as the reasonable patient standard because the focus is on the dentist, not on what the patient needs to know).
Reasonable patient standard:What would the average patient need to know in order to be an informed participant in the decision to accept a certain service?
Subjective standard: What would this particular patient need to know and understand in order to make a decision? (This standard is difficult since it requires tailoring information to each patient individually and implies that the dentist has more than a typical knowledge of a patient’s ability to understand).

Based on these standards, and specifically the reasonable patient standard, current thinking for informed consent suggests separate, treatment specific forms rather than simply a general treatment consent form. Forms should not be too long or use overly technical language. The idea is that a patient should be given the proper information, should be able to understand that information, and give an educated consent. This is why single sheet, single treatment forms are good. Easy to read—easy to understand.

Forms should follow accepted consent guidelines which are;

treatment recommendations,
risks of that treatment,
alternative treatments and the risks of these,
consequences of doing nothing,
fees to be charged,
a statement indicating that the patient’s questions have been answered and no guarantees offered.

It is essential for the patient to sign and date the form. The patient keeps a copy and the dentist retains one in the record.

While obtaining a signed informed consent form is important in backing up the consent process, it does not mean that a dentist may not be sued by a patient. Patients can always say that they did not understand their treatment or what they were signing. However, when documentation exists showing patient consent, it becomes more of the patient’s problem to prove he/she did not understand, rather than the dentist’s problem to defend the treatment. As always, the patient record is the key to any defense.

Now that we know that informed consent is important, what treatments or services require informed consent? One attorney has described this as treatment that is not “commonly done or easily understood”. However, this might cover any treatment offered by a dentist. How can the staff know what the patient understands? Who decides what treatment frequency makes it “commonly done”? Guidance from the “Ethics in Medicine” website offers this: “surgery, anesthesia, and invasive procedures" require a signed consent form. Many dental services would apply under this definition.

Carol is the author of the Informed Consent Booklet of 31 treatment specific consent forms available from McKenzie Management. They can take the guess work out of setting up the consent process.

Carol Tekavec CDA RDH is a practicing clinical hygienist, the president of Stepping Stones to Success, 11-year insurance columnist for Dental Economics magazine, and a speaker for the ADA Seminar Series. Contact her at : carol@steppingstonestosuccess.com or 800-548-2164.

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