Professional Documents
Culture Documents
BDA Consent 2016
BDA Consent 2016
Consent
Consent must be obtained by the clinician providing the treatment and is an A young person who has reached age 16 and is of sound mind can consent to
ongoing process, so effective communication with the patient is vital. Obtaining any surgical, medical or dental treatment1. If a young person understands the
consent must not be delegated to staff, although staff may be used to reinforce treatment proposed but refuses consent, a parent can consent to treatment
the information provided by the clinician. on their behalf although best practice would be for the parent to make an
application to the court to decide on the treatment. A parent cannot overrule
If you refer a patient for treatment by another clinician, including in-house consent to treatment given by a competent 16 or 17 year old.
referrals to a hygienist or therapist, you must obtain the patient’s consent for
the referral and ensure that they understand why they are being referred and the Children under age 16 who are of sufficient maturity and intelligence to
treatment or advice that they will receive as a result of the referral. The clinician understand fully the nature of the treatment proposed and its ramifications are
accepting a referred patient must confirm with the patient that they understand regarded as Gillick competent2. In deciding whether a child is Gillick competent,
why they have been referred and that they are still content for the treatment to the Fraser Guidelines (set down by Lord Justice Fraser in the Gillick case) may
be carried out. provide a useful reference:
• The clinician is satisfied that the young person will understand the
professional’s advice
• The young person cannot be persuaded to inform their parents
• Unless the young person receives treatment, their physical or mental health,
or both, are likely to suffer
• The young person’s best interests require them to receive advice or treatment with
or without parental consent.
Where the child is assessed as ‘Gillick competent’, a parent can give consent
and overrule a child’s refusal to receive treatment, but they cannot overrule the
child’s consent to treatment.
Where a child is taken into local authority care, the local authority may acquire Guiding principles
parental responsibility in addition to the child’s natural parents. Consent can Each Act contains guiding principles for providing care or treatment to a patient
be obtained from an authorised representative of the local authority. Where a who lacks capacity. These principles differ between England and Wales and
major surgical procedure is involved, the consent of the parents should also be Scotland but can be summarised as respecting the individual and acting in their
sought. best interests.
If a child under 18 is a ward of court, the court must provide consent for any In England and Wales the principles are:
major intervention.
• Every adult has the right to make his or her own decisions and must be
assumed to have capacity unless it is established that they lack it
• A person must be given all practicable assistance to make their own decision
before they are treated as being unable to do so
• Just because an individual makes what might be seen as an unwise decision,
they should not be treated as lacking capacity to make that decision
• Anything done or any decision made on behalf of a person who lacks capacity
must be done in their best interests
• Anything done for a patient who lacks capacity should restrict their basic
rights and freedoms as little as possible.
© BDA March 2016 Consent Page 4
In Scotland the principles are: A patient is unable to make the required decision if, after having been given the
necessary support, they are unable to:
• The decision must benefit the patient. Any intervention should only be made
if it will benefit the patient and if the benefit cannot reasonably be achieved • Understand the information relevant to the decision and the consequences
without the intervention (risks and benefits) of making or not making the decision
• The decision must restrict the patient’s freedom as little as possible while still • Understand that the information is of personal relevance
achieving the desired benefit • Retain the information
• The decision must take account of the patient’s past and present wishes and • Consider the information as part of the decision making process
feelings so far as they can be ascertained • Communicate their decision by talking, using sign language or other means.
• The decision must take into account the wishes and feelings of relevant
others, for example a relative, carer, or guardian – if it is reasonable and The results of the assessment should be recorded in the patient’s clinical
practicable to do so record together with an explanation of how you reached your conclusion. This
• You should encourage the patient to use their existing skills or develop new explanation is important if your assessment of capacity is challenged by the
skills to assist with decision making. patient or someone acting for them. If you have doubts about our assessment,
you should seek help from the patient’s medical practitioner.
Assessment of capacity
You must assess a patient’s capacity before carrying out any dental care or Best interests
treatment, taking into account whether or not the patient is able to understand If you assess a patient as lacking the mental capacity to make their own decision,
the proposed care or treatment, its benefits and risks, and to communicate their any decision or action that you take must be in their best interests and the first
decision to accept or decline. question you should ask is whether treatment is necessary at all.
Capacity should be assessed for each proposed treatment; a person may be Consider all the relevant circumstances relating to the need to make a decision
legally capable of some decisions and actions but not others. Involving the and, as far as possible, encourage the patient to participate. Do not make
relevant family, friends or carer or an Independent Mental Capacity Advocate (if assumptions about the patient’s best interests based on their age, appearance,
one has been appointed) can allow those who know the patient to advise you on condition, or any aspect of their behaviour. Where appropriate, consult with
the best methods of communication. Avoid expressing an opinion without first others, including family, carers and close friends.
conducting a proper assessment of the patient’s capacity to make the required
decision. Your records should demonstrate how you arrived at your decision and that, in
the circumstances, it was reasonable to believe that it was in the best interests
Always start with the assumption that the patient has the capacity to make the of the patient.
required decision. A two-stage approach requires you to carry out a ‘diagnostic
test’ followed by, if necessary, a ‘functional test’: The Adults with Incapacity (Scotland) Act 2000 allows patients who lack
capacity to be treated, provided a certificate of incapacity has been issued by an
• Does the patient have a mental impairment or disturbance? authorised practitioner and the general principles of the Act are observed. The
• If yes, does the impairment or disturbance makes the patient unable to make certificate of incapacity, must use the prescribed form and specify the period
the required decision? of valid authority. The period will depend on the condition or circumstances of
the patient and should not generally exceed one year. During the period of valid
authority, you have authority to do what is reasonable to safeguard or promote
the physical or mental health of the adult. If a patient requires multiple or
complex care, a treatment plan may be attached to the certificate.
(iii) Individuals can make a written or verbal statement about their preferences In Northern Ireland the care of incapacitated adults is governed by common law
for future care and treatment. If the individual subsequently loses capacity, so disputes are referred to the High Court.
you must consider the statement when determining what care and
treatment is in the patient’s best interests. If your professional judgement
differs from the patient’s stated preferences, you should keep a written
record of this in the patient’s clinical records.
Best practice is to obtain written consent, although oral consent is generally The best interests of the patient are paramount. If the patient is unable to consent to further
adequate for routine treatments, provided full records are maintained. Written necessary treatment – for example, if they have had a general anaesthetic or sedation –
consent is necessary where treatment involves extensive intervention and is it may be reasonable to proceed but you must be willing to account for your actions. If
essential for certain situations – for example, where conscious sedation is used. this scenario is likely, prior consent should be obtained. The patient should receive a full
explanation of the treatment provided and the reasons for it at the earliest opportunity
Implied consent (when the patient is sufficiently recovered to understand).
In limited circumstances consent may be implied – for example, a patient indicates
agreement to an examination by sitting in the dental chair and opening their mouth. Restricted consent
Consent to other types of dental procedures cannot normally be implied from A patient can consent to only part of a treatment plan and withhold consent
compliant actions; an open mouth does not mean that the patient has understood for any treatment that may later become necessary to ensure that the reasons
what the treatment will involve or the reasons for it. for it and any options are considered fully. Restricted consent must be properly
recorded and followed.
Informed consent
The principle of informed consent is to acknowledge individual autonomy and Material risks and benefits
avoid making assumptions about a patient’s views, values or code of conduct.
The patient must be warned of any substantial or unusual risks involved with their
Informed consent requires the patient to have sufficient information about the treatment and of any consequences that commonly occur – for example, the
proposed treatment to allow them to make a balanced judgement on whether to possibility of nerve damage in oral surgery procedures, perforation or instrument
proceed. You must ensure that the patient understands the reason for treatment, breakage in endodontics, and crown and bridge failures. You must decide which
the treatment options available, the risks that each option presents, methods of risks are material and require explanation.
pain control and the consequences of no treatment. The patient should have
the opportunity to consider the information and ask questions to help them to Case law from medical negligence and consent claims provides guidance on the
arrive at a decision. The onus is on you, as the treating clinician, to ensure that approach to take:
the patient understands.
The Bolam v Friern Hospital Management Committee (1957) established the
Treatment plans and estimates can provide a useful record of the information Bolam test. It was held that a doctor is not negligent if they act in a way that
given to patients about their dental care needs and treatment options. If you use a competent doctor would act and their actions are supported by a responsible
treatment plans in this way they must accurately reflect the discussion held and body of medical opinion. This rule applies to all clinicians, including dentists.
explanations given to the patient.
Sidaway v Board of Governors of Bethlem Royal and the Maudsley Hospital
Specific consent (1985) affirmed the Bolam test and extended it to require that a patient should
Specific consent means that the patient gives express consent to each procedure receive sufficient information about the risks to allow them to reach a balanced
to be undertaken. An agreement to undertake a course of treatment without judgement. The health professional must take all relevant factors into account
knowing what is to be done is not specific consent – for example, giving – such as the severity and likelihood of the risk to the particular patient and the
informed consent to sedation does not mean that the patient has consented to patient’s need for the procedure. The patient must be informed if there is a risk
the treatment that is to be provided. The patient must understand the precise of grave and adverse consequences.
nature of the treatment that is to be undertaken.
When explaining the benefits of the various treatment options, take care not Do not undertake treatment that will cause permanent damage to the dentition
to overstate or exaggerate the outcomes for a particular treatment. You must or will be of no clinical or cosmetic benefit. If the treatment fails, the patient
be able to substantiate any claims about benefits and avoid raising patients’ may seek damages for negligence or a refund of treatment costs. You may find
expectations of the benefits or results of particular treatments. it difficult to establish that treatment was undertaken with the required skill
and care. A signed statement from the patient instructing you to carry out the
Duress treatment and absolving you from any of the stated adverse consequences, may
not provide a valid defence in court or before the GDC.
Consent must be given voluntarily and freely; if obtained under duress, consent
is not valid. In addition to obvious force, duress includes other forms of undue
influence, including for example, emotional or financial pressure. When obtaining
consent in the presence of third parties, especially family members, ensure that
the third party does not unduly influence the patient to give consent.
Where research uses data from patients’ records, the patient’s explicit consent
must be obtained or the data must be encoded or anonymised.
Consent forms
A signed consent form is best practice and can demonstrate patient consent
but does not, by itself, prove that the patient has understood and agreed to
what is being proposed. It is, therefore, no substitute for discussing treatment
needs and options with the patient in a way that ensures they understand what
is being proposed and allows them to make a choice freely. For some procedures
(conscious sedation, for example), written consent is a professional requirement.
• The name and address of the patient (and, if applicable, their parent or
guardian)
• Details of the treatment and the costs
• A declaration that the patient understands the nature of the treatment and
gives their consent, with a space for them to sign and date the statement
• A declaration by the clinician that they have an up-to-date medical history for
the patient, have explained the treatment and are satisfied that the patient
understands