A recent Supreme Court judgment has effectively introduced the principle of 'informed consent' to the law of negligence. Rupert Hoppenbrouwers assesses the implications for dental professionals.
In recent years, the ethical standards demanded of dental professionals when seeking consent have increasingly focused on what patients themselves might want to know about the treatment options and the associated risks.
If a patient sued for clinical negligence, the civil courts would determine whether a dental professional had obtained valid consent with reference to the standards adopted by a responsible body of professional opinion, provided this was considered reasonable. This reflected the precedents established in the cases of Bolam (1957) and Sidaway (1985).
Now the Supreme Court has aligned the legal standard for consent with the patient's standpoint.
An evolving legal picture
The case of Montgomery v Lanarkshire Health Board  UKSC 11 concerned a medical claim, but the principle is also likely to apply in dental cases where there is a similar obligation to obtain consent. According to the judgment, a practitioner is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives.
A risk is 'material' if a reasonable person in the patient's position would be likely to attach significance to it.
The Court ruled that a risk is 'material' if a reasonable person in the patient's position would be likely to attach significance to it, or if the practitioner is or should reasonably be aware that that particular patient would be likely to attach significance to it.
The Court made three further points:
- The assessment of whether risk is material is no longer an issue of a percentage possibility of it arising. The significance of a risk to a particular patient reflects, for example, the nature of the risk, the effect it would have on the life of the patient if it were to happen, the importance to the patient of the benefits of the treatment, and alternative treatments and the risks associated with them.
- The practitioner's role is to talk to the patient to ensure the patient understands the seriousness of the condition, the anticipated benefits of the proposed treatment and the risks it carries, and any reasonable alternatives. Information provided to the patient must be comprehensive, but not so technical that the patient could not reasonably be expected to understand it, and would therefore not be properly informed.
- There is a therapeutic exception to providing comprehensive information, which is when the information would be seriously detrimental to the patient's health, or when treatment is required in circumstances of necessity. This is a limited exception and should not be abused, the court warned.
Implications for dental professionals
The GDC's current standards document includes detailed guidance on obtaining valid consent and sets out the information that should be shared with the patient (see box below). But even though most dental professionals understand the significance of this aspect of their practice, it is worth reiterating the important consent principles highlighted by the Supreme Court ruling:
- Consider what a reasonable patient might wish to know, and understand that a rare but recognised complication might have particular significance for a particular individual.
- Explain the alternative options that are realistically available to a patient and the pros and cons of having no treatment at all. This is particularly relevant where a procedure is being considered for cosmetic reasons.
- View obtaining valid consent as an ongoing process rather than a single conversation or a signature on a form. Each appointment offers another chance to discuss the nature and risks of the procedure and check the patient's understanding. The more opportunities patients have to reflect on their treatment options and raise questions, the more likely it is that they will be fully engaged with the decision-making process and aware of the risks which matter to them. Equally, it becomes harder to allege that consent was given under duress.
- Make reasonable efforts to address each patient’s particular communication needs. Information should always be provided in plain language which the patient will understand, but you could, for example, consider also offering a hearing loop for patients with hearing loss or an interpreter for those whose first language is not English; using visual aids for someone with learning difficulties; or, with the patient's consent, enlisting the help of a relative or carer.
- Ensure consent is properly and consistently recorded because disputes about the adequacy of consent often arise in clinical negligence claims some time later. As well as noting that consent was obtained, you should record details of what information you gave, and what you discussed with, the patient.
GDC guidance - what patients need to know
In Standards for the Dental Team (2013), the GDC says you must obtain valid consent before starting treatment, explaining all the relevant options. The GDC expects you to find out what your patients want to know as well as what you think they need to know. It suggests these might include:
- options for treatment, the risks and the potential benefits;
- why you think a particular treatment is necessary and appropriate for them;
- the consequences, risks and benefits of the treatment you propose;
- the likely prognosis;
- your recommended option;
- the cost of the proposed treatment;
- what might happen if the proposed treatment is not carried out; and
- whether the treatment is guaranteed, how long it is guaranteed for and any exclusions that apply.
Senior dento-legal adviser
Rupert Hoppenbrouwers (BDS LDSRCS) was head of the DDU until his retirement at the end of 2015. He is a former general dental practitioner and was director of the School of Dental Hygiene at University College Hospital, London, from 1980 to 1986. He has lectured and written widely on risk management and dento-legal matters, has previously chaired the UK Dental Law and Ethics Forum, and has a particular interest in complex ethical and legal issues affecting dental members.
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