Australian Dental Journal
The official journal of the Australian Dental Association
Australian Dental Journal 2015; 60: 138–142 doi: 10.1111/adj.12301
Consent: a practical guide BS Khoury,* JN Khoury† *Barrister and Solicitor of the Supreme Court of South Australia. †School of Dentistry, The University of Adelaide, South Australia.
ABSTRACT Societal change through an increase in knowledge and accessibility of education as well as a push for autonomy has contributed to a shift in the balance of power from clinician to patient (especially in the last 20 years). This drive for personal autonomy has seen a shift from medical paternalism, a consequence of ignorance, to personal autonomy, a continuously evolving by-product of 17th century liberalism as expressed and facilitated by access of information. Consequently, patient-centred care has become the new standard for health care involving a two-way communication process of shared information and informed decision-making. At its centre is the patient’s right to accept or decline treatment recommended by a clinician, be it detrimental or beneficial. Clinicians must recognize and appreciate this shift to patient-centred care and its legal ramifications. Keywords: Assault, competency, consent, informed consent, voluntariness. (Accepted for publication 11 January 2015.)
Historically, consent has served to protect bodily integrity, freedom of movement and unhindered enjoyment of land and goods; yet in light of recent prosecutions, it remains a fundamentally misunderstood concept within the health care profession including dentistry. Consent while sometimes considered a ‘tick the box’ prerequisite, a single event in the provision of care, is rather, a process of information sharing through an open and frank ongoing dialogue with the patient. This information-sharing process empowers the patient to make a fully informed decision to accept or decline treatment with the final step being the documentation of consent within contemporaneous clinical notes. This article explores the legal requirements of consent and how the dental team can successfully satisfy the legal requirements through open communication with patients about their dental care.
dental treatment, not the consequences.6 However, the protection of autonomy at the centre of patientcentred care may at times generate tension with a clinician’s duty to act in the best interests of the patient or to do no harm (e.g. purulent swelling causing closure of airway where the patient demands to be treated with antibiotics alone with no attempt to remove the cause of infection and drainage of infected area).4,7 Clinicians who intentionally or recklessly render treatment without consent of the patient may constitute ‘trespass to the person’ which is similar to trespass of land.3 Under such claims, patients do not have to prove injuries, and in fact, may have been unaware or even benefited from the treatment.8,9 Clinicians should not presume consent over proposed treatment just because patients do not voice objections or show signs of resistance.10 Innocent mistakes are no defence.11 Ultimately, the courts are the final arbiter of whether consent was gained for a procedure.12
Consent
Consent vs ‘informed consent’
In Australia, it is well recognized that an adult patient of sound mind has a right to determine what happens to their own body. This right has been acknowledged in numerous overseas jurisdictions1 and in Australia.2,3 Consent to a procedure ‘transfers what would otherwise be unlawful into acceptable’.4,5 It involves the patient consenting to the broad nature of the proposed
Consent is the final product of a two-way conversation between the clinician and the patient. As part of this conversation, the clinician will often also outline the patient’s clinical position, the possible treatment options, the risks associated and the success and failure rates of each proposed treatment and consequences of no treatment as well as the relevant costs.
INTRODUCTION
138
© 2015 Australian Dental Association
Consent: a practical guide This is referred to as ‘informed consent’ which was adopted from American legal authorities.2,6 Practically, consent to or refusal of treatment, and risks and consequences of treatment are dealt with together by a clinician; but in a legal sense they are quite distinct and separate, both requiring satisfaction to avoid liability. For example, a clinician may be found at fault for failing to obtain consent for a given procedure despite there being no negligence in the performance of the procedure.13 Therefore, the High Court of Australia stated that the merging of consent and negligence into the one term ‘informed consent’ is ‘. . . apt to mislead’.4,6 Criminal assault In light of recent prosecutions of clinicians for criminal assault, clinicians must appreciate and understand the intentional or reckless threat of or use of force on someone14 as little as a mere touch (e.g. examination of temporomandibular joint)15 without consent may also constitute criminal assault.16–21 This article does not attempt to undertake a thorough review of criminal assault law; however, clinicians must recognize the importance of developing a good two-way conversation with the patient concerning their dental care. This information sharing process not only assists crossing the chasm that separates the clinician’s and patient’s world but also empowers patients to make a fully informed decision about their dental care. It is also important to note that professional indemnity insurance may not always cover claims arising out of criminal conduct. Validity of consent Consent of a patient must be freely given by an adult person of sound mind over a specific procedure to be performed to be considered valid. Consent to or refusal of treatment as a defence can be either express (e.g. a signed consent form) or implied (e.g. the patient opening the mouth for a clinician to undertake an oral examination). Nevertheless, it should be recorded within contemporaneous clinical notes of the appointment in line with the Dental Board of Australia ‘Guidelines on dental records’. This is an important part of good risk management policy should consent be contested.22,23 Elements of consent Consent is a process of sharing information and informed decision-making rather than a stand-alone event;24 however, it can be helpful for understanding to break-up consent into three distinct legal elements of volition, capacity and specificity. © 2015 Australian Dental Association
Volition Consent from a patient must be given freely under no undue influence including coercion, threats or bribery from staff or family (Fig. 1);25 although this should be distinguished from a family assisting a patient in making a free and independent decision about their dental care.25 In contrast, a patient’s consent procured while under the influence of a sedative (diazepam), drugs (legal or illegal) or sleep deprivation which impairs cognitive processes may well be invalid. In such cases, the patient is in a vulnerable position unable to make a considered and informed decision about their dental care.26,27 Moreover, the clinician must also be careful not to compromise consent through imposing undue pressure on patients through unrealistic time constraints for dental care decisions, continuing with a consultation despite the need for an interpreter,28 insinuating that if the treatment is not done on the day that there are no further appointments for the next month or overly promoting a particular way of treatment over an alternative. Capacity An adult patient must also have the capacity to consent. Capacity may be lost due to poor health, age or illness such as dementia, intellectual disability, brain trauma or mental illness (Fig. 1).29 ‘An adult is presumed to have capacity to accept or to refuse medical treatment unless and until that presumption is rebutted’ by the facts or circumstances of the case.30 Accordingly, a clinician should not question a patient’s capacity merely because a decision appears illogical, irrational or based on a set of beliefs that are inconsistent with scientific understandings, published peer reviewed literature or contrary to acceptable social norms.24 How to determine capacity? A clinician will have to a make a case-by-case patient-to-patient clinical call on whether they have capacity to consent over treatment. However, just because a patient has a mental illness should not mean they are incapable of consenting to or refusing treatment. A clinician needs to establish a link between the impairment and the decision to accept or decline treatment for incapacity to be established in Australia.31 Australian courts have adopted the English approach for determining capacity.32 The factors to be taken into consideration are whether the patient is able to: (1) absorb the information; (2) retain the information; (3) accept and comprehend the information; and (4) evaluate risks and make a fully informed decision.32,33 139
BS Khoury and JN Khoury Praconers should ask the following quesons when seeking consent from an adult Is the paent’s decision free from undue influence (i.e. coercion and threats) from staff or family?
YES Does the paent have capacity to consent?
YES
Consent is valid if it is freely given and covers the specific proposed
YES
Healthcare may be provided that is reasonable and necessary for the preservaon of life
NO
Is the paent’s life in imminent risk?
Praconer must comply with court order
NO
Is there a court order, advance direcve, medical agent or court/tribunal appointed guardian?
Praconer may provide healthcare in accordance with advance YES Medical agent must consent
Guardian must consent
NO
Is there a statutory person responsible (ie NSW, Qld, VIC, TAS)?
YES
The statutory responsible person must provide consent
YES
Clinician advised to not proceed with treatment given risk of ligaon
NO
No Consent
Fig. 1 The orange boxes represent the three essential elements that must be satisfied for valid consent. The blue boxes represent the defence of emergency and the green boxes represent loss of capacity due to poor health.
This evaluation is made at the time of accepting or refusing treatment.27 This test of competency is now largely been incorporated into legislation.34 In practice, a useful way to test capacity is to ask the patient to reiterate or paraphrase what was explained to them about the proposed procedure. Based on the patient’s replies, the clinician will be able to assess the patient’s ability to absorb, retain and comprehend information about the proposed procedure, the basis for acceptance or rejection of the information shared and their ability to weigh the risks and complications of treatment or non-treatment. If the clinician establishes a link between the impairment and the decision to accept or refuse treatment, the patient is not capable of providing consent over treatment. Incapacity Should a patient lack the capacity to consent over dental treatment, the Guardianship Board has power to appoint someone to make decisions on their 140
behalf.35–42 This Board is also able to grant acceptance to or refusal of dental treatment for a person without someone appointed to consent on their behalf.43,44 Specificity Consent must also cover the specific treatment to be rendered. For example, consent to restore an abrasion lesion is not consent for a more invasive filling or root canal treatment.45 To minimize this risk of the treatment falling outside the scope of consent, the clinician as part of the two-way conversation should not only outline the general nature of the proposed treatment but also any foreseeable extension of treatment that could arise during the course of the procedure as convenience is no defence (Fig. 1).46 In this way, the patient is more informed and involved in decisions about their dental care, and more prepared should they need more invasive treatment. © 2015 Australian Dental Association
Consent: a practical guide However, consent may still be invalidated in cases of misrepresentation as to the necessity of treatment even though within the scope of the consent. In Dean v Phung [2012] NSWCA 223, the patient sustained minor damage to front teeth in a workplace accident; yet, the clinician carried out root canal therapy and fitted crowns on every tooth in their mouth. The New South Wales Court of Appeal held that the misrepresentation to the patient as to the necessity of treatment invalidated consent to the treatment.3 Clinicians must be mindful not to withhold information, misrepresent the necessity or urgency of treatment to patients (e.g. pushing for implants when more conservative options are available). Defences In some situations, a patient is unable to consent over dental treatment such as with brain trauma. In such circumstances, clinicians may implore the defence of emergency or act in accordance with an order, directive or agent if consent is contested. Emergency and necessity In practice, clinicians may find themselves with an unconscious or concussed patient, e.g. on the local sporting field, in need of immediate treatment reasonable and necessary to save his or her life. In such cases clinicians may provide treatment that is reasonable and necessary to preserve life, imploring the defence of emergency and associated principle of necessity to a claim in battery or criminal assault (Fig. 1).46,47 However, for this defence to apply, a clinician must not be able to obtain consent without risk to the patient’s life; but if time permits, they may need to obtain the written opinion of another clinician who has examined the patient.48 Incapacity Alternatively, a patient may present for dental treatment suffering incapacity to consent over treatment due to poor health. In such a case, the clinician may rely upon the authority of a court order, guardianship order, advance directive (a document containing the wishes of the patient on loss of capacity) or medical agent (a person who makes health care decisions on behalf of someone without capacity such as a power of attorney) for valid consent. Traditionally, a clinician was unable to accept the consent of family on behalf of the patient suffering incapacity; however, some state jurisdictions have amended the general law through legislation to permit ‘responsible persons’ including a spouse, carer or relative to consent over dental treatment (Fig. 1).49–51 © 2015 Australian Dental Association
What to do if no ‘responsible person’ is available? Clinicians with patients suffering incapacity due to poor health and who do not have an available ‘responsible person’ may apply for an order to the Supreme Court or Family Court of Australia. But more commonly, clinicians rely upon an available advance directive (written or oral) produced in anticipation of incapacity,52–57 or the direction of an appointed guardian or medical agent to provide consent on the patient’s behalf. In such cases, the clinician should inspect the relevant documents, retain a copy for records and be satisfied that it was produced when the adult patient was competent,58 free from undue influence27 and applicable to the circumstances as envisaged by the patient (e.g. the advance directive intends to cover the proposed medical and dental treatment).59 And where a guardian or medical agent is appointed, the clinician should ensure that the guardian or agent is a competent adult over 18 years of age.60 Clinicians who comply with such orders, directives or appointments are protected should consent be contested. CONCLUSIONS Consent remains a source of protection for patients from unwanted interference to bodily integrity. Not dissimilar to other medico-legal constructs, consent is an organic concept shaped in some degree by the prevailing views of society. Clinicians are strongly advised to engage patients in a two-way conversation about their dental health including the available treatment options, the risks associated, and the success and failure rates for each given option as well as alleviating any concerns and anxieties they may have over proposed treatment giving consideration to their circumstances, beliefs and priorities. A successful information-sharing process results in a more informed patient who is more realistic about possible treatment outcomes and less likely to adversely react over unexpected outcomes to treatment and, ultimately, the risk of unnecessary litigation. REFERENCES 1. Schloendorff v The Society of the New York Hospital (1914) 105 NE 92 at 93. 2. Rogers v Whitaker (1992) 175 CLR 479 at 490. 3. Dean v Phung [2012] NSWCA 223 at [30]-[31]. 4. Secretary, Department of Health Community Services (NT) v JWB and SMB (1992) 175 CLR 218 at 233-234. 5. Luntz H, Hambly D, Burns K, Dietrich J, Foster N. Torts Cases and Commentary. 6th edn. Melbourne: LexisNexis Butterworths, 2009. 6. Rosenberg v Percival (2001) 205 CLR 434 at 434-440. 7. St George’s Healthcare NHS Trust v S [1999] Fam 22 at 46-47. 141
BS Khoury and JN Khoury 8. Boughey v The Queen (1986) 161 CLR 10 at 21-27.
36. Guardianship and Administration Act 1993 (SA), s. 29.
9. Candutti v ACT Health and Community Care [2003] ACTSC 95 at [35]-[37].
37. Guardianship and Management of Property Act 1991 (ACT), s. 7.
10. Shulman v Lerner (1966) 2 Michigan App 707 at 707-708.
38. Adult Guardianship Act 1988 (NT), s. 8.
11. Reibl v Hughes (1980) 114 DLR (3d) 1.
39. Guardianship and Administration Act 2000 (Qld), s. 12.
12. Civil Liability Act 2002 (NSW), s. 5.
40. Guardianship and Administration Act 1990 (WA), s. 43.
13. Reeves v The Queen [2013] HCA 57 at [35].
41. Guardianship and Administration Act 1986 (Vic), s. 22.
14. Bronitt S, McSherry B. Principles of Criminal Law. 2nd edn. Sydney: Thomson Lawbook Co., 2005.
42. Guardianship and Administration Act 1995 (Tas), s. 20.
15. Collins v Wilcock [1984] 2 All ER 374 at 379.
44. Guardianship and Administration Act 1993 (SA), s. 59.
16. Beal v Kelley [1951] 2 All ER 763. 17. Criminal Law Consolidation Act 1935 (SA), s. 20(1).
45. Candutti v ACT Health and Community Care [2003] ACTSC 95 at [33]-[35].
18. Criminal Code Act Compilation Act 1913 (WA), s. 222.
46. Murray v McMurchy [1949] 2 DLR 442 at 444.
19. Criminal Code Act 1899 (Qld), s. 245.
47. Emergency Medical Operations Act 1973 (NT), s. 3(1).
20. Criminal Code Act 1924 (Tas), s. 182(1).
48. Consent to Medical Treatment and Palliative Care Act 1995 (SA), s. 13.
21. Criminal Code Act 1983 (NT), s. 187(a). 22. Dental Board of Australia. Guidelines on dental records. 1 July 2010. 23. Health Practitioner Regulation National Law Act 2009 (Cth), s. 39.
43. Guardianship Act 1987 (NSW), s. 44.
49. O’Neill N, Peisah C. Advanced directives, the right to die and the common law: recent problems with blood transfusions. In: Capacity and the Law. Sydney: Sydney University Press, 2011. 50. Guardianship Act 1987 (NSW), s. 33A.
24. Henwood S, Edwards I, Wilson M. The role of competence and capacity in relation to consent for treatment in adults. Br Dent J 2006;200:18–21.
51. Guardianship and Administration Act 1986 (Vic), s. 37(1).
25. Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113.
53. Consent to Medical Treatment and Palliative Care Act 1995 (SA), s. 7(3)(a)(ii).
26. Beausoleil v La Communitie des soeurs da la Providence [1964] 53 DLR (2d) 65.
52. MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at 238.
54. Powers of Attorney Act 1998 (Qld), ss. 35, 36(1)(a).
27. Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649 at 662-663.
55. Guardianship and Administration Act 1990 (WA), s. 110S(1) (a).
28. Goldsmith C, Slack-Smith L, Davies G. Dentist-patient communication in the multilingual dental setting. Aust Dent J 2005;50:235–241.
57. Natural Death Act 1988 (NT), s. 4.
29. Stewart C. Advanced directives, the right to die and the common law: recent problems with blood transfusions. Melbourne University Law Review 1999;23:161–183. 30. Re MB [1997] 2 FLR 426 at 439. 31. Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 at 291-294. 32. Re Bridges [2001] 1 Qd R 574. 33. Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 at 295. 34. Stewart C, Biegler P. A primer on the law of competence to refuse medical treatment. ALJ 2004;78:325–342. 35. Guardianship Act 1987 (NSW), s. 14.
142
56. Medical Treatment Act 1994 (ACT), s. 6. 58. R (on the application of Burke) v General Medical Council [2005] QB 424 at 440. 59. HE v A Hospital NSH Trust [2003] 2 FLR 408 at 417. 60. Collier B, Coyne C, eds. Mental capacity: powers of attorney and advance health directives. Sydney: The Federation Press, 2005.
Address for correspondence: Mr Benjamin Samuel Khoury 542 Main South Road Old Noarlunga SA 5168 Email: [email protected]
© 2015 Australian Dental Association
The official journal of the Australian Dental Association
Australian Dental Journal 2015; 60: 138–142 doi: 10.1111/adj.12301
Consent: a practical guide BS Khoury,* JN Khoury† *Barrister and Solicitor of the Supreme Court of South Australia. †School of Dentistry, The University of Adelaide, South Australia.
ABSTRACT Societal change through an increase in knowledge and accessibility of education as well as a push for autonomy has contributed to a shift in the balance of power from clinician to patient (especially in the last 20 years). This drive for personal autonomy has seen a shift from medical paternalism, a consequence of ignorance, to personal autonomy, a continuously evolving by-product of 17th century liberalism as expressed and facilitated by access of information. Consequently, patient-centred care has become the new standard for health care involving a two-way communication process of shared information and informed decision-making. At its centre is the patient’s right to accept or decline treatment recommended by a clinician, be it detrimental or beneficial. Clinicians must recognize and appreciate this shift to patient-centred care and its legal ramifications. Keywords: Assault, competency, consent, informed consent, voluntariness. (Accepted for publication 11 January 2015.)
Historically, consent has served to protect bodily integrity, freedom of movement and unhindered enjoyment of land and goods; yet in light of recent prosecutions, it remains a fundamentally misunderstood concept within the health care profession including dentistry. Consent while sometimes considered a ‘tick the box’ prerequisite, a single event in the provision of care, is rather, a process of information sharing through an open and frank ongoing dialogue with the patient. This information-sharing process empowers the patient to make a fully informed decision to accept or decline treatment with the final step being the documentation of consent within contemporaneous clinical notes. This article explores the legal requirements of consent and how the dental team can successfully satisfy the legal requirements through open communication with patients about their dental care.
dental treatment, not the consequences.6 However, the protection of autonomy at the centre of patientcentred care may at times generate tension with a clinician’s duty to act in the best interests of the patient or to do no harm (e.g. purulent swelling causing closure of airway where the patient demands to be treated with antibiotics alone with no attempt to remove the cause of infection and drainage of infected area).4,7 Clinicians who intentionally or recklessly render treatment without consent of the patient may constitute ‘trespass to the person’ which is similar to trespass of land.3 Under such claims, patients do not have to prove injuries, and in fact, may have been unaware or even benefited from the treatment.8,9 Clinicians should not presume consent over proposed treatment just because patients do not voice objections or show signs of resistance.10 Innocent mistakes are no defence.11 Ultimately, the courts are the final arbiter of whether consent was gained for a procedure.12
Consent
Consent vs ‘informed consent’
In Australia, it is well recognized that an adult patient of sound mind has a right to determine what happens to their own body. This right has been acknowledged in numerous overseas jurisdictions1 and in Australia.2,3 Consent to a procedure ‘transfers what would otherwise be unlawful into acceptable’.4,5 It involves the patient consenting to the broad nature of the proposed
Consent is the final product of a two-way conversation between the clinician and the patient. As part of this conversation, the clinician will often also outline the patient’s clinical position, the possible treatment options, the risks associated and the success and failure rates of each proposed treatment and consequences of no treatment as well as the relevant costs.
INTRODUCTION
138
© 2015 Australian Dental Association
Consent: a practical guide This is referred to as ‘informed consent’ which was adopted from American legal authorities.2,6 Practically, consent to or refusal of treatment, and risks and consequences of treatment are dealt with together by a clinician; but in a legal sense they are quite distinct and separate, both requiring satisfaction to avoid liability. For example, a clinician may be found at fault for failing to obtain consent for a given procedure despite there being no negligence in the performance of the procedure.13 Therefore, the High Court of Australia stated that the merging of consent and negligence into the one term ‘informed consent’ is ‘. . . apt to mislead’.4,6 Criminal assault In light of recent prosecutions of clinicians for criminal assault, clinicians must appreciate and understand the intentional or reckless threat of or use of force on someone14 as little as a mere touch (e.g. examination of temporomandibular joint)15 without consent may also constitute criminal assault.16–21 This article does not attempt to undertake a thorough review of criminal assault law; however, clinicians must recognize the importance of developing a good two-way conversation with the patient concerning their dental care. This information sharing process not only assists crossing the chasm that separates the clinician’s and patient’s world but also empowers patients to make a fully informed decision about their dental care. It is also important to note that professional indemnity insurance may not always cover claims arising out of criminal conduct. Validity of consent Consent of a patient must be freely given by an adult person of sound mind over a specific procedure to be performed to be considered valid. Consent to or refusal of treatment as a defence can be either express (e.g. a signed consent form) or implied (e.g. the patient opening the mouth for a clinician to undertake an oral examination). Nevertheless, it should be recorded within contemporaneous clinical notes of the appointment in line with the Dental Board of Australia ‘Guidelines on dental records’. This is an important part of good risk management policy should consent be contested.22,23 Elements of consent Consent is a process of sharing information and informed decision-making rather than a stand-alone event;24 however, it can be helpful for understanding to break-up consent into three distinct legal elements of volition, capacity and specificity. © 2015 Australian Dental Association
Volition Consent from a patient must be given freely under no undue influence including coercion, threats or bribery from staff or family (Fig. 1);25 although this should be distinguished from a family assisting a patient in making a free and independent decision about their dental care.25 In contrast, a patient’s consent procured while under the influence of a sedative (diazepam), drugs (legal or illegal) or sleep deprivation which impairs cognitive processes may well be invalid. In such cases, the patient is in a vulnerable position unable to make a considered and informed decision about their dental care.26,27 Moreover, the clinician must also be careful not to compromise consent through imposing undue pressure on patients through unrealistic time constraints for dental care decisions, continuing with a consultation despite the need for an interpreter,28 insinuating that if the treatment is not done on the day that there are no further appointments for the next month or overly promoting a particular way of treatment over an alternative. Capacity An adult patient must also have the capacity to consent. Capacity may be lost due to poor health, age or illness such as dementia, intellectual disability, brain trauma or mental illness (Fig. 1).29 ‘An adult is presumed to have capacity to accept or to refuse medical treatment unless and until that presumption is rebutted’ by the facts or circumstances of the case.30 Accordingly, a clinician should not question a patient’s capacity merely because a decision appears illogical, irrational or based on a set of beliefs that are inconsistent with scientific understandings, published peer reviewed literature or contrary to acceptable social norms.24 How to determine capacity? A clinician will have to a make a case-by-case patient-to-patient clinical call on whether they have capacity to consent over treatment. However, just because a patient has a mental illness should not mean they are incapable of consenting to or refusing treatment. A clinician needs to establish a link between the impairment and the decision to accept or decline treatment for incapacity to be established in Australia.31 Australian courts have adopted the English approach for determining capacity.32 The factors to be taken into consideration are whether the patient is able to: (1) absorb the information; (2) retain the information; (3) accept and comprehend the information; and (4) evaluate risks and make a fully informed decision.32,33 139
BS Khoury and JN Khoury Praconers should ask the following quesons when seeking consent from an adult Is the paent’s decision free from undue influence (i.e. coercion and threats) from staff or family?
YES Does the paent have capacity to consent?
YES
Consent is valid if it is freely given and covers the specific proposed
YES
Healthcare may be provided that is reasonable and necessary for the preservaon of life
NO
Is the paent’s life in imminent risk?
Praconer must comply with court order
NO
Is there a court order, advance direcve, medical agent or court/tribunal appointed guardian?
Praconer may provide healthcare in accordance with advance YES Medical agent must consent
Guardian must consent
NO
Is there a statutory person responsible (ie NSW, Qld, VIC, TAS)?
YES
The statutory responsible person must provide consent
YES
Clinician advised to not proceed with treatment given risk of ligaon
NO
No Consent
Fig. 1 The orange boxes represent the three essential elements that must be satisfied for valid consent. The blue boxes represent the defence of emergency and the green boxes represent loss of capacity due to poor health.
This evaluation is made at the time of accepting or refusing treatment.27 This test of competency is now largely been incorporated into legislation.34 In practice, a useful way to test capacity is to ask the patient to reiterate or paraphrase what was explained to them about the proposed procedure. Based on the patient’s replies, the clinician will be able to assess the patient’s ability to absorb, retain and comprehend information about the proposed procedure, the basis for acceptance or rejection of the information shared and their ability to weigh the risks and complications of treatment or non-treatment. If the clinician establishes a link between the impairment and the decision to accept or refuse treatment, the patient is not capable of providing consent over treatment. Incapacity Should a patient lack the capacity to consent over dental treatment, the Guardianship Board has power to appoint someone to make decisions on their 140
behalf.35–42 This Board is also able to grant acceptance to or refusal of dental treatment for a person without someone appointed to consent on their behalf.43,44 Specificity Consent must also cover the specific treatment to be rendered. For example, consent to restore an abrasion lesion is not consent for a more invasive filling or root canal treatment.45 To minimize this risk of the treatment falling outside the scope of consent, the clinician as part of the two-way conversation should not only outline the general nature of the proposed treatment but also any foreseeable extension of treatment that could arise during the course of the procedure as convenience is no defence (Fig. 1).46 In this way, the patient is more informed and involved in decisions about their dental care, and more prepared should they need more invasive treatment. © 2015 Australian Dental Association
Consent: a practical guide However, consent may still be invalidated in cases of misrepresentation as to the necessity of treatment even though within the scope of the consent. In Dean v Phung [2012] NSWCA 223, the patient sustained minor damage to front teeth in a workplace accident; yet, the clinician carried out root canal therapy and fitted crowns on every tooth in their mouth. The New South Wales Court of Appeal held that the misrepresentation to the patient as to the necessity of treatment invalidated consent to the treatment.3 Clinicians must be mindful not to withhold information, misrepresent the necessity or urgency of treatment to patients (e.g. pushing for implants when more conservative options are available). Defences In some situations, a patient is unable to consent over dental treatment such as with brain trauma. In such circumstances, clinicians may implore the defence of emergency or act in accordance with an order, directive or agent if consent is contested. Emergency and necessity In practice, clinicians may find themselves with an unconscious or concussed patient, e.g. on the local sporting field, in need of immediate treatment reasonable and necessary to save his or her life. In such cases clinicians may provide treatment that is reasonable and necessary to preserve life, imploring the defence of emergency and associated principle of necessity to a claim in battery or criminal assault (Fig. 1).46,47 However, for this defence to apply, a clinician must not be able to obtain consent without risk to the patient’s life; but if time permits, they may need to obtain the written opinion of another clinician who has examined the patient.48 Incapacity Alternatively, a patient may present for dental treatment suffering incapacity to consent over treatment due to poor health. In such a case, the clinician may rely upon the authority of a court order, guardianship order, advance directive (a document containing the wishes of the patient on loss of capacity) or medical agent (a person who makes health care decisions on behalf of someone without capacity such as a power of attorney) for valid consent. Traditionally, a clinician was unable to accept the consent of family on behalf of the patient suffering incapacity; however, some state jurisdictions have amended the general law through legislation to permit ‘responsible persons’ including a spouse, carer or relative to consent over dental treatment (Fig. 1).49–51 © 2015 Australian Dental Association
What to do if no ‘responsible person’ is available? Clinicians with patients suffering incapacity due to poor health and who do not have an available ‘responsible person’ may apply for an order to the Supreme Court or Family Court of Australia. But more commonly, clinicians rely upon an available advance directive (written or oral) produced in anticipation of incapacity,52–57 or the direction of an appointed guardian or medical agent to provide consent on the patient’s behalf. In such cases, the clinician should inspect the relevant documents, retain a copy for records and be satisfied that it was produced when the adult patient was competent,58 free from undue influence27 and applicable to the circumstances as envisaged by the patient (e.g. the advance directive intends to cover the proposed medical and dental treatment).59 And where a guardian or medical agent is appointed, the clinician should ensure that the guardian or agent is a competent adult over 18 years of age.60 Clinicians who comply with such orders, directives or appointments are protected should consent be contested. CONCLUSIONS Consent remains a source of protection for patients from unwanted interference to bodily integrity. Not dissimilar to other medico-legal constructs, consent is an organic concept shaped in some degree by the prevailing views of society. Clinicians are strongly advised to engage patients in a two-way conversation about their dental health including the available treatment options, the risks associated, and the success and failure rates for each given option as well as alleviating any concerns and anxieties they may have over proposed treatment giving consideration to their circumstances, beliefs and priorities. A successful information-sharing process results in a more informed patient who is more realistic about possible treatment outcomes and less likely to adversely react over unexpected outcomes to treatment and, ultimately, the risk of unnecessary litigation. REFERENCES 1. Schloendorff v The Society of the New York Hospital (1914) 105 NE 92 at 93. 2. Rogers v Whitaker (1992) 175 CLR 479 at 490. 3. Dean v Phung [2012] NSWCA 223 at [30]-[31]. 4. Secretary, Department of Health Community Services (NT) v JWB and SMB (1992) 175 CLR 218 at 233-234. 5. Luntz H, Hambly D, Burns K, Dietrich J, Foster N. Torts Cases and Commentary. 6th edn. Melbourne: LexisNexis Butterworths, 2009. 6. Rosenberg v Percival (2001) 205 CLR 434 at 434-440. 7. St George’s Healthcare NHS Trust v S [1999] Fam 22 at 46-47. 141
BS Khoury and JN Khoury 8. Boughey v The Queen (1986) 161 CLR 10 at 21-27.
36. Guardianship and Administration Act 1993 (SA), s. 29.
9. Candutti v ACT Health and Community Care [2003] ACTSC 95 at [35]-[37].
37. Guardianship and Management of Property Act 1991 (ACT), s. 7.
10. Shulman v Lerner (1966) 2 Michigan App 707 at 707-708.
38. Adult Guardianship Act 1988 (NT), s. 8.
11. Reibl v Hughes (1980) 114 DLR (3d) 1.
39. Guardianship and Administration Act 2000 (Qld), s. 12.
12. Civil Liability Act 2002 (NSW), s. 5.
40. Guardianship and Administration Act 1990 (WA), s. 43.
13. Reeves v The Queen [2013] HCA 57 at [35].
41. Guardianship and Administration Act 1986 (Vic), s. 22.
14. Bronitt S, McSherry B. Principles of Criminal Law. 2nd edn. Sydney: Thomson Lawbook Co., 2005.
42. Guardianship and Administration Act 1995 (Tas), s. 20.
15. Collins v Wilcock [1984] 2 All ER 374 at 379.
44. Guardianship and Administration Act 1993 (SA), s. 59.
16. Beal v Kelley [1951] 2 All ER 763. 17. Criminal Law Consolidation Act 1935 (SA), s. 20(1).
45. Candutti v ACT Health and Community Care [2003] ACTSC 95 at [33]-[35].
18. Criminal Code Act Compilation Act 1913 (WA), s. 222.
46. Murray v McMurchy [1949] 2 DLR 442 at 444.
19. Criminal Code Act 1899 (Qld), s. 245.
47. Emergency Medical Operations Act 1973 (NT), s. 3(1).
20. Criminal Code Act 1924 (Tas), s. 182(1).
48. Consent to Medical Treatment and Palliative Care Act 1995 (SA), s. 13.
21. Criminal Code Act 1983 (NT), s. 187(a). 22. Dental Board of Australia. Guidelines on dental records. 1 July 2010. 23. Health Practitioner Regulation National Law Act 2009 (Cth), s. 39.
43. Guardianship Act 1987 (NSW), s. 44.
49. O’Neill N, Peisah C. Advanced directives, the right to die and the common law: recent problems with blood transfusions. In: Capacity and the Law. Sydney: Sydney University Press, 2011. 50. Guardianship Act 1987 (NSW), s. 33A.
24. Henwood S, Edwards I, Wilson M. The role of competence and capacity in relation to consent for treatment in adults. Br Dent J 2006;200:18–21.
51. Guardianship and Administration Act 1986 (Vic), s. 37(1).
25. Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113.
53. Consent to Medical Treatment and Palliative Care Act 1995 (SA), s. 7(3)(a)(ii).
26. Beausoleil v La Communitie des soeurs da la Providence [1964] 53 DLR (2d) 65.
52. MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at 238.
54. Powers of Attorney Act 1998 (Qld), ss. 35, 36(1)(a).
27. Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649 at 662-663.
55. Guardianship and Administration Act 1990 (WA), s. 110S(1) (a).
28. Goldsmith C, Slack-Smith L, Davies G. Dentist-patient communication in the multilingual dental setting. Aust Dent J 2005;50:235–241.
57. Natural Death Act 1988 (NT), s. 4.
29. Stewart C. Advanced directives, the right to die and the common law: recent problems with blood transfusions. Melbourne University Law Review 1999;23:161–183. 30. Re MB [1997] 2 FLR 426 at 439. 31. Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 at 291-294. 32. Re Bridges [2001] 1 Qd R 574. 33. Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 at 295. 34. Stewart C, Biegler P. A primer on the law of competence to refuse medical treatment. ALJ 2004;78:325–342. 35. Guardianship Act 1987 (NSW), s. 14.
142
56. Medical Treatment Act 1994 (ACT), s. 6. 58. R (on the application of Burke) v General Medical Council [2005] QB 424 at 440. 59. HE v A Hospital NSH Trust [2003] 2 FLR 408 at 417. 60. Collier B, Coyne C, eds. Mental capacity: powers of attorney and advance health directives. Sydney: The Federation Press, 2005.
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