How Dentists Can Properly Obtain Informed Consent

Providing excellent dental care requires trust and communication as well as professional competence. Certainly, patients demonstrate their trust in you by keeping their appointments, sitting in the dental chair, and opening their mouths on command.

But to protect both you and your patients, the law requires more formal types of patient consent. Dentists who do not strictly comply with consent laws open themselves to legal liability by failing to properly inform, discuss, and document treatment options with patients.

In this guide, we discuss how to properly obtain informed consent, how to document steps of the consent process, and how to handle patients who refuse to sign consent forms. We also have some sample forms you can review, although you should always check with your attorney before using any documentation to make sure you comply with the laws that apply to you.

What Is Informed Consent in Dentistry?

Informed consent in dentistry is the process of discussing advantages, disadvantages, risks, and alternatives for any proposed treatment along with formally obtaining a patient’s consent. During this discussion, the patient is given all relevant information to make a decision on a particular treatment. Informed consent is the process of providing this information, helping the patient understand the information, and allowing the patient to make a decision based on the information.

The 4 Principles of Informed Consent

According to the American Dental Association (ADA), there are four principles that define informed consent:

1. Patient’s capacity to make a decision
2. Dentist’s disclosure of risks
3. Patient’s comprehension of information
4. Patient giving consent freely (i.e., without coercion).

1. Capacity to Make a Decision

The patient must be mentally competent and able to understand what they are consenting to. You or your dental assistant should be ready and willing to answer any questions about the procedures to evaluate a patient’s ability to understand and make decisions.

Refusing treatment does not necessarily constitute diminished mental capacity. Patients have the right to refuse treatment even if you believe they are making a poor decision. “Competency” means patients can understand the implications of refusal and make an informed decision.

2. Disclosure of Risks

You must provide full and accurate information about any procedure. Whether you need to provide this information in writing or whether an oral explanation of treatment plans suffices depends on your state laws and your practice policies. You should check with your lawyer to determine what requirements apply to you. A written informed consent form should explain the benefits of the proposed treatment and any risks involved. It should also detail the likelihood of any negative impact.

3. Comprehension of Information

Patients must be able to understand the information that is presented and be allowed to ask any relevant questions before giving consent. To determine whether a patient comprehends the information provided, it is helpful to have a dialogue to ensure they know the consequences of their actions either to move forward or decline treatment.

You should document all relevant discussions, including diagnosis, treatment plan, prognosis, risk and benefits, and alternative treatments. You should also discuss the consequences of refusing treatment.

To aid comprehension, share information in the patient’s preferred language and, if helpful, include drawings, images, or other written materials.

According to a study published in the Journal of the American Dental Association, patients may think they understand the information provided, but they “do not always show [an] adequate level of understanding and information recollection from the informed consent processes.” You have an ethical and legal obligation to ensure patients understand the information presented and their options.

4. Consent Without Coercion

A patient must freely give consent without any coercion or duress. In other words, you and your staff must understand when professional advice or encouragement might stray over the line toward perceived pressure, intimidation, or even threats made concerning treatment. Encourage your patients to tell you their concerns — you might hear fears about the actual procedure to the healing process. But taking all patient concerns seriously will help them feel more comfortable making an informed decision.

To help gauge full informed consent, William Leffler, DDS, suggests using the acronym BARN, and always ask yourself: “Is (your patient) in the BARN?”:

• B: Do they understand the BENEFITS of your proposed treatment?
• A: Do they know their reasonable ALTERNATIVES to your proposed treatment?
• R: Do they understand the reasonably foreseen RISKS of your proposed treatment?
• N: Do they know what will happen if they do NOTHING?

When Should a Dentist Obtain Consent?

You should obtain consent whenever you provide treatment that may benefit or create risk for your patient. This includes routine treatments, such as fillings or cleanings, and more complicated procedures, such as root canals or surgery. It is essential to obtain the patient’s consent before beginning any treatment.

There are two types of consent:

1. General consent
2. Informed consent

Both types of consent should include a discussion between you and your patient in which consent to the procedure or treatment is the sole topic.

General Consent

General consent, according to the ADA, “is limited to a discussion regarding the performance of certain procedures that you’re recommending for that particular patient. Obtaining general consent means that the patient has given you permission to proceed with treatment and released you from the possibility of being [criminally] charged [e.g., for battery].” General consent does not have to be in writing and covers actions such as performing an exam, taking X-rays, or billing a patient’s insurance provider. General consent is required before a patient can be examined, for instance, or teeth cleaning can be done. It means that you don’t have to fully explain the work you’ll be doing — however, you need consent to touch the patient to get started.

Informed Consent

Informed consent is required for the more invasive procedures that might have some risk or harm involved. State laws vary on which dental treatments require informed consent vs general consent, so it is important to know the requirements for the state where you practice. For informed consent to be valid, you must have a discussion with the patient including an honest evaluation of any risk. According to the ADA, discussions should educate the patients about:

• Dental health concerns noted by the dentist
• The proposed treatment
• The potential benefits of a particular procedure, any associated risks, and the implications from declining treatment
• Any alternative treatments

The patient should also be able to ask you questions. While staff members can discuss treatment options, benefits, and risks, informed consent must be part of a dentist – patient conversation.

Consent should be documented in the dental record. “The dental record is also a legal document that can be the single most important source of supporting evidence in a liability claim or board of dentistry complaint,” according to the ADA. “In fact, various professional liability companies have reported cases when they could not successfully defend a dentist against unfounded allegations of malpractice because of errors or inadequacies in the patient record.”

Joseph Graskemper, DDS and clinical associate professor at Stony Brook School of Dental Medicine, also suggests offering a statement covering COVID-19. “The [dental] office remains an environment where fine aerosols exist, even with the best efforts to eliminate them,” Graskemper says. “Patients should be informed about your efforts to reduce fine aerosol exposure, and they should be told that there is still a risk of exposure to fine aerosols.”

Is Informed Consent Oral or Written?

All states require patients to provide consent before treatments can begin. Some states require a written notice while others require only the dentist’s oral acknowledgment, which should still be noted on the dental record. Idaho and Rhode Island also require dentists to obtain signed agreements from patients.

You may decide that you want to put your patients’ consent in writing no matter where you practice dentistry. Making this a “best practice” for your firm can protect you if a claim is filed. And if a patient is hesitant and nervous about certain treatments, regardless of whether oral or written consent is given, document it in the patient’s record.

Refusal of Treatment: What if a Patient Refuses to Give Consent?

If the patient refuses to give consent for a procedure, you should not provide that treatment. Proceeding could open you up to legal liability, such as the civil offense of gross negligence or even a criminal complaint for battery.

Patients have the right to refuse any treatment or procedure. If a patient declines a procedure, you should also discuss why they are making this decision and the likely consequences of their actions. Then ask the patient to sign an informed refusal form. This verifies that the pros and cons of the procedure were explained and confirms that the patient is comfortable with the risks involved if they do not do the procedure at this time. It would also be “best practice” to have a patient sign an informed refusal form, and keep this in your records.

Saving Dental Consent/Refusal Forms

Dental consent and refusal forms should be saved as part of the patient’s record in the same manner you document other patient information. Present patients with a document and allow them to sign it either physically or electronically. You should save these records along with any supporting documentation provided to the patients, such as brochures or other promotional collateral describing the treatment.

Forms should be saved as part of the patient’s permanent dental record at your practice.

Samples of Dental Informed Consent and Refusal Forms

When it comes to dental informed consent and refusal forms, you have a few options. You can choose to write or create your own , or you can use a standard template.

The ADA has sample forms available for its members:

• ADA: Sample Informed Consent Form [PDF]
• ADA: Sample Informed Refusal Form [PDF]

You may want to have multiple forms depending on the specific treatment you are recommending. For example, the California Dental Association has 23 different informed consent forms in multiple languages, covering everything from anesthesia to whitening.

Another source for sample informed consent forms and refusal of terms forms comes from the Dental Forms Library at the National Network for Oral Health Access, which has more than 20 forms, many of which are in English and Spanish.

Whether you use sample forms or create your own, you should have your lawyer review your informed consent form and informed refusal form before using them.

Final Thoughts

Informed consent is a communication process and more than just a document, notes Diane Glasscoe Watterson, registered dental hygienist and dental practice consultant. “Studies demonstrate that patients who believe they have been well informed regarding their condition and who have had their questions answered by members of the dental team are more compliant with treatment recommendations,” Glasscoe Watterson adds. “Clinicians should view the informed consent process as an educational experience with the patient to discuss needed treatment advantages, disadvantages, risks, and alternatives, and ensure such discussions are well documented in the patient record.”

Obtaining informed consent from patients is vital in all medical settings, including dentistry. Legal and ethical consent requirements exist for a reason: to protect you and your patients. But the process of obtaining informed consent does more than meet your compliance obligations. By educating patients, explaining their treatments, and respecting whatever decisions they make, you build trust and strengthen your relationships with each and every one.

 

Image courtesy of istock/DeanMitchell

 

Last updated on Jul 24, 2024.
Originally published on Apr 21, 2022.

More:

• Dental
• Risk Management

The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice. Click here to read our full disclaimer