You should have a policy that spells out which dental procedures will require written informed consent vs. verbal informed consent. This will be especially important if multiple oral health professionals provide care at the clinic. Include a discussion of the consent policy during staff orientation. Remember, informed consent helps the patient understand the rationales for recommended care and helps protect both the health professional and the clinic against charges of malpractice. The policy should detail the following areas of concern:
When the treatment plan will involve procedures that potentially place the health professional at increased medico-legal risk or the patient at increased physiologic risk (e.g., surgery, complex rehabilitation, innovative techniques, advanced behavior-management techniques, other extensive and/or irreversible treatment), specific informed consent should be obtained in writing. This informed consent should include the reasonable risks of treatment, alternative forms of treatment, and risks of non-treatment. The informed consent form should be signed by the patient (or parent or guardian) and a witness. The patient should be given an opportunity to ask questions. The answers and the written form should be in terms and in a language that the patient can understand. There are limited exceptions to the disclosure rule. If information is withheld from the patient, reasons should be stated in the record and, if appropriate, information should be given to the relative, parent or guardian, or authorized representative who is with the patient.
When consent of the patient cannot be obtained, it should be obtained from the next of kin, parent or guardian, spouse, or authorized representative whenever possible. When no one is available to provide consent, the nature of the patient's incapacitation and the nature of the medical or dental emergency that necessitated the treatment without expressed consent must be well documented in the patient’s record.
The failure to obtain informed consent can result in a lawsuit, which generally would involve establishment of the following elements:
Although the treatment received may have been adequate, the mere allegation of failure to inform provides a cause for action under the battery theory. It may result in a verdict for the plaintiff where injury resulted, if the plaintiff can show by objective standards that a prudent person in his or her position would not have chosen the mode of treatment rendered if he or she had been suitably informed. A causal relationship between the failure to inform and alleged injury is thereby established. The defendant must show as an affirmative defense that withholding the information under the existing circumstances was in the exercise of a reasonable standard, nationally applied among professional peers.