How many of our patients can really give consent? – a perspective on the relevance of the mental capacity act to dentistry

The law on consent in the UK states that three factors must be met for consent to be valid. Consent must be informed, voluntary and the individual to whom the consent relates must be competent to consent for themselves (ie retain capacity). Informed consent is a tautology as, in reality, all valid consent is informed, or at least the opportunity must be given to the patient to make informed choices. By voluntary, it is meant that the consent is given without manipulation or coercion and the patient's dignity through autonomy is respected. As well as giving consent, patients have the right to refuse treatment if they have the capacity to do so.

In dentistry, there has been a shift from paternalism, whereby consent was assumed and the dentist carried out what treatment he or she felt was appropriate, and in the patient's best interests. In 1974, Beauchamp and Childress1 outlined their four principles in bioethics: autonomy, beneficence, non-maleficence and justice. The addition of autonomy at this juncture was a new concept that had gradually developed as a result of the Nuremburg trials in the wake of World War II, and subsequent ethical abuses, such as the Tuskegee syphilis experiment.2 Now autonomy is very much regarded as the most important of the four bioethical principles by many ethicists, and to have a paternalistic attitude to patients is p>unacceptable, with the potential to land a health professional with accusations of serious professional misconduct.

Assessing capacity is governed by the Mental Capacity Act, 2005.3 Capacity is decision specific (ie not an ‘all or nothing’ state); patients with ‘impaired’ capacity may be competent to consent for one procedure (ie an examination) and not others (ie implant surgery), as some decisions are more complex or have a higher level of risk or permanence than others. Capacity is also a dynamic process, varying between times, such that patients may be able to give consent at one appointment, but not at another. Thus consent is an ongoing, dynamic process and consent forms, and records of such, should always reflect this.

The Mental Capacity Act, 2005 states that a person lacks capacity if, at the time a decision needs to be made, he or she is unable to make or communicate the decision because of an ‘impairment of, or a disturbance in the functioning of, the mind or brain’. For example, phobias cause irrationality in perception and, in the case of a severe dental phobia, it could well be said that the functioning of the mind is certainly impaired. Therefore, by the definition of the law, a patient who has severe dental phobia may, in fact, not have capacity to consent. Of course, English law makes it clear that adults have autonomy to make decisions and the capacity to give consent is to be assumed unless proved otherwise. The way that capacity is to be assessed is a two step process (the ‘two-tailed test’). The first step in this test is known as the ‘diagnostic test’. Despite this name, no diagnosis is required; only evidence that there is impairment or disturbance in functioning as laid out in section 2. Section 3 of the act outlines the second step of the test, known as the decision specific functional test. This test shows that patients have capacity to consent if they are able:

Therefore, the Mental Capacity Act applies to only those with mental disorders. One might assume that this would only apply to dental patients who have a severe mental illness, such as dementia, depression or schizophrenia. A psychotic patient, for example, might demand removal of the ‘transmitters within their metal fillings’ whilst a dementia sufferer might clearly have no understanding of what treatment is being suggested. However, amongst the large numbers of patients who attend for treatment, there will be many with dental anxiety and a proportion of these patients will suffer from sufficient symptoms to qualify for a diagnosis of ‘dental phobia’. There is a lack of understanding within society that phobias are classified as a mental illness. This is due to the term phobia being used incorrectly in many situations to describe a fear or anxiety that does not impact upon normal functioning.

Phobias may be separated into three categories:

Dental phobia is mentioned in the International Classification of Diseases (ICD-10, the WHO classification of psychological illness)4 as being part of the specific phobias, which are outlined as, ‘Phobias restricted to highly specific situations, such as…dentistry’. How much can dental phobias be considered to impair the function of those who are afflicted with regards to attending, seeking and making decisions regarding dental treatment?

Perhaps the critical issue with dental phobia and capacity to consent centres on whether the decision made in a state of anxiety in the clinical situation would be the same as when the patient is away from the dental setting. For example, a dental phobic may choose to have a tooth extracted at an emergency appointment in order to avoid further dental treatment and exit the surgery as soon as possible. Away from the surgery and the pain and fear that dentistry elicits, the patient may then decide that actually saving the tooth would have been their preferred treatment choice.

It would be wrong and unrealistic to label every such change of mind as a sign rendering a patient's consent as having been invalid due to a lack of capacity. However, those who have a genuine and debilitating phobia of dental treatment are often placed into a position where they are required to consent or make autonomous decisions that are unlikely to elicit choices that reflect a phobic patient's true wishes. In placing these individuals in a position where they are confronted by a need to make a choice, it could be argued that a situation is created where treatment becomes unethical and potentially unlawful. In the gathering of consent for dental treatment, the dentist's aid is competent record-keeping. If a consent process can be demonstrated well through documented records, then a dentist is protected from a dento-legal point of view.5 Good notes also help to protect our patients and allow them to see the due processes we undergo in providing ethical (and legal) treatment. As well as the protection that good record-keeping affords, the phobic patient should attend with a chaperone. This will aid in the protection of both that patient and the treating professionals. If a chaperone cannot be found, then patients should not be left alone with a single member of staff; much in the same way as for sedation.

As well as with treatment decisions in the surgery, there are also those who may be considered so phobic that even thinking of dental treatment elicits a reaction that could be described as irrational. For these patients, seeking dental treatment is impossible and, whilst many may maintain a good oral hygiene regimen and avoid needing to visit a dentist, there are those who require extensive dental treatment. Unless a suitable anxiolytic adjunct can be identified (eg oral benzodiazepine or hypnosis), these patients have to be sent for treatment under sedation or general anaesthesia. It is very clear that dental phobia can be a significant barrier to good dental care and it should be seen as a distinct issue within treatment that needs addressing. There can be a distinct lack of sympathy and empathy for those with dental phobias within the profession.6 Websites such as www.dentalfearcentral.com are filled with stories from phobic patients who have been treated by dentists who have had no time for their complaint. Not only does it seem that the management of these patients needs to be reconsidered, but also the way that the profession views dental phobia.

In assessing a dental phobic for capacity (with no other psychological condition), the criteria to understand the relevant information would not be difficult to meet, nor would the criteria to retain or communicate a decision. The ability to use or weigh up the information is where a dental phobic patient would fail the test for capacity. If an irrational state of mind exists, where thinking is impaired, then a dentist could in theory be committing battery/assault against that phobic patient. In reality, it is unlikely that battery would be brought against a practitioner, and the likelihood of that charge being successful would be slim, as the practitioner would most likely be able to show that the nature and purpose of the procedure was understood and retained. However, this does not exclude civil proceedings of negligence, if consent is not gained and harm is caused (for example taking out a tooth), then that practitioner might be successfully claimed against. It is interesting to consider the case of Sidaway,7 where a lady patient filed a claim against a surgeon who did not warn her of the very slim risk of harm, as a result of a surgery, that in reality materialized. Her claim was unsuccessful as it was deemed, using the test of Bolam,8 that the surgeon was conforming to the standards of his peers who also would not have informed patients of such small risks. This so-called Bolam test derives from a case heard in 1957, where a patient undergoing electro-convulsive therapy claimed that a hospital was negligent for not giving him muscle relaxants, not restraining him (as a result of the treatment he flailed causing himself injury), and for not fully explaining the risks of the procedure to him. The court found the hospital not guilty of negligence as it could be shown that the defendant had acted in a way that was congruent with an accepted body of medical practice at that time. The test subsequently known as the Bolam test applies: ‘If he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ It is unlikely that a case against a dentist for negligence in not assessing capacity correctly and therefore breaching the duty to gain valid consent could fail on the Bolam test. This is because, providing proof could be shown that the Mental Capacity Act 2005 had been breached, most judges would see a Bolam argument defending the practice as illogical and irrational, as per Bolitho.9 The Bolitho test is a modifier of Bolam, whereby a judge may discount the evidence of a Bolam witness based upon the argument not having a rational or logical basis. Bolitho was the case of a young boy, who was admitted to hospital, who later died after sustaining brain damage. The claimant in this case was the boy's father. It was claimed that the doctors in charge of the boy's case should have intubated much sooner than they did and, in doing so, they would have avoided the boy's brain damage and eventual death. The defendants claimed that their approach was supported by a recognized body of medical opinion. The House of Lords found that simply to rely on medical opinion was not enough; that the medical opinion needed to have a ‘logical basis’.

Since 2000, the Human Rights Act10 has brought into English law the European Convention of Human Rights (ECHR). These legal statutes make no specific reference to consent to dental treatment, regarding either the right to withhold or withdraw consent. They are, however, far reaching and their lack of specificity is no barrier to their consideration in Court. The English Courts are bound by the ECHR to take into account the rulings of the European Court of Human Rights in Strasbourg. The Articles which bear most relevance to consent in dental (and medical) treatment are:

These Articles would most likely have a bearing in any case regarding consent and the dental practitioner should be aware of how well protected patients' rights are enshrined by law.

The relevance of this legal issue surrounding potential barriers to gaining consent is pertinent to all dentists who deal with the phobic patient. It is not realistic to provide full psychiatric assessments for patients who attend to receive treatment. This having been said, it is important to take those reporting dental phobia seriously and, wherever possible, to take steps to ensure that their decisions over treatment are congruent with an individual who can make rational and consenting choices on his/her oral care. Perhaps a suitable way of addressing this is to provide more pain relieving treatments, such as pulpal extirpations, than more ‘definitive’ solutions, such as extractions, for those patients who report or demonstrate dental phobia. This would allow phobic patients the opportunity to re-attend in a position to consent to more definitive treatment when they are out of pain and therefore their levels of anxiety and phobia are decreased. Sadly, in the current Dental Contract, the reality of this suggestion being realistically adopted is extremely small due to the lack of time and funding for this treatment allowed by the UDA system. It is perhaps a consideration for those who decide upon the next Dental Contract; that phobia and anxiety management needs to be better facilitated and encouraged within NHS general dental practice. The time, skill and extra staff that such management techniques require should be properly recognized if such practices are expected to be adopted.