References
Consent and capacity — considerations for the dental team part 1: consent and assessment of capacity
From Volume 44, Issue 7, July 2017 | Pages 660-666
Article
Dentists should gain valid consent as a continuous process. As a profession, clinicians aim to respect their patients' autonomy, dignity and rights to make decisions about their healthcare. Good communication skills are essential between the dental team and their patients. A comprehensive knowledge of consent legislation is fundamental, as are accurate record-keeping and knowledge of how to seek further advice. Where capacity is questioned, the practitioners should be aware of their responsibilities to their patients, and the frameworks should be in place to aid decision-making.
What is consent?
Consent is a continuous process,1 often reinforced by written documentation, but reaches far beyond a signature on a form. For decisions to accept or decline treatment, valid consent is required. There is a variety of terms used to describe consent:
Individuals must be informed of, and understand:
Autonomy
An underpinning principle of consent legislation in the UK is that of autonomy, meaning that when a person is able to make decisions for him/herself, he/she must be allowed to do so. This reduces medical paternalism, and allows the individual to make choices about his/her own care − even if the choice would be considered unwise by others.
Choice should be allowed, and the decision made of that patient's free will. There must be no coercion or undue influence. Dentists should be aware of how they can influence patients through communication (verbal and non-verbal), and endeavour to allow autonomous decisions to be made.
To make a decision, however, the patient must understand relevant risks, benefits, alternatives and consequences of that decision (including not having treatment) in order to give valid consent. The dentist has a responsibility to ensure that the patient is in possession of this information, and the nature of this information is an area which has changed recently with the Montgomery ruling.
Previously, it has been the health professional's decision about how much information should be shared with the patient, with the principle of conforming with the consensus of professional opinion − the Bolam principle.3
In March 2015, the UK Supreme Court ruled that this measure should be what a patient would wish to know prior to making a decision,4 known as the Montgomery ruling. In this case, Mrs Montgomery had type 1 diabetes with resultant higher risk of carrying a larger baby, and was not informed during her pregnancy of the risk of shoulder dystocia and potential complications during delivery of her baby. Unfortunately, there were complications and the baby was born with cerebral palsy and loss of the use of his arm. Mrs Montgomery maintains that, had she been made aware of these risks, she would have chosen a caesarean section delivery.
Alternative treatments, risks and benefits should be considered from the patient's viewpoint, and what information would be important in his/her individual circumstances, rather than the clinician's opinion about which details are pertinent for the patient to be aware of. The Montgomery ruling has changed the perspective on consent to being increasingly directed by the patient5 rather than the healthcare professional.
Competence and consent
Competence in this context is a legal state where a person has the ability to understand risks, benefits and consequences in order to make a decision. Increasingly, the term ‘capacity’ is used and the term ‘competent adult’ has been replaced by ‘adult with capacity’ in the Mental Capacity Act 2005.6 The patient must have capacity to make that particular decision both during the consultation and planning process and at the time of treatment.
Children and adolescents
In England and Wales, The Children Act 1989,7 20048 and Children and Families Act 20149 define a child as:
The Children's Act also defines parental responsibility, which is retained by the mother, but which lies with both parents if they are:
For children registered prior to these dates, the father would have parental responsibility if he was married to the mother when the child was born, or had obtained an order of Parental Responsibility from the court.
As adolescents enter a transition from childhood to adulthood there must be careful assessment of capacity. The phrase ‘Gillick competence’ is often used to describe such a situation where a person under 16 years of age has capacity to consent.10 However, as with anyone else, the person must be judged to have capacity for that particular decision at that particular time using the frameworks and principles outlined. It is best practice to seek the young person's permission to consult with his/her parents to reach agreement where possible.
In Scotland, the Age of Legal Capacity (Scotland) Act 199111 defines 16-year-olds as being able to make their own decisions, but any child can consent for treatment if he/she understands the nature, risks and benefits of the proposed treatment.
What is capacity?
Capacity: the ability of an individual to make a particular decision.12
Capacity is decision and time specific, and therefore will vary according to the nature of the decision and how well the person can understand consequences of the decision, on that particular occasion.
For example, choices in daily living, such as decisions relating to recreational activities, food and dietary choice, clothing, and maintaining or refusing social contacts may have different implications compared with decisions about whether to extract a tooth, the risks and benefits of general anaesthesia, or understanding procedural risk such as nerve damage following surgical removal of third molars, or the risk of pulpal damage following tooth preparation for a cosmetic restoration.
An adult consenting for treatment must have capacity to make that particular decision, and assessment of capacity is an ongoing process.
Assessing capacity
The dental team makes a continual assessment of a patient's capacity and is responsible for making decisions by formulating treatment plans, active provision of dental treatment/preventive regimen, or onward referral to an appropriately experienced colleague. Where capacity for a specific decision is questionable, clinicians are responsible for identifying that lack of capacity and acting accordingly (Table 1).
| 1. Understand the information, including risks and benefits. |
| 2. Retain the information for long enough to make a decision. |
| 3. Weigh up the options relating to the decision. |
| 4. Communicate their decision by verbal or non-verbal means. |
The Mental Capacity Act 2005 (MCA)6 applies in England and Wales, and the Adults with Incapacity (Scotland) Act 2000 (AWI)13 applies in Scotland. In Northern Ireland, the law has recently changed, with the Mental Capacity Bill receiving royal assent in May 2016,14 the situation is currently governed by common law until this Bill is put into act.15
Fundamental principles of capacity assessment
Despite the differing legislative frameworks, the fundamental principles of assessing capacity and acting in a person's best interests are consistent across the UK (Table 2).
| 1. Capacity is assumed until proven otherwise, and assessed continuously. |
| 2. All reasonable steps should be taken to enable the person to make a decision for themselves. |
| 3. Making a decision considered unwise does not mean the person lacks capacity. |
| 4. All acts and decisions made for a person deemed to lack capacity must be in that person's best interests. |
| 5. The least restrictive option should be selected to achieve the aim for which the decision or action is intended. |
| 6. Wishes and beliefs prior to loss of capacity must be considered. |
| 7. Takes into account the views of those close to the patient. |
Assumption of capacity and support to make a decision
All assessments must begin from a point of assuming that the patient has capacity for the decision. The responsibility lies with the healthcare professional to be able to demonstrate that the patient lacks capacity. It must be demonstrable, and noted, that reasonable steps have been taken to help the patient make a decision for him/herself taking the following into consideration:
A variety of additional ways to support a person to consent for him/herself can be explored, including staging an approach to enable consent.16 Every reasonable step must be taken to allow patients to consent to their own care.
A person with capacity can make an ‘unwise’ decision
If a person has capacity, then he/she is able to make his/her own decision, even if it could be perceived as unwise. This does not mean dentists must provide treatment which is in conflict with their own professional judgement and values − indeed this mismatch between patient and dentist may demonstrate a breakdown in the relationship and the clinician may ‘withdraw from treating the patient’.17
Acting in a person's best interests
All decisions made for a person deemed to lack capacity should be in that person's best interests. Determining what is in his/her best interests involves encouraging the patient to participate as fully as possible and taking into consideration previous wishes and beliefs. Cultural and social factors should be considered, but without discriminating for example on the basis of age, appearance, behaviour or other characteristics. Involving people who know the patient well gives a holistic view of the patient, and what factors would be important to him/her if making the decision for him/herself.
Consideration should be given to acting proportionally, and in the least restrictive way to achieve the required aim. Where capacity may be regained, this may mean deferring a decision, or providing a shorter term action until the person is able to make the decision for him/herself.
Formal assessment of capacity
From the Mental Capacity Act 2005,6 the process of assessing a patient's capacity to consent is determined in two stages:
If the answer to any part of stage 2 is ‘no’, then he/she is deemed to lack capacity for that decision at that time. If it is possible to delay the decision until capacity is regained, then this should be considered, for example if a person is experiencing effects of drugs or alcohol which is impairing the capacity to consent.
Example scenarios
In Case Scenario 1, it is assumed that SB had capacity. She had attended the surgery and implied consent to examination by sitting in the dental chair and had given verbal consent for a radiograph to be taken. The clinical and radiographic findings had been discussed, as had her options of endodontic treatment or extraction, and the risks and benefits of each, at length. She struggled to concentrate, or recall the information the dentist had been talking about, despite the use of drawings to demonstrate. On discussion, SB was not able to describe the risks and benefits of the treatment options that had been discussed but persisted in her request for extraction with no consideration of its replacement.
The dentist was unsure if SB was making an unwise decision or if she currently lacked capacity to consent to treatment. With SB's agreement, the decision was made to delay a permanent, irreversible decision until SB had had time to consider her options. In order to relieve pain, the pulp could be extirpated and a sedative temporary dressing placed, along with analgesic advice. A permanent decision was delayed until she was free from pain, sleep patterns were restored, and she had had an opportunity to discuss her preferred treatment with family/friends.
It is vital that the procedure above was fully documented, including how capacity was assessed, who was consulted, which options were considered and how a decision was reached. It is important to take the time to assess capacity fully, and take into account the patient's individual circumstances at that time.
In Case Scenario 2, JB is assumed to have capacity, and had attended for his appointment later in the day on his way home from his day centre. He had previously attended the surgery in the morning but had been disengaged and had refused to speak because he was cross that he was late for his usual activities. Reasonable adjustments had been made to support JB to consent for himself by allowing him to attend at the best time of day for him, and with his support worker who knows him well. He was able to understand the information the dentist had discussed, and repeated it back in his own words. The use of local anaesthetic had been described using words that JB was able to understand. He knew that his lip would ‘feel funny' after the filling, and that he would need to be careful until the numbness wore off.
JB does have an impairment in the functioning of his mind, but is able to satisfy the 4-part test of capacity for this decision, and so consents for his care. Again, comprehensive clinical notes must be kept, documenting how capacity was assessed, and the risks and benefits described to the patient, and his consent to treatment.
Case Scenario 1
A 34-year-old female (SB).
Complained of − severe pain from her front tooth for 4 days; she had not been sleeping or eating as normal.
Medical history − SB had bipolar disorder, and told the dentist that she had omitted her usual medication for the previous few days, and had not been taking it regularly for the last month.
Diagnosis − Acute periapical periodontitis in upper left central incisor; the tooth was restorable but there was a good chance of successful endodontic treatment.
On consultation − SB requested extraction of her upper left central incisor despite the dentist's advice that endodontic treatment had a high likelihood of success. Her conversation and demeanour demonstrated very low mood, and she was withdrawn and tearful. The dentist did not feel that she was listening or understanding fully that her appearance would be permanently affected if she had the tooth removed.
Case Scenario 2
A 34-year-old male (JB)
Medical history: JB had learning disability and autistic spectrum condition.
Treatment required: buccal composite restoration UR3.
Dental history: JB had had restorations with local anaesthetic before, and a permanent molar extraction under intra-venous sedation.
On consultation: JB was able to describe which tooth needed a filling, and was aware that the tooth decay would get worse if the filling was not carried out. He was able to describe the treatment proposed in his own words.
Adults who lack capacity to consent
Where an adult is deemed to lack capacity for a decision, the clinician must act in his/her best interests. This must be in consultation with those close to the patient. Legislation differs across the UK, and there may be a nominated person who is able to make decisions about healthcare, welfare or financial matters. Titles vary across the UK, but examples include Lasting Power of Attorney, Proxy, Guardian, Court-Appointed Deputy. There are very clear roles and responsibilities with each of these positions, and the reader is directed to the appropriate legislation for their area of practice. In these circumstances, formal documentation will be available, and it is advisable to request this proof and retain in the clinical notes prior to allowing the attorney/deputy/proxy to make a decision for the patient. This area is covered in more detail in part 2 of this series.
A summary of the similarities and differences between the MCA (England and Wales) 2005, AWI (Scotland) 2000 and Mental Capacity Bill (Northern Ireland) 2016 can be found in Table 3.
| Mental Capacity Act (England and Wales) 2005 | Adults with Incapacity Act (Scotland) 2000 | Mental Capacity Bill (Northern Ireland) 2016 |
|---|---|---|
| Similarities | ||
| Capacity presumed | ||
| Interventions/treatment/decisions in the best interests of the patient | ||
| Point test of capacity | ||
| Takes account the views of those around the individual and his/her previous views and values | ||
| All steps must be taken to help individuals make decisions for themselves | ||
| Least restrictive option should be chosen | ||
| Capacity continually assessed | ||
| Takes into account patients' advanced decisions and previous wishes and beliefs | Allows patients to make their own arrangement into how their affairs are managed after their loss of capacity | Takes into account patients' advanced decisions and previous wishes and beliefs |
| Differences | ||
| No adult can consent for another who lacks capacity | Makes use of ‘proxies’, who can consent for patient | No adult can consent for another who lacks capacity |
| Focus on ‘capacity’ | Focus on ‘incapacity’ | Focus on ‘capacity’ |
| Capacity based on professional judgment | A ‘certificate of incapacity’ is produced, in some circumstances, for the specific intervention allowing the practitioner to provide necessary treatment for the patient | Capacity based on professional judgement |
| Independent Mental Capacity Advocate can be used if no non paid carer/family | An authority to treat is present via the Certificate of Incapacity. In cases where disagreement exists, The Welfare Commission or Court of Session may be required to decide on the best treatment for the patient | Independent Advocates can be used if no non paid carer/family |
Useful Codes of Practice are also available18,19 and, if the practitioner is unsure of how to proceed for a patient, he/she should consult a relevant professional organization for advice, or consider referral for a second opinion.20
Unbefriended people
This is a term used to describe a situation where there are no family, friends or unpaid carers with whom to discuss an intervention. In Scotland, where a Certificate of Incapacity (AWI) has been produced, there is a general authority to treat if this falls under the defined treatment and timescale in the certificate. In England and Wales, unbefriended people requiring serious medical treatment, or change in accommodation (not under the Mental Health Act) have an Independent Mental Capacity Advocate (IMCA) appointed to act on their behalf. This matter is discussed further in the next article.
Conclusion
Consent should be gained prior to all provision of care, of the patient's free will and choice. Patients have a right to autonomy, and to be treated with dignity throughout this process. They have the right to be given all the information which they would wish to know in order to make a decision in a way that they can understand. Those with capacity are entitled to make decisions which clincians may see as unwise, as long as they are fully informed of the consequences of those decisions. The dental team should be aware of how capacity can be assessed, and how it can change. Adults lacking capacity may be vulnerable to decision-making by other people, and it is the responsibility of the dental profession to ensure that they are assisted and encouraged to make as many decisions for themselves as possible. Communication and trust are fundamental cornerstones of the patient/dentist relationship, and an essential part of obtaining valid consent from our patients for the care provided.