‘The law might be complicated, but your role is simple’: Biju Krishnan breaks down the legal complexities of patient consent in dentistry.
Ah, consent: the cornerstone of ethical practice and the one topic guaranteed to make dental professionals break out in a cold sweat.
Consent isn’t just about asking: ‘Can I poke around in there?’ It’s a legal and ethical necessity that ensures patients understand and agree to the treatment proposed.
Whether you’re extracting a wisdom tooth or just taking an X-ray, consent isn’t just a box to tick; it’s a legal, ethical and professional minefield. So let’s raise the flap on this legal beast with the finesse of a scalpel and the wit of a singing dentist.
What is consent?
In the dental world, consent isn’t a simple ‘yes’ to treatment. It’s a process, a dialogue, a mutual understanding between clinician and patient. According to the General Dental Council (GDC), valid consent must be:
- Voluntary: no coercion, no guilt trips, and definitely no: ‘It’s this or dentures, mate’
- Informed: patients need to know the what, why, how, risks and alternatives (yes, even the option of doing nothing)
- Given by someone with capacity: if they can’t understand what you’re saying, it’s not consent – it’s confusion.
Without consent, even the gentlest scale and polish could legally be considered assault. And while dentists are trained to handle difficult patients, the courtroom isn’t part of the syllabus.
Navigating capacity questions
The Mental Capacity Act 2005 (MCA) is your legal guide when dealing with patients whose capacity to consent might be in question.
The MCA: five principles
The MCA rests on five rock-solid principles, which are essentially the law’s way of saying, ‘Be reasonable and don’t jump to conclusions.’
- Presumption of capacity: start by assuming everyone’s got their decision-making hat on until proven otherwise. It’s the legal equivalent of giving them the benefit of
the doubt - Support to make a decision: if someone’s struggling, lend a hand (or a simplified explanation). Diagrams, models, enhanced consent apps and dental-themed interpretive dance are fair game if it helps
- Ability to make unwise decisions: yes, they might want to refuse a root canal to save for a beach holiday, and that’s okay. The MCA doesn’t judge bad decisions – just whether they’ve got the capacity to make them
- Best interest: if they can’t decide for themselves, you step in to make the call. And no, ‘best interest’ doesn’t mean recommending the most expensive
treatment plan - Least restrictive: go for the option that’s the least heavy-handed. Essentially, don’t suggest full mouth extractions and implants when a good floss and a filling will do.
The MCA’s litmus test
How do you know if someone’s not up to the task of deciding? The MCA lays it out with the clarity of the next generation of invisible aligners. A person is deemed unable to make their own decisions if they can’t:
- Understand the information given to them: if your explanation leaves them more confused than a patient who’s just heard ‘oral hygiene is essential’ for the fifth time, they might lack capacity
- Retain the information long enough to decide: if they forget the risks of a procedure before you’ve even finished explaining it, that’s a red flag. Bonus points if they also forget your name halfway through
- Weigh up the information to make the decision: if they can’t process ‘root canal vs extraction’ without imagining a WWE-style fight between the two options, capacity might be lacking
- Communicate their decision coherently (words, gestures, or even a well-timed eyebrow raise will suffice – okay, maybe not that last one).
In short, the MCA is like the referee in the dental decision-making ring: it ensures fairness, supports autonomy, and steps in when things go off the rails. All you have to do is follow the rules – and maybe brush up on your modern interpretive dance skills.
A dentist’s safety net
The Bolam Test is the legal equivalent of asking your peers: ‘Would you have done the same thing, or am I out here pulling teeth solo?’
Established in the 1950s, it’s been the go-to standard for clinical negligence cases ever since. In essence, if a responsible body of professionals in your field would have taken the same approach as you, then congratulations: you’ve passed the Bolam Test and avoided the dreaded negligence label.
But don’t pop the champagne yet. The Bolam Test isn’t about perfection; it’s about being reasonable. So, if you were trying a risky new technique you learned from a late-night Youtube video, you might not find much support from your dental peers. On the flip side, if your decision falls in line with accepted practice, you’re in safe legal waters, even if the outcome wasn’t exactly sparkling.
Bolam’s tougher sibling
Just when you thought you were safe, along comes Bolitho versus City and Hackney Health Authority (1998), Bolam’s stricter and slightly less forgiving sibling. Bolitho essentially asks: ‘Okay, your colleagues agree with you, but does your decision actually make sense?’ Because apparently, not all professional opinions are created equal.
Bolitho is like that one friend who won’t just take your word for it – they want evidence, logic and a Powerpoint presentation to back up your assertions. If the court decides that the professional opinion you relied on isn’t reasonable or defensible, your Bolam shield might crack under the pressure.
The dentist’s tightrope
Together, Bolam and Bolitho create a delicate balancing act for dental professionals. On one hand, you’ve got to ensure your actions align with what other dentists would do. On the other, you need to be ready to defend your choices with more than a shrug and a: ‘Well, Bob from the practice down the road said it was fine.’
So, what’s the takeaway? Stick to evidence-based practice, document everything like you’re writing the next bestseller, and make sure your decisions could hold up under the scrutiny of both your peers and a courtroom full of lawyers. Oh, and maybe keep Bob’s advice to yourself.
Montgomery versus Lanarkshire
Let’s turn our (hopefully not waning) attention to Montgomery versus Lanarkshire Health Board (2015) – the case that single-handedly turned the medical world on its head and taught us all that patients are not just passengers on the treatment train.
This landmark ruling officially ended the era of ‘doctor knows best’ and ushered in a new age where the patient’s right to information reigns supreme. It’s like the dental version of democracy: informed patients, empowered choices, and occasionally, a healthy dose of over-Googling.
Obstetrics to dentistry
The story began in obstetrics, where a five-foot-tall woman with diabetes wasn’t warned about the risks of a complicated delivery. The court decided that the doctor should have mentioned the possibility of shoulder dystocia (a rare but serious complication), even though it only had a 9-10% chance of occurring.
The result? A massive shift in the legal landscape: clinicians must now disclose any risk that a reasonable patient in that situation might find significant – even if it’s as rare as a hen with dentures.
So what does this mean for dentistry? Well, you can no longer just mumble something about ‘a few risks’ and hope your patient doesn’t press for details.
Thanks to Montgomery, every patient now has the right to know if there’s even the faintest chance their crown might morph into a soap opera disaster or their root canal could feel like an audition for a low-budget horror film.
It’s personal now
Post-Montgomery, consent is no longer a one-size-fits-all spiel. Instead, it’s a bespoke conversation tailored to the individual patient.
Use tech. Enhanced consent apps have revolutionised patient education and help take some of the burden of making sure you have explained the most relevant aspects of any given treatment.
The days of skimming over risks because ‘it probably won’t happen’ are gone. Patients now have the right to weigh up every risk, even if it’s a one-in-a-million chance of their filling somehow causing spontaneous combustion (okay, not that, but you get the idea).
The takeaway
Montgomery teaches us that consent is about more than just ticking a box; it’s about empowering patients to make informed choices. Sure, it means more time explaining risks, benefits and alternatives, but it also means fewer surprises for patients – and fewer lawsuits for you.
So the next time you’re explaining a treatment plan, remember: it’s not just about getting the patient to nod along. Thanks to Montgomery, they’re the captain of their own dental ship. It’s your job to be the trusty navigator, keeping them informed and ready to make the best decision for their pearly whites. Just try not to sink the ship with too much dental jargon.
As a dental professional, obtaining consent isn’t just a legal requirement; it’s a cornerstone of patient trust and clinical excellence. Whether you’re working through a tricky MCA case, tailoring a risk discussion under Montgomery, or defending your actions with the Bolam Test, the key is clear communication and robust documentation.
Remember: the law might be complicated, but your role is simple: empower your patients to make informed decisions.
And maybe avoid the phrase: ‘This won’t hurt a bit.’ Trust is built on truth, after all.
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