- Make sure the patient is given enough information about the risks and benefits of all reasonable treatment options (including no treatment) before treatment starts.
- Patients have a right to information, and their questions should be answered truthfully and fully.
- Confirm they still understand the risks and benefits of the procedure to be performed at every appointment during each course of treatment.
- Make sure the patient understands the cost of any proposed treatment.
- Record all conversations about the risks and benefits of treatment options in the patient's notes.
Consent must be:
- voluntary, made by the person themselves and free from pressure from others
- informed, with the person having all information about the nature, purpose, benefits, material risks of and alternatives to the proposed treatment, along with the likely outcome of no treatment
- the person must have capacity and be able to understand the information provided and use it to make an informed decision
When seeking consent to treatment, the question of whether the information given to a patient is adequate is judged from the perspective of a reasonable person in the patient's position.
For the purposes of consent, the Montgomery ruling replaces the previous test applying from the cases of Bolam and Sidaway.
When obtaining consent, dental professionals have a duty to take reasonable care to ensure that patients are aware of 'material risks' and understand their implication.
Valid consent: legal duty
You have a legal duty to obtain patient consent by making sure the patient is aware of any material risks involved in the proposed treatment, and of any reasonable alternatives.
This follows the Supreme Court judgment in Montgomery v Lanarkshire Health Board [2016 UKSC 11], which ruled that when discussing the benefits and risks of various treatment options with patients, clinicians must:
- provide information about all material risks
- disclose any risk to which a reasonable person in the patient's position would attach significance.
Before Montgomery, a dental professional's duty to warn patients of risks was based on whether they had acted in line with a responsible body of dental opinion; this was known as the Bolam test.
The Bolam test, or Hunter v Hanley in Scotland, still applies to assessing standards of care in wider negligence cases.
According to the Montgomery judgment, "the test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk," or the dentist is reasonably aware that the patient in question would be likely to attach significance to it.
- Whether a risk is material depends on more factors than its frequency or magnitude.
- A material risk is patient-specific; the nature of the risk, the effect of its occurrence on that individual patient's life and the importance of the beneficial aim of treatment should all be considered.
Valid consent: ethical duty
One of the key principles of the GDC's 'Standards for the dental team' is the need for dental professionals to share information with patients, such that patients can make a decision.
As a dental professional, you also have an ethical duty to discuss material risks with patients when obtaining consent for treatment.
Include all necessary information
The information patients might want to know before they consent includes, but is not limited to:
- options for treatment and why you think a particular treatment is necessary and appropriate for them
- consequences, risks and benefits of the treatment you propose
- the prognosis and what might happen if treatment isn't given
- whether treatment is guaranteed, how long for and any exclusions that apply.
Failing to give correct or sufficient information when obtaining consent might breach your duty of care. A patient could be entitled to compensation if it is proved there was a negligent failure to inform, and they suffered harm as a direct result.
Give the patient time
- The patient must be given a reasonable amount of time to consider the information in order to make a decision.
- It's a good idea, particularly with complex, elective or cosmetic treatment, to obtain consent at an earlier date than that of treatment, to allow a 'cooling off' period in which a patient can think over their decision and/or take advice.
- Make sure you are confident the patient is not under any coercion or pressure to give, or withhold, consent.
- It's best to reconfirm consent with the patient immediately before treatment.
Be clear about costs
- Explain the cost of any examination, investigation or treatment before it starts. This includes whether treatment is being carried out on the NHS, privately or on some other payment basis.
- A patient who agrees to pay the bill has not necessarily consented to treatment.
Look out for change
- If a patient's condition alters significantly between initial consultation and treatment, causing a change in the nature, purpose, or risks of the procedure, you must explain the changes, obtain consent again and record them.
- A change in the cost of treatment should be reviewed with the patient.
- Keep all written consent documents with the patient's records and make a contemporaneous note in the record of your discussions with the patient.
- It is a general, legal and ethical principle that all members of the dental team providing treatment should obtain consent before starting treatment.
- Where this is not practicable, another appropriately qualified dental professional familiar with the proposed treatment should obtain consent. You should make sure this other professional understands the risks and benefits and follows the GDC's guidance on consent.
- All members of the dental team have a responsibility to verify that consent has been properly obtained before starting treatment.
Consent to dental examinations is implied when, for example, having been told what is planned and properly advised, the patient voluntarily sits in the dental chair and opens their mouth.
For procedures other than dental examinations, including radiographs, the patient's express consent (oral or written) is needed.
When a patient has given oral consent to treatment, you should make a note in their clinical record of the advice given, including any risks and benefits and likely outcomes, and the fact that the patient has understood and consented. This is particularly important where treatment is significant and not routine.
Written consent must be obtained for treatment under conscious sedation or general anaesthetic, as set out in the GDC's guidance. It is also advisable to gain written consent for photographs which are to be used outside of a patient record e.g., on a social media post, practice website, or in a presentation. This allows patients to be clear about what their photos will be used for.
Evidence of consent
- Although a consent form may not always be necessary, you may want to consider using one in case documentary evidence is needed in the event of a dispute.
- A patient's signature on a treatment plan or consent form is not consent in itself, and is not as important as the quality of explanation and information given to - and understood by - the patient.
- A signature on a treatment plan or consent form may provide evidence that consent has been obtained, but remember that consent is an ongoing process, not just a signature.
- A consent form or treatment plan shouldn't be altered after a patient has signed it. If you need to make changes to a planned procedure, discuss with the patient in full and, if necessary, have them sign a new form.
During treatment, you should only carry out procedures to which a patient has expressly consented. The only exception is emergency treatment necessary to prevent serious harm or to safeguard a patient's life.
This page was correct at publication on 14/09/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.