Frequently Asked Questions - Consent to Treatment

No. The core requirements for obtaining consent to treatment are set out in legislation, and these have not changed. 

Instead, the Standard has been revised to be more direct, to provide more comprehensive guidance, and to address a wider range of topics, including express vs. implied consent, identification of substitute decision-makers (SDMs), documentation of the consent discussion, emergency treatment scenarios, and consent forms. 

The essential information that must be communicated to the patient as part of the consent discussion is set out in the Standard, and it applies to all treatments.

When administering sedation specifically, dentists must consider and communicate the specific or unique considerations and/or risks that would apply to this area of clinical practice (for instance, the potential need for a  root canal treatment if there is a carious lesion with the possibility of pulp exposure. Additionally, dentists are advised to consider any other procedures that may become necessary, since consent for a new procedure cannot be obtained directly from the patient once they are sedated. 

Informed consent requires the disclosing of risks associated with treatment options. Failure to disclose a risk that later materializes can lead patients to feel justifiably wronged, and leave dentists open to complaints and/or legal action. At the same time, dwelling excessively on risks might deter patients from beneficial care. 

The Courts have struck a balance by requiring the disclosure of any risk deemed “material,” where materiality is determined by both the potential severity of the outcome and its likelihood. 

 Based on case law, material risks would include: 

-    Risks that a reasonable person in the patient’s position would want to know.
-    Risks that the patient has expressed concern about.
-    Common risks, which are relatively minor but have a substantial likelihood of occurring.
-    Serious risks, even if they are rare. 

Importantly, not every remote possibility needs to be disclosed, but where the consequences are serious, such as permanent disability or death, the risk may be “material” even where the probability of occurrence is low.

Ultimately, discussions about risks must be tailored to the specific procedures being proposed and the circumstances of the individual patient. 

Dentists will first need to inquire about the terms of the divorce or separation and determine which parent is legally entitled to consent to treatment for the child . 

In some circumstances, a parent who is not able to consent to treatment is still entitled to receive personal health information related to their children. Dentists can ask the parent who usually communicates with the practice for written documentation confirming whether they have sole decision-making responsibility. If there is no such documentation, it may be appropriate to ask each parent about the terms of any agreement or separation separately to determine whether the information is congruent. If there is incongruence between the responses, or if the dentist is unsure about the terms of the agreement, further legal advice may be necessary.

As noted above, the dentist may wish to obtain legal advice to help clarify their specific obligations in any scenario given the fact-driven and evolving nature of these situations. 

It is important to remember that patient consent is not valid if the patient does not understand the information that is necessary to inform their decision. Additionally, when  patients understand their choices and the potential outcomes, they are more likely to feel at ease and confident in the path forward. Transparent communication fosters trust, strengthens the dentist-patient relationship, and improves overall satisfaction with the care received. Here are a few key points that dentists can keep in mind:

-    Clarity and simplicity: Tailor the explanation to the patient’s level of understanding and use clear, simple, and understandable language to explain treatment, risks, benefits, and alternatives. This helps patients feel empowered rather than overwhelmed. 
-    Educational materials/aids: Providing written materials such as handouts or pamphlets, and visual aids like short videos or three-dimensional anatomical or appliance models, can significantly enhance patient’s understanding of the recommended treatment.
-    Active listening: Encourage patients to ask questions, voice concerns, and repeat what they have heard. Patients’ questions allow the dentist to assess the patient’s understanding and identify what is important for their specific circumstances and lifestyle.
-    Time: Allow time for patients to consider non-urgent /elective/complex treatments. Complex cases might require multiple explanations, especially for anxious patients. 
-    Confirming comprehension and including third-parties: Assist the patient in understanding the recommendations on a case-by-case basis. For example, in the case of a language barrier, encourage the patient to bring a trusted individual to help with communication. Providing a personalized treatment letter containing all the information necessary for consent will allow patients to review the details at their own pace, seek a second opinion, and consult with trusted individuals such as family members or friends.

These strategies and resources reinforce the information given during the consultation, allow patients to revisit details at their own pace, and can foster more informed decision-making about their care.

Although the proposed treatment plan may be considered definitive at the time it is created, it is crucial to recognize that it remains dynamic, and it may change as circumstances evolve. For example, a tooth with a deep carious lesion might fail to respond to initial treatment, potentially leading to the need for root canal therapy. In some instances, patients themselves may also reconsider or decline previously agreed-upon treatments for financial or personal reasons. Furthermore, any new diagnostic findings or change in the patient’s oral health, or their overall health, could necessitate modifying the plan. 

For these reasons, it is prudent for dentists to prepare patients for the foreseeable possibilities at the outset.

Under the law, unless it is not reasonable to do so in the circumstances, dentists are permitted to presume that consent to treatment includes:
a.    consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different; and
b.    consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.

In any other circumstances, or where dentists are unsure of their obligations, it is advisable to renew the consent discussion with the patient. 

Dentists are reminded that treatment cannot be provided if a consent discussion has not taken place.

To help support these discussions, here are some steps to consider:

-    Explain to the patient that it is a legal and ethical obligation to obtain informed consent before initiating any treatment under the Health Care Consent Act, 1996.
-    Attempt to explain the importance of an informed consent discussion. 
-    Identify the root cause of the patient’s reluctance by gently asking open-ended questions and actively listening. It is important to explore why patients decline engaging in a discussion about their treatment. They may feel overwhelmed, anxious and fearful about the outcome, unsure about their preferences or may need more time to process the information. This insight helps tailor the conversation to the patient’s specific needs, fostering a supportive environment with open dialogue and trust. 
-    Encourage patients who seem unsure or anxious to bring a trusted individual (e.g. a family member or friend) to the discussion session if that helps them feel more comfortable. The dentist can also offer written information for them to review together. 

In order for consent to be valid, the patient must have “capacity”. Capacity means that the patient is able to understand and use the information provided to them to make a decision concerning treatment. When managing a patient who appears to be under the influence, it is critical for dentists to first determine whether the patient can fully understand the information and make decisions. Here are some steps to provide appropriate care while minimizing risk for all involved.

-    Stay objective: Avoid assumptions or judgmental language; focus on observable behavior and facts.
-    Discuss the situation with the patient: Inquire about possible substance dependency, the type, amount, and timing of the substance used, and gauge the reliability of the patient’s responses to ensure you have accurate and useful information.
-    Assess capacity for consent: Determine whether the patient can fully understand the information and make an informed decision. If the patient appears impaired and the treatment is not urgent, postpone it until they are sober for accurate assessment and safe care. In an emergency, refer to the “Emergency Treatment” section of the “Consent to Treatment” Standard.
-    Ensure safety: Establish clear in-office procedures for handling potential behavioral issues (e.g., when to call authorities, staff alert signals). If the patient is not safe to drive, this should be communicated clearly to the patient and alternative travel arrangements should be made; refer to mandatory reporting if there are “Concerns about risk of serious bodily harm or death.” 
-    Clarify office policies and consequences: Explain that intoxication can compromise both the accuracy of assessments and the safety of treatment, emphasizing the importance of avoiding substance use before and after procedures to maintain safe and effective outcomes. You can also help patients seek appropriate resources to improve their health.
-    Document thoroughly: Record details of the conversation, including patient statements (verbatim when possible), advice given, and any refusal or non-compliance in the patient’s records. 

While a capable team member can assist in providing information about the proposed treatment, it is ultimately the dentist’s responsibility to ensure that the requirements for consent have been met (e.g., that patient has all the necessary information to make an informed decision, that the patient fully understands what they have been told, and that the patient has had an opportunity to ask questions).

Please see the checklist below.

Developing Customized Consent Forms

The following checklist is not a consent form. It highlights key details that dentists can use to help formulate their own consent forms.

Dentists are reminded that consent forms are a helpful way to reinforce information about the proposed treatment and support informed decision making, but they are not consent itself. A consent form is only as useful as the consent discussion that accompanied it.

1.    General information

a.    Patient name
b.    Name of any other individual who participated in the discussion (e.g., parents) 
c.    Provider name
d.    Name of the individual who led the consent discussion (if different from the provider)
e.    Date of discussion
f.    Proposed treatment

2.    Consent Discussion: Topics covered

a.    Nature of the treatment
b.    Expected benefits
c.    Material risks and side effects
d.    Alternative treatment options (including risks and benefits)
e.    Likely consequence of not having treatment
f.    Educational materials provided (e.g., pamphlets, visual aids, etc.) 
g.    Questions asked by the patient

3.    Capacity and Substitute Decision-Makers (SDMs)

a.    Does the patient have capacity to consent? Y/N
b.    Identification of the substitute decision-maker (if applicable) 

4.    Payment

a.    Anticipated costs of treatment (including lab fees)
b.    Fees agreed to
c.    Other details concerning payment

5.    Documenting Consent

a.    Signature of patient or SDM
b.    Date