Consent without capacity

Who consents for patients who lack capacity?

  • Date: 10 June 2011

BEFORE beginning any course of dental treatment with a patient, you must first get their consent. It’s a fundamental legal and ethical requirement for dentists and our training carefully spells out the steps that must be followed to achieve it. But the validity of this consent is contingent upon the competence of the person providing it. So if your patient is not competent to consent to treatment – what should you do?

Informed consent

It is helpful to first look at the basics of consent that apply to all patients. Dentists must explain the risks associated with any proposed treatment, as well as the costs, alternatives and the potential consequences of non-treatment. All of this should be done in a setting and manner that makes it easy to make an informed and independent decision.

And if the patient is capable of understanding, retaining or weighing up appropriately worded information, then you must respect their decision – even if they refuse to give consent.

Remember, however, that just because competent patients have the right to refuse some or all proposed treatment does not mean they can demand treatment which is contrary to the clinician’s best judgement. Beware of overbearing patients who try to persuade you to start ill-advised treatment, regardless of whether they offer assurances such as: “Don’t worry- I’ll sign something before we start”. That way lies madness! Even the most beautifully constructed consent document does not validate a harmful intervention.

The issue of consent in incompetent adults is governed by separate legislation in Scotland and in England and Wales.

Proxy consent in Scotland

The Adults with Incapacity Act (Scotland) 2000 brought with it some much-needed protection for vulnerable patients as well as valuable guidance for the healthcare professional. The law introduced the role of proxies, such as welfare attorneys and welfare guardians, who look after the welfare of many incompetent adults. Their role is to provide consent to procedures which would benefit vulnerable patients and hopefully accord with their own values. But remember that welfare guardians are assigned for different purposes and it is those with healthcare decisionmaking powers (rather than those assigned to deal with financial affairs etc) who will concern a treating dentist.

When treating incompetent patients who have a proxy, you must always consult them where it is reasonably practical to do so. It can help to keep a note of the details of any relevant patient guardians. If you are unsure if your patient has a proxy, then ask their doctor, social services or the Office of the Public Guardian (Scotland).

If the patient does not have a valid proxy, then the dentist may rely upon a certificate of incapacity, issued under section 47 of the Act, to secure consent. This will normally be issued by the patient’s doctor, although dentists who have completed relevant training may issue a certificate to cover provision of dental treatment only. The certificate should be in-date and specify the proposed treatment to which the patient cannot competently consent. Treatment details are needed because assessment of competence is case-specific, meaning that a patient who is incapable of, for example, consenting to a full mouth clearance, may yet be able to consent to simple restorations.

In the course of your career, you may well encounter a friend or relative who has great affinity with the patient or a clear insight into their earlier wishes. You are entitled and indeed obliged to consider their views, but if they are not bona fide welfare attorneys then they cannot provide you with the valid consent that would protect you from a civil claim or even criminal charges. So, even if faced with the most indignant and overbearing patient advocate – stand firm!

When treating an incapacitated adult, remember that a valid proxy can provide consent or, in the definite absence of such a person, a current and relevant section 47 certificate will suffice.

Theory versus real life

What if you have doubts regarding a patient’s capacity? In fundamental terms, the Act defines incapacity as being unable to understand, retain, communicate or act upon information due to a “disorder of the mind”. So far, so clear? Let me give you an example of the practical difficulties which may await you.

A new elderly patient who required removal of her remaining lower teeth followed by provision of a full lower denture recently presented at my surgery. There was no indication of pre-existing incapacity and I therefore proceeded to describe the relevant aspects of the proposed procedure and, in particular, why patient adaptation and perseverance lie at the heart of successful lower dentures. All seemed well. However, when I re-emphasised at her next visit that, contrary to popular belief, conventional lower full dentures do not have mysterious adhesive properties she was utterly perplexed. Fearing that she may have hearing difficulties, I put my advice in written form and sent it to her by recorded delivery.

Yet, when I raised this issue at her next visit, her reaction once again ranged from bewilderment to frank scepticism. Her amnesia might well have been selective and convenient – we all hear the bits we want to hear from time to time. However, could it have been that her inability to comprehend and remember my advice was a manifestation of incapacity? As it transpired, an empathetic yet frank discussion revealed that this lady was indeed being a little ‘difficult’. Follow-up discussions definitively confirmed that she continued to recall and understand all of my advice and therefore was able to validly (if reluctantly) consent to the proposed treatment. Had this not been the case, then a medical consultation might well have been required before continuing.

In cases such as this where there is no proxy but there are logical grounds for doubting your patient’s capacity, advise (tactfully) that these patients speak to their GP who will have a greater insight into their state of mind and may even be able to enhance their capacity. Please remember, however, that the fact that a certificate of incapacity has been issued does not mean that the patient will agree to treatment. I would therefore caution all general practitioners to very carefully assess the chances of the procedure being safely completed without causing undue distress and, where there is doubt, refer to a secondary healthcare setting at an early stage.

Capacity to consent in England South of the border, where the issue of consent to medical treatment by adults is covered by the Mental Capacity Act 2005, incapacitated adults should be treated in what is deemed to be their best interest. While this would appear to afford a greater degree of discretion to the individual dentist, in reality an appropriate treatment plan will often evolve as a result of multidisciplinary consultation.

However, dentists should, once again, be mindful that an attorney whose lasting power of attorney covers consent to medical procedures may have been appointed. In such instances, the attorney must act in the patient’s (and not their own) best interests and, in a provision which mirrors competent consent, cannot demand treatment which would normally be clinically contraindicated. The Act is also underpinned by a code of practice which, unlike in Scotland, healthcare providers are legally compelled to consider.

Proceed with caution!

Regardless of where you are practising, the dental care of the vulnerable is a hugely rewarding and crucial service. However, it is not without its own practical and medico-legal difficulties. Therefore, if in doubt – do nowt! Phone an MDDUS advisor and seek assistance.

Doug Hamilton is a dental adviser at MDDUS


This page was correct at the time of publication. 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.

Read more from this issue of Insight Primary

SoundBite is published twice a year and distributed to MDDUS members in their final year of dental school and to those undertaking one or two years of postgraduate training throughout the UK. It provides a mix of articles on risk, dento-legal and regulatory matters as well as general features and profiles of interest to trainee dentists.
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