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5.8 Informed Consent
Clinic staff should obtain written consent for routine services, either as part of the medical history form or on a separate form. Written consent should be signed by the patient (or parent, guardian, or other adult who has legal authority to provide consent for medical treatment of a minor) and ideally also by a witness. When the parent, guardian, or other adult who has legal authority to provide consent for medical treatment of a minor agrees to a course of treatment, the consent applies only to that course of treatment. If the oral health professional changes or expands the treatment without obtaining informed consent, he or she is technically vulnerable to an assault and battery action. The oral health professional should communicate the details of the proposed change or expansion of treatment to the adult or to the minor’s parent, guardian, or other adult who has legal authority to provide consent and obtain consent again, treating the changed or expanded treatment like a new procedure. When treatment involves procedures that potentially place the oral health professional or the patient at increased risk (e.g., surgery, complex rehabilitation, innovative techniques, advanced behavioral management techniques, or other extensive or irreversible treatment), written informed consent should be obtained for each specific procedure. The informed consent form should state the reasonable risks of treatment, alternative forms of treatment, and risks of non-treatment. If information is withheld from the patient, the reasons for this should be documented in the record and, if appropriate, information should be given to the nearest relative, guardian, or authorized representative. Informed Consent for Minors Clinic staff should be familiar with the laws affecting the medical rights of minors in the state in which they practice. Oral health professionals are guided by state law with respect to criteria for informed consent, standards of care, and rights of minors. Read more about consent
for minors, which are subject to state variations.
Minors Under Age 14 For a minor under age 14 in Ohio, obtain consent of the minor’s parent, guardian, or other adult who has legal authority to provide consent for medical treatment. If a minor requests treatment only on condition of non-disclosure, the oral health professional must weigh the benefits and risks and document the circumstances in the minor’s record. Treatment of a minor without the expressed consent of a parent, guardian, or other adult who has legal authority to provide consent for medical treatment can be viewed as legal battery and possibly legal assault. An assault and battery is a combination of two intentional torts. Torts are wrongful acts that result in injury to another person or to another person’s property or reputation, and intentional torts result when a person intends to do the wrongful act. An assault is an action that places a person in reasonable apprehension of being touched in a manner that is insulting, provoking, or physically injurious. A battery is the actual touching. Both denote acts performed without lawful authority or permission. Because intent plays a part in such intentional torts, as well as in the commission of a crime, assault and battery resulting from the failure to obtain legal informed consent can entail criminal as well as civil liability. Malpractice insurance, which covers the oral health professional and clinic against claims of negligence or negligent torts, will usually not protect an oral health professional or clinic in criminal cases, and may not do so for intentional torts (which is civil litigation). Minors Ages 14–18 For a minor between the ages of 14 and 18 in Ohio, obtain consent of the minor as well as of the minor’s parent, guardian, or other adult who has legal authority to provide consent for medical treatment. Emancipated Minors Ages 14–18 A minor over age 14 who is living apart from parents or guardians and who is managing his or her own affairs may consent to needed medical care. Legal emancipation must be granted by the courts. In general, a minor’s consent, like a minor’s contract, is unreliable and revocable. In many circumstances, a minor’s consent will not protect the oral health professional from a charge of assault and battery brought by the minor’s parent or guardian. Even if minors are married and living in their own home, the issue of who can provide consent is not always clear-cut. If the minor seems to be dependent on a parent or guardian (for example, if a parent makes dental appointments and pays for services), the courts may consider the minor to be legally incompetent to contract for services. In such instances, it is wise to obtain the consent of the minor’s parent, guardian, or other adult who has legal authority to provide consent for medical treatment before providing treatment. Withdrawn Consent Sometimes a dentist will begin a procedure with the patient’s consent and cooperation, but then something happens that changes the situation. In most instances, the patient can withdraw consent, and the dentist must respect that wish. However, if the dentist is already in the middle of an irreversible procedure, it is too late for a patient to withdraw consent. |
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Informed consent is a communication process whereby a patient (or parent,
guardian, or other adult who has legal authority to provide consent
for medical treatment of a minor), with the advice and support of an
oral health professional, makes treatment decisions.
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