SADA: Patient Consent

Consent

No treatment must be provided to competent patients without their valid consent. To do so is a violation of their constitutional rights. The basic rule is that no one has the right to touch anyone else without just cause and if practitioners do so then it may violate the patient’s right to physical integrity. The only exception is where the patient lacks maturity or suffers from some mental impairment.

Failing to respect the patient’s right to bodily integrity may lead to a complaint to the HPCSA, civil or even criminal proceedings may be instituted for assault or to a claim for damages.

Consent is also not a once-off process and must be ongoing communication between the practitioner and patient.

Consent, in South Africa, operates on the doctrine “to a willing person, injury is not done”.

What is consent?

According to the dictionary meaning, the word ‘inform’ is to ‘tell someone about particular facts’, while ‘consent’ is ‘to agree to do something, or to allow someone to do something. Joining these two definitions informed consent would be “To allow someone to do something after being told of particular facts”. The two main components are thus knowledge and permission.

Implied and express consent

Many practitioners believe that the consent process is complete because it is implied when for example the patients make an appointment, complete the patient information sheet, and sit in the dental chair. Consent is also often implied by the patient opening his or her mouth and permitting the practitioner to examine him or her. Implied consent is a type of informed consent.

This consent is suggested, or implied, by the patient’s actions. It is not explicitly stated or written down. The patient should still be informed about the nature and purpose of the examination or treatment required. These should be documented properly in the dental record.

Express consent, on the other hand, is a signed consent form or in a statement from the patient. It is always advisable to obtain express consent to avoid any disputes and protect the practitioner.

Informed Consent and the Law

s7 of the National Health Act, 2003 (NHA) provides that, no health service may be provided without the user’s informed consent. Where the user cannot give consent, it is obtained from the person mandated to provide same, if no person is mandated then the spouse or partner, in their absence parent, grandparent, brother or sister of the user or by court order.

It is clear that the practitioner may not provide any service without the user’s consent and must take all reasonable avenues to obtain one. The practitioner cannot after the procedure is done, argue that the user should have ensured or given informed consent as it is not the user’s duty to do so.

The NHA also sets out what is meant by consent and provides that the practitioner must advise the user of:
a)       their health status unless its disclosure would not be in the user’s best interests;
b)       the range of diagnostic procedures and treatment options generally available to the user;
c)        the benefits, risks, costs, and consequences generally associated with each
d)       the user’s right to refuse health services and explain the implications, risks, obligations of such refusal.

The practitioner must also inform the user in a language that the user understands.

Elements of a valid consent

The following elements should be present for valid consent to be taken:

Competency:  The person must have the ability to understand, retain and weigh in the balance the information relevant to a particular decision.
Sufficient Information: The patient must have sufficient information to make a choice.

The information provided should, for example, include: an explanation of the investigation, diagnosis, or treatment; an explanation of the probabilities of success, or the risk of failure; or harm associated with options for treatment, and details of the costs of various treatment options.

The patient should be given time to ask questions.

Voluntariness: Patients must provide consent freely without coercion or pressure. Pressuring patients into consenting to treatment invalidates the consent.

Be aware, too, that patients’ friends and relatives may also try to exert their influence and that this can be subtle but nevertheless powerful.

Sometimes after providing consent, a patient may then subsequently claim that their “consent” was not given freely – and was instead coerced out of them through overt or subtle pressures.

As a clinician, you may also inadvertently apply pressure to consent – by assuming the patient will not object to treatment.

A patient will usually find it difficult to challenge any such assumption from a dentist and, indeed, may simply find it difficult to even say “no”.

Capacity to consent: Adults who are sober and sane are normally able to give consent.

A person who is unconscious or in a state of delirium, in shock or coma, or highly intoxicated or drugged, such a person may not be able to legally give consent.
Age: The age of full legal capacity in South Africa is 18 – therefore, in terms of consent to clinical treatment and procedures, it can be assumed that people aged 18 and over have the capacity to make decisions on their own behalf.
Children: Most often as a child does not have the capacity to agree to pay for the cost of treatment, therefore an agreement for the payment of costs must be sought from an adult.

The Children’s Act, 2005 allows for minor children in certain circumstances to give consent to their own medical treatment.

Younger than 12 years:  The child would have to be duly assisted by parent or guardian to consent.
12 years or older The person’s ability to make decisions should not be judged on the basis of age, appearance, condition or any aspect of his/her behaviour.

If you doubt the person’s ability to make a decision, an assessment should be carried out. This means conveying information to the patient with the use of plain and uncomplicated language, discussing it to gauge his/her understanding, and then asking questions about the salient points to see if the patient has grasped them.

The child may consent to dental treatment – has sufficient maturity and has the mental capacity to understand the benefits, risks, and other implications of the treatment.

For surgical operations, the same criteria would apply but the child would need to be duly assisted by a parent or guardian.

Who takes consent?

Ideally, the person who is giving the patient information they need about the proposed treatment should take the consent.

If this is not practical, it may be delegated to someone else, not necessarily a dentist as long as they are suitably qualified and trained. They must have knowledge about the proposed treatment and inherent risks.

In the case of delegation, the dentist always remains responsible for valid consent.

It must be remembered that doctors who delegate consent-taking duties do, however, remain responsible for ensuring that the patient has been given sufficient time and information to make an informed decision and that the consent is valid.

Financial consents can be delegated, again as long as the person is properly trained.

Payment of an account may remain unenforceable in the absence of financial consent.

Again the practitioner will remain personally responsible for the proper taking of informed financial consent from the patient.

When should consent be taken?

There is no particular time limit on consent but it is always good practice to obtain or confirm the consent just before the procedure. It also offers the patient an opportunity to ask any new questions.

Any such confirmation of consent should be documented in either the patient’s medical record or as a supplementary note on the original consent form.

Recording consent and consent forms

The presence of a signed consent form does not in itself prove valid consent to treatment – the important factors will always be the quality, extent, and accuracy of the information given beforehand.

Withdrawing consent

Patients with decisional capacity may also withdraw consent for continuing treatment. if, during a procedure, a patient indicates that she/he wants you to stop, you should stop the procedure as soon as it is safe to do so and then explain the consequences of not proceeding further, without implying coercion.

It is important to let patients know that stopping a procedure may or may not compromise their care.

Kind Regards
SADA Legal & Corporate Services

 

 

Brought to you by: Better Practice Management

“A LITTLE BETTER EVERY DAY”