Advicesheet. Ethics in dentistry

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1 Advicesheet Ethics in dentistry B1

2 Advicesheet Ethics in dentistry B1 contents page This advice sheet provides detailed, practical advice and information on the major aspects of ethics in dentistry. The sections are: The duty of care and professional obligations 6 Professional regulation and registration 6 The patient s best interests 6 Equal treatment and human rights 6 Professional competence and experience 7 Lifelong learning 7 Clinical audit, peer review and clinical governance 8 Professional indemnity/insurance 8 Revalidation 8 Checklist 9 Consent 9 Key definitions 9 The need for valid consent 10 Obtaining consent 10 Material risks 12 Consent under duress 13 Treatment at the patient s request 13 Making claims 14 Battery 14 The age of consent 14 Children in care 15 Incompetent patients 15 Where consent is not obtainable 15 Clinical trials, research and lectures 17 Consent forms 18 Checklist 18 Confidentiality 19 What is personal health information 19 Data Protection Act Age of consent to disclosure 20 What information can be disclosed 21 Training and disciplinary procedures 24 Checklist 25 Model confidentiality policy 25 Data protection code of practice 27 BDA March

3 contents page Dental records 29 Good record keeping practice 30 Storage, retention and disposal 31 Fair processing 32 Subject access 32 Third party access 33 Sale/transfer of records 34 Checklist 35 Patient care 35 Patient communication 35 Agreeing to provide care and treatment 36 Patient choice 37 Treatment planning 37 Health checks 37 Alternative therapies 37 Non-surgical cosmetic procedures 38 Tooth whitening 38 Medical emergencies 38 Misleading patients 38 Maintaining appropriate boundaries 39 Referral fees 39 Missed appointments 39 Debt collection 39 Handling complaints 40 Checklist 41 Professional relationships 41 Professional agreements 41 Duties of a dentist manager 41 Second opinions 42 Raising concerns 42 Specialist practice 43 Veterinary dentistry 43 The death of a dental practitioner 43 Checklist 44 Commercial interests 44 Financial interests 44 Advertising and canvassing 45 Shared arrangements with other health professionals 45 Buying, selling or closing a practice 45 Bodies corporate and limited liability partnerships 46 Practices owned by dental care professionals 47 Promotion of products and services 47 Private dental plans 47 Bankruptcy 48 Checklist 48 BDA March

4 Child protection 48 Types of abuse 48 Practical steps 49 Recording and reporting 50 Child protection policy 51 Criminal record checks 52 Further information 53 Checklist 53 The dental team 53 Vicarious responsibility 53 Dental hygienists and dental therapists 53 Dental technicians and clinical dental technicians 54 Dental nurses 54 Dental receptionists 54 Training 54 Terms and conditions of service 55 Staff management and appraisal 55 Checklist 55 General anaesthesia and sedation 55 General anaesthesia 55 Conscious sedation 56 Conscious sedation in Scotland 58 Alternative techniques 58 Consent 58 Checklist of ethical principles 59 Dentists Health Support Programme 61 BDA Benevolent Fund 62 The guidance gives members essential advice on ethical issues that will enable them to practise safety and in accordance with high standards of professional conduct and behaviour. The BDA is able to provide ethical advice and support to members, contact or telephone Dentists are facing greater demands from patients, regulators and NHS commissioners. Cases going before the General Dental Council are rising and dental negligence claims are also becoming more common. In order to manage these risks successfully, dentists need to ensure that they understand and keep up-to-date with changing professional regulations and are fully conversant with what is expected of them. Use these advice booklets as reference documents and in conjunction with guidance issued by the General Dental Council (www.gdc-uk.org). BDA March

5 This section gives an overview of the main obligations of a dentist and covers: Professional regulation and registration The patient s best interests Equal treatment and human rights Professional competence and experience Lifelong learning Clinical audit, peer review and clinical governance Professional indemnity/insurance Revalidation Checklist Until recently, dentists had a professional monopoly, being the only individuals who could carry on the business of dentistry, that is, profit directly from dental practice. This changed in 2006 with amendments to the Dentists Act and the opening of the Dental Care Professionals Register. Since then, all GDC registrants can own dental practices. It is now also possible for non-dentists do be involved in an incorporated dental practice as long as the majority of directors of the company are GDC registrants. The dentist s duty of care and professional obligations Professional regulation and registration Dentistry is a self-regulated profession, which means that the General Dental Council determines the standards against which dentists are judged. As is the case with all health care professionals, dentists must retain public trust and confidence, both as individuals and in the profession as a whole. Complying with certain fundamental principles, which are the basis of sound ethical practice, will ensure that dentists continue to maintain their status as respected professionals: Acting in the patient's best interests and respecting their dignity and choices Communicating with patients and listening to their concerns Obtaining consent to treatment and keeping personal health information confidential Complying with the rules and regulations that apply to dentists Providing patients with the best possible clinical outcomes Being trustworthy Keeping their skills and knowledge up-to-date Co-operating with other members of the dental team and other health professionals in the interests of patients. In some circumstances these principles can place great demands on dentists and this section identifies some of the issues involved. The GDC has a set of standards guidance booklets with which all registrants must familiarise themselves. These are available on their website at A dentist must act in the patient s best interests and provide a high standard of care and service. Acting in a patient s best interests can be interpreted widely but includes: The patient s best interests Providing appropriate, necessary care and treatment to a high standard Not misleading patients Putting the patient s needs first Treating the patient regardless of race, sex, religion, sexual orientation, social class, medical or dental condition or disability Providing information that is necessary for the patient to make an informed choice about care Providing care in an emergency and out of hours. BDA March

6 Complying with these rules can be difficult, particularly where financial constraints mean that dentists are not always able to spend enough time with their patients. Communication failures can mean that dentists can inadvertently mislead patients about the type or quality of care they can expect, and this is a particular danger in dental advertising. Sometimes, the patient s and dentist s perceptions of what is an acceptable standard of care can differ, for example in what constitutes a dental emergency. Equal treatment and human rights Professional competence and experience The Human Rights Act came into force in October The Act makes it unlawful for the human rights of individuals (as defined by the European Convention) to be infringed by public authorities, which includes NHS organisations. The effect of the Act is to allow individuals to pursue public authorities in the UK courts rather than having to go to the European Court. The Act covers issues such as consent to treatment and physical restraint of patients. Dentists must not undertake procedures for which they are not competent or do not have appropriate experience. Asking for help from colleagues or ceasing treatment and referring a patient to another practitioner can be difficult, but is always a wise course of action. Inexperienced dentists particularly can encounter difficulties undertaking complex procedures and, although many problems are solved during vocational training, sometimes they continue in practice, resulting in great stress and loss of confidence for the dentist and potentially harm to patients. Help is available from postgraduate dental deans, dental schools, General Dental Practice Advisers to PCTs/Health Boards and professional organisations. Contact the BDA Practice Support on or for further information. Unsatisfactory treatment or failure to provide treatment without adequate skill and care can lead to civil cases of negligence, disciplinary proceedings by PCTs/Health Boards, referral to an NHS Tribunal or allegations before the GDC of unfitness to practise. Where dentists encounter colleagues in this situation they have a professional duty to raise their concerns with an appropriate individual. Dentists responsibilities in this regard are discussed on page 42. Lifelong learning Dentists are expected to undertake continuing postgraduate development (CPD) by attending relevant courses, reading professional journals and making use of other educational resources such as videos and CD-ROMs. This activity will generally ensure that a dentist is kept up to date with changes in clinical techniques and is able to adapt their practice accordingly, maintaining professional standards. Individual dentists also benefit in achieving greater satisfaction from their work, contact with professional colleagues, building a good professional reputation amongst patients and peers and being able to prevent and defend complaints. GDC registration includes participation in its CPD scheme, whereby registrants are required to undertake a minimum number of hours (250 for dentists, 150 for DCPs) to show that they are keeping up to date. The GDC also requires all registrants to undertake CPD in a number of set core subjects: medical emergencies (ten hours per cycle), disinfection/decontamination (five hours per cycle), and radiological protection (five hours per cycle). Registrants should also keep up to date with ethical and legal issues. Short postgraduate courses are organised by postgraduate dental deans, specialist dental societies, the BDA, the Faculty of General Dental Practice (UK) and commercial organisations. Information on courses is available from the BDA on request. Dental schools, the Royal Colleges and other bodies also award postgraduate qualifications. Information on postgraduate courses is available from the BDA's Education Team. BDA March

7 Clinical governance is the name for quality assurance within the NHS. An overall clinical governance system is in place throughout the NHS, but a specific framework has also been developed for dental practice. PCTs are using this framework to assess dental practices locally and to ensure that procedures are in place to comply with the wealth of legal requirements governing health. The practice framework is subdivided into twelve distinct areas, ranging from infection control, radiation, patient safety through child protection, consent, confidentiality, staff development and patient involvement to clinical audit and peer review. The BDA has a clinical governance kit which provides all relevant policies and models to comply with the requirements. Clinical audit, peer review and clinical governance Clinical audit and peer review are an integral part of clinical governance. Reviewing treatment outcomes either through individual assessment or on a group basis is fundamental to modern ethical practice. PCTs take varying approaches to these activities; some require the practices to carry out audit projects on set subjects, whereas others expect practices to choose their own. The BDA has an Advice Sheet E10 CPD, clinical governance, audit and peer review and a number of sample audits on its website. Dentists must have appropriate professional indemnity/insurance cover to undertake any form of practice. The cover may be in the form of membership of one of the dental defence organisations or insurance with a company that offers an appropriate level of cover to protect patients and the dentist. Professional indemnity/insurance Currently there are three defence organisations in the UK; some, such as Dental Protection and the Medical and Dental Defence Union of Scotland, offer indemnity cover, while the Dental Defence Union offers cover underpinned by an insurance policy. Indemnity cover is discretionary so that they do not guarantee to cover claims. Indemnity covers occurrences within the period that a dentist is a member, even if they are no longer a member when the claim is made. This is occurrence-based cover. Medico-legal insurance guarantees to cover the insured up to the limit of the policy provided that the claim falls within the scope and conditions of the policy and is within the policy period. The company will cover on a claims-made basis, that is the dentist will be protected against claims made during the policy period and matters arising out of the dentist s clinical relationship with patients occurring whilst the dentist is insured. If a dentist discontinues a policy and wishes to be covered for the period of insurance, run-off cover must be purchased. When choosing appropriate cover, dentists should consider whether the proposed cover meets their current and future practising needs, will provide help with proceedings by the General Dental Council as to matters of professional conduct and health and provides suitable professional support that is appropriate to their practice. It should be noted that sometimes defence organisations will terminate the membership of dentists following a GDC case or will require the member to pay a higher membership fee. For more information see BDA Advice Note Professional indemnity cover. The GDC is committed to introducing a system of revalidation, in which registrants will have to demonstrate that they are fit to stay on the register. There is no definite timescale for this, but plans for pilots are well advanced. Revalidation will include continuing professional development, but will also look at other professional achievements and activities of registrants, such as compliance with clinical governance and further postgraduate qualifications. These positives will be counterbalanced with any negatives, for example high numbers of complaints or an appearance before the GDC. It is also expected that appraisal will play a part. The vast majority of all registrants will be able to show their fitness to remain registered, but, where there is a case where Revalidation BDA March

8 questions remain, the GDC will be able to take further steps, for example an inpractice assessment or a full assessment through the National Clinical Assessment Service (NCAS). Checklist Always act in a patient s best interests be familiar with the GDC s Standards for dental professionals guidance and supplementary booklets (Principles of dental team working, Principles of patient consent, Principles of patient confidentiality, Principles of raising concerns, Principles of complaints handling, Principles of management responsibilities, Conducting clinical trials, Responsible prescribing, and Child protection) Only undertake procedures for which you have the necessary training, competence and experience Undertake continuous postgraduate education and comply with clinical governance arrangements Obtain and keep up appropriate professional indemnity/insurance cover. Consent The law on consent is subject to change and further specific advice should be obtained from BDA Practice Support on or This section gives general guidance on the dentist s responsibility to patients to obtain consent to examination and treatment. It is not intended to be comprehensive, but it contains sufficient information for dentists to gain a general understanding of a complex subject. The case law on medical consent is constantly developing and advice should be sought from the BDA/defence organisation when particular problems arise. Key definitions Express consent A patient gives express consent when he or she indicates orally or in writing consent to undergo examination or treatment or for personal information to be processed. Implied consent In very limited circumstances consent may be implied. An example is where the patient indicates agreement to an examination by lying in the dental chair and opening their mouth. Consent to other types of dental procedures cannot normally be implied from compliant actions; an open mouth does not necessarily mean that the patient has understood what the dentist has proposed to do or the reasons why. Informed consent Informed consent requires a full explanation of the nature, purpose and material risks of the proposed procedures, and the consequences of not having the treatment, in language that the patient can understand (using an interpreter and visual aids where necessary). The patient should have the opportunity to consider the information and ask questions in order to arrive at a balanced judgement of whether to proceed with the proposed treatment. Specific consent Specific consent means that the patient consents expressly to each of the procedure(s) to be undertaken. An agreement to undertake a course of treatment without knowing what is to be done is not specific consent. For example, obtaining a patient s informed consent to sedation does not mean that the patient has given specific consent to the treatment that will be carried out. BDA March

9 Valid consent For consent to be valid it must be specific, informed and normally be given by the patient or a parent or guardian (if the patient is under 16 and is unable to give informed consent). A dentist has a legal requirement to obtain the valid consent of the patient to the treatment proposed. Before carrying out an examination or treatment, valid consent must be obtained. For consent to be valid, the patient giving the consent must be: The need for valid consent 1. Competent to give it 2. Adequately informed of the nature of the procedure that is being agreed to and 3. In a position to give consent freely. The need to obtain a patient's informed consent arises from the moral obligation and ethical principle to respect a person's autonomy and right to selfdetermination. Any treatment or intentional physical contact with the patient undertaken without valid consent may amount to assault and a breach of the patient s human rights. A court may award damages for assault and the General Dental Council considers that assault or treatment without consent can amount to serious professional misconduct. Consent should be regarded as an ongoing process rather than a specific event and is another instance where effective communication between dentist and patient is vital. Refer to the GDC s guidance in Principles of patient consent (www.gdc-uk.org) Who can obtain consent? Obtaining consent Consent for examination and treatment must be obtained by a dentist (normally the dentist who is undertaking the treatment). In no circumstances should the obtaining of consent to treatment be delegated to staff, although they may be extremely helpful in reinforcing the information that has been given. For treatment undertaken by a dental hygienist or dental therapist, the prescribing dentist should obtain consent and the treating professional should check before it is done that the patient is still content for the treatment to be carried out. Who is competent? This is a question of fact in every case and requires that the patient is able to understand what is involved in the procedure. The patient must be able to (i) comprehend and retain the relevant information, (ii) believe it, (iii) weigh in the balance so as to arrive at a choice, and (iv) communicate their decision (whether by talking, using sign language or any other means). The patient does not have to make a mature or wise decision, nor do they have to achieve the unattainable, such as fully appreciating the consequences of the decision. The law will not impose unreachable expectations about a patient s reasoning powers and experiences. A patient must be able to understand what is wrong, that it requires treatment and the consequences of undergoing or declining treatment. An assessment of whether a patient is able to consent should be carried out before any dental care or treatment. BDA March

10 Express and implied consent Consent may be express or implied. An example of implied consent for an examination is when a patient makes an appointment and presents for examination. Consent to other types of dental procedures cannot normally be implied from compliant actions - only in very limited circumstances consent may be implied. Express consent may be given orally or in writing. Oral consent would normally be adequate for routine treatments, such as restorations and prophylaxis, provided that full records are maintained. Written consent is necessary in cases of extensive intervention and essential where a general anaesthetic or conscious sedation is given (see pages 55 and 56). Specific consent The precise nature of the treatment to be undertaken must therefore be explained clearly and in terms that the patient can understand. Asking whether the patient has understood or whether more information is needed is useful, as is, where possible, providing supporting written information. Aids such as radiographs, photographs and models can be helpful in discussions as well as books such as the BDA s Pictures for patients portfolio. Going beyond the consent that has been given It must not be assumed that, because consent has been obtained for one procedure, it is implied for an alternative or subsequent treatment that may become necessary. Consent must therefore be appropriate and the changed circumstances must be explained to the patient and specific consent sought. The best interests of the patient are of course paramount and if, while under a general anaesthetic or sedation, it becomes clear that further treatment of complications is absolutely necessary, it would be reasonable to proceed, provided that the dentist is willing to be accountable for his/her actions in the patient's best interests. Where it is anticipated that this situation is likely to occur, the dentist should obtain prior consent to treat such problems that might arise. As soon as the patient is sufficiently recovered to understand, the treatment actually provided must be fully explained together with the reasons for undertaking it. Restricted consent Sometimes patients will consent to part of a treatment plan but withhold consent for treatment that may become necessary so that the procedure can be given further consideration. Such instructions must be fully documented and the patient s wishes must be followed. Informed consent The dentist should endeavour to assess how much the patient wants and ought to know about the condition and its treatment. The patient's comprehension is an essential element in the validity of consent and the onus is on the dentist to be satisfied that the patient has understood the treatment to be carried out and the consequences of not having the treatment. Alternative treatments which may be available and their likely prognosis, any material risks involved in each option, methods of pain control to be used and any aftercare or precautions which may be necessary all form a vital part of the explanation leading to full comprehension and an informed choice by the patient. When all of these components are present a patient may have been judged to have given informed consent. BDA March

11 During the discussion about proposed treatment, the dentist should not make assumptions about patients views but ask whether they have any concerns about the proposed treatment or its risks. Engaging in open and helpful dialogue takes up clinical time but, as well as satisfying a dentist s ethical and legal obligations, it increases the quality of care that is provided. Material risks In deciding which risks are material and should be explained, a practitioner will rely on professional judgement, but must warn patients of any substantial or unusual risks involved and of consequences which may be slight but which commonly occur. Examples include the possibility of nerve damage in oral surgery procedures, perforation or instrument breakage in endodontics, and crown and bridge failures. To what extent risks must be described to patients is influenced by public and professional expectations and dependent on case law. Some of the relevant cases in the fields of medical negligence and consent are described below. Bolam and Sidaway In Bolam v Friern Hospital Management Committee (1957) it was held that a doctor should not be found guilty of professional negligence if a reasonably competent doctor in a similar position would have acted in the same way and the actions would have been supported by a responsible body of medical opinion. This is known as the Bolam test. Applying the Bolam test to dental consent means that a dentist would not be found guilty of failing to warn a patient of a material risk if a reasonably competent dentist in similar circumstances would not have warned of the risk and that decision would have been supported by a responsible body of dentists. The Bolam test was affirmed and extended in the Sidaway v Board of Governors of Bethlem Royal and the Maudsley Hospital case (1985) where the House of Lords held that a decision on the degree of disclosure of risks that is best calculated to assist a particular patient to make a rational choice must primarily be a matter of clinical judgement and that the attention of a patient should be drawn to any danger which may be special in kind or magnitude, or special to that patient, with sufficient information being provided to enable the patient to reach a balanced judgement. In deciding on whether to warn of a particular risk, the Sidaway judgment held that the health professional must take account of all of the relevant factors such as the severity of the risk to the patient and the likelihood of the risk, as well as the patient s specific need for the procedure. Where risks could result in grave and adverse consequences to the patient (referred to in the judgement as substantial risks), the dentist has a duty to inform the patient of them even if a substantial body of dental opinion would not have done so. Increasingly, the legal profession, the public and health care professionals expect that patients are informed of all of the risks that apply to proposed treatment, not just those that a responsible body of medical opinion would have warned them of. While the Bolam test is still of importance in the UK courts, recent judgments in Ireland and the UK have challenged it. BDA March

12 Bolitho v City and Hackney Health Authority (1997) The Bolitho judgment involved the issue of causation in medical negligence and refined the Bolam test of the practitioner being able to rely on what a responsible body of medical opinion would have held to be correct. Although the judgment specifically excluded the issue of disclosure of risks to patients when obtaining consent, subsequent consent cases have referred to it (see below). In the judgment, the Law Lords found that a practitioner who is alleged to have been negligent by omission could not rely on evidence that a body of medical opinion would have omitted to act in the same way. In the circumstances that the claimant and defendant call expert witnesses (as was the case in Bolitho), reliance could only be placed on opinion that was sensible in that it had a logical basis. Bolitho has been used in the case of Pearce v United Bristol Health Care NHS Trust (1999). Pearce v United Bristol Healthcare NHS Trust (1999) In this case a female patient was not warned of a one or two in a thousand risk of stillbirth in a delayed delivery. The body of medical opinion brought by the defendants concluded that the risk was not significant. The Court of Appeal held that a doctor must take account of all relevant circumstances when deciding how much information to give, including the patient s ability to understand the information and emotional and physical state. The court held that it was for the court and not for doctors to decide on the appropriate standard of what should be disclosed to a particular patient about particular treatment. It would normally be the legal duty of a doctor to advise the patient of any significant risks that may affect the judgement of a reasonable patient in making a decision about treatment. In summary, the court decided that if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that risk if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. On the facts in this case the court held that the risk of stillbirth was not significant and it was not proper for the court to interfere with the clinical judgment of the doctor. Consent under duress Consent is not valid if it is obtained under duress. The consent must be given voluntarily and freely. Claims of lack of voluntariness do not, for the most part, involve brute force or duress. The courts wish to ensure that patients are not unduly influenced if it is deemed that patients have not given consent voluntarily, the consent will not be valid. It has been argued in Court that consent could never be given voluntarily where the patient is a prisoner and the doctor was also a prison officer. This argument was rejected by the Court of Appeal. Care should be taken in obtaining consent in the presence of third parties, including family members, that confidential information is not disclosed without the patient s prior authorisation and that third parties are not unduly influencing the patient to consent. Treatment at the patient s request Cases arise where patients ask a dentist to undertake treatment that is not in their best interests and is against the dentist s clinical judgement, for example, removal of healthy teeth, crown and bridgework instead of extraction and dentures or dental implants (where these are not clinically advisable). In these situations, dentists still have responsibility for the clinical treatment provided and always to act in the patient s best interests. Treatment should not be BDA March

13 undertaken if it will cause permanent damage to the dentition or will be of no clinical or cosmetic benefit. If the treatment fails, the patient may seek damages for negligence or a refund of treatment costs. In these events it can be difficult to establish that treatment was undertaken with the required skill and care. Obtaining a signed statement from the patient instructing the dentist to carry out the treatment and absolving the dentist from any stated adverse consequences may not be a valid defence in court or before the General Dental Council. Finally, dentists should be careful that the claims they make for a particular form of treatment can be substantiated and that they do not unrealistically raise their patients' expectations of the benefits or results of particular treatments. In dentistry, it is also essential that the patient understands and agrees to the costs involved and is clear whether treatment is being provided under the National Health Service or privately (see page 36). To undertake treatment without the consent of the patient constitutes an assault on that individual and could render the dentist liable to an action in battery even if the treatment were not performed negligently. The practitioner would be liable in battery for failing to obtain consent at all, or failing to ensure that the patient understood even in broad terms the nature of what was proposed. The fact that the patient, if asked, would probably have consented to the procedure is no defence. Even where consent has been sought, the practitioner could still be liable in negligence for failing to give adequate information as to the risks involved in the procedure or the possible alternatives. There is also a possibility of action under the Human Rights Act 1998 where the dentist is providing NHS care. Further information on the implications of the Act is available from BDA Practice Support on A person who has reached the age of 18 and who has the capacity to reach decisions on their own behalf is a competent adult and can give or withhold consent. Capacity will necessitate being able to understand, believe and retain the information provided about treatment and having the ability to weigh up the information in order to choose whether or not to proceed. No-one else is able to consent for a competent adult. Making claims Battery The age of consent The Family Law Reform Act 1969 provides that any person age 16 years or over and of sound mind may legally give consent to any surgical, medical or dental treatment. A parent theoretically could lawfully consent to treatment of a child who is refusing consent, but a parent cannot overrule such a child s consent to treatment. Best practice would be to make an application to court where parents are prepared to consent but a child is capable of understanding what is involved and is refusing to consent to some major form of treatment. Children under 16 who are of sufficient maturity and intelligence to understand fully the nature of the treatment proposed and its ramifications are also entitled to give consent to treatment. This is known as Gillick competence after the 1985 case of Gillick v West Norfolk and Wisbech Area Health Authority where the Law Lords ruled that a child under 16 was able to consent if he or she understood the nature of the treatment, its purpose and hazards. It will ordinarily be for the practitioner to decide whether the child satisfies these criteria of competence. The ability of a child to understand will depend on the child s age, maturity and the proposed treatment. For example, a twelve yearold child might be able to give consent to a dressing, but may not be able to consent to an extraction. A parent can lawfully consent to treatment of a Gillick competent child who is refusing consent, but a parent cannot overrule a Gillick competent child s consent to treatment. BDA March

14 The Children Act 1989 reinforces the right of a child with sufficient understanding to make an informed choice to refuse to submit to examinations or treatment. But if a child aged 16 or 17 refuses treatment, this will not override parental authorisation. Alternatively, where parents refuse treatment that is in the child s best interests, a court can be asked to make an order for the treatment to be carried out lawfully. More than one person may have parental responsibility for the same child at the same time. Where more than one person has parental responsibility, each may act alone and without the other. In the absence of agreement by all those with parental responsibility, the specific approval of the court must be obtained if the treatment involves an important decision. The following have parental responsibility: the child s father and mother, where they were married to each other at the time of birth; the child s mother but not the father where they were not so married, unless the father acquires parental responsibility either by order of the court or pursuant to a parental responsibility agreement with the mother; a person appointed as the child s guardian and a person in whose favour the court makes a residence order with respect to the child. Where a child who is unable to consent is accompanied by an adult relative without parental responsibility and consent from the parent has not been obtained, the adult cannot give consent to the treatment. If the parent cannot be contacted then treatment should only proceed in exceptional circumstances, for example where the child is in pain and the treatment is undertaken to alleviate it. In Scotland, the Age of Legal Capacity (Scotland) Act 1991 is specific and provides that a person under 16 who, in the practitioner's opinion, is capable of understanding the nature and possible consequences of the procedure or treatment shall have legal capacity to consent on his or her own behalf to any surgical, medical or dental procedure or treatment. In Northern Ireland the age of consent for medical and dental treatment is 16. Children in care Incompetent patients Where consent is not obtainable Where a child is taken into local authority care, the local authority may acquire parental responsibility in addition to the child's natural parents. If the child is in care, usually the dentist can obtain consent from an authorised representative of the local authority. Where a major surgical procedure is involved, however, the consent of the parents would usually be sought as well. In the case of children under 18 who are wards of court, the consent of the court must be obtained before any major intervention can take place. Incompetent patients are those who, for reasons of mental incapacity or illness, cannot give informed consent to treatment on the basis of full understanding of the need for, nature of and consequences of treatment proposed. Not all mentally ill or incapacitated patients are incompetent. But in the case of minors, the informed consent of the parent or guardian should be obtained. Full details of the law regarding consent and mental incapacity is available in a BDA Advice Note Assessing mental capacity. Where consent may not be obtainable, for example in cases of incompetent adults, unconscious patients or an emergency, the same basic principle applies: the professional has a duty to make up their own mind and to act in the best interests of the patient, taking a second opinion where necessary. In cases of unconscious patients, a practitioner should carry out only that treatment which is necessary and should await such time as the patient is able to consent before undertaking further procedures. Consultation with the next of kin is advisable. BDA March

15 Notes must be made in the patient s clinical record to explain why consent was not obtained, to record the second opinion that was given, and include any other views that were sought. In the case of both minors and people with mental incapacity, a patient may be competent to consent to some treatments but not to others. Some patients with mental illness may be competent to consent at some times and not at others. The dentist's responsibility with regard to confidentiality should also be borne in mind in these cases. Where patients are detained under the Mental Health Act 1983 without their consent, treatments can be performed without consent if the treatment is for the mental disorder and as such the normal rules for obtaining consent should be followed for dental treatments. The courts have extended this to allow treatments to be performed without consent that are unrelated to the mental disorder but which could cause the patient s mental health to deteriorate. Decisions made by the Court of Protection The Court of Protection is the final arbiter in relation to the legality of decisions concerning patients who do not have capacity to consent. In addition to adjudicating in relation to specific, one-off decisions, the Court will have the power to appoint deputies to assist with continued decision making. Although health care decisions can be lawfully made without a deputy, they can be useful where there are disputes over care and treatment Lasting Power of Attorney Individuals over the age of 18 who are competent can nominate another person to make health care decisions on their behalf when they lose the capacity to make such decisions. The person nominated is known as having a lasting power of attorney (known as a welfare power of attorney in Scotland). Independent mental capacity advocates For incompetent adult patients who lack any form of external support in relation to serious treatment and there is no-one close to the adult to provide advice or guidance, including an attorney or deputy, then the services of the Independent Mental Capacity Advocate can be engaged. This service will only be available in the case of a single treatment being proposed where there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail, or what is proposed would be likely to involve serious consequences for the patient. Advance statements or directives to refuse treatment People over the age of 18, who are competent, are able to make advance statements that they refuse a particular type of medical treatment (which will include dental treatment) if they lose capacity. If a patient is incapable of consenting, the dentist must ensure that the advance decision exists and is valid. The advance statement must refer to the particular treatment in question and should explain the circumstances to which the refusal applies. It is only possible to make an advance refusal of medical treatment. A person cannot make an advance request for treatment. BDA March

16 Clinical trials, research and lectures Research should not be carried out on patients without specific consent given on the basis of a full understanding and explanation of the research and its possible effects. Participation of a patient in research must be voluntary and recorded. The same rules regarding age of consent and capacity to consent apply in the case of research. Research protocols should always be submitted to the appropriate Local Research Ethics Committee and a consent form devised which is specific to the procedure. Guidance is available from the National Research Ethics Service at Where a dentist wishes to use photographs or other images of patients in clinical lectures, papers, videos or presentations, consent should also be obtained. Consent for records-based research Wherever possible, where research is being undertaken using data taken from patients records, explicit consent must be obtained from the patient. If this is not possible, because of the cost and time involved, the data must be encoded or anonymised as early as possible within the data processing. If it is anticipated that this type of research will be undertaken, then this should form part of the stated purposes for which data might be disclosed and information should be included in the practice s data protection policy (see the BDA Practice Compendium for a model). Any research that is carried out must be approved in advance by the Local Research Ethics Committee/Multi-Centre Research Ethics Committee. The Medical Research Council has issued guidance on the use of personal information in research Consent forms Model consent forms are available for use in general dental practice and the hospital and community dental services. Signing a form, however detailed and specific, is no substitute for the communication between dentist and patient that is the essential component in obtaining valid consent. Forms have a place in recording consent and in some cases (for example general anaesthesia/conscious sedation, extensive or expensive treatment) are a professional requirement. Salaried services: The Department of Health in England has published a consent form (available in a number of languages) to be used for medical or dental investigation, treatment or operation and one to be used for mentally incapacitated patients). The form emphasises the patient s right to a full explanation of the proposed treatment, the right to ask questions and the right to be accompanied by a relative, friend or nurse. It also states that the patient may refuse or withdraw consent. General practice: Copies of treatment plans and estimates may be used to record consent, provided that they accurately reflect not only that the patient has agreed to the proposed treatment, but that the necessary explanations have been given and incorporate a signature. A suggested model form for use in extensive intervention is given below and is available in the BDA Practice Compendium. BDA March

17 Valid consent is informed and specific Informed consent means that the patient understands the proposed treatment, its purpose, alternatives, material risks associated with it and the effect of not having it done Consent to treatment must be obtained by the dentist treating the patient Consent may be express (that is given orally or in writing) or implied (by compliant actions) Children aged 16 or over may consent to treatment although younger children who are Gillick competent may also do so The most important aspect of consent is communication between dentist and patient. Signing a consent form is of secondary importance although it is compulsory when general anaesthesia or conscious sedation are undertaken. Checklist Model consent form for treatment (without sedation) Name of patient. Name of parent or guardian (if applicable).. Address. 1. I hereby consent to undergo (or to.. undergoing)* the following dental treatment.. as explained to me by Dr/Mr/Mrs/Ms/Miss* (name of treating dentist) who has explained the nature of the treatment, its purpose, risks and alternatives to me. I have been given the opportunity to ask questions. I understand that should any change in this treatment be required, it will be explained to me and my specific consent obtained. Treatment : 2. I understand that the cost of the treatment will be Signature Date (Patient/parent/guardian)* I confirm that I have obtained a full medical history and explained to the person who signed the above form of consent, in terms which in my judgement are suited to his/her understanding, the nature, purpose, risks and alternatives of this treatment and that the anaesthetic techniques and usual pain control procedures have also been explained to him/her. Signature Date Name (Dental practitioner) *Delete whichever is inapplicable BDA March

18 4. Maintaining confidentiality Dentists have a professional and common law duty to keep confidential all personal information gained about patients in the course of their professional relationship. The patient-dentist relationship is built on the premise that a patient who gives information to a dentist or member of the dental team is normally entitled to assume that the information will not be disclosed without the patient s consent to anyone for any purposes other than the provision of health care. This principle is included in the GDC s Standards for dental professionals. The Council has also issued specific guidance on confidentiality in Principles of patient confidentiality (www.gdc-uk.org). Clinical dental records and other items of personal information are held by individual dentists and dental practices as well as by health service bodies such as trusts, private hospitals, dental hospitals and government payment agencies such as the Business Services Authority Dental Services Division. In general dental practice, responsibility for disclosing information without patient consent rests with the patient s dentist (unless, for NHS contract purposes, the dentist is a deputy, assistant or an employed performer). In the salaried primary care dental services, responsibility rests with the particular employing trust, although the dentist who is treating the patient should be consulted if a request for disclosure is made. This section considers: What is personal health information? Data Protection Act 1998 Age of consent to disclosure What information can be disclosed? Training and disciplinary procedures Checklist Model confidentiality policy Data protection code of practice Checklist What is personal health information? Personal health information is any information relating to the physical or mental health of an individual who can be identified from that information or from other information which is in the possession, control or held by or on behalf of a health service body or qualified health professional in connection with the provision of health care. In dental practice, personal health information includes: Clinical notes and medical histories (manual and computerised) Radiographs and study models Personal information about the patient or identifiable third parties Information held in appointment books/systems Financial payment records/nhs forms relating to the patient daybooks Receipt books with patients names Exemption status Video, audio tapes, photographs and other medical illustrations Information that is held in the dentist s (or other team members ) minds. Essentially, the fact that an individual is a patient at the practice is confidential and cannot, under normal circumstances, be disclosed without the patient s consent. Removal of obvious identifying features from the information may not necessarily remove the need to maintain confidentiality. The patient s condition or circumstances may be very unusual or unique so that disclosure of the information might make it possible to deduce or speculate on the patient s identity. BDA March

19 The 1998 Data Protection Act protects the confidentiality of sensitive personal data (which includes information on the data subject s physical or mental health or condition) by placing obligations on the data controller (that is the person or legal entity responsible for the data) only to disclose information to a third party in prescribed circumstances included in the Act and to keep the data secure. The Act applies to manual data and data that are processed automatically. Data Protection Act 1998 An important requirement of the Act is that data must be processed fairly and lawfully. Data processing includes the obtaining, holding, use and disclosure of personal data. Applying the terms used in the Act to dentistry, the patient is the data subject and the dentist responsible for care is normally the data controller. Processing includes taking records, submitting claims to the NHS, sending out recalls, sending work to laboratories and referrals. Among the information that should be given to the patient is that data will be shared on a need-to-know basis with certain organisations (such as the BSA DSD/ SDPD/ CSA) in order to provide the patient with appropriate care and treatment and for the provision of general health services. Under the Act, information should only be held for the period for which it is required and for the purposes that have been stated to the data subject. For example, in dentistry, dentists should not send information to patients about non-dental business ventures unless they have the patient s consent to do so. This also applies to information about financial products such as personal loans. The relevant principles of the Data Protection Act must be followed: that is data must be kept for no longer than is necessary and must be obtained for specified and lawful purposes. An illustration of this might be when a dental chart of a missing person is given to the police for the purpose of identifying a body. If the body is not found to be the patient, the charting should be returned to the dentist and not kept on file by the police. If the practice operates an appropriate confidentiality policy (see page 25) and provides a data protection policy, then it is likely that the requirements of the Act will be met. BDA Advice Sheet B2 Data protection contains further information and a model data protection policy, which also appears in the BDA Practice Compendium. Patients aged 16 and over can consent to the disclosure of their health records and can withhold their consent. Mature minors of any age, who understand the implications of their decisions, can give or withhold consent to disclose information. Legal rights to confidentiality depend not just on age but also on understanding. Thus, a parent does not automatically have the right of access to a child s records, even if the child is under 16, and the dentist cannot discuss the child s treatment with the parents without the child s consent. It is for the dentist to judge whether a child is competent in the circumstances, taking into account the child s age, maturity and the consequences of disclosure or failing to disclose. For detailed advice on consent for minors see page 14. Age of consent to disclosure Questions of consent to disclosure also arise where the patient might be judged to have a mental impairment that may make them incapable of consenting to disclosure. In these circumstances the dentist must follow the guidelines for consent included on page15, which comply with the Mental Incapacity Act and associated Code of Practice. BDA Advice Note Assessing mental capacity available, on the BDA website provides more information. BDA March

20 What information can be disclosed? The legal disclosure of personal health information to third parties can be divided roughly into two particular types of disclosure: those exempt from the disclosure restrictions of the Data Protection Act (broadly, disclosures that are in the public interest) and those to which the data subject has consented. Disclosure with consent Where a patient gives specific consent to disclose particular information (and the patient is able to give informed consent - see page 10), the information may be disclosed in accordance with the consent that has been given. An example might be the use of an identifiable photograph of the patient in a research paper or practice advertisement. The Data Protection Act requires patients to give explicit consent to the disclosure of information held about them where: the disclosure is not covered by one of the Act s exemptions; the patient has not been informed that such disclosure will occur and has not objected to it; or it cannot otherwise be held to be in the public interest. Sharing health information The most common instance of disclosure in dentistry is the sharing of personal health information in order to provide health care to the patient. Examples of the necessary sharing of information in dentistry include: Referral of a patient to another dentist or NHS Trust for specialist treatment. Referral letters should give full information about the treatment required and any information about the patient that the referral dentist needs to know There is a medical condition that may affect the patient s ability to undergo a particular dental procedure safely and the dentist wishes to discuss the best approach with the patient s GMP/hospital consultant The dentist is informed by the patient about changes to their medical condition after treatment has been carried out and needs to check the details with the patient s consultant/gmp The issuing of a written prescription by the dentist to the DCP Prescribing work to a dental laboratory. The premise of these disclosures is that they can only be made to persons who need to know in order to provide care to the patient. The purposes for which the disclosure is made should also have been notified to the data subject and the information must only be used for the purposes for which it has been disclosed. For example, when responding to a GMP s request for information about the oral health status of a particular patient, information would not normally be given about the patient s personal circumstances. The consent of the patient should be obtained. Similarly, if the GDP needs to know about a patient s medical condition, which has a bearing on the dental treatment, consent should be obtained before approaching the doctor. Information given to a GMP would also normally be given directly to the doctor and not to the receptionist, even though the receptionist would be covered by confidentiality rules. It is for the dentist to decide what the third party to whom information is disclosed needs to know. Disclosure necessary to provide appropriate care and to ensure that the NHS is able to function In order to provide patients with appropriate health care and to ensure that the NHS can function, personal health data needs to be shared. BDA March

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