JOURNAL OF THE IRISH DENTAL ASSOCIATION

February/March 2011

60 : VOLUME 57 (1)

Consent to treatment for children and adults with learning difficulties

In the latest Dental Protection article, JAMES FOSTER looks at consent issues for vulnerable patients.

Dentists are facing an increasing number of challenges from patients, through complaints, litigation and, more frequently, from the Dental Council. Quite understandably, clinicians initially focus on defending the standard of the treatment provided. However, increasingly it is not the treatment itself that is brought into question: it is the quality of the consent process that is challenged.

If consent is not valid then the clinician may be vulnerable to the above challenges and, in addition, to civil or criminal proceedings for assault. We should perhaps consider the consent process to be of the same importance as the treatment itself, as the consequences of a successful challenge to both are comparable. Consent is essentially a communication process and can be described as “the voluntary and continuing permission of the competent patient to receive a particular treatment based upon adequate knowledge of the purpose, nature and likely effects and risks of that treatment, including the likelihood of its success and any alternatives” (‘A Guide to Consent for Examination and Treatment’. Department of Health [UK], 1991). In addition, if costs are involved for treatment, then these should obviously be included. There are four specific components to valid consent:

1. Capacity.

2. Information.

3. Voluntariness.

4. Authority.

The test of capacity currently applied in the Irish courts is the ‘C Test’, which derives from the English case of ‘Re C’. The test is in three parts, all of which have to be fulfilled for a patient to be deemed competent to make the decision they are being asked to consider:

1. Does the patient comprehend and retain treatment information?

2. Does the patient believe that information?

3. Does the patient weigh that information, balancing risks and needs to reach a decision?

In most situations, obtaining the patient’s valid consent to a procedure or treatment is a straightforward matter; however, there are groups of with learning difficulties. In all circumstances, the overriding duties of the clinician are to respect the bodily integrity and right to selfdetermination of the patient and, where it is not possible to obtain a patient’s valid consent, to act in the patient’s best interests.

Children

Although the age of majority is 18, the law in Ireland recognises that 16 and 17 year olds have the capacity to consent to dental treatment on their own behalf (Non-Fatal Offences against the Persons Act 1997, Section 23). Currently, it is not clear whether someone of this age has the right to refuse as well as consent to treatment, as this has yet to be tested in the courts. In theory, a parent or legal guardian can consent to treatment that a 16 or 17 year old is refusing. Thankfully, such situations are rare and would demand a decision from the court. If a minor of 16 or over is incapable of giving consent, it may be obtained from the young person’s parent or guardian, or the court if necessary. If a child is under the age of 16, then in law the consent of the parent or legal guardian is required. In practice it is reasonable to seek the consent of a minor with the capacity to understand the nature and implications of the proposed treatment or procedure. Difficulties can arise, however, if the parents of a minor are in disagreement with clinicians or the patient about what is in the child’s best interests. The Irish Constitution recognises the family as “a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law” (Constitution of Ireland – November 2004, Edition Article 41(1)). As a result it would be prudent of the clinician to ensure that parents are fully informed.

While, in the vast majority of cases, consent will be provided by a parent, or indeed a competent child, there are occasions where others can provide consent on behalf of a minor. A summary of who can act in this capacity is:

• the child’s mother;
• the child’s father, if married to the mother before or after the birth, or with court approval;
•  legal guardians/testamentary (appointed in a will);
• foster carers and health boards in specific circumstances (Consent to Medical Treatment for Foster Children, November 6, 1999), (Childcare (Amendment) Act 2007, Section 43(A));
• health boards with a court order; and,
• the courts.

In practice, a clinician should ensure that those attending with a minor are able to provide the necessary consent, as even the most innocent attendance can cause difficulties, such as when a patient attends with their siblings, grandparents, etc. In those situations where parental responsibility has been delegated to others, the appropriate documentation should be presented. If there is any doubt then advice should be sought.

Forthcoming changes

The current Irish Law Commissions Consultation ‘Children and the Law; Medical Treatment’ makes over 20 provisional recommendations for reform, which are aimed at firstly ensuring that mature teenagers have their views fully taken into account when they seek treatment, and secondly at providing clarity to healthcare professionals in this potentially confusing area. The outcome of the consultation paper is still awaited; however, practitioners will need to be aware of any subsequent implications.

Adults with learning difficulties

There are obviously similarities between adults with learning difficulties and children under the age of 16 in that the clinician has to make the decision as to whether the patient has capacity. Assessing a person’s capacity or lack of it should follow a proper examination and assessment, to include conveying information to the patient, discussing it with them to gauge their understanding and then asking open questions about salient points to see if they have been grasped. At present, only the courts can consent to treatment on behalf of an incapacitated adult. However, this should not deny patients treatment, and there should be consultation between the clinician, the patient’s relatives and any carers, in order to agree that a particular treatment is in the patient’s best interests. Further opinion from a colleague can also be sought and the treatment provided should be the minimum to achieve the result required. Significant changes may be on the way as The Mental Capacity and Guardianship Bill 2008 is currently being considered by the Oireachtas. In the meantime the basic principles of the English Mental Capacity Act – Code of Practise are considered to be useful guidance, which suggest involving others to seek views about the individual’s best interests, and to see if they have information about the person’s wishes, feelings, beliefs and values. With the potential for challenge in relation to consent, colleagues need to ensure that they keep full and contemporaneous records, which can demonstrate the consent process and, if applicable, include the identity of others involved in the decision-making process. As with all processes of communication, a common sense approach and caution when there is uncertainty should hopefully help to minimise the risk of challenge in this somewhat difficult and changing area of practice.

James Foster LLM BDS MFDGDP(UK)

James is an experienced general practitioner with extensive experience of the vocational training of recently qualified dentists. He is also a trained mentor and has a certificate in clinical education. James is a dento-legal adviser who frequently handles cases for members of Dental Protection practising in Ireland.