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Legal Issues Surrounding Informed Consent

Consent is a legal and medical doctrine, and is defined as "the mental ability and cognitive capacity required to execute a legally recognized act rationally" (Leo, 1999, p. 131). The ability to give consent is a legal determination; however, competency to consent to treatment should be presumed, absent a legal finding of incompetency. Typically, legal incompetency findings are task specific; that is, the person is found to lack competency in specific areas, but is not necessarily deemed generally incompetent. Exceptions to consent include: emergencies, if/when the patient requests not to be informed, and rare instances of "therapeutic privilege." Therapeutic privilege applies when the medical practitioner may…

"Withhold information from a patient with regard to the diagnosis or nature of the proposed treatment and the risks involved, when the practitioner is of the opinion that the patient's state of mind is such that full awareness of the gravity and severity of his condition or the drastic nature of the treatment indicated could be therapeutically detrimental to such a degree that his recovery may be prejudiced" (van den Heever, 2005, p. 420).

It would be very unusual for therapeutic privilege to apply in the dental setting. The emergency exception is defined as a situation wherein immediate care is required to alleviate severe pain, or when a condition, if not immediately treated, will lead to severe disability or death. Another person is qualified to give consent on behalf of the patient only if he or she has durable power of attorney for health care decisions - or is the patient's legal guardian/conservator.

Having a disability does not necessarily imply legal incompetence. However, the presence of certain types of disabilities may result in implications for obtaining informed consent. For example, a person with significant visual impairment should have consent to treatment forms and other informed consent materials available in a format that he or she can use (e.g., Braille, large-print, electronic text, etc.). Consent forms may also be read aloud to the patient in a private setting. The critical element of informed consent for patients with disabilities is that the necessary information be provided in an accessible format.

References

Buchanan, A. (2004). Mental capacity, legal competence, and consent to treatment. J R Soc Medicine, 97, 415-420.

Leo, R.J. (1999). Competency and the capacity to make treatment decisions: A primer for primary care physicians. Primary Care Companion J of Clin Psychiatry, 1, 131-141.

Van den Heever, P. (2005). Pleading the defense of therapeutic privilege. S Afr Med J, 95, 420-421.