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.