NDA Journal 12 Featured Article A Historical Perspective on Informed Consent The idea of informed consent stems from the principle that every adult human being has a right to determine what is to be done with their own body. If a dentist performs treatment without the patient’s consent, he may be liable for damages against that person. Under the doctrine of informed consent, even though a particular treatment has been successful, the dentist still may be liable irrespective of whether the dentist has exercised the care required. Also, the doctrine of informed consent provides that a dentist may be liable for damages to a patient who assented to a particular treatment if the dentist failed to render an adequate disclosure in regard to the diagnosis, the procedure to be followed, the risks of the procedure, and the alternative treatments. In regard to the patient, informed consent is the only legal control over the communication component of the dentist-patient relationship. Dentists have a fiduciary obligation to their patients because of the inherent relationship between the “submissive” patient and the authoritarian control of the doctor. Informed consent acts as an instrument to assist the patients in neutralizing this imbalance in status and knowledge. As such, this increased involvement in their own well-being increases a person’s dignity and self-worth. The mechanism itself in informed consent provides a unique tool in creating an opportunity for the patient’s involvement in the decision-making process. It gives the individual the right to the ultimate judgment about a course of dental treatment which helps create a “patient partner” as opposed to a submissive patient. This does not mean that a dentist must inform the patient of every conceivable risk possible. It is the dentist’s responsibility to make a “reasonable disclosure” to their patient concerning the nature and probable consequences of the proposed treatment. As such: • The dentist does not need to disclose relatively minor risks which are inherent in the procedures and where there is common knowledge of those risks. • A dentist does not need to give the patient information concerning the proposed treatment if the patient requests that they not be informed. The vast majority of courts use a term called an “objective” test which means that a “prudent” person in the patient’s position would have decided if they were suitably informed of “all perils bearing significance.” This measure’s “materiality” from the position of what the dentist “reasonably” believes would be material to the reasonable patient’s decision. It is the dentist’s duty to place the welfare of their patient above all else. A dentist must give his patient sufficient information so that consent given by the patient is informed, but the dentist may withhold information if that disclosure would be harmful to their patient. It may be alarming to a patient, making them unduly apprehensive, if a dentist were to give their patient every risk, no matter how remote, concerning the treatment. Likewise, a dentist may not minimize the known dangers of treatment in order to induce the patient’s consent. Quinn Dufrene, DDS, JD
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