LEGAL COMMENTS
Geriatric Dental Patients with Diminished Decision-Making Capacity Issues Surrounding Informed Consent
Scenario: You have a long-standing relationship with an elderly patient, Maxine, who comes in for her regularly scheduled teeth cleaning. Recently, Maxine’s son has been accompanying her to dental appointments. You notice Maxine is acting con- fused and does not seem to recognize you, and you are concerned that Maxine’s cognitive impairment has reached a prob- lematic level. Can Maxine provide appropriate consent to treatment? How should you make this important determination? Can Maxine’s son provide consent on her behalf?
F
or dental professionals, it is not uncommon to confront and treat ge- riatric patients who have some level of apparent cognitive impairment.¹
Dentists must assess whether any such patient with diminished decision-making capacity due to cognitive impairment still possesses the capacity to provide “informed consent.”² To further complicate this assess- ment, the capacity of a patient to provide informed consent can change from one interaction to the next. Regardless, when a dentist suspects that a patient does not have the capacity to provide informed consent, the dentist should stop providing treatment until appropriate consent has been obtained.
This article discusses some of the legal questions that a dentist faces when mak- ing an evaluation about the ability of his or her patients to provide informed consent and other issues related to the treatment of patients with diminished capacity under Missouri law.
INFORMED CONSENT
Dentists must obtain informed consent be- fore treating a patient. In order for a dentist to obtain informed consent from a patient in Missouri: • the patient must have the capacity to reason and make judgments;
• the decision must be made voluntarily and without coercion; and,
• the patient must have a clear under- 28 focus | NOV/DEC 2016 | ISSUE 6
standing of the risks and benefits of the proposed treatment, along with a full understanding of the nature of the disease and the prognosis.³
Dentists have an obligation to communi- cate to the patient and ensure the patient understands (1) the diagnosis of his or her condition, (2) the dentist’s recommended treatment and alternative treatments, (3) the potential risks associated with all treatment plans, and (4) the potential risks of not re- ceiving treatment.⁴ Dentists must go through the process of obtaining informed consent each time services are provided to a patient,
and it is advisable to document the patient’s consent in his or her medical record.
Based on the requirements of informed consent, if the patient lacks the capacity to reason and make judgments, he or she can- not provide informed consent to treatment. Dentists should evaluate whether a patient has the ability to provide appropriate in- formed consent and should be cognizant that patients with cognitive impairment may slip into and out of incapacitation. If it appears that a patient may not have the capacity to provide informed consent, the dentist should stop providing dental services to the patient until appropriate consent is obtained.
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