Consent for Dental Treatment (SA)

The Dental Board of Australia (DBA) provides a good definition of consent in the Code of Conduct: 

“Informed consent is a person’s voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved.”  

Most dental patients can engage in conversations, understand information and explanations from their dentist, and make their own decisions about proposed treatment.  

If the patient does decide to have treatment, their consent should always be recorded by the dentist in the clinical record, or by using a form signed by the patient. Both methods are utilised to confirm what was considered during the consent discussion.

Patient’s experiencing cognitive decline

If you are not confident your patient understands the general nature and effect of treatment, you may also be concerned about their ability to provide valid consent.

In such situations, it would be prudent to seek substitute consent from a “responsible person.”  A responsible person is one who is legally able to “step into the patient’s shoes” and make decisions on their behalf. 

 Who identifies the need for substitute consent? 

The dental practitioner must determine if substitute consent is needed, identify who must give the consent, and obtain the consent.

Who has the legal authority to give substitute consent? 

Under the Guardianship Act 1987, depending on the category of treatment, the substitute decision maker is either:

• the person responsible (see below) 
• a guardian authorised to provide medical and dental consent, or 
• a Tribunal (SACAT). 

In most cases where substitute consent is required, there will be a person responsible.

Who is the person responsible? 

Under the Consent to Medical Treatment and Palliative Care Act in South Australia, a "person responsible" has the legal authority to make healthcare decisions for an individual with impaired decision-making capacity. 

A person responsible will not necessarily be the patient's next of kin or carer.

A person responsible is one of the following people in order of priority:

• Guardian – A person who has been appointed by the South Australian Civil and Administrative Tribunal (SACAT) and authorised to make medical decisions on behalf of the patient.
• Spouse or partner – If there is no guardian, a spouse, de-facto spouse or partner where there is a close continuing relationship, or
• Carer – If there is no spouse or partner, an unpaid carer who provides or arranges for domestic support on a regular basis, or
• Relative or friend – If there is no carer, a friend or relative who has a close personal relationship, frequent personal contact and a personal interest in the person’s welfare, on an unpaid basis. 

The person next in the hierarchy may become the person responsible if/when: 

• A person responsible declines in writing to exercise the function, or 
• A medical practitioner or other qualified person certifies in writing that the person responsible is incapable of fulfilling their functions.

If there is no "person responsible" available, or if there is a dispute among family members, you must apply to SACAT to appoint a guardian or grant once-off medical consent.

Can I proceed without obtaining substitute consent?

In some situations, it may not be necessary to obtain substitute consent, including:

• When treatment is urgent – treatment that is necessary to save the patient's life, to prevent serious damage to the patient's health or to alleviate significant pain or distress
• For minor treatment (conditions apply) – some treatments may be provided when a person responsible cannot be reached and where the treatment is necessary to promote the patient’s health and wellbeing and the patient does not object. 

What constitutes “major treatment” and “minor treatment” in dental practice?

Major treatment

• Any dental treatment resulting in the removal of all teeth or which significantly impairs chewing
• Any treatment involving substantial risk to the patient
• Any treatment involving GA or sedation
• Medications affecting the CNS or drugs of addiction
  

Person responsible:

• Can consent – must be in writing
• If there is NO person responsible, or person responsible cannot respond: ONLY SACAT can consent

Minor treatment

• Treatment involving LA only
• All treatment other than listed as major dental
  

Person responsible:

• Can consent

Dentists can treat without consent if: 

• person responsible is unable to consent
• The dentist notes in the patient record that the treatment is necessary to promote the patient’s wellbeing or health AND
• The patient is not objecting

ADA SA Guild-insured members have access to 2 hours of free legal advice per year.

• Topics covered include:
• Receipt of a subpoena
• Restraint of trade in employment agreements
• The engagement of a contractor
• Subletting of rooms
• Medicare rebate
• Receipt of a summons
• Request to produce documents
• Request by a lawyer to attend court
• Confidentiality requirements
• Legal obligation on termination of consultancy
• Theft of computer equipment containing patient information
• Destruction of patient records
• Patient release of report to the media

To access the service, please call 1800 230 500 AEST with your Guild policy number.