Legal aspects of consent

We have discussed that autonomy is central to consent, and many consider it to be a basic human right. However, autonomy is not fully protected in UK law, although common law gives partial protection.

What is the difference between Statutory law and Common law?
 



Broadly there are rules that protect a person’s bodily integrity (“Battery”), and rules which govern professional competence (“Negligence”).

Battery (Trespass to the Person) – the law

UK law on Battery protects a patient who has refused to consent. Attempting to treat a patient who has refused to consent may be regarded as “non-consensual touching”, which is a Civil Legal wrongdoing, even if no harm has been done to the patient, or they have benefitted from the treatment.

It is rare for dental practitioners to be sued for battery, but can you think of circumstances that it may happen?
 


Negligence – the law 

This is more to do with the patient who has consented, but things have turned out badly. Broadly, to be negligence, the patient must have been harmed, and they must prove that they would not have consented if they had known the risks.


Competence – the law
This looks at the patient’s ability to understand. In law, for a patient to be “competent” they have to be able to do three things. This is called the 3-pronged test of competence.

Do you know what the three things are?
 


Exceptions to consent – the law. 

In certain rare circumstances, it is not necessary to gain consent to treatment. (Note this is NOT THE SAME as ignoring a refusal) These include:
Incompetent patients (where a parent or court may make a decision)
Some types of emergency treatment (depending on necessity)
Implied consent
Some public health requirements: rarely, a public health survey may require people to “opt out” rather than “opt in”.
The Mental Health Act outlines some examples of when consent is not necessary.

In the UK there is currently (2017) no statutory legal requirement that consent should be written for most types of treatment, but registrants should at a minimum follow guidelines set by the GDC, and it is always prudent to obtain written rather than verbal consent.


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