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Why Informed Consent in Texas?

Rule 108.7 of the Rules & Regulations of the Texas State Board of Dental Examiners requires Texas dentists to maintain a written informed consent signed by the patient, or a parent or legal guardian of the patient if the patient is a minor, or a legal guardian of the patient if the patient has been adjudicated incompetent to manage the patient’s personal affairs. Such consent is required for all treatment plans and procedures where a reasonable possibility of complications from the treatment planned or a procedure exists, and such consent should disclose risks or hazards that could influence a reasonable person in making a decision to give or withhold consent.
Therefore, under TSBDE Rule 108.7, Informed Consent:
– must be signed (and dated) by the patient, or a parent or legal guardian
– Is required for all treatment plans and procedures where a reasonable possibility of complications from the treatment or procedure exists
– Such consent should (must) disclose risks or hazards that could influence a reasonable person in making a decision to give or withhold consent.

In Texas, the general rule is that a dentist must disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. Whether or not a treating dental practitioner fulfills this statutorily legal duty to inform the patient is a question of practice within the standard of care. The relationship between doctor and patient is contractual, voluntary, and created by express or implied agreement. Ordinarily, a practitioner may not operate on or otherwise treat a patient unless the practitioner obtains the patient’s consent. In cases of emergency, a doctor may be justified in treating a patient without the express agreement or “consent” of the patient or of anyone authorized to act on the patient’s behalf. If the patient is a minor or otherwise not competent to consent to treatment, consent must be obtained from someone who is legally authorized to provide same on the patient’s behalf. It is not enough for the doctor to merely obtain the patient’s consent before proceeding with treatment. In order for the patient’s consent to be effective, it must have been an “informed consent.” Every adult of sound mind has the right to determine what shall be done with his or her body. True consent involves the informed exercise of choice. The average patient, who knows little about dentistry or medicine, typically can turn to no one other than their doctor for advice and direction in making an intelligent and informed decision. Thus, the doctrine of informed consent addresses the adequacy of information given to the patient to enable the patient to make a wise choice regarding whether or not to undergo treatment.

In a nutshell, informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of any actions. The individual needs to be in possession of all of his faculties, such as not mentally retarded or mentally ill, without an impairment of judgment at the time of consenting. Impairments include sleep, illness, intoxication, drunkenness, using drugs or other health problems. Some acts cannot legally take place because of a lack of informed consent. In other cases, consent of someone on behalf of a person, not considered able to have informed consent, is valid. Examples of this include the parents or legal guardians of a child and caregivers for the mentally ill.

For an article on the subject of informed consent from Journal of Dental Education August 1, 2010, vol. 74 no. 8 849-861, click here. (PDF format)

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