INFORMED CONSENT UPDATE:
A New Pennsylvania Supreme Court Directive
The Shinal decision does not alter:
(1) what is informed consent;
(2) when informed consent is required;
or (3) what information is required for
informed consent. These long-recognized
concepts and directives are briefly
summarized as follows:
WHAT:
Informed consent is the process
of providing a patient with all of
the information needed to assist
them in making an informed and
knowledgeable decision regarding
whether to proceed with a
dental procedure.
WHEN:
When the dentist will perform
any surgical or operative
procedure, including the
administration of anesthesia.
INFORMATION REQUIRED:
A description of the surgical
or operative procedure, and
of the risks and alternatives
that a reasonable person in
the patient’s situation would
consider significant in deciding
whether to have the procedure.
It must be clear that the patient
understands reasonably possible
as well as expected results.
The Shinal decision does affect who
must obtain a patient’s informed
consent. Specifically, the Shinal Court
held that “ a physician cannot rely
upon a subordinate to disclose the
information required to obtain
informed consent.”
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Thus, to comply with the directive
of Shinal, dentists who currently do
not conduct direct, face-to-face,
conversations with patients about the
nature of the procedures and the risks
and alternatives, must begin to do so
immediately. Use of support staff,
dental hygienists or assistants, or
even dental students to conduct the
informed consent conversation does
not constitute compliance. Only that
direct, face to face, conversation with
the patient, wherein the patient is
able to ask questions of the dentist,
is sufficient.
Although not expressly required by
the Shinal decision, best practice is
for dentists to present patients with
a procedure-specific written consent
form, with the expected date of the
procedure, which confirms that the
informed consent conversation
occurred between the doctor and
the patient, and for the dentist to sign
the form along with the patient. This
provides strong evidence that the
informed consent process followed
the dictates of Shinal. In addition,
dentists should contemporaneously
document the informed consent
conversation and the execution of
the consent form directly in the
patient’s chart. Following these
procedures faithfully will provide
Pennsylvania dentists will serve patient
and dentist well, and ensure that the
dentist’s record-keeping clearly reflects
compliance with the law of informed
consent in Pennsylvania.
JA NUA RY/F E B R UA RY 2018 | P EN N S YLVA N IA D EN TA L J O U R N A L
DISCLAIMER:
This article is intended
to provide general
information and is not
intended as legal
advice.
The law, and
interpretations of the
law, may change, while
each factual situation is
distinct.
For legal guidance on
specific situations,
dentists should consult
their attorneys.
Nothing in this article is
to be construed as
defining the standard
of care for practitioners.