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John G. Odom, PhD, Sylvia S. Odom, PhD, Daniel E. Jolly, DDS
Informed consent and the geriatric dental patient Dental professionals are increasingly aware of their ethical responsibility to permit patlents to participate in treatment declsions through the informed consent process. At the same tlme, growing numbers of geriatrlc patients present speclal challenges that can jeopardize the use of informed consent. Consequently, the use of Informed consent with geriatric patients warrants special analysis due t o complicating factors such as patient passivity and questionable competency. This article establlshes the relationship between the ethical principle of autonomy and informed consent while examining factors that must be present in order for a valld Informed consent to be obtalned. Additionally, the article addresses informed consent issues regarding competent patients, geriatric patients wlth fluctuating or uncertain competency, and patients who are clearly incompetent.
he doctrine of informed consent has philosophical foundations dating to the ancient Greeks. However, application of the philosophical principle of autonomy to modern dentistry in the context of informed consent is a relatively new, and not universally accepted, practice. Much of the momentum advocating informed consent in dental practice has come from the legal community and consumers, not from ethical awareness. Faden and Beauchampl recently documented two interpretations of informed consent, one with philosophical foundations and one with legal or procedural foundations. Each interpretation has its own history of development. Faden and Beauchamp make a clear distinction between these two conceptions of informed consent. They explain that the legal interpretation of informed consent stresses rules and procedures and typically omits references to patient autonomy. Conversely, informed consent is rooted in the philosophical principle of autonomy and emphasizes respect for the patient’s ability to make personal choices. This ethical model is based on the Principle of Respect for Person~~ and ~ ,is~the , part of Kantian ethics most frequently cited to justify the idea of informed consent5. Recognizing the existence of these two interpretations of informed consent is important, because simplistic compliance with rules and legal precedent must not be permitted to supersede encouraging patients to exercise autonomy in treatment planning. The latter interpretation, not the legal one, is the focus of this paper. The philosophical origins of
202 Special Care In Dentlsttry, Vol12 No I 1992
informed consent are found in autonomy, a term of Greek derivation that means ”self rule”.6 Autonomy has been described as viewing each individual as a self-determining agent7,appealing to oneself as the final arbitratofl, being one‘s own boss8,and governing oneselp. The high regard afforded autonomy is based on acknowledgment of and respect for the rationality and cognitive abilities uniquely characteristicof the human race. While autonomy is not synonymous with wisdom, it nevertheless recognizes that men and women have the ability to govern themselves. Rationality implies the ability to comprehend knowledge, weigh alternatives, and form judgments. Respect for this highly developed behavior is the foundation for the high value placed on autonomy.
Criteria for informed consent What criteria must be met in order for an ethically sound process of informed consent to be ensured? The following elements are basic to many models of informed consent. Each of the five factors is a critical component of an ethically sound informed consent. First, the dentist must provide information regarding a proposed treatment. The presentation must be thorough, truthful, and in language the patient can understand. The necessity for information was legally endorsed by a 1972 court ruling.’O The 1972 decision re-affirmed that the sole justification for and goal of informed consent are self-determination and that patients’ needs for information, rather than physicians’ standards, must form the basis for standards of
disclosure.” Prior to the 1972 ruling, legal disclosure standards supported a paternalistic approach and did not recognize each patient’s individual needs. What information should be included in a disclosure? In addition to an explanation of the dental problem, the dentist must inform patients of “(a) the nature of the proposed treatment; (b)the benefits and risks of such treatment; and (c) the benefits and risks to the alternatives to treatment, including nontreatment.”12The dentist has no obligation to present treatment options he/she views as unacceptable. In addition, as long as no inappropriate influence is exercised, the patient has the right to know which alternative is recommended by the dentist. The second requirement for informed consent is comprehension. Requirements for both comprehension and competency are included in this model because fully competent patients do not always fully comprehend the information needed to make an informed choice. Any number of factors can interfere with a patient’s comprehension. High anxiety, fatigue, sensory deficits, and pain are a few examples. It is absolutely essential that the individual fully comprehend the relevant information in order to give a valid informed consent. The caregiver can never be 100% certain that the patient has sufficient understanding to make an autonomous choice, but the professional can usually make a reasonable assessment of the patient’s understanding.’ This is one point where the legal or procedural definition of informed consent differs from the philosophical definition. The procedural approach to informed consent stresses presentation of information, but frequently fails to provide assurances that the patient comprehends the information. Individuals differ in the need for more- or less-technical explanations, time to assimilate information, and further clarification. Doctor/patient communicationsskills are essential tools in the informed consent process. The dentist must actively engage the patient in a verbal exchange to clarify issues, ask questions, and verdy that
the patient comprehends the information that has been presented. Consent cannot be solicited and accepted as valid until patient comprehension has been verified. Third, a valid informed consent will be voluntary. No deception or coercion can be used. The philosophical foundation of informed consent, autonomy, protects the individual’s right to make decisions which are voluntary and intentional and that are not the result of coercion, duress, or undue influence.13 Dentists frequently wonder whether they should state their own treatment preferences or use persuasive techniques. Persuasion, defined as influence using an appeal to reason, is acceptable, because it does not violate the spirit of Respect for Persons which is embodied in the concept of autonomy. Whenever a dentist makes an intentional effort to induce the patient to accept a particular treatment and does so by openly giving reasons for accepting the dentist’s recommendations, the patient retains autonomy. Persuasion is ethically acceptable, especially when the practitioner is motivated by beneficence, i.e., doing what will benefit the patient. When a recommended treatment is clearly in the best interest of the patient, the dentist is justified and may even have an obligation to present persuasive arguments favoring the proposed treatment. GilletI4endorses the use of persuasion, explaining that persuasion aims to enlist the patient’s reason by providing information. In addition, Beauchamp notes that both persuasion and education exert influence without being controlling. He states, ”Influence thus does not necessarily imply constraint, governance, force, or cornpul~ion.”~~ In contrast, manipulation and coercion are ethically unacceptable practices. Manipulation violates the principle of truth-telling because facts and/or alternatives, etc., may be omitted, exaggerated, or otherwise changed with the specific intent of altering another’s perception of the truth. Coercion is also unethical, because coercion introduces a threat of harm or perhaps a bribe that makes
decision-making even less autonomous. Fourth, the patient must be competent to give consent. Neither the academic nor legal communities have provided well-accepted standards of inc~mpetency.~ Competency is typically viewed as a legal term and refers to a general state of functioning. This paper does not address legal competency but rather focuses on the determination of “specific competency” to make a decision regarding dental treatment. In this context, competency is an ”all or none” concept with respect to one’s ability to perform a specific task, i.e., competence represents the capacity to participate fully in the process of giving informed consent. The specific capacities required for an individual to give informed consent are: (1)the ability to comprehend information presented by the dentist, (2) an awareness and stability of personal values regarding one’s health and well-being, and (3) the ability to reach an independent decision by analyzing the advantages and disadvantages of the proposed treatment alternatives with respect to one’s values. If the patient can perform these tasks, he or she is competent to give an informed consent. We need not be concerned about whether or not the patient is competent to prepare a meal or balance a checkbook. The specific abilities required for competency in those areas are irrelevant when we make a determination of competency for the giving of informed consent. Competency to give informed consent means that the patient has the ability to make independent, reasonable, rational choices based on an understanding of the problem and treatment alternatives. The final element in the informed consent process is the patient’s decision. The patient must indicate approval to proceed with a particular treatment procedure or to refuse that procedure. The patient who quietly listens to the disclosure and meets requirements for comprehension and competence but does not clearly state a choice has not completed the consent process. Unless the patient is unable to speak, a smile or a nod is
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not sufficient evidence of authority to proceed. The patient must be encouraged to voice his or her choices or to put them in writing. If a competent patient is unable to communicate verbally, the dentist must establish a documented means of patient communication for the purpose of giving consent. Patients of all ages occasionally attempt to avoid making decisions. Some geriatric patients prefer to defer decision-making to the caregiver. Older patients generally have a history of receiving paternalistic medical care, are less likely to have been involved in medical decisions, and are more likely to believe “the doctor knows best”. Katz16and Beauchamp15have examined the history of the paternalistic model and the relationship between paternalistic care and patient passivity. Katz’ review of the history of the physicianpatient relationship dating from ancient times reveals serious deficiencies in appreciation of patients’ ability to make decisions. Beauchamp writes about lines of authority that encourage patients to acquiesce routinely to medical interventions rather than autonomously authorize them. Wil~on-Barnettl~ also noted passivity and unquestioning agreement among those who have been socialized to rely upon the “wisdom” of others. Informed consent is a relatively new concept in dentistry, one that by no means enjoys universal endorsement among practitioners. While the elderly could never be characterized as a homogeneous population, it is not unrealistic to expect many older patients to exhibit the passive behaviors previously expected of all dental patients. Kappls observed that there are significant numbers of adults, including but not limited to a substantial percentage of the elderly, who would not voluntarily accept responsibility for making difficult decisions. Being invited to participate in the decision-making process may not be appealing to an individual conditioned to assume a passive role in treatment. It may even be overwhelming. In addition, giving informed consent requires energy and effort from the patient. This is par-
ticularly true when the proposed procedure is complex and choices are difficult. Rather than expend the energy to comprehend treatment options and outcomes and to make difficult choices, patients may withdraw from the process and ask the dentist to make treatment decisions on their behalf. When the patient refuses to take responsibility for giving informed consent, the dentist must seek informed consent from the patient’s family members or an appropriate surrogate. This process is facilitated when a legal guardianship has already been established. However, the absence of legal guardianship does not automatically transfer patient decision-making power to the dentist.
Geriatric patients and informed consent Patient passivity, financial constraints, and questionable competency are three factors frequently associated with aging populations. Each of these factors has the potential to complicate and confound the process of informed consent. First, as previously stated, geriatric patients have a longer history of socialization to behave passively in a medical setting. Years of paternalistic care by medical personnel have conditioned many older adults to expect and to accept exclusion from the decision-making process. A study by HighI9provides additional support for the contention that geriatric patients have been socialized to behave passively. High’s study of elderly persons‘ plans for health care decision-making revealed a surprising lack of enthusiasm for, and even aversion to, writing out advance directives or formally appointing proxies. High’s elderly subjects overwhelmingly preferred to defer decision-making to relatives, friends, or medical personnel in the event of decisional incapacity. Another factor with the potential to foster patient passivity is occasional lack of sufficient physical and/or emotional energy to analyze and weigh options and to reach a decision. A second factor complicating
204 Speclal Care In Dentistry, Vol12 No I 1992
geriatric patients’ participation in the informed consent process is the great potential for monetary restrictions on treatment choices. Financial constraints on dental treatment for elderly patients are more common than financial constraints for other types of medical treatment. This is due to a lack of adequate governmental insurance for dental treatment as well as to almost nonexistent private dental insurance programs for the geriatric population. Wettle observed that geriatric dental patients are not only likely to experience limitations on freedom of treatment choices, but they may also be restricted in the opportunity to act upon choices, due to financial constraints. Wettle noted, “Lack of adequate public insurance for dental services (Medicare and Medicaid) is exacerbated by a dearth of private geriatric dental insurance.”13 Private dental insurance tends to be part of an employee benefit package that typically terminates with retirement.13,20Even in the relatively rare cases when the elderly have access to third-party reimbursement for dental services, geriatric patients are vulnerable to the increasing encroachment of third-party payers on the treatment decision procedure. Reduced capacity to generate extra income, coupled with restricted access to dental insurance or dependence on governmental health programs and insurance programs, clearly restricts treatment choices. Sokol’s 1989 article on informed consent focused on the relationship between financial reimbursement and informed consent. Sokol stressed the dentist’s responsibility to provide sensitive explanations to the patient regarding which treatment options are and are not covered by insurance. The patient clearly cannot exercise complete autonomy if the dentist fails to present all reasonable options. Patients should be given the choice ”to defer certain treatment or opt out of the (third party) system and attempt to make other payment arrangements for a better and presumably more costly treatment option.”21
The third factor that has an impact on the informed consent process for geriatric patients is competency. Competency issues are especially grave for the elderly, not because advanced age itself is to be equated with loss of competence, and not simply because some forms of dementia are more common among the elderly, but chiefly because the incidence of chronic illness is higher among the geriatric population, and because many patients in the last stages of chronic illness are incompetent.= Buchanan and Brock explained that incompetence may be limited or complete, chronic or intermittent, and it may be associated with one or more of a diverse group of medical disorders. The progression toward incompetence frequently includes periods of fluctuation, where the individual may be incompetent to give informed consent one day or one week and sufficiently in control of mental faculties to give informed consent the following week. Therefore, it is helpful for competency to be viewed on a continuum ranging from full competence to full incompetence. Somewhere in the center is partial or fluctuating competence. A. The fully competent geriatric patient
The patient deserves to be fully involved in the process of informed consent if the dentist determines that the patient comprehends the information regarding treatment, has awareness and stability of personal values regarding health and well-being, and the ability to reach a reasonable decision by weighing alternatives. Occasionally, a competent patient of any age will make an irrational or unreasonable choice. However, competency and rationality are not synonyms. Competent people periodically make potentially harmful, irrational, or idiosyncratic decisions. For example, choosing a full-mouth extraction rather than pursuing extensive periodontal treatment is considered irrational by the dental community, but not by all patients. However, dentists have no obligation to provide treatments that they
consider to be harmful to a patient. In fact, the ethical principle of nonmaleficence exhorts us to ”do no harm”. B. The partially competent geriatric patient
If it is assumed that the geriatric patient has a history of full competency, especially if the patient has a record of treatment that provides clues to past patterns and preferences regarding dental care, the partially competent patient may be able to participate in the informed consent process. If, on a given day, the patient’s mental faculties are sufficiently intact to understand and to make decisions based on explanations of treatment procedures and options, the patient should be allowed to give an informed consent. As in any communication regarding informed consent, the dentist should validate a patient’s comprehension through techniques such as asking the patient to describe what has been said. If the patient’s decision appears to be idiosyncratic or irrational, dental and medical records can be valuable in establishing that current behavior is consistent with past behavior and is not necessarily a function of deteriorating mental status.23If the patient demonstrates confusion, an inability to reason, or behavior inconsistent with past behavior, the dentist must consult with the patient’s next of kin or an individual with legal rights to make medical decisions on behalf of the patient. C. The fully incompetent geriatric patient
Third parties must participate in the informed consent process when treating fully incompetent patients. The fact that the patient is fully unable to comprehend and appreciate the nature and necessity of treatment does not diminish the need for informed consent. When the patient is incompetent, the dentist must receive informed consent from a surrogate decision-maker. Ethicists argue that medical personnel should avoid conflict of interest by refusing to accept the role of surrogate decisionmaker. Some surrogate relationships
are legally established and sanctioned; others are informal in nature. Several authors provide excellent discussions of surrogate decision-making?” Applebaum et a2. state that most cases do not warrant legal proceedings and that family members ordinarily make medical decisions for de facto incompetent persons in much the same way they assume responsibility for financial affairs. “It has not been settled whether, for practical purposes, the final determination of competency must be made by a court or whether it can be made in the clinical setting without judicial participation. There is a long tradition in medical practice of physicians relying upon family members to make decisions on behalf of patients unable to do so them~ e l v e s . ~An ’ ~individual assuming a surrogate role for the patient must be accessible and available to receive information, to make treatment decisions, and to give consent for treatment. It is generally accepted that the surrogate must attempt to make decisions as the patient would have directed. Although High’s geriatric subjects resisted and/or rejected advance directive^'^, some patients will make arrangements for care and decisionmaking prior to becoming incompetent. This may be done in two ways. First, the patient may use a legal document to designate an individual who can make medical decisions, a durable power of attorney. Second, the patient may make informal choices regarding a surrogate through advance directives. Since advance directives are informal and have no established standards, they may or may not be upheld in court if challenged. Advance directives nevertheless provide guidance regarding a patient’s wishes and can be a valuable reference. Advance directives can take the form of conversations, notes, and audio or video tapes. In contrast to a power of attorney, which is usually limited to establishing a surrogate decision- maker, advance directives may include instructions regarding treatment preferences. Medical advances leading to a longer life span for developmentally disabled patients have generated a
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new area of concern. Obtaining informed consent from patients traditionally classified as developmentally disabled-.g., cerebral palsy or Down’s Syndrome-has become more difficult as medical advances are allowing more developmentally disabled persons to reach geriatric status. Two consequences have been observed. One, developmentally disabled patients with limited ability to give informed consent may become further impaired as they reach an advanced age. Second, parents typically serve as guardians for developmentally disabled patients. The health professional who seeks informed consent from an elderly guardian may discover that neither the patient nor the guardian is competent to give a valid informed consent.
Summary Geriatric patients may not have a history of being allowed to give informed consent; indeed, some may resist participation in the process. However, recognition of the right of elderly patients to give informed consent for dental treatment has been strengthened by increased awareness of “Respect for Persons”, embodied in the ethical principle of autonomy. The dental profession appears to be making significant progress toward
respecting patient autonomy, improving doctor/patient communication, and documenting patterns of patient treatment preferences. Each of these steps is necessary if geriatric patients are to be granted the freedom to give autonomous consent for treatment. John G. Odom, PhD, is Associate Professor and Director of Ethics and Behavioral Sciencesin the Section of Community Dentistry at The Ohio State University College of Dentistry. Sylvia S. Odom is a consultant with Health World Associates, Worthington, Ohio. Daniel E. Jolly, DDS, is Associate Professor of Clinical Dentistry and Director, General Practice Residency, in the Section of Community Dentistry at The Ohio State University College of Dentistry. 1. Faden RR, Beauchamp TL. A history and theory of informed consent. New York Oxford University Press, 1986. 2. Hasegawa TK, et al. Ethical or legal perceptions by dental practitioners. J Am Dent Assoc 116:354-60,1988. 3. Graber GC, et at. Ethical analysis of clinical medicine. Baltimore (MD): Urban and Schwarzenberg, 1985. 4. Odom JG, Morris WO. The autonomy of the practitioner. J Dent Pract Admin 6125,1989. 5. Applebaum PS, et at. Informed consent: legal theory and clinical practice. New York Oxford University Press, 1987. 6. Beauchamp TL, Childress J. Principles of biomedical ethics. 2nd ed. New York Oxford University Press, 1983. 7. Beauchamp TL. Principles of ethics. J Dent Educ 49:214-8,1985. 8. Barrow R. Injustice, inequality and ethics.
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Totowa (NJ):Barnes and Noble Books, 1982. 9. Odom JG. Who makes the treatment decision? J Dent Pract Admin 3:57-60, 1986. 10. Canterbury versus Spence. 464 F.2d783,784 (D.C. Circuit, 1972). 11. Gild WM. Informed consent; a review. Anesth Analg 68649-53,1989. 12. Bailey BL. Informed consent in dentistry. J Am Dent Assoc 110709-13,1985. 13. Wettle T. Ethical issues in geriatric dentistry. Gerodontology 6:73-8,1987. 14. Gillet GR. Informed consent and moral integrity. J Med Ethics 15:117-23,1989. 15. Beauchamp TL. Informed consent. In: Veatch RM. Medical ethics. Boston (MA): Jones and Bartlett Publishers, 1989. 16. Katz J. The silent world of doctor and patient. New York The Free Press, 1984. 17. Wilson-Barnett J. Limited autonomy and partnership: professional relationships in health care. J Med Ethics 1512-6,1989. 18. Kapp MB. Medical empowerment of the elderly. Hastings Center Report 195-7, 1989. 19. High D. Who will make health care decisions for me when I can‘t? J Aging and Health 2291-309,1990. 20. Niessen LC, et al. Extending dental insurance through retirement. Spec Care Dent 484-6,1984. 21. Sokol DJ. Informed consent in dentistry; the impact of “who pays the bills?” J Law and Ethics in Dent 2(2):64-8,1989. 22. Buchanan AE, Brock DW. Deciding for others: the ethics of surrogate decision making. New York Cambridge University Press, 1989. 23. Shuman SK. Ethics and the patient with dementia. J Am Dent Assoc 119:747-8, 1989.
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John G. Odom, PhD, Sylvia S. Odom, PhD, Daniel E. Jolly, DDS
Informed consent and the geriatric dental patient Dental professionals are increasingly aware of their ethical responsibility to permit patlents to participate in treatment declsions through the informed consent process. At the same tlme, growing numbers of geriatrlc patients present speclal challenges that can jeopardize the use of informed consent. Consequently, the use of Informed consent with geriatric patients warrants special analysis due t o complicating factors such as patient passivity and questionable competency. This article establlshes the relationship between the ethical principle of autonomy and informed consent while examining factors that must be present in order for a valld Informed consent to be obtalned. Additionally, the article addresses informed consent issues regarding competent patients, geriatric patients wlth fluctuating or uncertain competency, and patients who are clearly incompetent.
he doctrine of informed consent has philosophical foundations dating to the ancient Greeks. However, application of the philosophical principle of autonomy to modern dentistry in the context of informed consent is a relatively new, and not universally accepted, practice. Much of the momentum advocating informed consent in dental practice has come from the legal community and consumers, not from ethical awareness. Faden and Beauchampl recently documented two interpretations of informed consent, one with philosophical foundations and one with legal or procedural foundations. Each interpretation has its own history of development. Faden and Beauchamp make a clear distinction between these two conceptions of informed consent. They explain that the legal interpretation of informed consent stresses rules and procedures and typically omits references to patient autonomy. Conversely, informed consent is rooted in the philosophical principle of autonomy and emphasizes respect for the patient’s ability to make personal choices. This ethical model is based on the Principle of Respect for Person~~ and ~ ,is~the , part of Kantian ethics most frequently cited to justify the idea of informed consent5. Recognizing the existence of these two interpretations of informed consent is important, because simplistic compliance with rules and legal precedent must not be permitted to supersede encouraging patients to exercise autonomy in treatment planning. The latter interpretation, not the legal one, is the focus of this paper. The philosophical origins of
202 Special Care In Dentlsttry, Vol12 No I 1992
informed consent are found in autonomy, a term of Greek derivation that means ”self rule”.6 Autonomy has been described as viewing each individual as a self-determining agent7,appealing to oneself as the final arbitratofl, being one‘s own boss8,and governing oneselp. The high regard afforded autonomy is based on acknowledgment of and respect for the rationality and cognitive abilities uniquely characteristicof the human race. While autonomy is not synonymous with wisdom, it nevertheless recognizes that men and women have the ability to govern themselves. Rationality implies the ability to comprehend knowledge, weigh alternatives, and form judgments. Respect for this highly developed behavior is the foundation for the high value placed on autonomy.
Criteria for informed consent What criteria must be met in order for an ethically sound process of informed consent to be ensured? The following elements are basic to many models of informed consent. Each of the five factors is a critical component of an ethically sound informed consent. First, the dentist must provide information regarding a proposed treatment. The presentation must be thorough, truthful, and in language the patient can understand. The necessity for information was legally endorsed by a 1972 court ruling.’O The 1972 decision re-affirmed that the sole justification for and goal of informed consent are self-determination and that patients’ needs for information, rather than physicians’ standards, must form the basis for standards of
disclosure.” Prior to the 1972 ruling, legal disclosure standards supported a paternalistic approach and did not recognize each patient’s individual needs. What information should be included in a disclosure? In addition to an explanation of the dental problem, the dentist must inform patients of “(a) the nature of the proposed treatment; (b)the benefits and risks of such treatment; and (c) the benefits and risks to the alternatives to treatment, including nontreatment.”12The dentist has no obligation to present treatment options he/she views as unacceptable. In addition, as long as no inappropriate influence is exercised, the patient has the right to know which alternative is recommended by the dentist. The second requirement for informed consent is comprehension. Requirements for both comprehension and competency are included in this model because fully competent patients do not always fully comprehend the information needed to make an informed choice. Any number of factors can interfere with a patient’s comprehension. High anxiety, fatigue, sensory deficits, and pain are a few examples. It is absolutely essential that the individual fully comprehend the relevant information in order to give a valid informed consent. The caregiver can never be 100% certain that the patient has sufficient understanding to make an autonomous choice, but the professional can usually make a reasonable assessment of the patient’s understanding.’ This is one point where the legal or procedural definition of informed consent differs from the philosophical definition. The procedural approach to informed consent stresses presentation of information, but frequently fails to provide assurances that the patient comprehends the information. Individuals differ in the need for more- or less-technical explanations, time to assimilate information, and further clarification. Doctor/patient communicationsskills are essential tools in the informed consent process. The dentist must actively engage the patient in a verbal exchange to clarify issues, ask questions, and verdy that
the patient comprehends the information that has been presented. Consent cannot be solicited and accepted as valid until patient comprehension has been verified. Third, a valid informed consent will be voluntary. No deception or coercion can be used. The philosophical foundation of informed consent, autonomy, protects the individual’s right to make decisions which are voluntary and intentional and that are not the result of coercion, duress, or undue influence.13 Dentists frequently wonder whether they should state their own treatment preferences or use persuasive techniques. Persuasion, defined as influence using an appeal to reason, is acceptable, because it does not violate the spirit of Respect for Persons which is embodied in the concept of autonomy. Whenever a dentist makes an intentional effort to induce the patient to accept a particular treatment and does so by openly giving reasons for accepting the dentist’s recommendations, the patient retains autonomy. Persuasion is ethically acceptable, especially when the practitioner is motivated by beneficence, i.e., doing what will benefit the patient. When a recommended treatment is clearly in the best interest of the patient, the dentist is justified and may even have an obligation to present persuasive arguments favoring the proposed treatment. GilletI4endorses the use of persuasion, explaining that persuasion aims to enlist the patient’s reason by providing information. In addition, Beauchamp notes that both persuasion and education exert influence without being controlling. He states, ”Influence thus does not necessarily imply constraint, governance, force, or cornpul~ion.”~~ In contrast, manipulation and coercion are ethically unacceptable practices. Manipulation violates the principle of truth-telling because facts and/or alternatives, etc., may be omitted, exaggerated, or otherwise changed with the specific intent of altering another’s perception of the truth. Coercion is also unethical, because coercion introduces a threat of harm or perhaps a bribe that makes
decision-making even less autonomous. Fourth, the patient must be competent to give consent. Neither the academic nor legal communities have provided well-accepted standards of inc~mpetency.~ Competency is typically viewed as a legal term and refers to a general state of functioning. This paper does not address legal competency but rather focuses on the determination of “specific competency” to make a decision regarding dental treatment. In this context, competency is an ”all or none” concept with respect to one’s ability to perform a specific task, i.e., competence represents the capacity to participate fully in the process of giving informed consent. The specific capacities required for an individual to give informed consent are: (1)the ability to comprehend information presented by the dentist, (2) an awareness and stability of personal values regarding one’s health and well-being, and (3) the ability to reach an independent decision by analyzing the advantages and disadvantages of the proposed treatment alternatives with respect to one’s values. If the patient can perform these tasks, he or she is competent to give an informed consent. We need not be concerned about whether or not the patient is competent to prepare a meal or balance a checkbook. The specific abilities required for competency in those areas are irrelevant when we make a determination of competency for the giving of informed consent. Competency to give informed consent means that the patient has the ability to make independent, reasonable, rational choices based on an understanding of the problem and treatment alternatives. The final element in the informed consent process is the patient’s decision. The patient must indicate approval to proceed with a particular treatment procedure or to refuse that procedure. The patient who quietly listens to the disclosure and meets requirements for comprehension and competence but does not clearly state a choice has not completed the consent process. Unless the patient is unable to speak, a smile or a nod is
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not sufficient evidence of authority to proceed. The patient must be encouraged to voice his or her choices or to put them in writing. If a competent patient is unable to communicate verbally, the dentist must establish a documented means of patient communication for the purpose of giving consent. Patients of all ages occasionally attempt to avoid making decisions. Some geriatric patients prefer to defer decision-making to the caregiver. Older patients generally have a history of receiving paternalistic medical care, are less likely to have been involved in medical decisions, and are more likely to believe “the doctor knows best”. Katz16and Beauchamp15have examined the history of the paternalistic model and the relationship between paternalistic care and patient passivity. Katz’ review of the history of the physicianpatient relationship dating from ancient times reveals serious deficiencies in appreciation of patients’ ability to make decisions. Beauchamp writes about lines of authority that encourage patients to acquiesce routinely to medical interventions rather than autonomously authorize them. Wil~on-Barnettl~ also noted passivity and unquestioning agreement among those who have been socialized to rely upon the “wisdom” of others. Informed consent is a relatively new concept in dentistry, one that by no means enjoys universal endorsement among practitioners. While the elderly could never be characterized as a homogeneous population, it is not unrealistic to expect many older patients to exhibit the passive behaviors previously expected of all dental patients. Kappls observed that there are significant numbers of adults, including but not limited to a substantial percentage of the elderly, who would not voluntarily accept responsibility for making difficult decisions. Being invited to participate in the decision-making process may not be appealing to an individual conditioned to assume a passive role in treatment. It may even be overwhelming. In addition, giving informed consent requires energy and effort from the patient. This is par-
ticularly true when the proposed procedure is complex and choices are difficult. Rather than expend the energy to comprehend treatment options and outcomes and to make difficult choices, patients may withdraw from the process and ask the dentist to make treatment decisions on their behalf. When the patient refuses to take responsibility for giving informed consent, the dentist must seek informed consent from the patient’s family members or an appropriate surrogate. This process is facilitated when a legal guardianship has already been established. However, the absence of legal guardianship does not automatically transfer patient decision-making power to the dentist.
Geriatric patients and informed consent Patient passivity, financial constraints, and questionable competency are three factors frequently associated with aging populations. Each of these factors has the potential to complicate and confound the process of informed consent. First, as previously stated, geriatric patients have a longer history of socialization to behave passively in a medical setting. Years of paternalistic care by medical personnel have conditioned many older adults to expect and to accept exclusion from the decision-making process. A study by HighI9provides additional support for the contention that geriatric patients have been socialized to behave passively. High’s study of elderly persons‘ plans for health care decision-making revealed a surprising lack of enthusiasm for, and even aversion to, writing out advance directives or formally appointing proxies. High’s elderly subjects overwhelmingly preferred to defer decision-making to relatives, friends, or medical personnel in the event of decisional incapacity. Another factor with the potential to foster patient passivity is occasional lack of sufficient physical and/or emotional energy to analyze and weigh options and to reach a decision. A second factor complicating
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geriatric patients’ participation in the informed consent process is the great potential for monetary restrictions on treatment choices. Financial constraints on dental treatment for elderly patients are more common than financial constraints for other types of medical treatment. This is due to a lack of adequate governmental insurance for dental treatment as well as to almost nonexistent private dental insurance programs for the geriatric population. Wettle observed that geriatric dental patients are not only likely to experience limitations on freedom of treatment choices, but they may also be restricted in the opportunity to act upon choices, due to financial constraints. Wettle noted, “Lack of adequate public insurance for dental services (Medicare and Medicaid) is exacerbated by a dearth of private geriatric dental insurance.”13 Private dental insurance tends to be part of an employee benefit package that typically terminates with retirement.13,20Even in the relatively rare cases when the elderly have access to third-party reimbursement for dental services, geriatric patients are vulnerable to the increasing encroachment of third-party payers on the treatment decision procedure. Reduced capacity to generate extra income, coupled with restricted access to dental insurance or dependence on governmental health programs and insurance programs, clearly restricts treatment choices. Sokol’s 1989 article on informed consent focused on the relationship between financial reimbursement and informed consent. Sokol stressed the dentist’s responsibility to provide sensitive explanations to the patient regarding which treatment options are and are not covered by insurance. The patient clearly cannot exercise complete autonomy if the dentist fails to present all reasonable options. Patients should be given the choice ”to defer certain treatment or opt out of the (third party) system and attempt to make other payment arrangements for a better and presumably more costly treatment option.”21
The third factor that has an impact on the informed consent process for geriatric patients is competency. Competency issues are especially grave for the elderly, not because advanced age itself is to be equated with loss of competence, and not simply because some forms of dementia are more common among the elderly, but chiefly because the incidence of chronic illness is higher among the geriatric population, and because many patients in the last stages of chronic illness are incompetent.= Buchanan and Brock explained that incompetence may be limited or complete, chronic or intermittent, and it may be associated with one or more of a diverse group of medical disorders. The progression toward incompetence frequently includes periods of fluctuation, where the individual may be incompetent to give informed consent one day or one week and sufficiently in control of mental faculties to give informed consent the following week. Therefore, it is helpful for competency to be viewed on a continuum ranging from full competence to full incompetence. Somewhere in the center is partial or fluctuating competence. A. The fully competent geriatric patient
The patient deserves to be fully involved in the process of informed consent if the dentist determines that the patient comprehends the information regarding treatment, has awareness and stability of personal values regarding health and well-being, and the ability to reach a reasonable decision by weighing alternatives. Occasionally, a competent patient of any age will make an irrational or unreasonable choice. However, competency and rationality are not synonyms. Competent people periodically make potentially harmful, irrational, or idiosyncratic decisions. For example, choosing a full-mouth extraction rather than pursuing extensive periodontal treatment is considered irrational by the dental community, but not by all patients. However, dentists have no obligation to provide treatments that they
consider to be harmful to a patient. In fact, the ethical principle of nonmaleficence exhorts us to ”do no harm”. B. The partially competent geriatric patient
If it is assumed that the geriatric patient has a history of full competency, especially if the patient has a record of treatment that provides clues to past patterns and preferences regarding dental care, the partially competent patient may be able to participate in the informed consent process. If, on a given day, the patient’s mental faculties are sufficiently intact to understand and to make decisions based on explanations of treatment procedures and options, the patient should be allowed to give an informed consent. As in any communication regarding informed consent, the dentist should validate a patient’s comprehension through techniques such as asking the patient to describe what has been said. If the patient’s decision appears to be idiosyncratic or irrational, dental and medical records can be valuable in establishing that current behavior is consistent with past behavior and is not necessarily a function of deteriorating mental status.23If the patient demonstrates confusion, an inability to reason, or behavior inconsistent with past behavior, the dentist must consult with the patient’s next of kin or an individual with legal rights to make medical decisions on behalf of the patient. C. The fully incompetent geriatric patient
Third parties must participate in the informed consent process when treating fully incompetent patients. The fact that the patient is fully unable to comprehend and appreciate the nature and necessity of treatment does not diminish the need for informed consent. When the patient is incompetent, the dentist must receive informed consent from a surrogate decision-maker. Ethicists argue that medical personnel should avoid conflict of interest by refusing to accept the role of surrogate decisionmaker. Some surrogate relationships
are legally established and sanctioned; others are informal in nature. Several authors provide excellent discussions of surrogate decision-making?” Applebaum et a2. state that most cases do not warrant legal proceedings and that family members ordinarily make medical decisions for de facto incompetent persons in much the same way they assume responsibility for financial affairs. “It has not been settled whether, for practical purposes, the final determination of competency must be made by a court or whether it can be made in the clinical setting without judicial participation. There is a long tradition in medical practice of physicians relying upon family members to make decisions on behalf of patients unable to do so them~ e l v e s . ~An ’ ~individual assuming a surrogate role for the patient must be accessible and available to receive information, to make treatment decisions, and to give consent for treatment. It is generally accepted that the surrogate must attempt to make decisions as the patient would have directed. Although High’s geriatric subjects resisted and/or rejected advance directive^'^, some patients will make arrangements for care and decisionmaking prior to becoming incompetent. This may be done in two ways. First, the patient may use a legal document to designate an individual who can make medical decisions, a durable power of attorney. Second, the patient may make informal choices regarding a surrogate through advance directives. Since advance directives are informal and have no established standards, they may or may not be upheld in court if challenged. Advance directives nevertheless provide guidance regarding a patient’s wishes and can be a valuable reference. Advance directives can take the form of conversations, notes, and audio or video tapes. In contrast to a power of attorney, which is usually limited to establishing a surrogate decision- maker, advance directives may include instructions regarding treatment preferences. Medical advances leading to a longer life span for developmentally disabled patients have generated a
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new area of concern. Obtaining informed consent from patients traditionally classified as developmentally disabled-.g., cerebral palsy or Down’s Syndrome-has become more difficult as medical advances are allowing more developmentally disabled persons to reach geriatric status. Two consequences have been observed. One, developmentally disabled patients with limited ability to give informed consent may become further impaired as they reach an advanced age. Second, parents typically serve as guardians for developmentally disabled patients. The health professional who seeks informed consent from an elderly guardian may discover that neither the patient nor the guardian is competent to give a valid informed consent.
Summary Geriatric patients may not have a history of being allowed to give informed consent; indeed, some may resist participation in the process. However, recognition of the right of elderly patients to give informed consent for dental treatment has been strengthened by increased awareness of “Respect for Persons”, embodied in the ethical principle of autonomy. The dental profession appears to be making significant progress toward
respecting patient autonomy, improving doctor/patient communication, and documenting patterns of patient treatment preferences. Each of these steps is necessary if geriatric patients are to be granted the freedom to give autonomous consent for treatment. John G. Odom, PhD, is Associate Professor and Director of Ethics and Behavioral Sciencesin the Section of Community Dentistry at The Ohio State University College of Dentistry. Sylvia S. Odom is a consultant with Health World Associates, Worthington, Ohio. Daniel E. Jolly, DDS, is Associate Professor of Clinical Dentistry and Director, General Practice Residency, in the Section of Community Dentistry at The Ohio State University College of Dentistry. 1. Faden RR, Beauchamp TL. A history and theory of informed consent. New York Oxford University Press, 1986. 2. Hasegawa TK, et al. Ethical or legal perceptions by dental practitioners. J Am Dent Assoc 116:354-60,1988. 3. Graber GC, et at. Ethical analysis of clinical medicine. Baltimore (MD): Urban and Schwarzenberg, 1985. 4. Odom JG, Morris WO. The autonomy of the practitioner. J Dent Pract Admin 6125,1989. 5. Applebaum PS, et at. Informed consent: legal theory and clinical practice. New York Oxford University Press, 1987. 6. Beauchamp TL, Childress J. Principles of biomedical ethics. 2nd ed. New York Oxford University Press, 1983. 7. Beauchamp TL. Principles of ethics. J Dent Educ 49:214-8,1985. 8. Barrow R. Injustice, inequality and ethics.
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Totowa (NJ):Barnes and Noble Books, 1982. 9. Odom JG. Who makes the treatment decision? J Dent Pract Admin 3:57-60, 1986. 10. Canterbury versus Spence. 464 F.2d783,784 (D.C. Circuit, 1972). 11. Gild WM. Informed consent; a review. Anesth Analg 68649-53,1989. 12. Bailey BL. Informed consent in dentistry. J Am Dent Assoc 110709-13,1985. 13. Wettle T. Ethical issues in geriatric dentistry. Gerodontology 6:73-8,1987. 14. Gillet GR. Informed consent and moral integrity. J Med Ethics 15:117-23,1989. 15. Beauchamp TL. Informed consent. In: Veatch RM. Medical ethics. Boston (MA): Jones and Bartlett Publishers, 1989. 16. Katz J. The silent world of doctor and patient. New York The Free Press, 1984. 17. Wilson-Barnett J. Limited autonomy and partnership: professional relationships in health care. J Med Ethics 1512-6,1989. 18. Kapp MB. Medical empowerment of the elderly. Hastings Center Report 195-7, 1989. 19. High D. Who will make health care decisions for me when I can‘t? J Aging and Health 2291-309,1990. 20. Niessen LC, et al. Extending dental insurance through retirement. Spec Care Dent 484-6,1984. 21. Sokol DJ. Informed consent in dentistry; the impact of “who pays the bills?” J Law and Ethics in Dent 2(2):64-8,1989. 22. Buchanan AE, Brock DW. Deciding for others: the ethics of surrogate decision making. New York Cambridge University Press, 1989. 23. Shuman SK. Ethics and the patient with dementia. J Am Dent Assoc 119:747-8, 1989.
