Informed Consent During the COVID-19 Pandemic

  • by Jennifer Flynn, CPHRM
  • Jun 22, 2020

By definition, the informed consent process involves a practitioner/patient discussion about the benefits of treatment, associated risks and reasonable alternatives to treatment. Dentists customarily inform patients about the risk of infection as part of the informed consent process, such as for the risk of postsurgical infections or infections that may result from untreated dental caries. The informed consent process should be documented in the dental healthcare information record.

It is important to remember that informed consent does not represent a release of liability. Dentists and other healthcare providers must meet the standard of care. The standard of care is a legal term, often described as what a prudent practitioner (dentist) would do under the same or similar circumstances. 

At the onset of the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) recommended that healthcare systems prioritize urgent visits and delay elective care to mitigate the spread of COVID-19 in healthcare settings. As the pandemic continues, healthcare practices must balance the need to provide necessary services while minimizing risk of infection to patients and healthcare personnel. 

The risk of COVID-19 infection must be weighed against the potential patient harm incurred by delaying urgent/emergency dental care. Assuming the dentist is complying with state law or other state requirements to discuss the benefits, risks and alternatives of that care through the informed consent protocol, this discussion may well include the risk of COVID-19 infection given the current public health emergency. According to OSHA’s Guidance on Preparing Workplaces for COVID-19, dental care (especially aerosol-generating procedures) places dental healthcare workers in the “very high exposure risk” category. Therefore, the informed consent discussion also may include the steps taken in the dental office to mitigate various treatment risks, such as office compliance with infection prevention and control procedures. The dentist may be taking additional risk mitigation steps during the COVID-19 public health emergency, such as limiting aerosol production during treatment when feasible and when it does not increase the risk for other adverse events. 

According to guidance issued by the CDC, there is a framework for the delivery of non-COVID clinical care during the COVID-19 pandemic. Given the dynamic nature of the pandemic, considerations may change over time and vary by practice type and setting. When making decisions about the provision of medical services, the CDC offers the following key factors for consideration:

  • Be prepared to rapidly detect and respond to an increase of COVID-19 cases in the community. 
    • Consult with your local public health department, as conditions vary widely from county to county.
  • Provide care in the safest way possible:
    • Optimize telehealth services when available and appropriate to minimize the need for in-person services.
    • Follow recommended infection control practices to prevent transmission of infectious agents.
    • Assess the supply of personal protective equipment.
  • Consider that services may need to expand gradually.

The examples are not exhaustive; decisions that dental practices ultimately make may depend on local conditions.

The CDC offers guidance to prepare your healthcare facility for COVID-19, with steps you can take to prepare your healthcare practice and help protect your patients and healthcare workers from COVID-19. This includes guidance on staff preparedness and what to do before patients arrive, when patients arrive and after patients are assessed.

In all cases, thorough documentation of the informed consent process is an important aspect of safe and effective healthcare, and it is a critical requirement for effective risk management in the event of a claim or lawsuit. Adherence to the recommendations presented in the resources noted above will help to guide your decisions regarding professional dental practice during this unprecedented pandemic.

Jennifer Flynn, CPHRM, is a risk manager for Dentist’s Advantage.

The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. “CNA" is a registered trademark of CNA Financial Corporation. Certain CNA Financial Corporation subsidiaries use the "CNA" trademark in connection with insurance underwriting and claims activities. Copyright © 2020 CNA. All rights reserved.