8.1 Informed Consent, Informed Refusal, and Patients With Cognitive Impairment
Key Takeaways
Under Cobbs v. Grant (1972), California requires disclosure of the information a reasonable patient would find material to deciding on the proposed treatment.
Truman v. Thomas (1980) extended California's disclosure duty to the risks of refusing a recommended test or treatment, so informed refusal must be documented.
California Probate Code § 4609 defines capacity as the ability to understand a decision's nature and consequences, including its benefits, risks, and alternatives, and to make and communicate it.
Since January 1, 2023, California Probate Code § 4712 ranks decision-makers for an incapacitated adult: patient-designated surrogate, then health care agent, then conservator or guardian.
If an incapacitated California adult has no legally recognized decision-maker, the provider may choose a surrogate, starting with the spouse or domestic partner, under Probate Code § 4712(b).
The California disclosure standard (K1163)
In Cobbs v. Grant (1972), the California Supreme Court replaced the "what doctors customarily say" standard with a patient-centered one. A practitioner has a duty of reasonable disclosure of the available choices for proposed treatment and of the dangers inherently and potentially involved. What must be disclosed is measured by what is material to the patient's decision: what a reasonable person in the patient's position would want to know. Remote risks of common, simple procedures need not be listed. Causation is judged objectively: would a reasonable person in the patient's position have declined had they been adequately informed?
A practical disclosure covers:
- The diagnosis and the nature of the proposed treatment.
- Material risks, including serious risks even if uncommon, such as permanent paresthesia after a third-molar extraction near the canal.
- Expected benefits and likely prognosis.
- Reasonable alternatives, including no treatment.
- The risks of doing nothing.
- Costs, where they bear on the choice (Section 7.4).
Exceptions recognized in Cobbs
- An emergency in which the patient is unconscious or unable to decide and delay would cause harm.
- A patient who asks not to be told.
- The rare case where disclosure would so upset the patient that they could not weigh the choice rationally (therapeutic privilege). This is narrow and almost never applies in dentistry.
Informed refusal
In Truman v. Thomas (1980), the Court held that the duty to disclose includes the risks of refusing a recommended test or treatment. A patient who declines periodontal therapy, a biopsy, or a referral must be told the specific consequences, and the refusal should be documented, ideally with a signed informed-refusal form.
Consent is a process
The signature on a form documents consent; the conversation creates it. Performing a substantially different procedure from the one the patient agreed to, such as extracting an adjacent tooth "while in there," can be battery as well as negligence. The CDA Code (Section 1D) calls fully informed consent "essential," and Advisory Opinion 1.D.1 requires explaining treatment "in a manner that is accurate, easily understood."
Written consent required by statute
| Situation | Requirement | Source |
|---|---|---|
| Moderate sedation, deep sedation, or GA | Written informed consent; for minors, from a parent or guardian with statutory GA language | B&P § 1682(e) |
| Restorative materials | Board Dental Materials Fact Sheet given before restorative work, with signed acknowledgment in the chart | B&P § 1648.15 |
| Telehealth | Verbal or written consent to telehealth, documented | B&P § 2290.5(b) (Section 8.3) |
| Research or experimental treatment | Experimental subject's bill of rights and a signed, dated consent form | Health and Safety Code §§ 24172–24173 (Section 12.6) |
| Patient financing | Written treatment plan and 14-point credit notice | B&P § 654.3 |
Capacity and patients with cognitive impairment (K1162)
Probate Code § 4609 defines capacity as the ability to understand the nature and consequences of a decision and to make and communicate it, including understanding the significant benefits, risks, and alternatives. Capacity is decision-specific and can change. A patient with mild dementia may be able to consent to a cleaning but not to full-mouth extractions under sedation. Presume an adult has capacity and assess it when there is a reason to doubt. Can the patient explain back what will happen, why, and what the options are?
Who decides when an adult lacks capacity
Since January 1, 2023 (AB 2338), Probate Code § 4712 sets a priority order:
- A surrogate the patient designated by personally telling the supervising provider. This is recorded in the chart and lasts for the course of treatment or 60 days, whichever is shorter (§ 4711).
- An agent under an advance health care directive or power of attorney for health care.
- A conservator or guardian with health care authority. A conservator of a person adjudicated to lack capacity has exclusive authority (§ 2355).
If none exists, the provider may choose a surrogate: an adult who has shown special care and concern, knows the patient's values, and is available and willing. Candidates include the spouse or domestic partner, an adult child, a parent, an adult sibling, an adult grandchild, or an adult relative or close friend (§ 4712(b)). A domestic partner has the same authority as a spouse (§ 4716).
How surrogates decide: follow the patient's instructions and known wishes. If those are unknown, decide in the patient's best interest, considering the patient's personal values (§ 4714).
Practical steps
- Identify the decision-maker before the appointment and put their documents in the chart.
- Involve the patient as much as possible, and seek their assent even when someone else consents.
- Use plain language, visual aids, and teach-back (Chapter 10).
- For patients from long-term care facilities, confirm who holds authority. Facility staff do not automatically have it.
Note
A patient's right to choose is not a right to demand substandard care. The CDA Code (Section 1C) says it is unethical to render substandard care, so a dentist may decline a patient's request for a treatment that falls below the standard.
Under Cobbs v. Grant, how does a California court decide which risks a dentist had to disclose?
By asking what most dentists in the community customarily disclose
By asking what information a reasonable person in the patient's position would consider material to the decision
By requiring disclosure of every known risk, however remote
By asking whether the patient signed a written consent form
A patient declines a recommended biopsy of a persistent white lesion. What is the dentist's legal duty?
Explain the specific risks of declining the biopsy and document the informed refusal
Perform the biopsy anyway, because it is medically necessary
Dismiss the patient immediately for noncompliance
Nothing, because a patient who refuses treatment waives disclosure
An 80-year-old patient with advanced dementia needs extractions. She has no advance directive or conservator and never designated a surrogate. Her adult daughter visits weekly and manages her care. Under Probate Code § 4712, who may consent?
No one; the dentist must obtain a court order for any treatment
The facility's director of nursing, because the patient lives in the facility
The dentist alone, because extraction is routine care
The daughter, chosen by the provider as surrogate because she has shown special care and concern and knows her mother's values
Sections you finish are checked off in the contents.