By Stuart J. Oberman, Esq.

All dentists should be aware that in most cases, an unemancipated minor's consent to treatment is not valid. A parent or legal guardian's consent must be obtained before treatment is rendered. Unfortunately, many dentists still provide "routine" dental treatment to minor patients without obtaining informed consent from a parent or legal guardian.

The informed consent process should be a thorough discussion between dentist and patient, or dentist and parent of a minor, as to what procedures will take place, including extractions, root canals, crown and bridge, implants, and incision and drainage. A written informed consent form should be obtained before any type of treatment begins, including any procedure involving flap reflection, cosmetic dentistry, TMD treatment, orthodontics, IV sedation, or general anesthesia.

The informed consent process should include a discussion between the dentist and patient about the nature of the proposed treatment, potential risks and complications, likely benefits, prognosis, alternatives (including referral to a specialist when appropriate), timing, and estimated fees.

The informed consent process does not have to be as detailed for routine treatment and diagnostic measures. However, the patient must be advised about all of the treatment and diagnostic procedures with respect to the proposed dental care, including what is to be done and why. The patient has a right to refuse even the most routine treatment.

In the case of an unemancipated minor child who is not accompanied to your office by a parent or legal guardian, you should take a few steps to minimize a potential conflict and reduce your liability exposure.

First, make a professional judgment as to whether a delay in treatment could be detrimental to the minor's dental or systemic health. Determine whether it is in the patient's best interest to proceed with the treatment immediately, or whether treatment can wait until a parent or legal guardian is contacted.

Next, make a reasonable effort to contact the parent or legal guardian. Hopefully the patient's chart is updated with cell phone numbers. A patient's dental record should contain detailed documentation regarding the number of times you attempted to contact the patient's parent or legal guardian. If you cannot reach a parent or guardian, it may be prudent to defer routine treatment until you can obtain informed consent, unless an emergency exists.

Verbal consent or a signature on a consent form from the parents of a minor child should be sufficient. However, it is essential that the parent granting consent be legally authorized to do so. Divorces can often be highly contentious, to the point where some divorce decrees stipulate that a noncustodial parent cannot make medical decisions. If a parent has no parental rights, then that parent is precluded from granting consent on behalf of his or her minor child.

If an unaccompanied minor child comes for an appointment for routine treatment that has already been consented to by the parent or guardian, it is permissible to proceed with treatment. However, be very careful that you do not perform any treatment whatsoever outside of the consent.

Finally, I would suggest that all adult patients and parents or guardians of all minor children be required to sign an "Admission to the Practice Agreement." This document provides for, among other things, the consent of the patient (or patient's parent or legal guardian) to routine dental procedures, as well as treatment and diagnostic tests, including X-rays that are deemed necessary in the dentist's professional judgment. If a conflict arises, the signature of the parent or legal guardian on such a document will, at a minimum, demonstrate that implied consent was granted for routine dental procedures for the minor patient.

Stuart J. Oberman, Esq., handles a wide range of legal issues for the dental profession, including practice sales, real estate transactions, lease agreements, noncompete agreements, and professional corporations. For questions or comments regarding this article, call (770) 554-1400 or visit www.gadentalattorney.com.