Is implied consent good enough?

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  Posted by: manpreet.boora      27th September 2017

A short while ago, the head of the Department of Health’s National Data Guardian (NDG) wrote a letter criticising the NHS for the deal it struck with Google’s DeepMind over sharing patient data. In the letter, Dame Fiona Caldicott questioned the legality of sharing 1.6 million patient records with a third party company without informing patients that this would be happening

The issue here is that this data was given to Google without informing patients precisely how their personal information would be used which, as Dame Fiona pointed out, was a violation of the trust patients put in the healthcare service. Google, however, answered by stating that the deal was covered by ‘implied consent’.

Both the NHS and Google have defended the use of implied consent and asserted that the sharing of any sensitive information would be very strictly controlled – but, even so, the question of the morality and legality of implied consent is dubious.

Indeed, consent is something of which we, as dentists, are well aware. For every procedure, we must ensure that out patients are fully aware of the benefits, limitations and alternatives, and willing to give informed consent for us to proceed. If a dentist made the decision to remove a patient’s tooth without informing them, just because that patient had come in complaining about toothache and wanting a solution, the repercussions would be very serious indeed. True, the dentist could say that the patient asked them to come up with an answer to their problem and, in asking, had given implied consent for the dentist to do what they deemed the best course of action – but do any of us actually think this would be appropriate or professional? Of course not.

Consent has to be a conscious decision on the part of the patient or, at least, their carer or guardian. It is the glue that holds the patient-practitioner trust together. It is our job to relay all the facts and options to our patients and it is their job to understand what we are telling them and give us the go ahead. It cannot be the other way around or avoided by suggesting the patient implied that we could proceed with whatever we thought was best.

Naturally, the issue of consent is becoming more and more pertinent in dentistry, not least because of the increase in litigation against dentists. Consent, therefore, is not just an important concern for the patient, but a necessary consideration for practitioners who do not want to see a Fitness to Practise case brought against them.

The example with DeepMind serves as a strong reminder of the importance of attaining full and informed consent from patients; indeed, the case into the legality of the NHS’s decision to share such information is still being investigated and will undoubtedly raise more questions in the future.

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