Cognitive Status: Legal Implications and Informed Consent

Allen D. Samuelson | 07.09.2014

Cognitive Status: Legal Implications and Informed Consent

Understanding diagnoses and treatment options are critical to ethical patient-centered dental care.  Many medical problems can change the ability of a patient to understand and make decisions.  Examples of conditions that may affect the ability to understand information are dementia, stroke with mental status change, schizophrenia and severe depression.  Typically, a physician will help with the diagnosis of a mental status change and help establish an alternate or surrogate decision maker for the patient.   Examples of alternate decision makers are:

  1. A Durable health care power of attorney (DHCPOA) is an individual designated by the patient who will make decisions on their behalf should they become disabled.  Once active the DHPOA makes all decisions regarding treatment.
  2. Legal Guardianship is instituted by an individual or the “State” on behalf of another person and designated by a judge or clerk of courts.  The person in question must have a thorough evaluation and be deemed incompetent before legal guardianship can be established.  The individual applying for legal guardianship must be approved then appointed in a legal proceeding.

If the dentist is concerned that a particular patient does not adequately understand instructions, diagnoses, or treatment recommendations and they have no legal representative they may refer to an MD for testing. Legal guardianship proceedings may occur if the patient is deemed incapacitated.  

Other concepts related to surrogate decision-making are:

  • Best Interest Standards – If the legal guardian or power of attorney cannot be located and the patient is suffering from an emergency such as a severe oral infection and has breathing difficulty, then the best interest standard is most appropriate.  Given the patient’s cognitive status and the emergency situation the dentist will determine and proceed with treatment he or she deems is in the best interests of the patient.  Generally, the dentist will seek out colleagues to concur with the plan.
  • Substituted Judgment - Making decisions for another individual is difficult.   Substituted judgment involves the concept of the alternate decision maker attempting to make a choice regarding treatment that is most consistent with the values of the individual they are making the decision for.  A statement such as “dad would not have wanted his teeth removed” is an example of this concept. 
  • Physician Orders (DNR/DNI) – Do not resuscitate or do not intubate are physician orders in certain patients who have terminal illnesses or other conditions warranting such an order.  Typically, no advanced life support or cardiopulmonary resuscitation (CPR) is administered should the patient go into cardiac arrest.  Typically, states require a specific document to be completed and an original present at the dental or medical appointment to be deemed in effect.   If the proper documentation is present and the situation warrants i.e. cardiac arrest, one should call 911 and EMS will provide transport and comfort care.   If no documentation is present at the time of the event i.e. cardiac arrest, then EMS personnel will be required to resuscitate.  There may be legal implications when this occurs.

As you can see cognitive impairment and physician orders have an impact on dental care and one should be mindful of these issues and their effect on treatment.


Allen D. Samuelson DDS

UNC School of Dentistry