Informed consent in dentistry: the conversation the law measures, and what four states' own rules require

What it says#

Informed consent is a process, and the signature at the end of it is evidence that the process happened. Every source read for this entry says some version of that, and the states that have written the doctrine into statute have written it as a description of a conversation.

Washington's version is the cleanest to read because it is framed as elements of proof. Under RCW 7.70.050(1), a patient suing on lack of informed consent must show that the provider failed to inform the patient of a material fact relating to the treatment, that the patient consented without being aware of it, that "a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts," and that the treatment caused injury. Subsection (2) defines material by the same measure: a fact is material "if a reasonably prudent person in the position of the patient or his or her representative would attach significance to it deciding whether or not to submit to the proposed treatment." That is the reasonable patient standard. Subsection (3) then names what has to be established by expert testimony, and it is a serviceable list of the elements of any consent discussion: the nature and character of the treatment proposed and administered; the anticipated results; the recognized possible alternative forms of treatment; and the recognized serious possible risks, complications and anticipated benefits of the treatment and of the alternatives, "including nontreatment."

Florida sets the other standard, and it names dentists in the statute. The Florida Medical Consent Law, Fla. Stat. 766.103(3), bars recovery against a dentist licensed under chapter 466, among other practitioners, for treating without informed consent when the action in obtaining consent "was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community," and when a reasonable individual, from the information provided, "would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment." That is the reasonable practitioner standard, with a reasonable-patient comprehension test bolted on. The difference matters: in Washington the question is what this patient would have wanted to know, and in Florida the first question is what a careful dentist in that community would have said.

Both states then treat the form the same way, as proof rather than as the thing itself. Under RCW 7.70.060(1), a signed consent form that describes, in language the patient could reasonably be expected to understand, the nature and character of the treatment, the anticipated results, the recognized alternatives and the serious risks and benefits including nontreatment, "shall constitute prima facie evidence that the patient gave his or her informed consent," and the patient then carries the burden of rebutting it by a preponderance of the evidence. Washington adds a second route at RCW 7.70.060(2): a signed acknowledgment of shared decision making, made with a certified patient decision aid, is prima facie evidence that the patient can rebut only by clear and convincing evidence. Florida is gentler on the practice: under 766.103(4)(a), a written consent meeting the statute's requirements, validly signed, "shall raise a rebuttable presumption of a valid consent."

Two other states in this reading put the consent where the office actually has to manage it, in the chart. Arizona's statute, A.R.S. 32-1264(A), lists what the records of a licensee must include, and item 5 is "Documentation of informed consent." Minnesota's board rule is more specific. Minn. R. 3100.9600, subp. 9, requires the dental record to include a notation that the dentist, dental therapist, hygienist or licensed assistant "discussed with the patient the treatment options and the prognosis, benefits, and risks of each treatment that is within the scope of practice of the respective licensee," and that "the patient has consented to the treatment chosen." Subpart 8 requires an agreed upon written and dated treatment plan except for routine care.

Who may give consent is a separate statute, and a separate list. Washington's RCW 7.70.065(2) names five classes of person who may consent for a minor patient who is not otherwise authorized to consent, in order of priority: an appointed guardian or legal custodian; a person authorized by a court for a child in out-of-home placement; the parents; an individual to whom the parent has given signed authorization to make health care decisions; and a competent adult representing themselves to be a relative responsible for the minor's health care, or one who signs a dated declaration under penalty of perjury saying so, effective for six months. Florida approaches the same problem from the other end at Fla. Stat. 743.0645: when a person with the power to consent cannot be reached after a reasonable attempt, a health care surrogate or attorney-in-fact, then the stepparent, grandparent, adult sibling, or adult aunt or uncle may consent to "ordinary and necessary medical and dental examination and treatment," but not to surgery or general anesthesia, and the statute requires documentation in the record that a reasonable attempt was made to reach the person who could consent.

The ADA fills in the practical shape. Its own guidance says informed consent "isn't just a document: it's a process and discussion," that the dentist rather than a staff member must be the one to hold it, that the form should be specific to the procedure, and that consent for complex treatment should be obtained in advance of the treatment appointment so the patient has time to consider. The ADA Principles of Ethics, Section 1 on patient autonomy, states the duty plainly: "The dentist should inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions." On refusal, the ADA is direct: it is the patient's right to refuse, and the practice should "document the discussion, the reasons for the refusal and the patient's understanding of those issues in the chart or in an informed refusal form," and if the patient will not sign, document the conversation in the record anyway. If you keep treating that patient, the ADA says you should keep re-offering the treatment and keep advising how the refusal affects their oral health.

Who it applies to#

Every dentist, in every state, is subject to some version of this doctrine. What differs is the standard, the list of who may consent, and whether any of it is written down in a statute at all. Four states' own texts were read here: Arizona, Florida, Minnesota and Washington. The other forty-six were not, and in many of them the disclosure standard comes from court decisions rather than a statute, so no rule is reported for them.

It reaches associates and hygienists as well as owners. Minnesota's notation rule names the dental therapist, the hygienist and the licensed assistant alongside the dentist for treatment within their own scope. The ADA's guidance takes the narrower line for the dentist's own procedures: a clinical staff member may discuss options, but the informed consent process requires the dentist to hold the discussion.

It does not reach everything. The ADA describes implied consent from a patient who arrives and sits in the chair, and general consent covering an examination, local anesthesia and minor restorative work, with specific informed consent required beyond that. Whether that division holds where you practice is a state law question. Washington implies consent in a recognized emergency when the patient lacks capacity and no authorized person is available. None of this is legal advice.

What changed#

First edition for this directory. The doctrine itself is old: Florida's consent law dates to 1975 and Washington's to the 1975-76 session. What has changed is at the edges. Washington added shared decision making and the certified patient decision aid in 2007, creating a signed acknowledgment that is harder for a patient to rebut than an ordinary consent form, and rewrote the persons-who-may-consent statute in 2021 and again in 2022. Florida amended 766.103 in 2016 and 2018 to extend it to more kinds of practitioner. The board rules in Arizona and Minnesota have moved the pressure from whether the conversation happened to whether it is visible in the chart, which is where a board investigation will look first.

Where the source is#

The Washington sections are on the state legislature's site: RCW 7.70.050 (necessary elements of proof, with the material fact definition), RCW 7.70.060 (consent form, contents, prima facie evidence, shared decision making) and RCW 7.70.065 (persons authorized to consent, with separate priority lists for adults and minors). Florida Statutes 766.103, the Florida Medical Consent Law, and 743.0645, on other persons who may consent for a minor, are on the Florida Legislature's site. Arizona Revised Statutes 32-1264 is on azleg.gov. Minnesota Rules 3100.9600 is on the Office of the Revisor of Statutes site. The ADA material is the Association's own: the Guidelines for Practice Success pages on the consent process and on informed consent refusal, and Section 1 of the Principles of Ethics and Code of Professional Conduct on patient autonomy. Texas was attempted and its statute site now serves an application rather than the text, so no Texas rule appears here. Four states are not fifty, statutes change, and nothing on this page is legal advice; your state board and an attorney licensed in your state govern.