We place a huge amount of trust in the healthcare professionals who prescribe us with medication, treatments or perform complex procedures on us. Healthcare providers have a duty to warn their patients about the risks of medical treatment, and to obtain the patient’s informed consent. Failure to obtain informed consent and warn the patient of risks is a breach of the healthcare provider’s duty of care.
So, what is informed consent, why is it important and what should every patient know?
What is informed consent?
The Department of Health’s guidelines consider informed consent:
- A person’s voluntary decision to agree to healthcare treatment, a procedure or another intervention, following the provision of accurate and relevant information and advice on alternative options available; and,
- Ensures that the person having the treatment, procedure or other intervention is provided with adequate knowledge and understanding of the benefits and material risks of the proposed intervention.
- Informed consent is a legal, ethical and professional requirement for all treating health professionals.
In a practical sense, informed consent helps to avoid misunderstandings or confusion about what to expect when undergoing medical treatment.
Informed consent allows patients to assess the risk versus benefits when making important decisions about their health.
How do I provide informed consent?
A person can give consent in writing or verbally, or it can be implied. The most appropriate form of consent depends on:
- How significant the treatment or procedure is in terms of outcomes for the person;
- The potential risks and benefits;
- The shorter and longer-term consequences for the person;
- The complexity of the treatment or procedure;
- The characteristics of the person giving consent.
Additional measures to obtain informed consent may be required for patients who lack capacity, including patients who:
- Are under 18 years of age;
- Have significant cultural differences;
- Have intellectual impairments;
- Have physical impairments (such as hearing deficits).
Where a person is significantly affected by a particular risk, such as a procedure that poses a risk of damage to the right eye, in a patient who already has impaired vision in the left eye, a healthcare professional has an even greater responsibility to properly outline the risks so that they can weigh up their options.
Can I withdraw consent if I change my mind?
Informed consent is an important part of examinations and medical procedures. Consent can be withdrawn after it is given and allows a patient to change their mind about their own healthcare choices after they have considered the risk versus benefit further.
Tips to consider when making an informed choice about your healthcare
- Don’t feel shy about asking questions, this affects your body and your wellbeing;
- If you do feel apprehensive about asking questions, write your questions down before your appointment and be prepared to get the answers you need.
- Ask your doctor questions about your testing and treatment options that will help you make better decisions together.
- Don’t feel intimidated if you do not understand, or need the doctor to re-explain. It is important that you fully understand your treatment options and what the risks and benefits are.
- If you are not satisfied with your answers or don’t feel comfortable with your doctor, consider getting a second opinion.
What if a medical professional fails to obtain informed consent from a patient?
If a medical professional fails to obtain informed consent from their patient and subsequent care results in injury, damage or harm, there may be grounds to bring a claim for medical negligence.
To succeed in a claim in negligence against a medical provider for failing to obtain informed consent, it must be shown:
- That the medical provider breached their duty of care;
- That the breach of duty caused an injury, damage or harm;
- That the injury, damage or harm is such that is compensable under the laws of the relevant state.
Did the breach of duty cause injury, damage or harm?
This requires a Court to conclude that had the patient been sufficiently warned of the material, relevant risks of medical treatment, they would have decided not to proceed with the proposed treatment.
A poor outcome resulting from treatment does not in itself entitle you to make a claim. Patients aren’t required to consent to every risk, only the material, relevant ones.
For example, a patient may accept that paraplegia could be a risk of or an unforeseen consequence of spinal surgery. The patient chooses to proceed with the procedure knowing this and suffer an adverse outcome from a different and unexplained risk, such as nerve damage resulting in pain or numbness. A Court would accept that had the patient known of the risk of nerve damage, they would have readily accepted the risk, given the patient understood the more serious risk of paraplegia and still opted for the procedure.
So, if the patient understands the material risks and consequences when choosing to undergo medical treatment, they will be assumed to have readily accepted lesser risks.
Let down by a medical professional? Shine Lawyers can help
If you have been harmed due to a medical provider’s failure to obtain informed consent, you may be entitled to compensation. Contact our expert medical negligence team for an obligation-free discussion of your situation.
Written by Clare Eves. Last modified: January 20, 2021.