How Does Informed Consent Work in Medical Negligence?

Doctor with patient

Everyone has to see a medical professional at some point or the other. On occasion, you or a family member may be told by the doctor that you will require invasive tests or even surgery as part of the treatment. You wouldn’t agree to something you didn’t fully understand, and it’s your treating doctor’s responsibility and duty of care to make sure you have all the necessary information before you consent to the treatment.

That is informed consent and is a crucial consideration under medical negligence law.

To enable you to make an informed decision and give consent to treatment, this would include the doctor or surgeon giving you detailed information about risks of the proposed treatment and how it would relate to your specific condition. Health professionals also have to warn of apparent risks of personal injury or death to the patient, which may arise from the treatment. They would have to give you all this information and get your consent BEFORE proceeding with the agreed medical procedure or test.

Why is informed consent essential?

Failure to make you reasonably aware of the material risks involved with the suggested treatment, the alternatives available if any, potential side-effects and the costs involved, means you are not giving informed consent to the procedure or treatment. If you subsequently suffered injury or loss, as a result of those risks, there would be a strong case for negligence against the medical professional

After discussing all the risks and options involved, the doctor will ask patients to sign a consent form detailing the material risks of that specific procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must discuss the procedure and risks with the patient. And to a reasonable extent, the patient must understand the risks he or she faces.

A doctor not adequately informing the patient of all the risks and treatment alternatives, before getting their consent can be held liable. It can be argued that the patient may not have opted for the treatment had they known about the risks and the doctor proceeding without an informed consent could face medical malpractice.

Law may not recognise informed consent if:

  • The patient has been coerced into giving their consent or was provided misleading information about the treatment and outcomes.
  • The consent wasn’t specific, and there is no evidence of written documents specifying the treatment or procedure that the patient consented to.
  • The consent was given by a person not considered competent at the time they gave consent.

There are exceptions to the informed consent rule:

In an emergency, when there is no time to describe the risks involved and a doctor must act quickly to save a life. A patient cannot sue for lack of informed consent in this situation, even if he or she would not have allowed the treatment.

If the patient is emotionally fragile and the doctor is aware that details about the procedure may distress them further, the doctor may not be required to get the patient’s informed consent. The treating doctor must be able to substantiate the reasons why the risks were undisclosed.

Medical negligence cases are complicated and often require considerable investigation by experienced lawyers specialising in this area of law. For example:

If the doctor performs procedure B after the patient has given informed consent for procedure A, the patient could sue the doctor based on lack of informed consent. This is true even if the procedure was successful.

If a doctor fixes a serious medical problem that arose while in the middle of doing another procedure, the patient probably does not have a claim for lack of informed consent.

To bring a successful claim, harm or damage must have occurred as a direct result of the medical practitioner’s breach of duty to warn their patient of the material risks involved, also known as ‘causation’. If the medical practitioner’s failure to inform did not cause loss or damage, there is no claim.

Damages are awarded to compensate for the pain and suffering the patient had to endure, physically and mentally as a result of the negligence (in this case, failure to provide adequate warnings).

Seeking legal advice

If you or somebody you know has suffered medical malpractice due to the negligence of a doctor or medical practitioner, you may be entitled to compensation.

At Taylor & Scott, we understand that these cases are particularly sensitive. Our team, headed by recognised Law Society of NSW experts, will ensure the strongest possible evidence is obtained on your behalf so that you have the greatest likelihood of obtaining a fair result.

In a free initial case assessment, we can discuss your situation and advise on your legal options. In some cases, our no-win, no-fee option applies so there won’t be any additional financial stress. To arrange your free case assessment, phone us on 1800 600 664 or complete the contact form on this page.

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