Every patient has a right to decide about medical procedures armed with knowledge of all benefits and risks. This is not just theory. If a doctor fails to obtain a patient’s informed consent, this may result in a medical negligence claim. In our own practice we have seen cases where our clients had to endure expensive repeat surgeries to undo the effects of inappropriate treatment which they never would have consented to had they known of the risks.

If a medical professional fails to obtain informed consent from a patient before providing a particular medical treatment, then the patient may potentially bring a compensation claim. In this article we look at what informed consent means in practice and what you as a patient should insist on before deciding about medical treatment options.

The starting point is that every doctor, dentist or other health service provider must obtain a patient’s consent before they provide treatment. In the absence of consent they may be committing battery which can lead to criminal and civil proceedings. For the consent to be valid, the patient’s consent must be informed. Let’s look at what makes a consent “informed”.

Diagnosis

Before undergoing any treatment, the doctor must give the patient a diagnosis: what is the medical condition that requires treatment.

Recommended and alternative treatment

Next, what treatment does the doctor recommend for the illness or condition? Further, is there just one treatment option, or are there multiple different options for the patient to choose between? For example, consider a dentist replacing a patient’s dentures. Is the only option to retain the new dentures by osseointegrated implants, or is there an alternative?

Material risks

It is critical that doctors warn patients of the material risks of the recommended and any alternative treatments. What is a material risk? The High Court of Australia has dealt with this but in a nutshell, material risk is anything that would significantly influence a particular patient’s decision whether to consent to a particular treatment.

For example, imagine a patient who is blind in one eye and considers elective surgery on the other eye. Is there a risk that due to the surgery the patient might loose their eyesight in the “good” eye and if so, what is that risk in percentage terms? If a patient only has one good eye to begin with, even a small risk of losing eyesight in the remaining good eye may be unacceptable to the particular patient – and they need to be told about this risk!

General vs patient specific risks

Every medical procedure has some risks which apply with respect to every patient. But often patients have specific circumstances which make the proposed treatment riskier for them. For example, if you have an underlying condition such as diabetes, or if you are a smoker, some procedures will be riskier and the doctor must tell you about these.

What success looks like and what is the likelihood of success?

It’s important to tell patients what precisely is the outcome which a particular treatment might achieve, and how likely is it? For example, if you are considering shoulder surgery, if good outcome means reduced pain but loss of some function, and the chance of success is 50-50, is that surgery worth it?

Who provides treatment? doctor vs student

If it’s proposed that a particular treatment is provided by a trainee or student, the patient must be told and their consent must be obtained. They must have a clear understanding that the person treating them is not a registered health practitioner.

Non-technical terminology

If the doctor provides comprehensive information but uses technical jargon that the patient doesn’t understand, there is no informed consent. It’s important that all relevant information be provided in simple terms. One thing which promotes this is the use of diagrams or illustrations.

Language barriers

If the patient’s first language is not English, the doctor should consider if an interpreter should be used. This isn’t always necessary. A patient with limited English may well understand everything if, for example, the necessary information is repeated to them a couple of times. On the other hand, if the patient simply doesn’t have adequate command of English, an interpreter is necessary.

Pro-forma disclosure forms aren’t enough

Many practices and service providers use pro-forma documents which list the risks of the proposed procedure/treatment. Patients are asked to read the forms and sign them. This can be problematic for a number of reasons. Firstly, some patients may not understand what’s written on the form, for example if their English isn’t good enough. Secondly, some patients may not read the form and instead they just sign it. Thirdly, forms don’t encourage patients to ask questions. It is much better if the doctor explains the risks and then documents the risk disclosure and the fact that informed consent was obtained.

Should all risk disclosure be provided in writing?

This depends on the treatment. For example, a dentist providing a simple filling may not need to give the patient a document listing the risks involved (but there may be exceptions). On the other hand, if for example a dentist is proposing extensive and expensive treatment, then it is much more likely that the nature of the treatment and all material risks associated with it should be disclosed in writing.

Proving failure to warn just the first step

If as a patient you state that you have not been given a warning about risks, then we need to also look at what you would have done had you been told about the risks. In other words, would you have done something differently, or would you have still made the same decision about the proposed medical treatment? This is important, and courts look at all surrounding circumstances. If you can’t prove that you would have done something differently, you may not be able to prove that the doctor’s failure to warn of the risk caused your injury. Say, for example, that you had been experiencing severe pain for a long time and you were told that surgery will fix it and thereby greatly improve your quality of life. In these circumstances, can you say (and prove) that if you had been told of a particular risk, you would have chosen not to undergo surgery? This is a very difficult issue, and it must be considered without the benefit of hindsight.

Where to from here?

Even with the most skillful doctors, medical treatments sometimes don’t go as planned. But if the risks weren’t disclosed and the treatment has led to serious injuries or adverse outcomes, patients may have compensation entitlements. Please contact us to see if we can help.