Informed Consent Medical Negligence Claims
As a society, we trust healthcare professionals to provide the right treatment, care, and advice. This trust comes with a legal responsibility called a ‘duty of care’, which means medical professionals must provide you with adequate and proper advice and treatment. A key part of this is making sure you understand the risks and alternatives of any treatment by getting your ‘informed consent’.
If your medical professional didn’t get your informed consent before a procedure — or you were misled or inadequately advised — you could have a medical negligence claim.
Keep reading to find out more about how informed consent works in healthcare. We’ll cover what informed consent really means, what legal obligations medical professionals have when getting your consent, and how to tell if your healthcare provider was negligent.
What is informed consent in healthcare?
Informed consent is all about making sure you are informed of all the potential risks, outcomes and alternatives before undergoing treatment.
According to the Australian Commission on Safety and Quality in Healthcare, giving informed consent means you’re voluntarily agreeing to a treatment, procedure, or intervention. This decision is made after receiving accurate and relevant information about the available treatment options, as well as understanding the benefits and risks involved.
Why is informed consent important?
Informed consent is important because it empowers patients to make educated decisions about their health based on accurate and complete information. Without it, someone might go through a treatment they wouldn’t have agreed to if they’d known the risks, which can lead to harm or regret.
Informed consent also helps build trust between patients and doctors, encouraging honest conversations and ethical care. In the end, informed consent isn’t just a formality — it protects patient rights and makes healthcare safer and more transparent for everyone.
What are the requirements for obtaining informed consent?
To obtain your informed consent, healthcare professionals need to meet four essential criteria:
- Capacity: you must be able to understand the advice you are provided, know how it could affect you, and communicate your choice clearly. Adults are assumed to have the capacity to consent to medical treatment unless there’s a reason to think otherwise. For children, it is often necessary to have a parent provide consent on their behalf.
- Free will: your consent must be given voluntarily, without any pressure or coercion from the medical professional, healthcare staff, a carer, family member or anyone else.
- Specificity: your consent needs to be specific and is only valid for the treatment or condition at hand. Courts have previously required medical practitioners to compensate patients if they performed extra procedures that weren’t included in the original consent, even if those additional procedures seemed necessary from a clinical perspective.
- Informed understanding: you must be fully informed about the treatment in a way that you can understand, including all risks, benefits, and alternatives.
It’s important to note that these criteria apply whether the consent is given verbally or in writing. Simply signing a consent form doesn’t automatically prove that valid consent has been obtained; the process leading up to that signature matters just as much.
To obtain your informed consent, your medical professional should discuss the following points with you:
- The nature of the illness and how it might progress.
- What the proposed treatment involves.
- The expected benefits of the treatment.
- Alternative treatment options available.
- The benefits and risks of those alternative treatments.
- The expected recovery timeframe.
- The time and costs involved in the recommended treatment plan.
- Common side effects and potential risks associated with the treatment.
- Whether the treatment is experimental or a standard approach.
- The option to seek a second opinion before proceeding.
Can I withdraw my consent?
You can withdraw your consent at any time, either by telling your healthcare provider or putting it in writing. Even your behaviour can show that you’re no longer okay with going ahead. You can pull your consent before treatment starts or even during the treatment itself, and once you do, the medical team has to stop the treatment right away.
What happens if the healthcare professional fails to get my informed consent?
If a medical professional doesn’t get your informed consent, goes ahead with treatment, and you’re injured as a result, you may have grounds for a medical negligence claim. It’s also known as a ‘medical malpractice claim’.
You’ll need to meet four criteria to make a successful informed consent medical malpractice claim:
1. Your healthcare professional breached their duty of care
Medical negligence occurs when your healthcare professional acts carelessly or fails to do something expected of them. If they didn’t get your informed consent or failed to fully inform you, this may be seen as a negligent failure to act.
To assess if they’ve breached their duty of care, we use the ‘reasonable standard of care’ test. This test looks at whether another medical professional, in the same situation, would have acted differently. The test considers many factors, including professional guidelines, testimony from other experts, and the specifics of your case.
2. Their failure to treat you properly caused your injury
This involves establishing two important things:
- You would not have agreed to the procedure or treatment if you’d been fully informed.
- The treatment caused harm, injury, or worsened your condition as a direct result of not being fully informed. Expert medical testimony can help establish this link between the lack of consent and the harm you suffered.
3. Your injury was a foreseeable consequence of the treatment
You’ll need to show that:
- A reasonable doctor would have anticipated the risks you experienced, and
- These risks could have been avoided if you had all the information needed to make an informed decision.
4. You suffered injury and loss
The final step in proving a medical negligence consent claim is to show that you’ve suffered injury and loss. This can include things like medical expenses, lost wages, or pain and suffering (essentially, how the injury has affected your life).
Are there situations where informed consent isn’t needed?
Yes, there are certain situations where medical professionals don’t need to obtain informed consent. Some of the most common include:
- Emergency situations: in emergencies where time is critical, a doctor may need to act fast to save a patient’s life. In these cases, even if the patient wouldn’t have agreed to the treatment, they can’t sue for lack of informed consent.
- Patient preference: if a patient explicitly asks their healthcare provider to make decisions on their behalf and doesn’t want to know the details, informed consent might not be needed. Still, it’s common practice to provide at least basic information about the treatment plan.
- Therapeutic privilege: a healthcare provider can withhold information if they believe that sharing it could negatively affect the patient’s health. This decision must be based on reasonable grounds; otherwise, it could expose the provider to medical negligence claims.
What should I do if I suspect my medical professional was negligent?
If you believe your medical professional didn’t properly get your informed consent, it’s crucial to consult a lawyer for advice. Informed consent is a complex aspect of medical negligence law, and you’ll need strong evidence to demonstrate a clear link between your condition and the lack of informed consent.
On top of this, you’ll need to meet all the specific requirements in your state. For example, in some states, proving that your informed consent wasn’t properly obtained can be more difficult because of specific evidence rules.
A skilled lawyer can help you at every stage of your claim, including:
- Assessing whether you have a case and estimating your potential compensation.
- Collecting strong evidence to demonstrate your medical professional’s negligence.
- Countering any arguments from the insurer that might weaken your claim.
- Finding every other claim you might qualify for, like Total and Permanent Disability or workers compensation. Often, these are worth significantly more compensation than a negligence claim alone.
- Maximising your final payout through effective negotiation and advocacy.
Our medical negligence lawyers have over 25 years’ experience dealing with major healthcare insurers. We use tried-and-true negotiation tactics and expert evidence to prove negligence in even the toughest cases.
Plus, with our No Win No Fee Guarantee, you can feel secure knowing your claim is risk-free. There are no upfront fees, and you only pay if we successfully resolve your case.
To sum up
Informed consent is a key part of the relationship between patients and healthcare professionals. It ensures that both sides understand the reasons for a specific treatment and the risks that come with it. Plus, the ability to give or withdraw consent allows patients to protect their rights, beliefs, and interests.
If you or someone you know has received treatment without giving informed consent, reach out to us today. In a free consultation, our expert medical negligence lawyers will discuss whether you have a claim, the best way to prove your case, and how much compensation you could receive.
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