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.
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.
To obtain your informed consent, healthcare professionals need to meet four essential criteria:
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, a healthcare provider should discuss the following points with you:
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.
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. To make a successful claim, you’ll need to meet four criteria:
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.
This involves establishing two important things:
You’ll need to show that a reasonable doctor would have anticipated the risks you experienced. You’ll also need to show that these risks could have been avoided if you had all the information needed to make an informed decision.
You’ll need to prove that you’ve suffered injury and loss, which can include things like medical expenses, lost wages, or pain and suffering (essentially, how the injury has affected your life).
Yes, there are certain situations where healthcare professionals don’t need to obtain informed consent. Some of the most common include:
If you believe your healthcare provider 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 your healthcare provider’s failure to secure your 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:
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.
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.
Use our online claim checker to instantly find out if you have a claim. Alternatively, just give us a ring — our expert lawyers are always ready to answer your questions.