A patient giving their consent to treatment is a cornerstone of the relationship between them and their health professional. Most people incorrectly assume that the issue of informed consent is just about whether or not there is a signed medical consent form, but the issues surrounding consent are far more complex and much more interesting than the paperwork that sits on the back of the medical file.
Whether we realise it or not, most medical treatment we receive occurs without a written or signed consent form, and can occur even where no words are exchanged between doctor and patient (think about getting your blood pressure taken, for instance).
The Australian Commission on Safety and Quality in Health Care has recently published a fact sheet for medical practitioners and other health professionals about how to obtain informed consent from patients.
But what is “informed consent” in the provision of health treatment? And what are the legal consequences of treating a person who has not given informed consent, or given any consent at all?
And most importantly, what does all this mean for patients?
Here, we give you an overview of some of the key legal issues relating to compensation claims arising from a patient’s consent to treatment. This article relates to consent provisions related to adults. There are special laws and rules relating to treatment and consent provisions for minors.
What is informed consent?
In healthcare, consent is the agreement for a medical professional to provide you with treatment and care, including any tests, medicines, treatments or procedures you agree to.
Informed consent means that the patient will receive clear and understandable information about their treatment choices, so that they can make the right decisions about your health and healthcare.
Informed consent is not “one size fits all”. For instance, the amount of information given to a patient about the risks of a blood test will be different to the information given before major surgery.
A patient who speaks English as a second language might require the assistance of an interpreter to ensure that they have received the information that they need in relation to the treatment.
A patient signing a consent form does not mean that the patient has provided informed consent. The information provided to the patient verbally can be more important than the document they sign.
And lastly, informed consent (in writing or verbally) is not a protection for doctors against all claims for negligent treatment. A patient can still explore a potential claim for compensation if something goes wrong with their treatment, even though they may not be able to argue that they weren’t told about the treatment risks.
When is informed consent required?
Under Victorian (and Australian law) patients who have the capacity to make their own health decisions are entitled to choose whether or not they undergo medical treatment.
This entitles them to consent to treatment, or to decline treatment – even where declining treatment might result in their death.
Consent does not always need to be obtained in writing (although it certainly helps Courts understand what was agreed in the event the patient goes on to suffer an injury) and whether written consent is required will depend on the medical treatment being offered.
When is informed consent not required?
There are very specific occasions where health professionals can provide treatment without first getting the consent of the patient. These include:
- Where treatment is required in an emergency – only where patient’s condition requires immediate treatment to save the patient’s life or health. If a person is rushed to hospital following a road crash and is unconscious, hospital staff would not be required to obtain consent from the patient or their family to give them life saving treatment.
- Where a person does not have capacity; for instance, where a patient is provided treatment as part of an involuntary psychiatric detention, or as a condition of a court order.
What can be done if a health practitioner breaches their legal obligations to obtain informed consent?
Generally speaking, a patient is entitled to refuse treatment – even if this means that they lose their life.
A breach of the patient’s autonomy by providing treatment without the consent of a person can result in a disciplinary complaint (for instance to AHPRA or the Health Complaints Commissioner), a claim for compensation against the doctor or health provider, and in rare circumstances, can also result in criminal sanctions.
The legal remedies available depend heavily of the circumstances of the treatment provided to a patient, but there is a fundamental difference between the failure to get the patient’s “consent in broad terms” and “informed consent”.
Let’s now look at each of those types of consent.
Lack of any consent in broad terms
The most serious, and rare, complaint regarding a patient’s consent to treatment involves a failure of the health practitioner to get consent in broad terms.
Treatment without consent in broad terms leads to what in legal terms is called an “intentional tort” (a battery, an assault and/or false imprisonment). This is separate from an allegation that a doctor was merely negligent in consenting a patient.
Examples of treatment lacking consent in broad terms which could lead to an intentional tort include:
- Where the treatment is performed only for financial gain;
- Where the treatment is intended to injure or kill the patient;
- Where consent is obtained by fraud;
- Where the circumstances involve sexual assault or misconduct.
Cases alleging an intentional tort can result in different legal tests and thresholds to those relating to informed consent. For instance, exemplary and aggravated damages can be awarded in relation to intentional torts.
And, while treatment without a patient’s consent can also lead to criminal penalties, it is important to understand that the legal tests between the civil law relating to compensation and criminal laws are different.
Compensation for a lack of informed consent: legal requirements
The much more common scenario involves a patient who has consented to the procedure in broad terms, but disputes that they have been fully informed of the risks of the procedure (i.e. “informed” consent).
In Victoria, it is very difficult to claim compensation for a lack of informed consent. This will come as a surprise to many patients and health practitioners.
The main reason for this is the number of legal hurdles that must be overcome before a court will award compensation.
To be successful in a medical negligence claim for compensation for a failure to give informed consent, a person needs to show:
- the health practitioner failed to warn the patient about a “material risk” of the treatment;
- that that risk came to pass as a result of the treatment;
- that if the patient had been adequately warned, they would have elected not to have the particular treatment;
- that there was loss or damage as a result of the risk occurring.
Some key issues that make “failure to warn” cases so difficult
- There will often be argument about what a health practitioner said to a patient about the risks of a procedure. This can lead to a difficult factual dispute between a doctor (who might not remember what was said but will be very clear about their “usual practice” when warning of risks) and a patient (who might have various things rushing through their mind when considering the treatment in front of them).
- A doctor’s belief that a patient has consented doesn’t do anything to clear up whether consent has been properly obtained.
- A “standard” or template consent form signed by the patient is often helpful in showing that the patient consented to the treatment, but is rarely helpful in capturing the discussion regarding risks between doctor and patient. A signed consent form does not mean that the patient was properly warned and does not prevent a patient from taking legal action in relation to their injuries.
- What is a “material risk” to one patient may not be material to another and the doctor’s duty to warn of a material risk exists even if the patient’s concerns are unreasonable as was a primary factor in Rosenburg v Percival. A classic case in this regard is Rogers v Whitaker (1992) HCA. In that case, Ms Whittaker had been blind in one eye since childhood. She had cosmetic surgery on her blind eye to rebuild muscles around the eye. She was a very nervous patient, and asked the surgeon whether anything could happen to her good eye. The surgeon said no. Ms Whittaker had surgery, which resulted in her losing sight in her good eye because of the occurrence of a rare risk of the surgery (1 in 16,000 cases). The High Court found that although the risk was not objectively material, the fact that Ms Whittaker had asked the specific question about her good eye meant that the risk was material to her in the circumstances, and that the surgeon should have been aware of this.
- The non-disclosed risk must become the actual injury. It doesn’t help an injured patient to argue that they should have been warned about a risk that didn’t eventuate, and that they should be compensated for other injuries. Patients will sometimes say, for instance: “If I’d been warned that blood loss was a risk of the operation, I would not have gone ahead. I had the operation and have now developed an infection.” Unfortunately for the patient, a Victorian court would not award compensation for a person in those circumstances.
- It is generally very difficult to convince a court that if warned of a risk, a patient would have refused treatment. A big part of the reason for this is that an injured person will often find it impossible to say what they would have done without the knowledge they now have about their injuries. As a result, courts are generally slow to accept evidence from an injured person about what they would have done, and instead look at other external factors such as the treatment required, what the person had done in the past, and what other patients might do in the same circumstances.
So, while we can see that the issue of consent to medical treatment is both important and complex, it should also be clear that claims for compensation in Victoria regarding consent or a “failure to warn” are actually very rare. This is due in large part to the many legal hurdles which aggrieved and injured patients need to clear in order to hold a medical practitioner accountable where a risk of treatment has come to cause injury.
Despite this, the team at Polaris Lawyers have led their clients to a number of successful outcomes in relation to failure to warn cases, and in cases where clients seek advice about a failure to warn, only for us to discover further negligence in the treatment provided to them.
If you’ve had a poor outcome following medical treatment, it never hurts to get legal advice to find out whether you may have a potential claim. Polaris offers free, confidential consultations where you’ll get advice and guidance directly from a medical negligence lawyer.