If a person suffers an injury in respect of treatment they did not consent to or were not provided with sufficient information to give “informed consent”, the doctor or service provider may be liable for the injuries in negligence.
Examples of treatment where informed consent has not been given include:
- A woman who discovered that she had been sterilised without her consent during a caesarean section surgery.
- A patient who was not informed of the risk of losing her eyesight in respect of a procedure following which she became almost totally blind.
Other than in exceptional circumstances, people have the right to determine what will be done to their bodies and what treatment they will undergo or decline. That is because the right of a person to make decisions about what will happen to their body, the autonomy of the person, is recognised as one of the most fundamental concepts relevant to medical practice. Valid consent is foundational before a medical treatment can be lawfully administered.
One of the main exceptions, is treatment legislated for a health emergency where special measures may be warranted for public health and safety. Of course, care and diligence must be taken to ensure safe, effective, evidence-based and ethical models of care. Another exception is the hospital emergency setting where it may not be possible for emergency physicians to obtain informed consent before proceeding with potentially life-saving treatment, such as where a patient is brought in to the Emergency Department unconscious following a motor vehicle accident.
Generally, however the forcible administration of medical treatment or treatment without consent constitutes a violation of an individual’s rights, potentially also amounting to an assault or trespass.
Forcible administration of medical treatment or treatment without valid or informed consent, denies an individual autonomy in relation to the medical decision-making process and treatments. Such treatments can be quite invasive and even life altering.
What is informed consent?
- A person must have capacity to give valid consent. They must be of sound mind, not suffering an incapacity and understand the information given to them about the proposed treatment. Adult patients are generally presumed to have capacity unless that presumption is rebutted or clinical concerns arise about the patient’s cognition.
- The consent must be given voluntarily, free of coercion or duress and relate to the treatment being received. Where the patient proceeds on based on information which is misleading, informed consent may be lacking.
- A patient is within their rights to refuse treatment by withholding their consent, even if it means they may die. The wishes of the patient in this regard will trump the wishes of the hospital (this does not apply where the consent of an adult relates to a child’s treatment).
- A patient must be given all relevant information necessary for them to decide whether to have the treatment, decline it or opt for an alternative. This includes specific information about the treatment, the risks of the treatment as related to their condition and particularly any risks the patient would place particular significance on, potential side effects, as well as any alternative options that might reasonably be available to the patient.
- Consent does not need to be given in writing, it may be verbal or implied. The signing of a pro forma document by the patient that sets out information about the treatment including the risks of the treatment, may not automatically constitute informed consent particularly where the relevant information has not been adequately explained to or understood by the patient.
If you have suffered an injury in respect of medical treatment which you did not consent to, or which you would not have consented to had your been provided with all relevant information specific to your condition including the risks and alternatives, it would be worthwhile seeking legal advice from lawyers specialising in medical negligence. It may be that your medical service provider is liable for your injuries in negligence, entitling you to compensation. Compensation payments will take into account any loss you have suffered due to your injuries in the past as well as into the future, including lost wages or income if you are no longer able to work, as well as any past and/or future care and assistance or medical needs you might have.
Turner Freeman specialise in medical negligence claims of this nature and can assist you to understand whether you have a viable claim for compensation and if you do, pursue a remedy for you.
If you or a member of your family would like to speak to a legal professional in a sensitive and confidential setting, please contact the Medical Negligence team at Turner Freeman Lawyers to speak with an experienced medical negligence lawyer.