In the eyes of the law, a person cannot consent to treatment unless they have been adequately informed about the risks. This is what is meant by the phrase “informed consent”. Cases that involve this issue are often referred to as “failure to warn” cases because there has been a failure to warn a patient of material risks with the treatment given.
Guidelines for practitioners
The National Boards for almost all health practitioners publish a Code of Conduct that indicates the standards expected generally in the profession including the expectations regarding informed consent. For instance, the amount of information expected to be given to patients by doctors is not only prescribed by the Medical Board of Australia’s code of conduct but also by reference to the National Health and Medical Research Council’s:
What do I need to prove?
To successfully bring a claim against a health practitioner in this area, you must establish that:
- The health professional failed to warn you of a risk associated with the proposed treatment
- The risk was material (a reasonable person in the same circumstances would be likely to attach significance to the risk).
- Had you been warned, you would not have proceeded with the treatment. This will be affected by whether the treatment was elective or necessary and if there were any alternative treatments available.
- You proceeded with the treatment; the risk occurred and caused you injury
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