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.
The amount of information a health practitioner should provide you with varies according to the level and frequency of risk. Depending on the nature of the risk, it may not be considered sufficient for you to have simply signed a written consent form without specific risks being drawn to your attention or being discussed with you verbally.
Whether a risk is considered “material” is judged by reference to whether a reasonable person in your circumstances would attach significance to the risk. To succeed, the risk about which you were unaware must then occur, it must cause you injury or damage, and you must also be able to establish that, had you been warned of the risk, you would not have undergone the treatment.
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:
- General guidelines for medical practitioners on providing information to patients 2004 and
- Communicating with patients: advice for medical practitioners 2004.
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.
Lack of informed consent is particularly common in claims arising out of negligent surgery.
How can we help?
Our medical negligence team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 25 years. We can assist you by providing expert advice and legal support regarding your options.
Our team has successfully pursued hundreds of claims against healthcare providers, and litigated some of the highest profile cases in Australia.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.