HW Legal
What is informed consent and why is it important?
A patient's freedom of choice takes precedence over the protection of their life and health. Informed consent is a fundamental legal mechanism that ensures every patient has the right to make decisions about their health and medical treatment based on clear and understandable information provided by healthcare professionals. Clarity is essential: the information must be presented in a manner that allows a patient, who is typically a layperson, to assess the risks of a proposed procedure and decide whether to undergo it.
The duty of healthcare professionals: providing understandable information
Healthcare professionals are legally required to inform patients before carrying out any diagnostic or therapeutic procedure. Patients must be provided with understandable information about their medical condition, the nature and purpose of the proposed treatment, the associated risks, and any available alternatives.
In most cases, this information is provided orally, as this is generally the most accessible form of communication for patients.
Written consent and the importance of oral explanation
In certain situations, the law requires a patient's consent to be given in writing, for example in connection with hospitalisation. However, even where written consent is required, the essential information must still be communicated orally so that the patient fully understands what they are consenting to.
What happens if a patient is not properly informed?
If a patient gives consent without having first received proper information, the consent is not considered informed. In such circumstances, the physician has breached a legal obligation.
A patient may then be entitled to compensation if they can prove that they suffered harm as a result of the procedure (for example, if a risk materialised about which they had not been informed) and that, had they been properly informed of all relevant facts, they would have made a different decision and declined the procedure.
What risks must a physician disclose?
The extent of the duty to inform depends on the circumstances of the particular case. The obligation to disclose risks is not unlimited.
As a general rule, however, the more serious the potential consequences of a procedure, the lower the probability of those consequences occurring that is required before the physician must inform the patient about them.
Informed consent should always be clear, understandable, and unambiguous.
Liability for medical errors even after informed consent is obtained
Obtaining informed consent does not relieve healthcare professionals of liability for errors made in the course of providing medical care.
Patients should be aware that their rights remain protected even after they have given consent. After all, the patient consented to a properly and professionally performed procedure, not to negligent treatment.
Protecting your rights as a patient
If you have concerns about whether you were provided with all the information you were entitled to receive, or if you believe your rights as a patient have been violated, please contact us.
We are here to help protect your rights and ensure that you receive appropriate medical care — or compensation where you are entitled to it.