All competent adults have the right to choose whether or not they will consent to medical treatment. This is based on the importance placed on the principle of a patient’s personal autonomy. With the exception of few circumstances, such as an emergency procedure, doctors cannot interfere with a patient’s personal autonomy until they receive informed consent to do so from that person.

What is informed consent?

A good starting point for understanding informed consent is the definition found at clause 3.5 of the Medical Board of Australia’s Good Medical Practice, as being a person’s voluntary decision about medical care, made with knowledge and understanding of the benefits and risks involved.

It is important to establish the knowledge and understanding of a patient if the law is to protect personal autonomy for patients choosing whether to undergo medical treatment. It gives rise to a duty for medical practitioners to provide patients with reasonable information about the pros (intended benefits), cons (material risks) discussed below, and costs of treatment so the patient can make an informed decision, and provide consent, for a particular treatment.

Consent to medical treatment

Following from the above, for effective consent to be given, three elements must exist:

  1. The consent must be voluntary and freely given. If a person is coerced into consenting, or is given misleading information relating to the nature or necessity of the treatment, their consent may not be recognised at law.
  2. The consent must be specific, such that the precise procedure is determined. Written documents should specify the treatment or procedure that the patient consents to. For example, a female patient who consents to a sterilisation procedure does not necessarily consent to the removal of her ovaries.
  3. The consent must come from a “competent person”. Every person over the age of eighteen is presumed to be competent to make decisions, unless there is clear evidence or knowledge that they are not. If the person is not considered competent at the time they give consent, the consent may not be effective.

Medical practitioners to warn of material risk prior to treatment

One of the most important considerations for a patient are the material risks that are associated with a particular treatment.

As set out by the High Court in the matter of Wallace v Kam [2013] HCA 19:

The common law duty of a medical practitioner to a patient is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment. A component of that single comprehensive duty is ordinarily to warn the patient of “material risks” of physical injury inherent in a proposed treatment. A risk of physical injury…is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance…in choosing whether or not to undergo a proposed treatment… (our emphasis added).

Medical practitioners are required to provide patients with the information that the specific patient would consider necessary to make an informed decision in relation to treatment. This includes information about risks that are inherent in the proposed treatment, and risks that would relate to a specific patient. Practitioners also have to warn of obvious risks of personal injury or death to the patient, which arise from the service offered by the medical practitioner.

Often this information will be contained in a pamphlet given to you and/or form part of the discussion between you and your doctor. Make sure you read the information carefully and understand what the material risks of the proposed treatment are.

It is ultimately a decision for the court to decide whether or not reasonable information was provided to a patient.

There must be harm caused by failure to warn

Lastly, to bring a successful claim, harm or damage must have occurred as a result of the medical practitioner’s failure to warn their patient of material risks. This is known as causation. If no loss or damage was caused by the medical practitioner’s failure to warn, there is no claim. This is because damages are awarded to put the patient in the position they would have been in had the negligence (i.e. failure to provide adequate warnings) not occurred.

Seeking Advice

Very few medical negligence cases are simple and often require considerable investigation by experienced legal professionals. If you or somebody you know has suffered a medical injury due to the negligence of a doctor or medical practitioner, you may be entitled to compensation. For more information, please call Stacks Goudkamp on 1800 46 2359 to arrange a free, no-obligation assessment of your claim, or alternatively, make an online enquiry.

Written by Rachel Karrour.

Rachel Karrour is a paralegal in Julie Mahony’s Practice Group. Rachel works on a variety of different compensation matters, with a particular focus on medical negligence claims.