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Informed consent for medical treatment

Total disclosure of any possible risks is the only option when discussing treatments and procedures with patients, writes Michael Gorton.

Patients these days are better informed and more inquisitive about their medical treatment. For serious medical issues, we all ask the questions – “What is wrong with me?”, “What are my options?”, “How would this treatment affect me?”, “What are the risks?”, “What are the side effects?”.

In fact, doctors have a professional obligation to answer all of these questions. Doctors also have a legal obligation to explain the risks of any treatment or procedure recommended. Obviously, the more invasive the treatment, the more substantial the risks can be. Australia’s High Court has confirmed the obligation of doctors to warn patients of ‘material risks’ inherent in any proposed procedure or treatment.

A ‘material risk’ is one that a reasonable patient, if warned of such a risk, may attach significance to. In other words, the patient may change their mind about having the procedure or treatment. It is also a material risk of treatment if the doctor is aware that the particular patient, if warned of the risk would be likely to attach significance to it, and potentially refuse the procedure or treatment.

This places a high burden on practitioners to ensure that all material risks are considered and that the particular circumstances of the patient are considered. Doctors should think of risks, not as medical complications or technical complications, but the outcomes or impact on patients – pain, disability, dysfunction – the effect of a complication on a patient’s ability to work, have sex or enjoy life.

To consider the risks involved doctors may contemplate:
• Would a reasonable person be affected by this risk and potentially change their mind about the procedure?
• If the intervention or procedure is more drastic, it would be more necessary to inform of risks and consequences.
• An increased desire for information by the patient necessitates greater disclosure.
• In some cases, the temperament and health of the patient may be considered.
• The existence of emergency situations or lack of opportunity for proper counselling can affect the obligations to disclose.
• Special issues arise in relation to consent from children, teenagers and the intellectually disabled.

Doctors need to make time to have these difficult discussions with patients. Consideration of the risks should not be inherently technical or medical, but provided to the patient in language that they can understand and consider.

Doctors are relatively capable of documentation of the diagnosis, test results and general recommendations and treatment of patients. It is also important that the discussion of ‘informed consent’ is documented. Many claims can arise when patients suffer a predicable complication, but allege that the doctor did not warn them of that risk. It is still considered negligence, and can be a successful claim, when a patient suffers an inevitable adverse outcome where the doctor did not warn the patient that it was a risk that the patient was assuming. Good informed consent means that patients will not be surprised when a complication arises, because it would have already been discussed with them as a possibility.
The discussion with the patient to explain risks should rarely be delegated to others. The doctor will remain liable and responsible if the informed consent process is given on their behalf incompletely.

We will all be patients at some stage, and may have children for whom we are responsible to obtain medical treatment. As a patient or parent we would always want to know about the risks involved in any treatment or procedure, so that we can make a judgement as to whether it is worthwhile having the treatment or procedure. In most cases, the treatment or procedure will be necessary and lifesaving or life improving. The decision by the patient may be obvious. That does not, however, excuse a doctor from failing to provide this information. As patients, we would want it. For doctors, it must be provided.

Michael Gorton AM, LLB BComm FRACS (Hon) FANZCA (Hon) is principal at Russell Kennedy Lawyers.

Image credit: Katarzyna Bialasiewicz via 123RF

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