Stern Law is led by Principal Solicitor, Terry Stern, one of the most experienced medical negligence lawyers in NSW with over 35 years in the field, and an Accredited Specialist in Personal injury Law.
Our Commitment: Stern Law is dedicated to a team approach, drawing on a variety of skills and backgrounds in medical negligence law to get our clients the best results.
Effective communication and consent play pivotal roles in the doctor-patient relationship, wherein patients entrust their well-being to physicians with the expectation of them acting in their best interests. It is incumbent upon the doctor's duty of care to guarantee that patients possess comprehensive information before consenting to medical procedures and treatments.
Unfortunately, poor communication, failure to warn of material risks or gaining consent from an incapacitated patient, among other lapses, can form the basis for a medical negligence claim.
What is ‘informed consent’?
Informed consent (provided written or verbally) is valid when the medical practitioner explains to the patient:
The purpose and benefits of the operation
The part or parts of the body to be cut or removed.
The possible consequences/ risks of the operation
Any alternative treatment options which are reasonably available
For consent to be valid, the patient must be in a clear and conscious state of mind when receiving information and giving consent. If the patient is under the influence of drugs or anesthesia, or if coercion is involved, the consent may be deemed invalid. The information provided should be conveyed in simple language understandable by the general population, as the use of technical medical terminology could render the consent voidable. In such cases, the patient may not fully comprehend or may be misled by the complexity of the language used.
In cases where English is not the patient's primary language, it is essential to contemplate the inclusion of a translator proficient in the patient's native language. The language barrier presents a substantial challenge, not only in conveying intricate medical terminology but also in ensuring culturally sensitive communication. For individuals facing this linguistic hurdle, heightened feelings of fear and anxiety can cloud judgment and diminish their sense of self-empowerment. In such situations, practitioners must exhibit respect and patience, prioritising a thorough understanding of the patients' needs.
Other factors which should be considered by medical practitioners when obtaining consent include;
If the person is under 18 years of age
Any significant cultural barriers
Intellectual and physical impairments or disabilities, including elderly people.
In an early decision, D v S (1981) the court found the defendant surgeon for medical negligence on the grounds that he did not explain to his patient the extensive and permanent nature of scarring she would suffer from a breast reduction surgery. The plaintiff suffered psychological injury as a result and was compensated on the grounds that - had she been fully informed of how the final result would appear; she would not have consented to the operation. The court held this was not informed consent.
Duty to warn of Material Risk
A study of negligence claims against doctors in Australia concerning informed consent, identified that in 71% of cases, the primary allegation concerned a complication of treatment that had not been mentioned or fully explained, and then materialised. [1]
In Rogers v Whitaker, the Hight Court held that a doctor has a duty to warn a patient of a material risk - a risk being material if in the circumstances a reasonable person, in the position of the patient, if warned of the risk, would be likely to attach significance to it.
Exceptions - In an emergency, a doctor may not have to receive consent to save a patient’s life.
Do I have grounds for a claim?
If you have suffered a physical or mental injury due to a medical practitioner failing to obtain informed consent, you may have grounds for compensation, provided that the medical provider has breached their duty of care.
Importantly, a signed a consent form, will not be held to be legally binding unless the doctor discussed the above requirements for informed consent.
CASE STUDY:An example of a more complex situation of ‘informed consent’ is the ethical and legal implications concerned with the refusal of a blood transfusion by patients affiliated with certain religious groups. In 2023, the NSW Supreme Court overruled the parent’s decision who refused to consent to the use of a blood transfusion for their infant due to religious reasons. This child held a range of serous medical issues including renal and cardiac abnormalities and required two surgical procedures. The court demonstrated their right to make orders where parents have not consented to medical treatment in circumstances in the ‘best interest and welfare’ of the child. (Read more on ABC News). |
How Stern Law can help you.
The nature of these claims is complex and requires solicitors who are specialised in medical negligence law. With your consent, we will request your personal medical records, which will be reviewed by specialist medical negligence solicitors and expert medical advice to determine whether you have grounds for a claim.
For an empathetic and compassionate approach to compensation, reach out to our team of experts in medical negligence at Stern law.
Please call us on (02) 9387 1399 or email us at reception@sternlaw.com.au
We look forward to sharing this journey with you.
Written by S. Lowrey (Paralegal/ Registered Midwife)
Disclaimer: The content of this article is intended only to provide a summary and general overview of matters of interest. It does not constitute medical or legal advice and should not be relied on as such.
[1] The Medical Journal of Australia (MJA) ‘When informed consent goes poorly: a descriptive study of medical negligence claims and patient. complaint’s
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