Informed Consent in Medical Negligence Claims

What is Informed Consent?

Informed consent is a person’s decision to agree to healthcare treatment. This decision must be given voluntarily after accurate and relevant information and advice are provided to them. 

Medical procedures and treatments involve risk. Doctors and other healthcare practitioners have a responsibility to inform a person of the risk of the procedure or treatment they are considering. 

All health professionals providing treatment have a legal, ethical and professional obligation to obtain informed consent. 

All hospitals and day procedure services must have informed consent processes. 

Informed consent can be given in writing or verbally. 

What is Implied Consent?

Implied consent is a type of consent that is granted by a person’s actions. It is not explicitly provided in writing or verbally. 

What is Valid Informed Consent?

For there to be valid informed consent, the healthcare professional must provide information to the patient about the following: 

  • The medical condition that treatment is required for;
  • Risks and benefits of the treatment being recommended; and 
  • Alternative treatment options and the risks and benefits of each of those options.

A person must:

  • Have legal capacity to consent;
  • Give consent voluntarily; and
  • Give consent to the specific treatment and/or procedure. 

The healthcare professional should allow the patient time to ask questions. 

What if a Healthcare Professional Fails to Gain Informed Consent?

If a failure to obtain informed consent results in an injury, a person may be entitled to make a claim for medical negligence. 

For example, the case of Rogers v Whitaker (1992) 175 CLR 479 centred around informed consent and the failure to advise of potential risk. Mrs Whitaker was almost completely blind in her right eye since the age of 9. She consulted with Dr Rogers, an ophthalmic surgeon who advised that he could perform surgery on the eye that would improve its appearance and restore significant sight to it.

After the operation, not only did Mrs Whitaker’s right eye not improve, she developed inflammation in her left eye, which led to a loss of sight in her left eye. Mrs Whitaker then sued Dr Rogers in the Supreme Court of New South Wales for damages for medical negligence. Mrs Whitaker was successful and was awarded over $800,000.00 in damages.

Dr Rogers attempted to appeal this outcome in the Court of Appeal. This was dismissed. Dr Rogers then appealed to the High Court of Australia. This appeal was also unsuccessful. 

Ultimately, because Mrs Whitaker was not advised of the potential risks of eye surgery, informed consent was not provided by the patient. 

A poor treatment outcome alone does not establish an entitlement to a medical negligence claim based on informed consent. It must be proven that failure to obtain informed consent caused the harm to be suffered. 

In this case, it was critical that Mrs Whitaker was unaware of the risks of surgery. Dr Rogers failed to state risks prior to treatment. Additionally, Mrs Whitaker would not have been prepared to risk losing sight in her left eye had she been informed of the risks. 

Often, a patient may think that because they have suffered an injury there has been a breach. However, some injuries can be caused by complications or inherent risks of treatment/surgery which are not the fault of the medical provider and are unavoidable.

Did the Breach Cause Harm?

This element of a medical negligence claim is also known as ‘causation.’ It will need to be established that the breach directly caused injury and harm that could have been avoided.

This element can be challenging as there are usually other factors which have, at least in part, contributed to the injuries sustained.

Once the harm/injury resulting from the breach is identified, the loss sustained must be identified in order to claim compensation. To read more about what compensation can be claimed, click

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