The term 'informed consent' gets used a lot by doctors, hospital administrators, unhappy patients and, sometimes, the courts. There is no doubt that patients have a right to be properly informed before consenting to any treatment, but what do your doctors actually have to tell you?
In recent times, the nature of the doctor-patient relationship has undergone a fundamental change — patients are generally much better informed and more involved in decisions than ever before. The days of 'doctor knows best’ are long gone. However, this doesn't mean that your doctor is obliged to discuss every single theoretical risk or complication with you. Like the rest of us, they aren't held to a standard of perfection, but rather what is reasonable.
What is considered reasonable warning?
A doctor is considered to have acted reasonably if they have warned a patient of any risks that are well known or those that have potentially serious consequences. However, they are not necessarily obliged to tell you about risks that are, for instance, extremely rare or not properly understood, unless that risk would have a particular significance to you for some reason. They also aren't expected to warn you about a risk or complication unless there is solid medical evidence that links it to a particular treatment.
However, if we’re talking about whether a patient can take legal action against a doctor in these circumstances, it's not enough to show that you should have been warned of a particular risk, you also need to prove that you wouldn't have undergone the treatment had you been properly warned. Of course, most people will argue that they wouldn't have had the treatment after something goes wrong, so we have to look back without the benefit of hindsight. For instance, it's no good trying to argue that you wouldn't have undergone your emergency, life-saving treatment if you had been told about a particular risk. On the other hand, if the treatment in question was non-essential or elective, such as cosmetic surgery, then this argument can be easier to make.
What does this mean for patients?
In short, it's good to inform yourself and research treatment but, as always, be careful about where you are getting your information. It's also critical to read the documents you are given, whether that's a pamphlet from your doctor, an information sheet in in your medication or a consent form from the hospital. I've lost count of the number of times I've heard people complain about not being properly informed, only to find a detailed consent form in the records, detailing all of the risks, with the patient's signature at the bottom!
If you are worried about a particular risk or the possibility of a certain outcome, raise it with your doctor — in the vast majority of cases they are going to be the best and most up-to-date source of information and advice.
Tom Ballantyne is a senior associate in Maurice Blackburn’s Melbourne office.