What do your doctors have to tell you?

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 were 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 Blackburns Melbourne office.

TOPIC: Patient safety
RELATED LEGAL SERVICES: Medical negligence

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Tom Ballantyne

Maurice Blackburn Melbourne
Tom Ballantyne is a Principal Lawyer in Maurice Blackburn’s medical negligence department. He is a Law Institute of Victoria Personal Injury Accredited Specialist, is listed in the prestigious Doyles guide, and is the Australian Lawyers Alliance Victorian President. Tom sees clients in Melbourne, Dandenong and Frankston. Tom joined the firm as a trainee lawyer in 2006, and has practiced exclusively in medical negligence claims since 2007. He also spent two years working in the United Kingdom. “I was led to practice law at Maurice Blackburn because I always wanted to work in an area that would make a difference to people. It’s rewarding to help people navigate a distressing and sometimes life-changing experience. I’m inspired by helping people achieve a measure of justice and financial stability.” Tom’s skills include running complicated litigation across all areas of health care – obstetrics, delay in diagnosis, orthopaedics and emergency departments. He has achieved significant results for clients including settling cases involving catastrophic injuries and lifetime care needs, and is one of three Maurice Blackburn lawyers listed by the prestigious Doyles Guide as a leading lawyer in his field. “I provide legal advice and act for people injured by malpractice and poor medical treatment, such as birth injuries, delay in diagnosis of cancer and other diseases, orthopaedic and other types of surgery, wrongful birth, catastrophic injuries, and fatal accidents." Tom also represents families at Coronial Inquests, acting on behalf of the families of people who have died following poor medical treatment. Tom also has a passion for promoting medical law issues in the community. He is the author of The Legal Prescription blog, which covers topical legal and medical issues. He has also been published in the Law Institute Journal. Memberships & accreditations Law Institute of Victoria Member Law Institute of Victoria Personal Injury Accredited Specialist Australian Lawyers Alliance Victorian President  Australian Lawyers Alliance State Committee Medical Negligence Representative Awards Doyles Guide - Medical Negligence Compensation Lawyer, Vic - Leading lawyer, 2016 Doyles Guide - Medical Negligence Compensation Lawyer, Vic - Leading lawyer, 2017 ...

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