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Medical Law and Ethics on the Issue of Informed Consent

Medical law and ethics govern doctor-patient relationships. It is quite understandable that patients may not know all their rights, while it is also unreasonable to expect them to be experts on the topics of medical law and ethics. As such, patients often don’t realise that their patient rights have been violated. One such a right and integral to confidence in the healthcare system is the right to informed consent for treatments provided by a medical practitioner.

The consent can be given verbally or in writing by the patient or the guardian of the patient. It can also be implied when the patient doesn’t question or object to a course of treatment. Informed consent is an ethical and legal right that every patient has and it is the duty of the caregiver to involve the patient in the decision-making process about their own health and wellbeing.

Such consent means that the patient must be informed about the nature and risks of the treatment or non-treatment based on the patient’s decision. The physician must propose reasonable alternatives to the prescribed treatment and must also inform the patient about possible benefits, disadvantages and any doubts about the treatment. The explanation must be in understandable terms for the patient and the physician needs to ensure that the patient comprehends the information shared. The patient must willingly accept the treatment or decision.

Note that the patient can only give informed consent if they are mentally and physically able to provide such since the patient must voluntary give consent. To come back to implied consent – if the patient, for instance, attends a lab for a specific screening, the consent to draw blood or request urine sample is implied. However, even in such an instance, the main elements must still be explained.

The question remains about the amount of information that must be disclosed. For such the measurement is to compare the information disclosed to what can reasonably be expected from another medical professional in the same situation for the particular treatment/procedure. It must furthermore be compared to what a patient can reasonably expect and would need to know before they can make an informed decision about the particular treatment decision.  In light of the above, one can thus not expect a physician to discuss every possible risk and alternative for a treatment, but can expect to have at least reasonable choice and thus information to decide on whether or not to proceed with a particular treatment.

According to current medical law and ethics every type of medical intervention needs some type of patient consent after reasonable discussion of the intervention by the healthcare giver. Notably patients complete consent forms when they are admitted to hospital, but they still need to be informed about the treatment protocols. For certain types of interventions such as surgery the patient needs to give written consent whilst in other circumstances verbal consent is considered adequate.

Full informed consent isn’t necessary if the patient’s ability to make a decision is impaired. In such an instance, it is important to locate the relevant person that can make the decision on behalf of the patient. If there isn’t enough time to find a proxy as any delay in treatment will cause harm to the said patient then full consent is not a requirement. The patient can furthermore waive their right to consent while they can also designate a person to handle the intervention decisions on their behalf.

Informed consent is a rather complex issue and it is important to seek legal guidance regarding such from an experienced medical law attorney if you believe that you did not provide informed consent for a particular medical intervention.


Note that the information in this article is for information purposes only and should not be seen as an attempt to provide legal advice. We strongly recommend that you contact us at Adele van der Walt Incorporated for professional legal advice.

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