What is required to give truly “informed consent?”

Doctors often think they know what’s best for their patients. However, when it comes to choosing the medical treatment or procedure that is the best option for them, patients have the right to make that decision.

Excluding certain emergency procedures, patients have the right to make an informed decision regarding whether to consent to a recommended treatment or procedure.

That consent must be informed. But what does “informed consent” mean?

What information is required for “informed consent?”

A doctor must obtain the patient’s informed consent before treating or operating on the patient. In order to do so:

• The doctor has a duty to explain, in terms understandable to the patient, what the doctor intends to do before subjecting the patient to a course of treatment or an operation. The purpose of this legal requirement is to protect each person’s right to self-determination in matters of medical treatment.
• The doctor has a duty to explain, in words the patient can understand, all material medical information and risks. Medical information or a risk of a medical procedure is material when a reasonable patient in the plaintiff’s position would be likely to attach significance to it in deciding whether or not to submit to the treatment. The doctor must tell the patient about the alternatives that the doctor recommends as well as all medically reasonable alternatives that the doctor does not recommend.
  • Accordingly, the doctor must discuss all medically reasonable courses of treatment, including non-treatment, and the probable risks and outcomes of each alternative.
  • By not discussing these alternatives, the doctor breaches the patient’s right to make an informed choice and effectively makes the choice for the patient.
  • Further, a doctor is responsible for any injuries suffered by the patient, if the doctor did not adequately explain all medically reasonable courses of treatment, including non-treatment, in what the doctor knows or should know to be the patient’s medical position or condition.

NOTE: The doctor is not required to disclose to the patient all the details of a proposed operation or treatment. Nor is the doctor required to disclose all the possible risks, no matter how small or remote, nor those dangers known to the average person or those dangers the patient has already discovered. More on this below.

Medical information and risk disclosure requirements

Taking into account what the doctor knows or should know to be the patient’s need for information, the doctor must disclose the medical information and risks that a reasonably prudent patient would consider material or significant in making the decision about what course of treatment, if any, to accept.

Such information would generally include:

• a description of the patient’s physical condition, the purposes and advantages of the proposed surgery or treatment.
• the material risks of the proposed treatment and the material risks if such surgery or treatment is not provided.
• the available options or alternatives that are medically reasonable under the circumstances and the advantages and risks of each alternative.

Making the case for lack of informed consent

To prove a case of lack of informed consent, the patient must prove all the following elements:

(1) the defendant doctor failed to give the plaintiff all the information that a reasonable person in the plaintiff’s position would expect a doctor to disclose so that the plaintiff might make an informed decision about the course of treatment

(2) the undisclosed risk (of the treatment/non-treatment) occurred

(3) a reasonable person under the circumstances of this case would not have consented to (or would have chosen to undergo) the treatment or operation had he/she been so informed

(4) the course of treatment or operation (or failure to operate or treat) was a proximate cause in producing plaintiff’s injuries or conditions.

Although the patient’s testimony may be considered on the question as to whether he/she would have consented, the issue to be resolved is not what this patient would have done—it is whether a reasonably prudent person would have consented (or chosen another course of treatment), if provided with material information which you find the doctor failed to provide in this case.

What constitutes failure to prove lack of informed consent?

If the defendant doctor gave all the information which a reasonable patient in the patient’s position would expect to receive at the time the consent was given, or that the undisclosed risk did not occur, or that the information which was omitted or not disclosed would not have caused a reasonably prudent patient to refuse consent to the procedure or operation, or that the course of treatment or operation, or failure to operate or treat, was not a proximate cause in producing the plaintiff’s injuries or conditions, then the patient has failed to prove a lack of informed consent.