When you visit a healthcare professional, you have an expectation of care. You put your trust in a medical professional who is knowledgeable enough to provide you with all of the information you need to make an informed decision about treatment and procedures. Failure to secure informed consent can result in medical negligence claims.
Understanding Informed Consent
By law, competent adults* are able to consent to medical treatment and they are able to refuse it. Without consent, health professionals can face legal consequences. Without consent or a lawful justification such as necessity or emergency, a patient has the right to refuse invasive procedures. Informed consent is the consent to a specific treatment. However, informed consent cannot be given without a health professional providing all of the information and risks associated with the procedure or treatment. A failure to obtain informed consent can result in civil liability, even if the treatment isn’t deemed medical negligence in and of itself.
*All adults over the age of 18 are considered to have the capacity to make medical decisions assuming there is no clinical evidence to the contrary.
Legal Obligations of Healthcare Providers
Healthcare providers have a duty of care to their patients and part of that is warning patients about material risks that come with procedures, treatments, or other medical interventions. Failure to provide this information and obtain informed consent breaches that duty of care and leaves providers open to legal action.
Lack of Informed Consent and Medical Negligence
A patient cannot give informed consent unless they have been made fully aware of the risks of treatment, potential side effects, costs involves, or even alternative treatment options. If, as a result of this lack of information, you suffer a loss or injury, you have a strong case for a medical negligence claim. Individual providers and hospitals can be held liable for moving forward with medical treatment without informed consent. This could mean a patient was coerced into providing consent or provided with misleading information. It could also mean the informed consent wasn’t specific enough or was given by someone without the capacity to consent. Emergency situations override the need for informed consent.
A good example of a potential medical negligence claim would be a patient who received a delayed diagnosis. A patient who visited the doctor with severe abdominal pain was initially and incorrectly diagnosed with an ovarian cyst. The patient was hospitalised and discharged without a correct diagnosis 24 hours later before later being rushed to the hospital with a ruptured appendix. As this should have been diagnosed and addressed much sooner, the patient had long-lasting psychological and physical issues as a result of the misdiagnosis. This is a provable case with a strong likelihood of compensation.
Patient Rights and Considerations
Patients have three main rights under Australian law. Patients have the right to decide whether they will or won’t undergo a specific medical treatment once they have been given a reasonable explanation of what it entails and any associated risks. Patients have the right to reasonable care from a healthcare provider. Patients have the right to confidentiality regarding their medical conditions and treatment.
You might not have the vast knowledge of medical procedures as your healthcare providers, but it is their job to inform you and you have the right to refuse any treatment that feels wrong for you. You should be an active participant in the decision-making process, which means asking questions to ensure you understand what you will experience. The best care is achieved when everyone works together. A doctor may provide you with adequate information, but if you don’t understand it, it won’t help you make a sound decision.
If you feel you have been denied your patient rights or you have been given poor care, you can make a complaint to the Health Care Complaints Commission. However, your first discussion should be with the healthcare professional as you may be able to resolve the issue.
Seeking Legal Remedies
It takes expert knowledge to prove medical negligence, so the first step in the process is reaching out to a medical negligence lawyer. Medical negligence lawyers are experts and will be able to guide you through the process and ensure you have adequate evidence to prove your case. Enlist a team of professionals who are highly skilled in medical negligence law to help you navigate the process.
When you meet with a medical negligence lawyer they will assess your case and offer you advice on how likely you are to succeed in your claim. If they believe you have a potentially successful claim, they will need to consult with medical experts before they move forward.
Final thoughts
Today, more than ever, it’s important for patients to understand their rights and be active participants in the healthcare they receive. Don’t be afraid to push for more information if you feel like you are being inadequately cared for. You can also seek a second opinion. You have rights as a patient, and it’s important that you understand those rights so you know what to do in case of medical negligence in Sydney.
