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Consent to Treatment

General Points

          The signing of a consent form is of secondary significance, but provides invaluable evidence that consent has been obtained.

          Express Consent (i.e. written or oral) should be obtained for any procedure that carries a material risk (see below).

          Consent could be obtained during the outpatient consultation and then again on admission.


Person obtaining Consent

          Should, whenever possible,  be the person who will carry out the procedure.

          If not, it should be obtained by someone who is appropriately qualified and familiar with all the details and risks of the proposed procedure.


Material Risks

          Defined as those to which a reasonable person in the patient' position would be likely to attach significance.

          Bolam test = A practitioner can expect to avoid liability if the court finds that a reasonably competent practitioner in a similar position would not have mentioned the risk, and that such a decision was supported by a responsible body of relevant professional opinion. 

          Sidaway case -> In some cases a practitioner may reasonably omit to mention a material risk if, after proper consideration of the patient's condition, he believes that a warning would be harmful to the patient's health (Therapeutic Privilege).

          The practitioner must be mindful of the severity and likelihood of the risk compared with the need for the procedure. It may be appropriate to warn of a relatively rare risk for a non-therapeutic procedure, such as sterilisation or a screening test. Whereas a similar risk for an important therapeutic procedure may not require specific warning because of the possibility of deterring a patient inappropriately from a necessary treatment.

          Rogers v Whitaker (Court of Australia) -> A risk is material if a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it.

          Finlay CJ, Irish courts -> 'If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general and which was approved of by his colleagues of similar specialisation's and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.'

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