Informed Consent in Healthcare: What is it and what if it was not obtained?

3 minute read

When you agree to undergo a medical procedure or treatment, you are entitled to receive enough information to make an informed decision about whether to proceed. This is known as informed consent.

What does the law say about informed consent?

In Ireland, the legal principles around informed consent were clarified by the Supreme Court in Fitzpatrick v White [2007] IESC 51. This case moved Irish law towards a more patient-centred approach.

Instead of relying solely on what a responsible body of doctors might consider adequate, doctors must ensure that patients are told about information that:

• A reasonable person in the same position would want to know, and:
• This particular patient, given their medical history, lifestyle or expressed concerns, would likely find significant.

What information should you be given?

In line with Fitzpatrick v White and the HSE National Consent Policy, patients should be told about:

• The nature of your condition and the purpose of the proposed treatment.
• The material risks and possible complications, including their likelihood and potential seriousness.
• Any reasonable alternatives, including doing nothing, and the risks and benefits of each option.
• Likely outcomes, recovery times and possible long-term effects on quality of life.
• Special considerations personal to you, such as pre-existing conditions, lifestyle factors, medications or occupational needs that could affect your decision
• Where relevant, success rates or available statistical outcomes, explained in a way you can understand.

The timing and manner of consent

Consent must be given voluntarily and you must have capacity to understand the information. It is not valid if rushed or obtained under pressure.

For planned treatment, you should be given enough time to reflect, ask questions, seek more information or get a second opinion. Where needed, information should be provided in plain language or with interpreting supports. You can withdraw your consent at any time, including during treatment, if you have capacity.

What if informed consent is not obtained?

If you undergo treatment without being properly informed, and you suffer harm as a result of a risk you were not told about, you may be entitled to bring a medical negligence claim. To succeed, it must be shown that:

• Your healthcare provider failed to give the information required under the Fitzpatrick v White standard, and:
• If you had been properly informed, you would have refused the treatment or chosen a different option.

We are expert clinical negligence solicitors and can advise you on all matters relating to consent in healthcare in Ireland

At Augustus Cullen Law, we have extensive experience advising patients whose rights to informed consent have not been fully respected. Visit Medical Negligence Claims to learn more about our services or Contact Us to arrange an initial consultation.

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