Any medical treatment may only take place if the patient’s well-informed consent has been obtained. This principle, also called informed consent is one of the foundations of medical law.
Yet in practice, things regularly go wrong: patients receive insufficient explanation, do not fully understand the risks, or turn out afterward never really to have consented to the treatment that was performed. In this blog, we explain what informed consent exactly entails, what the doctor’s duties are, and what you can do if action was taken without valid consent.
What does informed consent involve?
Informed consent means that all relevant information has been provided to the patient about a treatment, and then voluntary consent has given.
That means:
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The patient understands what the treatment entails;
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The patient knows which risks and alternatives there are;
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The patient may a well-considered choice yourself make.
Only when all these conditions have been met may a doctor start the treatment.
The legal basis
The right to information and consent is laid down in the Medical Treatment Agreement Act (WGBO).
It states that a doctor may only treat with the patient’s consent, and that this consent is only valid if the patient sufficiently informed is about:
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the purpose and nature of the treatment;
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the expected consequences and risks;
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possible alternatives;
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the outlook (prognosis).
A patient also always has the right to their consent again to withdraw.
What must a doctor explain?
A doctor must inform their patient clearly and fully.
That means that not only the medical procedure itself must be explained, but also:
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the risk of complications;
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the possible pain or recovery time;
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the consequences of not undergoing treatment;
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and the alternative treatment options.
The information must be tailored to the individual patient: what is self-evident to a medical specialist is often not to a patient.
Are you unsure whether you have been sufficiently informed? Then that may be an indication that no valid consent has been given.
When is consent not legally valid?
A treatment without proper or complete consent can legally be regarded as unlawful medical conduct.
Consent is, for example, not legally valid if:
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the patient has been incompletely or incorrectly informed;
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the patient was unable to appreciate the consequences (for example due to medication or stress);
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the doctor performs a different treatment than that for which consent was given;
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there pressure or coercion has been exerted.
In those situations there may be a medical error and there is a right to compensation.
Consent in emergency situations
In acute or life-threatening situations a doctor may act without explicit consent if that is necessary to save the patient’s life or health.
However, once the situation is stable, the doctor must still inform as soon as possible and ask for consent for further treatment.
The lack of consent is then only justified if there was immediate danger to life or medical necessity.
Consent for minors
Special rules apply to minor patients:
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Up to age 12: consent from the parents or guardian is required.
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12 to 16 years: both the young person and the parents must give consent.
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From the age of 16: the young person may decide for themselves about medical treatments.
Doctors must ensure that the young person understands the information and is able to make their own choice.
No written consent required — but evidence is required
The law does not require consent to be recorded in writing, but it is advisable.
In medical liability cases, the question often is whether or not there was informed consent.
Doctors therefore usually record in the medical record:
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that the treatment has been discussed,
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which risks were explained,
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and that the patient agreed.
If that is missing, the evidentiary issue may work to the doctor’s disadvantage.
What if you have not been properly informed?
If a doctor has acted without you being sufficiently informed, there may be a breach of the duty to inform.
The consequences can be serious:
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You might never have chosen the treatment if you had known all the risks;
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You have suffered harm that you could have avoided;
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Or you were confronted with complications you were not prepared for.
In such cases, you can hold the doctor or the hospital liable for the damage.
Also read our blog Medical liability: when is a doctor or hospital liable?.
Causal link in the absence of consent
In case law, when consent is lacking, the question often considered is:
“Would the patient have undergone the treatment if he had been fully informed?”
If it is plausible that you, with the correct information would not have consented, then there is a causal link between the breach of the duty to inform and the damage.
You may then claim compensation for the loss of self-determination or for the physical and psychological suffering caused by the treatment.
You can read more about this in our blog Causal link in medical errors.
How can you protect your rights?
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Request your medical record to see what has been recorded about the treatment and the consent.
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Write down your recollections of the conversations with the doctor – what was discussed, which risks were mentioned?
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Have the file legally reviewed by a specialized lawyer.
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Take action quickly: the statute of limitations for medical errors is usually five years from the moment you know that something went wrong.
Read more about this in our blog Statute of limitations in medical liability cases.
Why legal assistance is important
Informed consent may seem like a simple concept, but in practice it is one of the most common issues in medical liability.
Without the right legal and medical knowledge, it is difficult to prove that you were insufficiently informed or that your consent was not legally valid.
At Arslan Advocaten we combine many years of experience in medical liability law with expert medical support.
We help you clarify the facts, secure the evidence, and claim the compensation you are entitled to.
Our services are free of charge for victims, because we recover our costs from the liable party.
Why choose Arslan Advocaten?
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Specialized in medical liability and health law
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Expert assessment of informed-consent issues
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Collaboration with experienced medical advisors
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Free legal assistance for victims
We ensure that your right to self-determination is respected – and that medical errors do not remain without consequences.
