Before a doctor performs a medical treatment, the patient must be well informed about what is going to happen, what risks are involved, and what alternatives exist. This is called informed consent. Without proper information, a patient cannot give considered consent. In this blog, we explain what informed consent entails, when consent is valid and when not, and what you can do if you have not been sufficiently informed.

What is informed consent?

The premise in the medical world is that a patient decides for himself or herself about their treatment. Therefore, it is essential that the patient understands what the treatment involves, what risks are associated with it, and what alternatives are available.
Informed consent therefore means: consent based on full and understandable information.

The doctor must explain:

• The nature and purpose of the treatment;

• The possible risks and complications;

• The probability of success or recovery;

• Alternatives, including waiting or not treating;

• The consequences of refusing the treatment.

Only when this information has been provided and understood can consent be legally valid.

Legal basis of informed consent

The right to information and consent is laid down in Article 7:448 of the Dutch Civil Code. Here, it says that the healthcare provider must inform the patient “clearly” about the proposed treatment and the expected consequences or risks.

In addition, the law states that the doctor is obliged to keep a good medical record in which this information is recorded.
Read more about it in our blog Medical record: inspection, copy and correction.

When is consent not legally valid?

Consent is not legally valid if the patient has not, or has been incorrectly, informed. This can occur in various ways, for example:

• The doctor has not told the patient what risks are associated with the treatment;

• Alternative treatments have not been discussed;

• The risk of complications has been downplayed;

• The patient has been put under pressure to agree;

• The consent was given without the information being understood.

When a doctor has violated his duty to inform, the treatment can be considered unlawful. If the patient thereby suffers damage, there may be medical liability. You can read more about this in our blog Medical liability in the Netherlands: rights of patients and route to damages.

The importance of evidence: what is in your file?

In a liability case, the medical record is crucial. This should include what information has been given, whether an informed consent form has been signed, and whether there are notes from conversations with the doctor.

If this information is missing, the burden of proof often weighs more heavily on the healthcare provider.
You can request the file from the hospital or the practitioner. How to do this is explained step by step in our blog Medical record: inspection, copy and correction.

Consequences of violating informed consent

If it turns out that you were not properly informed, the doctor or hospital may be liable for the damage that results. For example, because you would not have agreed to the treatment with correct information, or because you would have chosen an alternative with less risk.

In such a case, a compensation can be claimed, consisting of:

• Material damage – medical costs, loss of income, travel expenses, home help;

• Immaterial damage (pain and suffering) – compensation for pain, sorrow and loss of enjoyment of life.

Read in our blog How can you calculate pain and suffering? how the amount of pain and suffering is determined.

Common misconceptions

• A signature on a consent form does not automatically mean that informed consent has been given.

• Oral explanation is also required — written information alone is not enough.

• The fact that a risk is mentioned in a brochure does not absolve the doctor of the duty to discuss it personally.

• Not every complication is a mistake; there must be a violation of the duty to inform én demonstrable damage.

Practical example

A patient was only given a standard brochure with general risks prior to undergoing surgery. A complication arose during the operation that was not mentioned in the brochure and had not been discussed. The patient claimed that, had they been properly informed, they would not have consented to the operation. The judge ruled that the hospital had violated its duty to inform and awarded damages.

What can you do if you think you have not been properly informed?

1. Request your medical records.

2. Note what was said during conversations with doctors.

3. Contact a specialised personal injury lawyer.

4. Have it assessed to see if there has been a breach of the duty to inform.

Our lawyers will help you to safeguard your rights and take the right steps towards damages.

Why Arslan Advocaten?

At Arslan Lawyers, we regularly handle cases where the duty to inform has been breached. We work together with independent medical advisors and ensure that your file is fully built up. Our services are free of charge for victims, as we recover the costs from the liable party.

So you can be sure that you get what you are entitled to — without financial risk.