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Personal Injury

Explaining options and risks key to informed consent

Giving patients options is key to informed consent for medical procedures, Toronto personal injury lawyer David Derfel tells AdvocateDaily.com.

In most cases, medical professionals cannot carry out procedures on patients without first gaining consent, but Derfel, founder and principal of Derfel Injury Lawyers, explains that it’s not enough for a patient to simply tick a box and agree to a particular treatment or procedure.

“Informed consent is about knowing what you are agreeing to,” he says. “And part of that is knowing the alternatives to the selected treatment or procedure. Medical professionals need to tell people their options and the respective consequences.”

As well as disclosing the known material risks associated with a particular treatment or procedure, health-care professionals must also take into consideration the circumstances of the specific patient, Derfel says.

“A physician or dentist needs to discuss reasonable alternatives, including no treatment or procedure at all,” he says. "In all cases, a signed consent is necessary to document what was epxlained to the patient and what the patient agreed to and understood."

In addition, Derfel says patients must have the capacity to give consent. He notes that young children, people with a disability and the seriously ill may need to delegate consent to a substitute decision-maker.

"Also, posible language barriers need to be considered. If a patient does not speak or understand English well enough, it may be necessary to have an interpreter," he says.

Derfel says informed consent can be a challenge due to the technical nature and complexity of many medical procedures.

"Understanding medical procedures and terminology is difficult and patients rely on a physicialn to explain things in an understandable way. The process can be very confusuing, even if there are no capacity or language issues," he says.

“Some people have better ways of communicating with patients, but for the most part, a patient's consent is based on the explanation given by the practitioner,” he says. "Medical proessionals not only need to explain what they will do, they need to ensure their patients understand what will be done."

The repercussions are potentially severe for health professionals who fail to obtain proper informed consent before a medical procedure, says Derfel. If proper consent was lacking or incomplete, physicians, dentists and others may be liable for damages, even if the procedure was carried out competently and met the proper standard of care, he explains.

The issue is also complicated by the fact that different procedures arguably require different levels of explanation in order to satisfy the informed-consent threshold.

“I would say there’s a greater obligation when the procedure is elective, as opposed to life-threatening,” Derfel says.

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