Any medical treatment may only take place if the patient has given well-informed consent. This principle, also called informed consent, is one of the foundations of medical law.
Yet things often go wrong in practice: patients receive insufficient explanation, do not fully understand the risks, or it turns out afterwards that they never really consented to the treatment that was carried out. In this blog we explain what informed consent exactly means, what the doctor's duties are and what you can do if action has been taken without valid consent.
What does informed consent mean?
Informed consent means that a patient has received all relevant information about a treatment, and has subsequently given voluntary consent.
That is:
The patient understands what the treatment entails;
The patient knows what risks and alternatives there are;
The patient can make a well-considered choice.
Only when all these conditions have been met, a doctor may 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 after permission has been given by the patient, and that this permission is only valid if the patient is sufficiently informed about:
the purpose and nature of the treatment;
the expected consequences and risks;
possible alternatives;
the prospects (prognosis).
A patient also always has the right to withdraw his consent.
What must a doctor explain?
A doctor must inform his patient in a comprehensible and complete manner.
This means that not only the medical procedure itself must be explained, but also:
the chance of complications;
the possible pain or recovery time;
the consequences of non-treatment;
and the alternative treatment options.
The information must be tailored to the patient's personality: what is obvious to a medical specialist is often obvious to a patient not.
Are you unsure whether you have been sufficiently informed? Then this may be an indication that no valid consent has been given.
When is consent not legally valid?
A treatment without correct or full consent can be legally regarded as unlawful medical conduct.
For example, consent is not legally valid if:
the patient has been incompletely or incorrectly informed;
the patient was unable to understand the consequences (for example due to medication or stress);
the doctor carries out treatment other than that for which consent was given;
pressure or coercion was exerted.
In those situations, there may be a medical error and there is right to compensation.
Consent in urgent situations
In acute or life-threatening situations, a doctor may act without explicit consent if this is necessary to save the life or health of the patient.
However, as soon as the situation is stable, the doctor must inform as soon as possible and ask permission 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:
Up to 12 years: permission from the parents or guardian is required.
12 to 16 years: both the young person and the parents must give consent.
From 16 years: the young person can decide for themselves medical treatments.
Doctors must ensure that the young person understands the information and is able to make his or her own choice.
No written consent required - but proof is required
The law does not require that consent be recorded in writing, but it is wise.
In medical liability cases, the question often revolves around whether or not there was informed consent.
Doctors therefore usually include this in the file. It is established:
that the treatment has been discussed,
which risks have been explained,
and that the patient has agreed.
If this is lacking, the evidence problem may be to the detriment of the doctor.
What if you have not been properly informed?
If a doctor has acted without you being sufficiently informed, this may be the case. a violation of the obligation to provide information.
The consequences can be serious:
You may never have chosen the treatment if you had known all the risks;
You have suffered damage that you could have avoided;
Or you have been confronted with complications for which you were not prepared.
In such cases you can hold the doctor or hospital liable for the damage.
Also read our blog Medical liability: when is a doctor or hospital liable?.
Causal connection in the absence of consent
In case law, in the absence of consent, the question is often considered:
“Would the patient have also undergone the treatment if he had been fully informed?”
If it is plausible that you would not have consented if you had received correct information, then there is a causal link between the violation of the obligation to provide information and the damage.
You can 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 connection in medical errors.
How can you protect your rights?
Request your medical file to see what has been recorded about the treatment and the consent.
Write down your memories of the conversations with the doctor - what was discussed, what risks were mentioned?
Have the file legally assessed by a specialized lawyer.
Take action quickly: the limitation period for medical errors is usually five years from the moment you know something went wrong.
Read more about this in our blog Limitation in medical liability cases.
Why legal assistance is important
Informed consent seems to be a simple concept, but in practice it is one of the most common points of dispute in medical liability.
Without the correct 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 years of experience in medical liability law with expert medical support.
We help you to clarify the facts, secure the evidence and claim the compensation you are entitled to.
Our service is free of charge for victims, because we recover our costs from the liable party.
Why choose Arslan Advocaten?
Specialized in medical liability and health law
Expert assessment of informed consent issues
Collaboration with experienced medical advisors
Free legal assistance for victims
We ensure that your right to self-determination is respected – and that medical errors do not remain without consequences.