Legal basics for informed consent routines

Informed consent explanation is a doctor’s legal duty before operating on a patient. Standardized paper forms have been used for clinical documentation extensively, but are NOT legally mandatory in most Countries.

A doctor does not have the right to touch, operate on or treat a patient. Any medical treatment, especially such that pose a risk to the patients health, is classified as a physical assault against the patient and is punishable by law. A patient must consent to treatment in order for the treatment to be considered a legal treatment instead of shere battery. So obtaining consent by the patient is a must for anything other than a routine examination.

In most countries, the only legally valid part of an informed consent explanation procedure is the part where a doctor explains the planned treatment and all its risks, side effects, alternatives and the medical urgency in detail. A signature on a „waiver“-form without prior explanation is not enough for obtaining consent. In fact, in many countries including Austria, the signature is not at all necessary by law. Of course, a doctor can secure the signature by their patient. The patient thereby confirms that they have competently read and understood all information about the treatment as well as all its risks, alternatives, etc. But theoretically, a signature is not even needed. The patient can consent by simply allowing their doctor to perform a particular medical treatment.

The devil lies in the details. Informed consent must be documented thoroughly by doctors and clinics, because actually most malpractice lawsuits are not won for medical reasons or because side effects have occurred, but because of a failure to reach informed consent. Malpractise must be proven by the patient whereas legal consent must be proven by doctors.
Consent can be challenged on the grounds that important or understandable information has not been relayed to enable the patient to take a proper and knowledgeable decision. The patient could have refused the challenged course of treatment, had they known all details, thereby rendering the whole treatment illegal and subject to recompensation.