Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body[i].  All types of medical treatment require a patient’s consent.  Consent is the permission necessary to start treatment.  Medical ethics and international human rights law necessitate consent as a prerequisite for initiating medical treatment.

The essentials of a valid consent are:

• Consent must be voluntarily made;
• The patient must be informed of all the information regarding the treatment before the application; and
• The patient must be capable of giving consent.

However, in certain situations medical treatment can be initiated without consent.  When a patient is mentally incapable of understanding the treatment and make a decision, the physician treating the incapable person can provide treatment.  The treatment must be for the benefit of the patient.  The physician must exercise good faith in providing treatment.  Moreover, in case of an emergency, consent is not necessary[ii].  In case of an emergency, a surgeon can operate on a child without waiting for authority from the parents where it appears impracticable to secure consent[iii].

Consent can be either explicit or implied.  Express consent is given to carry out a specific action.  Implied consent can be inferred from their actions, the facts and circumstances of a particular situation.  Implied consent can be obtained from a patient’s silence.  There is no legal requirement to obtain written consent from a patient for medical treatment.  However some statutes specify the form that a patient’s consent should take.  For example the state of Nevada requires a physician to obtain the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment, and risks involved[iv].

The principles governing consent for medical treatment are:

• consent must be valid;
• for adult members consent is to be obtained before treatment;
• consent can be written, oral, or verbal;
• a competent adult person can refuse to give consent for treatment;
• person giving consent can obtain continuous information about his/her treatment;
• an adult capable patient can withdraw the consent previously given; and
• it is always advisable to a physician to obtain consent before initiating treatment to avoid future complications.

The failure of a physician to adequately disclose the risks and alternatives of a proposed diagnosis or surgery constitutes claims for assault and battery.  In some cases failure of proper disclosure on the part of a physician constitutes a claim for negligence.  A surgeon performing an operation without his/her patient’s consent commits an assault, for which s/he is liable in damages[v].

Doctors give information about a particular treatment or test in order that a patient can decide whether or not to undergo such treatment or test.  This process of understanding the risks and benefits of treatment is known as informed consent.  It is based on the moral and legal premise of patient autonomy.  Usually, before operating on a patient a doctor is required to obtain that patient’s informed consent for the operation.  A consent given without knowing its dangers and the degree of danger, is a consent that does not represent a choice and is inadequate[vi].

Only the physician giving treatment or performing an operation has a duty to inform the patient of the risks involved.  The physician must disclose the risk to obtain the patient’s informed consent.  In order to prevail on a claim for negligent nondisclosure, the patient must demonstrate that a reasonable person knowing of the risk would not have consented to the treatment.  Additionally, the patient must prove that that the undisclosed risk actually occurred, causing harm to the patient.

[i] Application of Long Island Jewish-Hillside Medical Center, 73 Misc. 2d 395, 397 (N.Y. Sup. Ct. 1973).

[ii] San Joaquin County Human Services Agency v. Marcus W., 2010 Cal. App. LEXIS 793 (Cal. App. 3d Dist. June 2, 2010).

[iii] Tabor v. Scobee, 254 S.W.2d 474, 475-476 (Ky. 1951).

[iv] Allan v. Levy, 109 Nev. 46, 49 (Nev. 1993).

[v] Tabor v. Scobee, 254 S.W.2d 474, 475 (Ky. 1951).

[vi] Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859, 861 (Fla. Dist. Ct. App. 3d Dist. 1972).