elringtons health law update – beware of the consent form

By Tom Maling

A recent NSW Court case has highlighted the importance of reading consent forms thoroughly before you sign one.

In Tinnock v Murrumbidgee Local Health District [2017] NSWSC 1003, a patient brought a claim against a doctor, saying she did not consent to him operating on her.  In the case, the patient had met with a specialist surgeon and consented to the specialist performing surgery on her.  She signed a consent form to this effect.  However, the surgery was performed by a training surgeon, under the direction of the specialist surgeon.  She experienced severe post-surgery consequences and brought battery and medical negligence claims.

The consent in this case included an acknowledgement that she had been told that the surgery may be performed by someone else.

The law says that when you sign a document, you have agreed to its contents and to be bound by its terms, regardless of whether you had actually read the form.

Therefore, the patient had actually agreed to the surgery being performed by someone other than the specialist.

The patient ended up succeeding in a medical negligence claim.  However, the case is a lesson to all people who agree to have treatment: read the consent form.  These forms are evidence of what you have actually consented to.  If there is something in the form you have not agreed to, or have not been told about, you should immediately raise this with the doctor so they may discuss this with you.  It’s important that you know as much as possible about the treatment before you have it, and for the doctor or health practitioner to know about what your goals are, in order to promote the best outcomes for the treatment.

The second aspect of the case is that when you consent to treatment, you do not necessarily consent only to a specific doctor providing the treatment.  The Court provided the following example:

“…example where a patient consents to Dr A, a surgeon of ordinary skill and competence, performing an operation, who at the last minute and after the patient is under a general anaesthetic becomes unavailable, so that Dr B, also a surgeon of ordinary skill and competence, steps in, it could not, in my opinion, be said that that circumstance vitiates the plaintiff’s consent. The relevant consent is to the nature and character of the act.”

This does not mean you cannot consent only to a specific person performing the surgery.  If you want this to be the case, you should make sure that is documented.

To understand the law on consent further, please see our article ‘Consenting to Health and Medical Treatment’, or feel free to contact us.

Further reading

For more information or to make an appointment in either our Canberra or Queanbeyan office:

p: +61 2 6206 1300 | e:  Info@elringtons.com.au