Consent to Innovative Treatment: No Need for a New Legal Test

Posted: 10 Sep 2018

See all articles by Bernadette Richards

Bernadette Richards

University of Adelaide - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: September 3, 2018

Abstract

The provision of advice prior to medical treatment raises the perennial question of how much information is sufficient and how can patients truly understand the nature of the risks and benefits of any proposed treatment? This issue is potentially heightened in the context of innovative treatment where health care providers themselves do not know the full range of risks and benefits and thus cannot hope to communicate these to the patient. This potential issue in turn raises the question of whether or not there needs to be a specific legal framework around consent to innovative treatment. This article draws together the findings of a study into innovation in surgery and an analysis of the existing legal framework to demonstrate that while concerns around consent to innovative treatment are valid they are not unique and apply equally to the provision of all health care. The article concludes that to suggest a framework which specifically addresses innovative treatment would be to add an artificial and unnecessary formality to any pre-treatment consultation. In short, the current legal framework adequately addresses the concerns raised by the surgeons in the study and there is no need for a new legal test.

Keywords: advice prior to medical treatment, consent, innovative treatment, legal test, consent to innovative treatment

JEL Classification: K00, K30, K32, K39

Suggested Citation

Richards, Bernadette, Consent to Innovative Treatment: No Need for a New Legal Test (September 3, 2018). American Journal of Law and Medicine, Vol. 23, No. 4, 2016, U. of Adelaide Law Research Paper No. 2018-118, Available at SSRN: https://ssrn.com/abstract=3243436

Bernadette Richards (Contact Author)

University of Adelaide - School of Law ( email )

Adelaide, South Australia 5005
Australia

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