Relevant bibliographies by topics / Informed consent (Medical law) Australia

Academic literature on the topic 'Informed consent (Medical law) Australia'

Author: Grafiati

Published: 10 December 2022

Last updated: 29 January 2023

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Journal articles on the topic "Informed consent (Medical law) Australia"

Maclean, Alasdair R. "The doctrine of informed consent: does it exist and has it crossed the Atlantic?" Legal Studies 24, no. 3 (June 2004): 386–413. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00255.x.

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Use of the term ‘informed consent’ is commonplace in both bioethics and medical law. In the legal context the term may be referred to as ‘the doctrine of informed consent’ but the way that this latter term is used raises doubt as to its value as a legal concept. In this paper I explore the concept of the ‘doctrine of informed consent’ and suggest that it may be useful, but only if limited to the autonomy-driven duty to disclose rather than as a more general referent. Having established the nature of the concept I then consider whether the doctrine - which is applied in a minority of US states, Canada and Australia - has crossed the Atlantic and become part of the law in England and Wales. In particular, I analyse Lord Woolf MR's judgment in Pearce v United Bristol Healthcare NHS Trust and suggest that the law has moved towards the doctrine but that it still falls short of the disclosure required by the reasonable patient standard.

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Carver, Tracey. "Informed consent, Montgomery and the duty to discuss alternative treatments in England and Australia." Journal of Patient Safety and Risk Management 25, no. 5 (September 9, 2020): 187–93. http://dx.doi.org/10.1177/2516043520941330.

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The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.

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Chalmers, Don, and Robert Schwartz. "Malpractice Liability for the Failure to Adequately Educate Patients: The Australian Law of “Informed Consent” and Its Implications for American Ethics Committees." Cambridge Quarterly of Healthcare Ethics 2, no. 3 (1993): 371–79. http://dx.doi.org/10.1017/s0963180100004382.

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At first glance, the first informed consent case to be decided by the High Court of Australia appears to be little more than a clear and simple description of the substantive law accepted in most American jurisdictions - although that is no small accomplishment in and of itself. In Rogers v. Whitaker, the highest court in Australia succinctly and persuasively rejected informed consent as a species of battery law, accepted it as a form, of ordinary professional negligence law, and adopted the “American” patient-oriented standard (rather than the British doctor-oriented standard) for measuring the breach of a healthcare professional's duty to her or his patients. On second look, however, the opinion is an even more significant one because it reveals that the law of informed consent is now based on principles broad enough to create a duty on the part of healthcare providers to offer adequate health education to all of their patients. In Implicitly recognizing the physician's duty to educate her or his patients, the High Court's judgment is consistent with a view increasingly held In the medical and ethical communities that teaching patients about how to maintain their health is just as much a part of the doctor's function as diagnosing and treating disease. It may have taken 2,500 years for medicine to progress from, the Hippocratic notion that physicians should apply treatment to patients who are kept in blissful Ignorance of their condition and Its remedy, but there Is little doubt that medicine finally has entered a post-Hippocratic era.

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Smith, Malcolm K., and Tracey Carver. "Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?" Journal of Medical Ethics 44, no. 6 (March 23, 2018): 384–88. http://dx.doi.org/10.1136/medethics-2017-104273.

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The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

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Suranova, T. G., S. S. Zenin, and G. N. Suvorov. "General Principles and Logic of the Legal Regulation of Genetic Research in Australia." Lex Russica, no. 7 (July 23, 2020): 69–75. http://dx.doi.org/10.17803/1729-5920.2020.164.7.069-075.

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The paper deals with the features of the legal regulation of genetic research in the Commonwealth of Australia with due regard to the state structure, national, ethical and other factors. The primary source of law in Australia is the common law articulated in judicial precedents (case law) that has recently been supplemented by acts of statutory regulation. The paper thoroughly investigates the processes of storage, access and protection of full-genome sequencing data. The authors analyze the peculiarities of functioning of the judicial system of Australia; the experience of normative consolidation of informed consent for genetic research, confidentiality of obtained information, strategic priorities in integration of the results of genetic research into Australia’s health system. The paper provides the analysis of the list of documents containing indications of cases in which medical organizations should not collect confidential information about a person. As a result of the study, the authors identify certain gaps in the normative legal regulation of genetic research and inconsistencies and contradictions of certain normative legal acts. The paper focuses on specifics of genetic research with the participation of the Aboriginal population of Australia, which, in turn, will help in the formation of the relevant legal framework in the Russian Federation.As a conclusion, the authors note that in the field of legal regulation of the processes of storage, access and protection of genetic information in Australia there is a tendency to use normative regulators. Particular attention is drawn to the normative consolidation of the priority of public interests over private interests and its reflection not only in numerous reservations and exceptions, but also in the framework of generally relevant strategic priorities. Presuming the development of the similar legal framework in the Russian Federation and taking into account the multiethnicity of the population, it should be highlighted that Australia’s experience in implementing the genetic research involving the Aboriginal population should be implemented.

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Seal, Marion. "Health advance directives, policy and clinical practice: a perspective on the synergy of an effective advance care planning framework." Australian Health Review 34, no. 1 (2010): 80. http://dx.doi.org/10.1071/ah09784.

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The delivery of quality care at the end of life should be seamless across all health care settings and independent from variables such as institutional largeness, charismatic leadership, funding sources and blind luck … People have come to fear the prospect of a technologically protracted death or abandonment with untreated emotional and physical stress. (Field and Castle cited in Fins et al., p. 1–2). 1 Australians are entitled to plan in advance the medical treatments they would allow in the event of incapacity using advance directives (ADs). A critical role of ADs is protecting people from unwanted inappropriate cardiopulmonary resuscitation (CPR) at the end stage of life. Generally, ADs are enacted in the context of medical evaluation. However, first responders to a potential cardiac arrest are often non-medical, and in the absence of medical instruction, default CPR applies. That is, unless there is a clear AD CPR refusal on hand and policy supports compliance. Such policy occurs in jurisdictions where statute ADs qualifying or actioning scope is prescriptive enough for organisations to expect all health professionals to appropriately observe them. ADs under common law or similar in nature statute ADs are open to broader clinical translation because the operational criteria are set by the patient. According policy examples require initial medical evaluation to determine their application. Advance care planning (ACP) programs can help bring AD legislation to effect (J. Cashmore, speech at the launch of the Respecting Patient Choices Program at The Queen Elizabeth Hospital, Adelaide, SA, 2004). However, the efficacy of AD CPR refusal depends on the synergy of prevailing AD legislation and ensuing policy. When delivery fails, then democratic AD law is bypassed by paradigms such as the Physician Orders for Life-Sustaining Treatment (POLST) community form, as flagged in Australian Resuscitation Council guidelines. 2 Amidst Australian AD review and statute reform this paper offers a perspective on the attributes of a working AD model, drawing on the Respecting Patient Choices Program (RPCP) experience at The Queen Elizabeth Hospital (TQEH) under SA law. The SA Consent to Medical Treatment and Palliative Care Act 1995 and its ‘Anticipatory Direction’ has been foundational to policy enabling non-medical first responders to honour ADs when the patient is at the end stage of life with no real prospect of recovery. 3 The ‘Anticipatory Direction’ provision stands also to direct appointed surrogate decision-makers. It attunes with health discipline ethics codes; does not require a pre-existing medical condition and can be completed independently in the community. Conceivably, the model offers a national AD option, able to deliver AD CPR refusals, as an adjunct to existing common law and statute provisions. This paper only represents the views of the author and it does not constitute legal advice. What is known about the topic?Differences in advance directive (AD) frameworks across Australian states and territories and between legislated and common law can be confusing. 4 Therefore, health professionals need policy clarifying their expected response. Although it is assumed that ADs, including CPR refusals at the end of life will be respected, unless statute legislation is conducive to policy authorising that non-medical first responders to an emergency can observe clear AD CPR refusals, the provision may be ineffectual. Inappropriate, unwanted CPR can render a person indefinitely in a condition they may have previously deemed intolerable. Such intervention also causes distress to staff and families and ties up resources in high demand settings. What does this paper add?That effectual AD law needs to not only enshrine the rights of individuals but that the provision also needs to be deliverable. To be deliverable, statute AD formulation or operational criteria need to be appropriately scoped so that organisations, through policy, are prepared to legally support nurses and ambulance officers in making a medically unsupervised decision to observe clear CPR refusals. This is a critical provision, given ADs in common law (or similar statute) can apply broadly and, in policy examples, require medical authorisation to enact in order to ensure the person’s operational terms are clinically indicated. Moreover, compliance from health professionals (by act or omission) with in-situ ADs in an unavoidable emergency cannot be assumed unless the scope harmonises with ethics codes. This paper identifies a working model of AD delivery in SA under the Consent to Medical Treatment and Palliative Care Act 1995 through the Respecting Patient Choices Program. What are the implications for practitioners?A clear, robust AD framework is vital for the appropriate care and peace of mind of those approaching their end of life. A nationally recognised AD option is suggested to avail people, particularly the elderly, of their legal right to grant or refuse consent to CPR at the end of life. ADs should not exclude those without medical conditions from making advance refusals, but in order to ensure appropriate delivery in an emergency response, they need to be scoped so as that they will not be prematurely enacted yet clinically and ethically safe for all health professionals to operationalise. Failure to achieve this may give rise to systems bypassing legislation, such as the American (Physician Orders for Life-Sustaining Treatment) POLST example. It is suggested that the current SA Anticipatory Direction under the Consent to Medical treatment and Palliative Care Act 1995 provides a model of legislation producing a framework able to deliver such AD expectations, evidenced by supportive acute and community organisational policies. Definitions.Advance care planning (ACP) is a process whereby a person (ideally ‘in consultation with health care providers, family members and important others’ 5 ), decides on and ‘makes known choices regarding possible future medical treatment and palliative care, in the event that they lose the ability to speak for themselves’ (Office of the Public Advocate, South Australia, see www.opa.sa.gov.au). Advance directives (ADs) in this paper refers to legal documents or informal documents under common law containing individuals’ instructions consent to or refusing future medical treatment in certain circumstances when criteria in the law are met. A legal advance directive may also appoint a surrogate decision-maker.

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McCormack, D. J., A. Gulati, and J. Mangwani. "Informed consent." Bone & Joint Journal 100-B, no. 6 (June 2018): 687–92. http://dx.doi.org/10.1302/0301-620x.100b6.bjj-2017-1542.r1.

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Our aim in this paper was to investigate the guidelines and laws governing informed consent in the English-speaking world. We noted a recent divergence from medical paternalism within the United Kingdom, highlighted by the Montgomery v Lanarkshire Health Board ruling of 2015. We investigated the situation in the United Kingdom, Australia, New Zealand, Canada, and the United States of America. We read the national guidance regarding obtaining consent for surgical intervention for each country. We used the references from this guidance to identify the laws that helped inform the guidance, and reviewed the court documents for each case. There has been a trend towards a more patient-focused approach in consent in each country. Surgeons should be aware of the guidance and legal cases so that they can inform patients fully, and prevent legal problems if outdated practices are followed. Cite this article: Bone Joint J 2018;100-B:687–92.

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Adriana Pakendek, Adriana Pakendek. "INFORMED CONSENT DALAM PELAYANAN KESEHATAN." AL-IHKAM: Jurnal Hukum & Pranata Sosial 5, no. 2 (July 21, 2012): 309–18. http://dx.doi.org/10.19105/al-lhkam.v5i2.296.

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Abstract: It is a must to apply the informed consent in public health service, particularly in a hosptal. As a matter of fact, some medical patients or the representative does not comprehend the term informed consent due to the ineffective communication between the patient and physician. Whereas, a doctor should have a legal informed consent to execute medical action from the patient, otherwise she/he would experience a question of law; private and punitive law as well as indisciplinary punishment. A petient is able to deny an informed consent, yet it is identified as an informed refusal. However, the patient must be responsible for any medical impacts in the future. In this case, a doctor is free from any legal actions as the result of consent refusal of patient. Key Words: informed consent, pasien dan dokter

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Crisp, Roger. "Medical Negligence, Assault, Informed Consent, and Autonomy." Journal of Law and Society 17, no. 1 (1990): 77. http://dx.doi.org/10.2307/1409956.

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Woodcock, Jeremy A., Mark V. Willings, and Patrick VA Marren. "Understanding the Issue of ‘Informed Consent’ in Dental Treatment." Primary Dental Care os11, no. 2 (April 2004): 41–47. http://dx.doi.org/10.1308/135576104773711264.

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The concept of consent to treatment is increasingly becoming contested in United Kingdom courts of law. Any practitioners who cannot demonstrate that a patient has properly consented to treatment are laying themselves open to litigation. This paper demonstrates that valid consent is not as straightforward as may be assumed and that a patient can easily challenge a standardised approach to obtaining consent. Current Department of Health guidelines on obtaining consent are discussed, and changes in the USA, Europe and Australia are brought into focus with regard to the situation in the UK.

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Dissertations / Theses on the topic "Informed consent (Medical law) Australia"

Walker, Nancy L. Hamilton. "The relationship between patient perceptions of informed consent and recall of information received during the informed consent process." Virtual Press, 1993. http://liblink.bsu.edu/uhtbin/catkey/865959.

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Informed consent is a requirement by law. Informed consent is a two part process: giving the patient sufficient information so that an educated choice can be made and obtaining assent in writing (Coy, 1989; Fiesta 1991; Sweeney, 1991;). The purpose of this study is to determine the ability to recall information and the perception of patients about the process of receiving information after signing a consent to participate in a large research trial. Patients signing consents for participation in the Breast Cancer Prevention Trial were asked to complete the surveys. Thirty three patients were asked to complete the questionnaires. Twenty - four (72%) of the respondents returned the completed questionnaires. Confidentiality will be maintained since no names or identifying markers will be used.A modified Patient Recall Survey (Casselith, Zupkis, Sutton - Smith, & March, 1980) and a modified Consent Form Survey (Casselith et al, 1980) were used. The significance of the study is that the results will assist in improving the type of information given to patients and how that information is provided. By increasing patients awareness about the need for and rights of giving informed consent patients will be more knowledgeable health care consumers. Imogene King(1981) provides the theoretical framework for this study using the concept of perceptions as the basis.The first research question illustrated that the majority of the respondents were able to recall at least three risks or complications of participation in the Breast Cancer Prevention Trial. The second research question revealed eighty - seven percent of the patients agreed that informed consents are necessary. However, 27.8 % of the respondents perceived the informed consent as a legal document to protect the physician rights, while only 19.6 % felt that the consent represented a legal document to protect patient rights. Eighty three percent of the respondents understood that a consent did not have to be signed. However, responses to a second question revealed only 21.3 % understood that the informed consent was a chance to refuse or change treatment. Results to research question 3 illustrated that patients felt that informed consents are necessary. Finally, 79.2 % of patients reported that nurses provided the majority of informed consent information. When patients are able to understand and participate in health care decisions, patients will feel more control in determining outcomes.
School of Nursing

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Barit, Avi. "The doctrine of informed consent in South African medical law." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/60104.

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Morin, Sophie. "La place des droits du patient à l'intérieur de la conception actuelle de l'obligation de renseigner en matière médicale /." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30319.

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This thesis deals with the concept of the medical duty to inform focusing on the rights of the patient. It emerges that the notions governing medical responsibility do not adequately address the question of the protection and application of the rights of the patient. Existing conceptions of the notions of dereliction, causality and damage are analysed in order to point out the many inadequacies with the rights of the patient, source of the obligation to inform. Particular emphasis is given to the situation in Quebec and to the eventual place that could be occupied by conception of the duty to inform that is more sensitive to the situation and rights of the patient.

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Cai, Yinghong. "The legal rights in informed consent form for treatment in China." View the Table of Contents & Abstract, 2007. http://sunzi.lib.hku.hk/hkuto/record/B38478730.

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Lashley, Myrna. "Informed proxy consent : communication between surgeons and surrogates about surgery." Thesis, McGill University, 1995. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=29068.

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Professionals whose job it is to counsel patients must be cognizant of the role played by communication in the establishment of a trusting working relationship. This is no less true for those within the medical community who must obtain informed consent for surgical interventions than it is for those working within the area of mental health. In order to determine what role communication plays in the obtaining of informed consent within a pediatrics setting, a qualitative study was conducted of 20 surrogates (those individuals giving consent on behalf of legally incompetent children) and of 5 surgeons performing surgical interventions on those children. Two sets of questionnaires were administered in order to elicit information pertaining to how surgeons communicate information to surrogates and to investigate how that information is received and processed by the surrogate. Results showed that while the obtaining of signed informed consent itself may not be a major problem, there are some difficulties in the communication between surgeons and surrogates in this domain. Based on the findings, recommendations for improved communication between surgeons and surrogates are proposed.

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Gibb, Winna. "Informed consent : a liberal perspective." Thesis, Queensland University of Technology, 1998.

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Pease-Carter, Cheyenne Minton Casey Barrio. "Preferences among student counselors regarding informed consent practices within counselor education." [Denton, Tex.] : University of North Texas, 2008. http://digital.library.unt.edu/permalink/meta-dc-6066.

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Devereux, John Anthony. "Competence to consent to medical treatment in England and Australia." Thesis, University of Oxford, 1993. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.358468.

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Cai, Yinghong, and 蔡映紅. "The legal rights in informed consent form for treatment in China." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2007. http://hub.hku.hk/bib/B39724347.

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Pease-Carter, Cheyenne. "Preferences among student counselors regarding informed consent practices within counselor education." Thesis, University of North Texas, 2008. https://digital.library.unt.edu/ark:/67531/metadc6066/.

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The purpose of this study was to investigate student preferences for content, timing, and method of informed consent within counselor education programs. Participants included 115 students enrolled in counseling internship courses at six counseling programs accredited by the Council for Accreditation of Counseling and Related Educational Programs (CACREP). Participants completed the Informed Consent Preferences Questionnaire (ICPQ), an instrument designed specifically for this study through systematic instrumentation development. Descriptive statistics highlighted participants' moderate to high ratings of perceived importance for an array of suggested content pieces for student informed consent. Participants varied among themselves and between items in relation to preferred timing of informed consent, and they consistently reported a desire for student informed consent to be facilitated through a combination of both oral and written methods. Results of exploratory factor analysis revealed a simple eight-factor structure within the ICPQ and suggested strong internal reliability. Correlations for participant scale scores for the eight factors revealed a variety of small to medium correlations. Results from t-test and one-way analysis of variances (ANOVA) indicated that participant preferences did not vary according to demographic variables. Finally, participants' qualitative responses revealed high levels of support for student informed consent. Findings of this study may aid counselor educators in evaluating current program informed consent practices. As a result of evaluation, counselor educators can affirm existing, and/or design new informed consent practices that accurately reflect the needs and desires of counseling students. Future researchers may also utilize the results to guide additional studies related to the practice of student informed consent.

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Books on the topic "Informed consent (Medical law) Australia"

Victoria, Law Reform Commission of. Informed consent. [Melbourne: The Commission], 1987.

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Carmi, Amnon. Informed consent. Edited by UNESCO Chair in Bioethics at the University of Haifa. Haifa, Israel: Israel National Commission for UNESCO, 2003.

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Law Reform Commission of Victoria. Informed consent to medical treatment. Melbourne: The Commission, 1987.

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Informed consent: A tutorial. [Owings Mills, MD]: National Health Pub., 1986.

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National Center for Clinical Ethics (U.S.), ed. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Corsino, Bruce V. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Corsino, Bruce V. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Corsino, Bruce V. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Corsino, Bruce V. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Corsino, Bruce V. Informed consent: Policy & practice. White River Junction, VT (VAMC & ROC, White River Junction 05009): National Center for Clinical Ethics, 1996.

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Book chapters on the topic "Informed consent (Medical law) Australia"

Man, Hongjie. "Informed Consent and Medical Law." In Legal and Forensic Medicine, 865–79. Berlin, Heidelberg: Springer Berlin Heidelberg, 2013. http://dx.doi.org/10.1007/978-3-642-32338-6_90.

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Golan, Ofra G. "Human Rights and Religious Duties: Informed Consent to Medical Treatment under Jewish Law." In Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law, 415–34. Berlin, Heidelberg: Springer Berlin Heidelberg, 2007. http://dx.doi.org/10.1007/978-3-540-73357-7_12.

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Jackson, Emily. "4. Informed Consent." In Medical Law, 195–236. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198825845.003.0004.

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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the issue of ‘informed consent’, i.e. how much information must be provided to patients before they consent to medical treatment. It first considers the ethical justifications for informing patients about their medical treatment and then examines the legal framework that protects patients’ interests in information disclosure, with particular emphasis upon the implications of the recent landmark Supreme Court case of Montgomery v Lanarkshire. The chapter also explores some alternatives to the law of tort, and the importance of the guidance produced by the medical profession.

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Jackson, Emily. "4. Informed Consent." In Medical Law, 207–49. Oxford University Press, 2022. http://dx.doi.org/10.1093/he/9780192843456.003.0004.

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This chapter examines ‘informed consent’, and the question of how much information must be provided to patients before they consent to medical treatment. It first considers the ethical justifications for informing patients and then examines the legal framework that protects patients’ interests in information disclosure. The chapter also explores some alternatives to the law of tort, and the guidance produced by the medical profession.

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VS, Ashok, Gunaseelan Rajan, and Soben Peter. "Informed Consent." In Medical Law for the Dental Surgeon, 60. Jaypee Brothers Medical Publishers (P) Ltd., 2004. http://dx.doi.org/10.5005/jp/books/10517_8.

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Berg, Jessica W., Paul S. Appelbaum, Charles W. Lidz, and Lisa S. Parker. "Critical Approaches to the Law of Informed Consent." In Informed Consent. Oxford University Press, 2001. http://dx.doi.org/10.1093/oso/9780195126778.003.0013.

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A number of goals have been posited for the legal doctrine of informed consent. One author, for example, highlights four goals: “1) an ethical goal, in which the law promotes patient autonomy; 2) a decision making goal, in which the law promotes the ability of patients to make medical decisions; 3) a regulatory goal, in which the law attempts to control physicians’ disclosure practices; and 4) a compensatory goal, in which the common law functions as a mechanism to provide monetary compensation for injuries” (1). Another author posits six goals: “1) promoting individual autonomy; 2) respecting human dignity; 3) encouraging professional self-scrutiny; 4) promoting rational decisionmaking; 5) avoiding deceit and coercion; and 6) educating the public” (2). According to critics, the result has been a doctrine and a set of practices that compromise all values and satisfy none in their entirety (1). But commentators who have analyzed the law and practice of informed consent have each generally represented one point of view to the exclusion of others. The resulting debate over informed consent among healthcare practitioners, legal experts, and ethicists should come as no surprise. As long as one relies on a single perspective, it is remarkably easy to find critical things to say about informed consent. Those who would elevate any single value above all others, and steadfastly resist compromise, usually can offer a powerful, even devastating, analysis of the current state of affairs. In this chapter we focus on three critiques—a perspective concerned with promoting individual autonomy, an approach that emphasizes the value of health, and a perspective that places primary emphasis on encouraging discourse and interaction between caregivers and patients—and assess their validity from a perspective that recognizes that the doctrine of informed consent must accommodate a number of competing interests and values. The most trenchant criticism of the state of informed consent law today focuses on the discrepancies between the goals highlighted by the ethical theories of informed consent—primarily, the enhancement of individual autonomy in making medical decisions—and the practical effects of the current system.

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Berg, Jessica W., Paul S. Appelbaum, Charles W. Lidz, and Lisa S. Parker. "The Legal Requirements for Disclosure and Consent: History and Current Status." In Informed Consent. Oxford University Press, 2001. http://dx.doi.org/10.1093/oso/9780195126778.003.0009.

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The translation of ethical principles into concrete requirements for physicians’ behavior has been largely a function of the courts (usually state, occasionally federal) as they consider patients’ allegations that their physicians improperly obtained their consent to treatment. To a lesser extent, state legislatures have been involved in making law in this area. The combined efforts of courts and legislatures have resulted in the creation of two legal requirements: the historical requirement that physicians obtain patients’ consent before proceeding with treatment, and the more recent requirement that physicians disclose such information to patients as will enable them to participate knowledgeably in making decisions about treatment. (Chapters 4 and 5 describe the exceptional circumstances in which some or all of the basic legal requirements do not apply.) Despite some uncertainty about the origins of legal actions for lack of consent to medical treatment, in theory, non-consensual medical treatment has always been remediable at common law (i.e., judge-made as opposed to statutory law). The law’s concern for the bodily integrity of the individual can be traced to the writ of trespass for assault and battery and to the criminal law’s proscription of homicide, battery, and mayhem (1). A similar, though less intense, concern for psychic integrity has existed for almost as long and has received increasing support in this century as evidenced by the cases recognizing causes of action in tort law for intentional and, more recently, negligent infliction of emotional distress (2, §§12, 54). Similarly, the development of the constitutional and tort law of privacy reflects the continued vitality of society’s concern for the individual’s right to be let alone, both by agents of the state and by private parties (2, §117; 3). Early medical practice codes did not speak of consent—it was more likely that a physician would conceal his actions from the patient than seek his or her consent to treatment. However, patient consent is not completely a modern legal creation. Historically, the notion that physicians must inform patients about what will be done to them has its origins in eighteenth-century English law (4).

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Berg, Jessica W., Paul S. Appelbaum, Charles W. Lidz, and Lisa S. Parker. "An Agenda for the Future." In Informed Consent. Oxford University Press, 2001. http://dx.doi.org/10.1093/oso/9780195126778.003.0024.

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The cornerstone of our approach to informed consent is the belief that the right of patients to authorize their own medical treatment, usually called the right to autonomy in decision making, is a moral value worth promoting. When medical care is required, patients should be met by physicians’ openness and willingness to present and discuss a variety of options, with the clear understanding that patients can play a role, if they desire, in shaping the ultimate decision. Our instinctive assumption that most patients would endorse this approach was confirmed by a large-scale study sponsored by the President’s Commission (1). Patients do want to know about and have the option of influencing the nature of their medical care, even if they may not always exercise that option (2). Our society’s deepseated traditions of respect for the integrity of the individual reinforce the importance of protecting patients’ interests in the medical decisionmaking process. Legal initiatives by themselves are insufficient to accomplish these results (see Chapter 7). Endless proposals to refine the legal mechanisms by which the doctrine of informed consent is enforced are not likely to achieve their goals. The legal rules governing informed consent operate at a level of generality that makes it difficult for physicians to take them into account in dealing with patients. Some surveys have found that physicians are completely ignorant of the operative standard for disclosure in their state (1), and others have found that even when physicians are aware of the standard, they do not apply it properly (3). More significantly, however, the medical setting seems relatively impervious to regulation in this area. Physicians and administrators have control over the structure of medical care and over the content of physician-patient interactions. Regardless of the law of informed consent, if the structure of hospital and office practice provides negligible opportunities for doctor-patient communication, little disclosure or shared decision making will occur. If physicians are resistant to the moral imperatives of informed consent, tinkering with standards of disclosure is unlikely to affect their behavior.

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Berg, Jessica W., Paul S. Appelbaum, Charles W. Lidz, and Lisa S. Parker. "Patients Who Refuse Treatment." In Informed Consent. Oxford University Press, 2001. http://dx.doi.org/10.1093/oso/9780195126778.003.0018.

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From its inception, the law of informed consent has been based on two premises: first, that a patient has the right to receive sufficient information to make an informed choice about the treatment recommended; and second, that the patient may choose to accept or to decline the physician’s recommendation. The legitimacy of this second premise should be underscored because it is too often belied by the everyday language of medical practice. Getting a consent is medical jargon that implies that patient agreement is the only acceptable outcome. Indeed, the term informed consent itself suggests that patients are expected to agree to be treated rather than to decline treatment. Unless patients are viewed as having the right to say no, as well as yes, and even yes with conditions, much of the rationale for informed consent evaporates. Nonetheless, the medical profession’s reaction to patients who refuse treatment often has been less than optimal. The right to refuse treatment is frequently ignored in practice because it is inconsistent with the history and ethos of medicine (1,2). Physicians are trained to treat illness and to prolong life; situations in which they cannot do either—not because of limitations of knowledge or technology, but because patients or third parties reject their recommendations for care—evoke profound feelings of frustration and even anger. It would not be too much to suggest that these confrontations challenge an essential element of the medical identity. Physicians’ reactions to these situations are varied. Some will contend with patients over their refusal, while others, having assimilated a distorted version of patients’ right to refuse treatment, may too quickly abandon their patients to the consequences of their choices, thereby depriving them of the guidance for which patients traditionally have turned to their physicians. Regardless of the quality of care offered to patients or the degree of concern of those who treat them, some patients will have reasons of their own to decline treatment. Before considering how clinicians might respond to these situations, this chapter reviews the status of the law regarding treatment refusal, surveying a legal landscape that has seen dramatic changes in the last decade.

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Jackson, Emily. "12. Organ Transplantation." In Medical Law, 652–716. Oxford University Press, 2022. http://dx.doi.org/10.1093/he/9780192843456.003.0012.

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This chapter discusses organ transplantation. It first considers cadaveric donation, looking at who can become a donor, and which organs can be taken. England, Scotland, and Wales have introduced opt-out systems, which means that if someone has not opted out, their consent to organ donation will be deemed. It then turns to living organ donation, looking at informed consent and the legitimacy of incentives. Finally, it considers the ethical, practical, and legal obstacles to animal-to-human transplantation.

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Conference papers on the topic "Informed consent (Medical law) Australia"

Kuntardjo, Carolina, and Agus Hernoko. "TRANSPARENCY PRINCIPLES IN INFORMED CONSENT OF SURGICAL PROCEDURES TO REDUCE MEDICAL DISPUTE RISK." In International Conference on Law, Governance and Globalization 2017 (ICLGG 2017). Paris, France: Atlantis Press, 2018. http://dx.doi.org/10.2991/iclgg-17.2018.9.

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Zivojinovic, Dragica. "CONSENT OF THE LEGAL REPRESENTATIVE AND ASSENT OF PERSONS INCAPABLE OF GIVING INFORMED CONSENT TO PARTICIPATE IN MEDICAL RESEARCH." In SGEM 2014 Scientific SubConference on POLITICAL SCIENCES, LAW, FINANCE, ECONOMICS AND TOURISM. Stef92 Technology, 2014. http://dx.doi.org/10.5593/sgemsocial2014/b21/s5.073.

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Alshevsky, Vladimir. "Problems of informed consent in domestic medicine." In Issues of determining the severity of harm caused to human health as a result of the impact of a biological factor. ru: Publishing Center RIOR, 2020. http://dx.doi.org/10.29039/conferencearticle_5fdcb03a27a5f7.62532593.

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Since 1993, the requirement to obtain informed consent from a patient before a medical intervention has not been properly implemented to date. This is partly due to the wording of a number of articles of the current Federal Law of November 21, 2011 № 323-FZ and orders of the Ministry of Health of the Russian Federation, which set the trend for profanity in informing the patient. Evasion of the doctor from proper informing the patient creates the prerequisites for the doctor to commit acts falling under the Criminal Code, as well as in civil proceedings.

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Anindito, Teguh. "Informed Consent as Fulfillment of Rights and Obligations in Therapeutic Transactions Indonesian Medical Services." In Proceedings of the 3rd International Conference on Globalization of Law and Local Wisdom (ICGLOW 2019). Paris, France: Atlantis Press, 2019. http://dx.doi.org/10.2991/icglow-19.2019.84.

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Kačer, Blanka, and Hrvoje Vojković. "Pravno adekvatna uzročnost u slučajevima građanskopravne odgovornosti zbog povrede medicinskog standarda (uključujući informirani pristanak na temelju podataka dobivenih od robota)." In XVI Majsko savetovanje. University of Kragujevac, Faculty of Law, 2020. http://dx.doi.org/10.46793/upk20.633k.

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In the context of the civil law liability for medical malpractice, the concept of legally adequate causality in Croatian, Serbian and Slovenian law practice is a synthesis of several legally theoretical approaches and includes elements of the theory of natural (factual causality) and the theory of the protective aim of the norm. In this sense, the theory of legally adequate causality appears as the optimal legal construct for the determination of legally relevant causality, since the application of each of the above theoretical models does not separately determine the closest possible cause - causa proxima. Only by interpolating the concepts of factual causation and the protective objective of the norm within the legal construction of adequate causality, do real assumptions be made to establish a legally relevant cause with the characteristic of a qualified degree of probability. Adequate causation theory is an advanced theory of natural causation that combines essential elements of other causal models, thus enables the effective and credible identification of the closest and adequate cause whose regular effect is attributed to a certain harmful consequence. At the end of the paper, doubts were raised regarding the (in)applicability of the conclusions (all or part) to the no-fault liability where the causal nexus was differently regulated, and to the role of the robot in informed consent. At the end of the paper, doubts were raised regarding the (in)applicability of the conclusions (all or part) to the no-fault liability where the causal nexus was differently regulated, and to the role of the robot in informed consent.

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Vlašković, Veljko. "OSVRT NA PRAVA DECE SA INVALIDITETOM SA TEŽIŠTEM NA PRISTUP ZDRAVSTVENIM USLUGAMA." In XVII majsko savetovanje. Pravni fakultet Univerziteta u Kragujevcu, 2021. http://dx.doi.org/10.46793/uvp21.569v.

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It is no coincidence that the UN Convention on the Rights of Persons with Disabilities is the first international human rights treaty in the 21st century. The Convention seeks to amend the social and legal status of persons with disabilities, including children, in a revolutionary way. The main goal is to remove social barriers by adopting a social model of disability in recognizing and exercising the human rights of persons with disabilities on an equal basis with other persons. Therefore, it is understandable that the rules of earlier international human rights treaties, such as the UN Convention on the Rights of the Child or the European Convention on Human Rights, are beginning to be directly adjusted to the this Convention. From the aspect of recognition and exercising of the rights of children with disabilities, the issue of accessibility to health care services is especially important. It insists on the application of the principles of reasonable accommodation, accessibility and non-discrimination so that children with disabilities have access to health care facilities on an equal basis with other children. This implies significant involvement of the state, local community and family in order to remove social and infrastructural barriers. Furthermore, the UN Committee on the Rights of Persons with Disabilities calls for an absolute ban on the forced detention and placement of children in health care facilities, while there is a very negative attitude towards the care of children with disabilities in social protection institutions. In this regard, an amendment to the domestic Law on the Protection of Persons with Mental Disabilities is required. According to the social model of disability, the family environment with the appropriate and effective support of the local community is a necessary environment for the realization of the rights of children with disabilities. When it comes to the consent of a child with a disability to a medical treatment, it is necessary to determine the child's capability to form views, as in the case of other children. In that sense, the mentioned child should be provided with appropriate assistance and support to express his / her views. This support consists primarily in the way in which the child is informed about the proposed medical treatment.

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