- Informed Consent has two components: information and consent. This right to information stems form the patient's right of self-determination as laid down in articles 10 and 11 of the Dutch Constitution. This means that medical treatment of patients is only allowed with their consent or that of people empowered to decide for them. Information and consent seem to occur but that is not necessarily so. The medical practitioner's obligation to supply information has been a long-standing, major issue in literature.
- Consent to treatment is a basic principle in health care and serves as the justification of the doctor(s intervention. Without it, there is, generally speaking, a situation of matreatment for which the physician can be prosecuted. The patient then will have to state and prove that an action has been carried out without his consent, unless the burden of proof lies elsewhere because of any special regulation or the demands of reasonebleness and fairness.
- A distinction is usually made between consent ot enter into a contract for medical treatment and consent to the medical treatment itself. Explicit consent is required for a contract for medical treatment, which must be emphatically distinguished from the various separate, medical actions. Consent once granted does not imply consent to each and every medical action, the separate actions require consent as well. On the other hand, separate consent is not required for each and every medical action, however slight it may be. Cosent may be revoked at any time.
- The requirement of consent for treatment to be undergone does not imply that explicit consent has to be asked for each medical action. The physicion can inform a patient explicitly without asking for his explicit consent for the medical action. The physician may presume consent to have been granted if the medical action itself or its consequences are not major ones, such as the taking of blood during an operation. Presumed consent may also be deduced from a person's behaviour. A physician should not presume consent too easily with furhter-reaching treatment. If he does so, he will have to furnish proof of consent.
- In an emergency consent in its generality may be presumed, the duty of medical care then overriding the principle of consent. An instance here could be when during an operation the need arised to perform a follow-up operation, which has not been considered to. Considerations here are: the severity and emergency of the unforeseen situation and the inconvenience of a separate operation. Here, as elsewhere, reasonableness and fairness are the criteria for a physician's actions: what would a patient in sound mind have wandted. Another instance is the situation when a patient is brought in unconscious. A physican should be allowed to act 'although the contract for medical treatment has not been closed.' The physician who does not aks for consent, solely motivated by the fear of the patient's refusal to consent to the operation, acts reprehensibly.
- A new phenomenon in the Nehterlands os tje filling out of forms of consent. A written declaration has the advantage of being able to contain all kinds of general information about illness and its treatment. An additional advantage of such a written declaration for the patient is the considerable facilitation of his own proof of consent to certain medical actions.
Another novelty is the recognition of the submitted written declaration of will, which is also called 'life testament', and should not be confused with a declaration of euthanasia. Such a life treatment can be used to indicate that, and in which circumstances, treatment and/or reanimation should not be given. More in general, such a document may indicate what kind of action should be taken inf a patient himself is no logner able to do so. WGBO does not define the specific requirements for such a life testament; its legal status requires the medical practitioner to in principle adhere to the patient's will expressed in the document. In reaching his final decision, however, a medical practitioner may be guided by the following questions:
- what is the date of the life testament;
- have there been any changes in the situation of the person concerned since then;
- under what circumstances and in what way did the document come into being?
(Source: International Encyclopaedia of Laws - Medical Law - The Netherlands)