Informed Consent to Medical Treatment in Israel
Signing a form is not informed consent. Section 13 of the Patient's Rights Law sets out five kinds of information that must be given before treatment, and where they were not, a cause of action arises in its own right - even where the treatment itself was faultless.
What the Law requires, and why it is more than a form
Section 13 of the Patient's Rights Law, 5756-1996, provides that medical treatment shall not be given unless the patient has given informed consent. For consent to be informed, the practitioner must supply the medical information the patient reasonably needs in order to decide whether to agree to the proposed treatment.
The Law sets out five kinds of information:
- The diagnosis and prognosis of the patient's condition.
- A description of the nature, procedure, purpose, expected benefit and prospects of the proposed treatment.
- The risks involved, including side effects, pain and discomfort.
- The prospects and risks of alternative treatments, or of no treatment at all.
- The fact that the treatment is of an innovative character.
Signing a form is not the same as informed consent. The form is evidence that a process took place; it is not a substitute for the process. The question examined is whether the information was in fact given, in a language the patient understands, and at a time that allowed consideration.
Why this is a separate cause of action
This is the point most people miss: treatment carried out to a faultless professional standard may still give rise to a claim if it was given without informed consent.
The reasoning is that the right infringed is not the right to correct treatment but the right to decide. A patient who did not receive the information could not choose between the treatment and an alternative, or choose to have no treatment at all.
A negligence case and an informed consent case therefore ask different questions: one asks whether the conduct met the professional standard, the other whether the decision was the patient's. Sometimes both arise on the same facts, and sometimes only one. More on the medical negligence page.
Where the dispute actually arises
- A complication that materialised and was not explained in advance. Where the risk is known in the literature and was still not mentioned, the question is why.
- A procedure that expanded during surgery. An operation that began as one thing and ended as another, without that possibility being discussed beforehand.
- An alternative that was not presented, including the alternative of no treatment, or of waiting and monitoring.
- Signing at the wrong moment. A form signed on entry to the operating theatre, after sedation, or with no time to read it.
- A language gap. Information given in a language the patient does not command.
In each of these the question is not whether a form was signed, but what was given, when, and how.
How it is proved
Documentation is where the matter is decided. What is examined:
- The form itself - whether it is specific to the procedure or generic, and what was written on it by hand.
- The medical record of the conversation that preceded the treatment: who conducted it, when, and what was said.
- The time of signature relative to the procedure.
- Supporting documents - information sheets, referrals for a second opinion, and a record of questions the patient asked.
Where there is no record of the conversation, it is difficult for the practitioner to show that the information was given. That is one reason the quality of documentation is a central issue rather than a technical one.
The exceptions in the Law
The Law is not absolute, and it recognises situations in which treatment may be given without full informed consent - for example medical emergencies in which consent cannot be obtained in time.
Alongside that, separate rules apply to patients who lack capacity to consent and to minors. These are situations assessed on their own facts rather than by rule of thumb, and in a specific case it must be checked which exception applies and what was required in those circumstances.
Compensation on this ground
Where a breach of the duty of informed consent is established, compensation turns on one question: what would have happened had the information been given.
If it can be shown that the patient would have chosen differently, and that the different choice would have avoided the harm, compensation relates to the harm caused - pain and suffering, loss of earnings, medical expenses and third party assistance.
Even where it cannot be shown that the choice would have changed, the breach itself is examined as an infringement of the patient's autonomy. The two routes are not equivalent in scope, and the distinction is drawn on the evidence in the particular case.
In summary
Section 13 of the Patient's Rights Law requires five kinds of information before treatment: the diagnosis and prognosis, the nature and benefit of the treatment, the risks and side effects, the alternatives and the option of no treatment, and whether the treatment is innovative. Signing a form is not a substitute for that process. This is a cause of action in its own right, so entirely competent treatment may still give rise to it, because the right infringed is the right to decide.
The complexity here is not whether a form was signed, but proving what was given and when, and what would have happened had the information been complete. That enquiry calls for a careful reading of the medical record, at times an expert opinion, and professional legal representation by a lawyer practising in the field.
If you underwent medical treatment and believe you did not receive the information needed to decide, contact us and we will review the facts and the options open to you together.
Frequently asked
I signed a form. Does that end the matter?
The treatment was carried out well. Is there a claim at all?
What is examined when there is a dispute?
I signed moments before surgery. Does that matter?
Are there situations where treatment may be given without consent?
What compensation is available on this ground?
All pages in this practice
Defamation · Road accidents · Medical negligence
Defamation Claims: The GuideDefamationRoad Accident Compensation LawMaking a Road Accident ClaimFatal Road AccidentsCompensation from KarnitLiability and Burden of ProofMedical Malpractice ClaimsThe Medical OpinionInformed ConsentPrinciples of liability · Work accidents
Joint TortfeasorsAbsolute LiabilityCompensation for a Work AccidentWork disability claimOccupational diseaseMicrotrauma injuryCommuting the disability pensionWere you not told what you needed to know?
Tell us what treatment you had, what was explained and when, and what the form said. We will look at whether a cause of action arises and what the first step should be.