Causation and the liability for non- disclosure of risk in Sri Lanka; vindicating rights of patients by lightening principle of causation

Abstract

Informed consent is considered as one of the corner stones in medical practice and it is a socio legal obligation of medical professionals. Failure to disclose risk is considered as one aspect of medical negligence. Obligation to disclose risk was introduced by the Bolam principles in United Kingdom and has been subjected to later developments which has taken place in all over the world. Doctrine of informed consent deals with the doctor’s duty to inform the patient before proceeding with the treatment. Professional autonomy is now moving to the direction of patient’s autonomy. Patients have a legal right to self-determination. Patients should allow to engage in critical decision making regarding their body and he can refuse the treatment, if he does not receive adequate information. Accordingly, consent should be obtained by the doctor after providing all necessary information to the patient. However, in informed consent cases, it is a big barrier for the patient to prove that the failure to disclose information regarding the recommended treatment has led to cause the injury. Following the qualitative research method this paper aims to discuss the evolution of the law of informed consent. Furthermore, this will examine the application of the test of causation in informed consent cases, while raising the necessity of lightening, moderating and sometimes even to depart from the requirement of causation cautiously by the judiciary, to vindicate patient’s rights in informed consent cases in Sri Lanka.