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In general, under the laws of Hong Kong, a medical practitioner is not allowed to perform any medical treatment or procedure on a patient who does not consent to it.
The consent given must be for the actual procedure or treatment performed.
Any medical treatment or procedure involving physical contact with the patient’s body is a prima facie (which means there is evidence on the face of it) case of trespass or battery on the person, unless the patient has expressly or implicitly consented to that contact, even if the doctor believes that it is in the best interest of the patient, and even if it is in fact in the best interest of the patient.
The Medical Council of Hong Kong has devised a Code of Professional Conduct (“the Code”) for all registered medical practitioners in Hong Kong.
Section 2 of the Code (revised section 2 of the Code of Professional Conduct promulgated in Issue No. 22 of the newsletter of the Medical Council in December 2015) deals with consent:
“2.3 Consent may be either implied or express. In respect of minor and non-invasive treatments (*), consent can usually be implied from a patient’s conduct in consulting the doctor for his illness (but not in a situation where the consultation was only for the purpose of seeking an opinion).
* “invasive treatments” refer generally to treatments involving puncture of the skin or insertion of an instrument or foreign material into the body.
2.4 Oral consent is acceptable for minor invasive procedures. Documenting oral consent in the patient’s medical record offers protection to doctors, in case of subsequent dispute as to whether consent has been given.
2.5 Express and specific consent is required for major treatments, invasive procedures, and any treatment which may have significant risks. Specifically:- (a) Consent for surgical procedures involving general/regional anaesthesia and parenteral sedation must be given in writing. (b) For written consent, a reasonably clear and succinct record of the explanation given should be made in the consent form. The patient, the doctor and the witness (if any) should sign the consent form at the same time. Each signatory must specify his name and the date of signing next to his signature.
2.6 Where there are statutory requirements that consent in specified circumstances be given in prescribed forms, those requirements must be complied with. (e.g, removal of parts of body or specifice parts after death for theraputic purposes or for proposes of medical education or research: Section 2 and 3 of the Medical (Therapy, Education and Research) Ordinance, Cap.278)
Section 2.7 of the Code provides that consent is valid only if:
“(i) it is given voluntarily;
(ii) the doctor has provided proper explanation of the nature, effect and risks of the proposed treatment and other treatment options (including the option of no treatment); and
(iii) the patient properly understands the nature and implications of the proposed treatment.”
2.10.1 Explanation should be given in clear, simple and consistent language. Explanation should be given in terms which the patient can understand. It is the doctor’s duty to ensure that the patient truly understands the explanation by being careful and patient.
2.10.2 The explanation should be balanced and sufficient to enable the patient to make an informed decision. The extent of explanation required will vary, depending on individual circumstances of the patient and complexity of the case.
2.10.3 The explanation should cover not only significant risks, but also risks of serious consequence even though the probability is low (i.e. low probability serious consequence risks).
A valid consent in this sense will be an “informed consent”.