Freedom of Contract and Informed Consent as Part of Contract for Healthcare Services

Relationships between patient and physician did not possess a clearly-established form until the late 19th century, being primarly based upon a reciprocal trust. In terms of contemporary civil law, relationship between the patient and the physician or a hospital is based upon a contract for medical services. Thus, liability of the physicians for negligence within exercising their duties is either based on contract (in case such contract is concluded by the parties), or on tort (when there is no such contract). This study discusses freedom of contract with the focus of the patient’s informed consent as a part for a contract for medical services between the patient and a physician or a hospital. The aim of this article is to discuss doctrinal views of patient-physician relationships and the informed consent as an inalienable part of a contract for medical services

A comparative analysis of informed consent legislation in Ukrainian and Latvian legislation and case law

CC BYInformed consent is one of the key principles in safeguarding human rights in the sphere of healthcare. It presupposes the expression of the patient’s free will relating to his medical examinations, treatment and diagnostic procedures, as well as the physician’s duty to inform the patient on the forthcoming medical interventions, including the facts regarding the potential risks of these medical interventions. This principle is one of the elements of contemporary medical law, which has marked the transfer from paternalistic medicine to a modern model of medicine, where the patient is an active participant in the process of medical treatment. In this paper, the authors illustrate the legal aspects of safeguarding the patient’s right to informed consent in the legislation and legal practices of Ukraine and the Republic of Latvia. The institute of informed consent, which needs to be safeguarded, as a key element of the legitimacy of a medical intervention (such as surgery, or vaccination), requires a specific form of fulfillment, which is conducted in writing. A medical intervention, excluding cases of emergency, is legitimate only when the consent of the patient is provided; unconsented medical interventions frequently cause lawsuits, where plaintiffs seek to recover damages for performance of a medical intervention without their informed consent. The authors have highlighted these issues while commenting on the recent case law of the Supreme Court of Ukraine and the Supreme Court of the Republic of Latvia

Negotiorum gestio: nepaprastosios situacijos elementas informuoto paciento sutikimo doktrinoje.

The rule of an obligatory consent of a patient for a medical procedure has its exceptions, one of the most cited of which is a condition of emergency, under which the physician is not under the obligation to seek for the patient’s consent, but to provide the treatment, which is strictly necessary upon the physician’s best judgment, and will not be liable for an unconsented medical procedure in such case. In many legal cases on the issues regarding consent to medical procedures, the courts expressed the view that consent to medical treatment is a prerequisite to its legitimacy, unless an emergency occurs and hence it would be impossible to obtain the patient’s consent. In some early 20th century cases, the emergency exception was also invoked when patients were unconscious under anesthesia, and the physicians found a serious health impairment during the operation, which differed from the purpose of the previously agreed operation. In this article, the authors have analyzed the exception of emergency within the Roman law concept negotiorum gestio, focusing on the details of the legal cases, in which an emergency was invoked, being either alleged, or proved. The authors have also examined the historical legal foundations of the right of physicians to carry out medical treatment (which in some cases includes surgeries), and found that the legal doctrine has no uniform answer to this question, whereas various legal doctrines, including customary law, were historically used to describe these legal foundations