It needs to be understood- that under the policy- the insurer is expected to defend you against allegations of negligence, etc. If there is no evidence to support your defence – then you have effectively taken rights away from insurers and created an obligation on them to simply pay what is being claimed. You would have compromised your own defence- and accordingly tied insurer’s or your own hands behind your back. How do you mount a successful defence without evidence? For this reason, underwriters have made it a condition of your cover that you obtain informed consent from your patients, in writing, prior to screening, treatment or the provision of services or products. It would probably be prudent to get patients to sign forms at least annually and if a new condition is being treated then again for the new condition.
Very often, claims may be made years after treatment has been provided and the only possible chance of successfully defending those claims, depends on the records you have made and retained
While a properly signed informed consent form is vital in terms of compliance with policy conditions, it is not the end of the inquiry into informed consent from a legal point of view. Unfortunately, the Law is interested in the proof and not necessarily the Truth. It is therefore vital that you take thorough notes throughout treatment and consider noting consent in the treatment notes in addition to the consent form signed by patients. An alleged truth is of little value without proof when it comes to claims, written informed consent is the best / only way to prove that informed consent was indeed obtained.
Not only would you find yourself without cover under the policy if you did not obtain written informed consent but legal fees (which you would now have to pay for) and risk logically increase with a more complicated defense. There is always risk involved in litigation and a lack of proper informed consent pertaining to the specific treatment increases the risk of an adverse judgment significantly.
Please note that in the event that you notify CFP Brokers of an actual, or potential claim or Regulatory Body Complaint (HPCSA/AHPCSA/SANC) complaint against you, your insurers (iTOO Special Risks (Pty) Ltd for and on behalf of Hollard) will in most cases reject the claim and decline to assist you in instances where you have not obtained written consent forms from your patients and/or their parents/guardians.
One needs to shift the paradigm of informed consent from an initial administrative issue to a vital consideration throughout treatment. When the risks associated with a specific treatment change materially, the informed consent must be revised and reconsidered.
An insurance policy is a contract. Both parties have rights and responsibilities. We therefore urge you to read the various conditions of cover which are found in the Endorsement section of the policy schedule and Conditions section of the policy wording document. Feel free to contact us if you have any questions about the conditions of your cover.