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Thierry Vansweevelt

This chapter deals with the law on informed consent in Belgium and France, which share a common origin – the Napoleonic Code – but still have different interpretations. The similarities between the two are obvious: both countries require informed consent, which is in principle oral consent. However, for some specific medical interventions, and to protect patients and avoid impulsive decisions, the law requires the patient’s written consent and a specific waiting period. For minors, no legal age is stipulated: minors can exercise their right to informed consent when they are capable of a reasonable evaluation of their interests, taking into account their age and maturity. But the law in both countries differs on certain points. The French Court of Cassation has chosen a more patient-friendly interpretation – the physician must prove that he or she received the patient’s informed consent; whereas in Belgium, it is the patient who must prove the physician’s negligence. Another difference is that in Belgium, the patient must prove the causal connection between negligence and damage; while in France, the mere violation of the informed consent rule causes a new kind of damage.

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Edited by Thierry Vansweevelt and Nicola Glover-Thomas

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Thierry Vansweevelt and Nicola Glover-Thomas

This introductory chapter highlights the changing landscape in relation to the question of informed consent and the consequential impact of this on the legal frameworks in place in many parts of the world. Informational disclosure and informed consent are the focus of book one of the book series. This is a key foundational concept in health law and for many countries acts as the initial gateway to medical intervention. At the heart of contemporary medical ethics is the notion of self-determination and choice. How the concept of information disclosure and informed consent is understood and executed in different parts of the world varies widely; yet the concept of informed concept maintains some common characteristics that are shared and recognized around the world. The importance of informed consent is growing, both nationally and internationally – particularly as more patients become aware of their rights and seek to reinforce them. The countries in this book have been chosen to provide an insight across continents, representing a mix of jurisdictions: Australia, Canada (except Quebec), the United Kingdom, the United States, Belgium, France, China, the Nordic countries, South Africa, Germany and Russia.

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Thierry Vansweevelt and Nicola Glover-Thomas

While there is a common understanding and acknowledgement of the principle of informed consent around the world, this book highlights the nuances and varied interpretations applied across the continents. It seeks to identify and reflect on these differences, to enhance our broad understanding of the ways in which this concept is interpreted and applied in practice; and highlights the global shifts that have taken place over the last 25 years in relation to how patients’ rights are recognized and protected. Indeed, the legal landscape surrounding autonomy and consent is vastly different from the familiar world of the past, in which medical paternalism dominated. There is little doubt that this landscape will continue to evolve; and that this evolution may be rapid. The hope is that this book will articulate the variety of approaches and the opportunities to learn from around the world while on this path of change.

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Informed Consent and Health

A Global Analysis

Edited by Thierry Vansweevelt and Nicola Glover-Thomas

Informed consent is the legal instrument that purports to protect an individual’s autonomy and defends against medical arbitrariness. This illuminating book investigates our evolving understanding of informed consent from a range of comparative and international perspectives, demonstrating the diversity of its interpretations around the world. Chapters offer a nuanced analysis of the problems that impede the understanding and implementation of the concept of informed consent and explore the contemporary challenges that continue to hinder both the patient and the medical community.