Informed consent: patient rights and duties
The basis of informed consent
Any interference with a patient's physical integrity, including necessary and correctly performed medical treatment, in principle constitutes a violation of personality rights under art. 28 CC, which is only lawful if the patient has validly consented after receiving sufficient information, or if an emergency exceptionally justifies it.
The scope of the doctor's duty to inform
The doctor must inform the patient about the diagnosis, the nature and purpose of the proposed treatment, its significant risks, and reasonable therapeutic alternatives, to an extent sufficient to allow the patient to make a free and informed decision. The exact scope of this information depends on the severity of the procedure and how necessary it is.
The consequences of insufficiently informed consent
If a patient did not receive sufficient information before a procedure, it can be considered unlawful even if performed without technical error, which can engage the caregiver's liability for the resulting violation of personality rights, regardless of any error in the technical execution of the treatment.
Cantonal health law
Each canton also has its own health law, which often specifies patient rights (access to the medical record, right to refuse treatment, right to a second opinion) in addition to the general principles of the Civil Code applicable throughout Swiss territory.
Frequently asked questions
Can a doctor treat a patient without their consent?
In principle no, except in an emergency where the patient cannot express their wishes and the procedure is necessary to preserve their life or health, or in the presence of advance directives or a designated therapeutic representative.
What happens if I was not sufficiently informed before an operation?
The procedure can be considered unlawful with respect to the protection of personality, even without technical error, which can engage the caregiver's liability for this specific violation.
Are the rules on consent the same in every canton?
The general principles derive from the Civil Code and apply throughout Switzerland, but each canton specifies certain patient rights in its own cantonal health law, which can vary from canton to canton.