Medical Malpractice Lawyer in the UAE: When Does Lack of Informed Consent Constitute Medical Error?

Informing the patient of treatment options in the United Arab Emirates is a binding legal obligation on the physician and the health facility, not merely an ethical courtesy. After completing the examination and diagnosing the condition, the physician must explain to the patient the nature of the illness and its degree of seriousness, present the available treatment options together with the advantages, risks, likely complications, alternatives and cost of each, and then leave the choice to the patient. No medical or surgical intervention may be performed on the patient's body without obtaining informed consent, and that consent must be written for surgery and for procedures carrying risk. Breach of the duty of informing the patient of treatment options gives rise to civil and disciplinary medical liability for both the physician and the health facility, even where the procedure itself was skilfully performed and produced a successful outcome, because the fault here lies in overriding the patient's will and denying the right to know and to choose.

The meaning of informing the patient of treatment options in the UAE

Informing the patient of treatment options is the physician's duty to give the patient a full and clear picture of their health condition before any intervention: the diagnosis, the seriousness of the condition, and then all available treatment options — medication, surgery, conservative management, and even the option of declining treatment together with its expected consequences. The purpose of informing the patient of treatment options is to make the consent an informed one, given with a conscious understanding of the benefits and consequences of the procedure, rather than a formal signature on a printed form.

This duty rests on a settled legal foundation: the human body may not be touched without the person's consent, and the relationship between physician and patient is contractual, formed only by the meeting of two conscious wills free of defects. Where only one treatment option exists, the physician must disclose it and its risks; where several exist, all must be presented with the differences in success rates, complications, recovery time and cost, so that the patient personally chooses what suits them.

The law regulating informing the patient of treatment options in the UAE

Informing the patient of treatment options in the UAE is governed by an integrated legislative framework resting on more than one instrument. Under the Federal Decree-Law on Medical Liability and its amendments, the physician is specifically obliged to inform the patient of the available treatment options, and may not carry out any act relating to the patient's body without obtaining consent. Under the Cabinet Resolution issuing the Executive Regulation of that Decree-Law, the controls governing consent, its form, the cases exempted from it and the practitioner's documentation duties are set out in detail.

This duty is reinforced under the Ministerial Decision on the Patient's Rights and Responsibilities Charter, which grants the patient the right to know the nature of the illness and its degree of seriousness, the right to have the necessary treatment prescribed with a statement of the therapeutic procedures, surgical interventions, drug quantities, side effects and method of use, and the right to know the full cost of health services before any procedure begins. The Charter also obliges the health facility to obtain the patient's written consent before surgery and to inform the patient of the likely medical effects and complications.

The framework is completed under the Federal Law regulating the practice of the human medicine profession, the Federal Law on private health facilities and its amendments, the Federal Law on the use of information and communication technology in health fields, which governs the keeping of the medical file and the confidentiality of and access to health data, and the Federal Law on public health. The consequences of breach are governed by the general rules under the Civil Transactions Law on compensation for harmful acts, and under the Federal Decree-Law issuing the Crimes and Penalties Law where the fault reaches the threshold of gravity.

Conditions for valid informed consent to treatment options

When must consent be written, and when may treatment proceed without it?

As a rule, consent must be written and documented in the medical file for surgical operations and interventions carrying risk, general anaesthesia, blood transfusion, cosmetic procedures, clinical trials and treatments with serious side effects. For simple procedures and routine examinations, implied consent inferred from the patient's cooperation suffices, while the duty of informing the patient of treatment options remains in force in every case.

An exception applies to emergencies requiring urgent intervention to save the patient's life or an organ, where consent from the patient or the legal representative cannot be obtained in time. In such cases the physician intervenes in accordance with professional standards, recording in detail in the medical file the circumstances that required it. The same applies to an urgent medical necessity arising during an operation that cannot be postponed.

Informing the patient of treatment options in special cases

Where the patient is a minor, lacks capacity or has diminished capacity, the right to be informed and to consent passes to the guardian, custodian or legal representative, having regard to the patient's best interests. Where the patient's psychological state cannot bear disclosure of the true diagnosis, or where their health interest requires otherwise, the legal representative may be informed instead, with the reason documented. The patient may also request not to be informed of the details of their condition and may delegate another person to receive the information and take the decision, that request being recorded in writing in the file.

Regulators apply stricter scrutiny to informing the patient of treatment options in medically unnecessary cosmetic surgery, in clinical trials and in novel treatments, where the experimental nature of the procedure, the unguaranteed outcomes, the available alternatives and the right to withdraw at any time must all be explained. Performing unnecessary operations or interventions without the patient's informed consent is likewise prohibited.

The patient's right to refuse treatment and to seek a second opinion

Informing the patient of treatment options is incomplete unless the patient is recognised as having the right to refuse the proposed treatment in whole or in part after being made aware of the consequences of refusal. The refusal is recorded in writing in the medical file and signed by the patient or the legal representative, and it may not result in denial of essential health care or of any available alternative treatment. The patient is also entitled to seek a second medical opinion inside or outside the facility, to obtain a copy of the medical file and an accurate medical report on the condition and test results, and to know the cost of services before they begin and receive itemised invoices.

Legal liability for breach of the duty to inform the patient of treatment options

Breach of the duty of informing the patient of treatment options is a self-standing medical error. It arises even where the procedure was performed according to accepted science and produced a satisfactory result, because what is at issue is the infringement of the patient's right to know and to choose freely. The resulting liability follows three tracks:

How does a patient prove they were not informed of the treatment options?

The burden of proving that the information was given and informed consent obtained rests in principle on the physician and the health facility, since documentation is a professional duty imposed on them. Accordingly, the absence of a valid informed consent form from the medical file, a generic printed form that does not identify the specific procedure, its risks or its alternatives, or a form signed after the operation or under the effect of anaesthesia, are all strong indications of breach of the duty of informing the patient of treatment options.

In proving the claim the patient relies on a copy of the medical file, imaging and laboratory reports, correspondence with the facility, invoices revealing procedures never disclosed, second-opinion reports, and the testimony of anyone present. The final assessment of fault and causation remains with the competent medical liability committees appointed for that purpose.

Complaint procedures before the medical liability committees

A claim begins with a complaint to the competent health authority in the emirate, attaching the medical file and a statement of the incident and the harm. The complaint is referred to the Medical Liability Committee to determine whether a medical error occurred and how grave it was, and a party not satisfied with its decision may appeal to the Higher Medical Liability Committee within the prescribed period. The Higher Committee's decision is the technical basis relied on by the civil court in the compensation claim and by the Public Prosecution in the criminal aspect where applicable. It is always advisable to have the file reviewed by a lawyer specialised in medical liability before filing the complaint, so that the grounds of fault are framed with technical and legal precision.

Legal deadlines and periods to keep in mind

Practical guidance for patients and health facilities

Legal references

Frequently asked questions about informing the patient of treatment options in the UAE