ETHICAL, CLINICAL AND LEGAL ASPECTS OF INFORMED CONSENT IN MONTENEGRO, REPUBLIC OF SRPSKA, SERBIA AND CROATIA
ETHICAL, CLINICAL AND LEGAL ASPECTS OF INFORMED CONSENT IN MONTENEGRO, REPUBLIC OF SRPSKA, SERBIA AND CROATIA

Summary/Abstract: The patient’s consent is a necessary condition for undertaking any medical intervention and is an expression of a patient’s right to self-determination in relation to his own body, which has its foundation in the constitutional guarantee of the inviolability of human personality. In relation to the limits of consent for medical intervation, not only general, but special consent is necessary, that is, it must refer to precisely defined preventive, diagnostic and therapeutic measures that the medical professional intends to take, as well as certain risks associated with these measures. In this connection, it is also the medical professional’s duty to provide the patient or the legal representative with all the notices, which are a presumption of consent, and those notices should include all the facts that are essential for the decision on consent, and which, among other things, contain the type and probability of possible risks or consequences. In such cases, the role of the legislator is important, as it must prescribe clear rules of conduct for health institution, courts and medical professionals who are directly or indirectly involved in the process of obtaining informed consent. In this paper, the authors have taken a comparative research of ethical, medical/clinical and legal practice in Montenegro, Republic of Srpska, Serbia and Croatia, in order to point out the importance of informed consent when determining the responsibility of a healthcare institution/healthcare provider for medical malpractice/negligence. In concluding remarks, the authors establish that the free will of the patient prevails over the reasons of a medical nature and that the patient’s decision is an inevitable limit for the health institution/healthcare provider. A medical procedure is illegal, if the patient’s will is not respected or obtained. The responsibility of the healthcare provider is subjective in nature, and assumes breach of duty, damage to the patient’s health caused by his unprofessional, careless or improper work contrary to the rules of the medical profession and science (contra legem artis). It is the general opinion of national judicature in the studied regions that the healthcare institution/provider is, without exception, responsible for the harmful consequences to the patient’s health, if they did not obtain the patient’s consent to undertake medical intervention.

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