When consent conversations fail: informed consent in the real world
Recent investigations into the practice of Melbourne-based gynaecologist Dr Simon Gordon have brought issues of bodily autonomy and consumers’ rights to make informed decisions about their care into focus. Although complaints against Dr Gordon (who is a registered practitioner with the Royal Australian and New Zealand College of Obstetricians and Gynaecologists) emerged as early as 2022, it was not until February 2026 that multiple consumers publicly raised concerns. These consumers alleged that Dr Gordon had performed surgical procedures without consent, including the removal of tissue and, in some cases, organs, for “severe endometriosis” despite their pathology reports indicating little or no presence of the disease.
These allegations highlight the real-world consequences of failures in obtaining fully informed consent and underscore the importance of ensuring that patients are supported to make informed and meaningful decisions about their care.
Informed consent is a foundational pillar of health care in New Zealand. It is a duty owed to patients by both healthcare providers and health practitioners; with practitioners responsible for obtaining consent, and providers responsible for ensuring systems and processes support it. Informed consent reflects respect for patient autonomy, is central to legal compliance, and underpins trust in the clinician/patient relationship.
In New Zealand, informed consent reflects a strong commitment to enabling patients to make informed and meaningful decisions about their care. Yet despite its importance, it is often overlooked or not fully achieved.
This may result from a range of factors, including time pressures; workforce constraints; over-familiarity with routine procedures; system-related information gaps, and a failure to recognise what matters most to each consumer. As a result, risks may only be partially explained; alternatives may not be discussed, and assumptions may be made about what the consumer “needs to know.”
Communication barriers such as the use of jargon, unaddressed language barriers, and limited opportunities for patients to ask questions, can further undermine the process. In addition, procedural shortcomings, including consent being sought in rushed or pressured circumstances, may mean that consent is not truly informed or voluntary.
Legal Framework
The obligation to obtain informed consent arises from the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (the Code), issued under the Health and Disability Commissioner Act 1994. While the right to give informed consent is codified in Right 7 of the Code, Rights 5, 6, and 7 are often described as the “informed consent trio” and operate together as a pathway to a valid consent.
Right 6
Right 6 affirms a consumer’s right to be fully informed. It entitles consumers to receive the information that a reasonable consumer in that consumer’s circumstances would need to make an informed decision.
The “reasonable consumer” is an objective standard, assessed by reference to the consumer’s particular circumstances. This includes:
- an explanation of the consumer’s condition and the results of tests or procedures;
- the available options, including the option of no treatment;
- the expected risks, side-effects, benefits; and costs of each option;
In 24HDC00748, the Commissioner found a breach of Right 6(1) where a GP failed to inform a patient of rising PSA results indicating possible cancer recurrence. The GP repeatedly filed abnormal results without recognising their significance or communicating them to the patient. The Commissioner held that the abnormal results and need for referral were information a reasonable consumer would expect to receive, and that the failure to communicate this in a timely manner breached Right 6(1).
Similarly, in 22HDC01429, the Commissioner found a breach of Right 6(1) where a patient was not told that his surgery involved donor bone tissue. The consent form referred only to a “bone graft”, and the failure to explain its source meant the patient was not given information a reasonable consumer in his circumstances would expect to receive, specifically in light of the cultural significance the use of donor tissue held for the patient.
In 01HDC15000, two young twins underwent an adenotonsillectomy and grommet insertion. The Commissioner found that the surgeon breached Right 6 by failing to discuss non‑surgical alternatives and by not disclosing the material risk of post‑operative haemorrhage. As a result, the parents were deprived of the information necessary to make a properly informed choice.
Right 6(3) reinforces informed consent by requiring providers to give honest and accurate answers to consumers’ questions about services. This obligation applies broadly and may encompass questions relating to provider qualifications, treatment recommendations, options for second opinions, and other relevant matters. It reflects the principle that valid consent depends on open, honest, and transparent communication.
Right 6(4) supplements this obligation by granting consumers the right to receive, on request, a written summary of the information provided, promoting transparency and comprehension. This was illustrated in 19HDC00777, where the patient repeatedly requested a written treatment plan (which was particularly important as English was not her first language) but the dentist failed to provide one. The HDC found a breach of Right 6(4) on the basis that the refusal deprived the patient of a clear and accessible understanding of her care options and proposed treatment.
Right 5: Right to effective communication
Informed consent depends not only on what information is provided, but also on how it is communicated. This is reflected in Right 5 of the Code, which guarantees the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided.
Right 5 plays a crucial supporting role in relation to Right 6. Even where disclosure is technically adequate, consent may not be genuinely informed if communication is rushed, overly technical, or inaccessible due to language barriers, cognitive impairment, or emotional distress. Again, the “reasonable consumer” standard in Right 6 must be read in light of the consumer’s individual circumstances, including their ability to understand and process information. This illustrates that effective communication is not merely procedural, but fundamental to ensuring that consent is truly informed.
This interaction between Rights 5 and 6 can be found in 20HDC00526, where an elderly rest‑home resident with advanced dementia deteriorated significantly and was transferred to hospital without his enduring power of attorney (EPOA) or family being informed. The HDC found the rest home in breach of Right 5 because its communication with the family was inadequate and poorly documented, and information about the resident’s condition and transfer was not conveyed in a timely or effective manner. As a result, the resident’s EPOA was unable to understand or participate in decision‑making, demonstrating that even where care decisions are clinically appropriate, a failure in communication can undermine informed consent in practice.
A similar issue arose in 20HDC01093, where a provider failed to communicate key information effectively and did not inform the consumer of the termination of services in a timely or transparent way. This undermined the consumer’s ability to engage in decisions about her care and resulted in a breach of Right 5.
Right 7: The Right to Make an Informed Choice and Give Informed Consent
Right 7(1) affirms that services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent. Consent must therefore be voluntary and based on adequate information, linking directly to the disclosure and communication obligations in Rights 5 and 6.
As noted above, informed consent is context specific, which is particularly important where a consumer has a complicated health profile. In such cases, consent requires that risks are assessed and explained by reference to the patient’s particular comorbidities, rather than being confined to generalised or standardised risk information.
In 20HDC00176, the patient had several significant comorbidities, most notably a prior pneumonectomy, which increased the risks associated with sedation and colonoscopy. Although consent was formally obtained, the surgeon had not reviewed the patient’s clinical notes and was unaware of this history at the time. As a result, the specific risks arising from the patient’s comorbidities were not properly considered or discussed, meaning the patient was unable to make a fully informed decision.
While concerns were raised about informed consent, the Commissioner ultimately found that the breach lay in failures of care and communication under Right 4. Those failures meant the clinician did not have the relevant clinical information necessary to identify and discuss the material risks required for informed consent, rather than a failure to disclose known risks at the time consent was obtained.
Moreover, Right 7(7) recognises that consumers retain the right to refuse services or to withdraw consent at any time. This reinforces patient autonomy by ensuring that consent is ongoing and can be reconsidered as circumstances or understanding change, although in practice the ability to exercise that right may be constrained in urgent situations.
In 19HDC02222, the HDC considered issues of informed consent in the context of an assisted delivery and post‑birth procedures. The consumer underwent a ventouse‑assisted birth with an episiotomy in circumstances of fetal distress. Although the Commissioner found that the obstetrician did not adequately explain that the consumer could decline an episiotomy or choose the alternative of natural tearing, this did not amount to a breach of Right 7 given the urgency of the situation, the limited time available for discussion, and the consumer’s apparent verbal agreement at the time.
Informed consent is not a single conversation or a signed form, but an ongoing process grounded in communication, understanding, and clinical awareness. As the Code makes clear, the obligation extends beyond disclosure to ensuring that information is conveyed in a way that is meaningful to the individual consumer, and that consent is truly informed and voluntary. In practice, the cases discussed demonstrate that failures in informed consent often arise not from a single omission, but from a combination of time pressures, communication breakdowns, and a failure to tailor information to the individual. For practitioners, this underscores the importance of approaching consent as a dynamic and patient-centred process, rather than a procedural task, and of recognising that trust in the therapeutic relationship depends on getting this process right.
Special thanks to Partner Simone Tune and Law Graduate Lara Albert for preparing this article.
If you have any questions about the topics outlined above, or about health sector law more generally, please contact a member of our health law team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
