attention to the needs and situation of the patient, as well as the methods used to provide the
information. 112
104.
As regards the third element of informed consent – ensuring that the consent given
is free and voluntary – the Commission considers that to be effective the consent must be granted
through a process free of any coercion or manipulation. Due to the unequal power relations that
characterize the relationship between health professionals and their patients, it has been recognized
that the time and manner in which the information is provided may unduly influence the decision to
accept or not accept the treatment proposed. The Commission recognizes that while consent may be
granted verbally or in writing, for the purposes of safeguarding the rights involved, the State should
take measures to ensure that the consent is given in writing. 113
105.
Finally, the Commission recognizes that there are exceptional situations in which
consent does not apply. Those exceptions are related to emergencies, for example when a person
must receive medical treatment to preserve his or her life or health but neither the person or any
close family member can give consent.114
1.2
Analysis of whether there was informed consent in the instant case with
respect to the procedure and treatment given to Mr. Poblete Vilches
106.
From the facts as established, the Commission identifies at least two relevant
moments for the analysis of whether the medical staff at the public hospital upheld the abovementioned standards regarding informed consent. The first is related to the procedure performed on
Mr. Poblete Vilches on January 26, 2001 in the context of his first admission to the hospital. The
second is related to the decision to keep him in “intermediate treatment” in the hours leading up to
his death in the context of the second admission to the hospital.
107.
With respect to the first moment, the Commission observes that throughout the
inter-American procedure, and in the context of the domestic criminal complaints, Mr. Poblete
Vilches’s family members have consistently indicated that they were not duly informed of the
procedure that would be performed on him. In effect, from the description given by the family
members to the IACHR regarding that procedure, to this day they have not been given clear
information and do not have a clear understanding of what was done.
108.
As indicated in the facts proven, the only reference in the medical record to the
existence of alleged consent by the family with respect to this procedure indicates: “I was given an
explanation of the surgical procedure to be performed on my father and I agree that it be done, it has
been explained to me and I accept the risks of the operation,” signed by Margarita Tapia. 115
109.
First, the Commission does not have information that would make it possible to
understand whether an attempt was made to obtain the informed consent directly from Mr. Poblete
Vilches prior to the procedure. While some documents in the medical record indicate that there his
consciousness was compromised, other parts indicate that said compromise had diminished. No
reference appears from the medical record indicating that Mr. Poblete Vilches was unable to give his
consent, and, therefore, that it was necessary to turn to family members to request it.
112
IACHR. Report No. 72/14. Case 12.655. Merits. I.V. Bolivia. August 15, 2014. Para 121.
113
IACHR. Report No. 72/14. Case 12.655. Merits. I.V. Bolivia. August 15, 2014. Para 121.
114 IACHR. Report No. 72/14. Case 12.655. Merits. I.V. Bolivia. August 15, 2014. Para 122. Quoting: IACHR, Access to
Information on Reproductive Health from a Human Rights Perspective, November 22, 2011, para. 74.
115 Annex 8. Clinical data sheet for Vinicio Antonio Poblete Vilches (Attached to the communication from the State
of September 23, 2008).
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