Consent and advice claims

Consent is a vital part of the patient’s relationship with the doctor. It must be based on an open and equal footing, which means the patient needs to be told the treatment risks, be informed of alternatives to the treatment, and every reasonable care must be taken to make sure the patient understands their choices.

What is the law surrounding patient consent?

In 2015 the case of Montgomery established that a patient should be told what they want to know about the risk of the surgical procedure and not what the doctor thinks they should be told. Patients should expect an active and informed role in treatment decisions and a cooperative approach in the consultation room.

Lack of consent cases can be hard to prove. The issue is complicated and hard to prove when, in the vast majority of cases, medical consent forms have been signed by the patient, but our Clinical Negligence team commonly see cases where a significant surgical error has arisen from a lack of fully informed consent. The best thing to do if you are not sure whether you were given all the facts and fully informed of the risks of you medical procedure, is to get in contact with us. We will happy discuss what has happened to you to see if we can help.

What amounts to medical consent?

Informed consent is obtained once your doctor has provided you with all appropriate information so that you can make a fully informed choice to either accept or refuse the treatment being recommended to you.

Before any medical treatment, test or examination, informed consent is secured if:

• The patient’s decision was voluntary and not influenced by friends, family, or medical staff
• The patient has capacity to understand the advice and information given and make an informed decision based on that advice and information
• The patient is given all the information about the treatment, associated risks, alternative treatments, and the possible outcomes if they do and do not have the treatment

Issues of insufficient consent usually arises in relation to surgery. If you believe that your doctor did not perform the surgery discussed or went on to extend or perform extra procedures beyond that which was consented to, then you should seek legal advice from an experienced medical negligence solicitor.

The surgeon, doctor or other medical professional should also give you time to think about the treatment and risks. Of course, it may be an emergency and a decision is needed quickly, but if the treatment involves elective surgery or other procedure planned in advance, you should be given time to weigh the options carefully.

Informed consent is not always required

In certain circumstances consent is not always required and medical professionals can make lifesaving emergency decision on behalf of the patient. These include:

• If lifesaving treatment is needed in an emergency and the patient is unconscious and unable to give consent
• If an urgent additional emergency procedure is required during an operation and there is a clear medical reason for not waiting to obtain informed consent

What do I do next?

If you suspect that that your medical treatment has been negligent, it is important to seek legal advice as soon as possible.

A specialist Medical Negligence solicitor with plenty of experience in these sorts of case will be happy to talk to you in the first instance about what has happened to you and whether you will be able to claim compensation.

Birchall Blackburn Law has decades of experience supporting people through a clinical negligence claim for compensation. You can simply email or calls us and we will give you initial free and confidential advice about claiming compensation, with no obligations.