The Issue of Consent in Medical Negligence Claims
Before undergoing a medical procedure you have to be told about the potential risks, otherwise you have not been properly consented. If you do suffer injuries - which you had not been warned about - you may be able to pursue a claim on the grounds of a lack of consent.
For more information on claiming compensation for medical negligence, please get in touch with us today.
Informed consent
As a patient who is over the age of 16 and who has mental capacity, you must give your voluntary consent before undergoing any sort of medical procedure. This includes a wide range of things, from diagnostic procedures (such as a colonoscopy) to surgery.
This consent must be 'informed', meaning that you have been given all the relevant facts and understand the choice you must make. The facts you should be in possession of include the aim of the procedure, the benefits of the procedure and the potential risks that are involved.
You should also be advised of alternative treatments, if available, and the likely effect of choosing not to have treatment at all.
You do not have to be told about every single risk. However, you should certainly be advised about the most commonplace risks and the most serious risks (even if they are rare) with consideration given to those risks which you - in your particular circumstances - are likely to attach particular significance to. Your consent will only be deemed valid if you are aware of all of these things.
Giving your consent
The consent process may differ depending upon the medical setting and the procedure that is planned. For minor procedures, such as having an x-ray, it is sufficient to give verbal consent.
For more invasive treatments such as surgery, a medical practitioner will go through the risks with you, after which you will sign a consent form. The risks that have been discussed are often listed on the consent form, particularly in complex procedures such as neurosurgery.
Depending on circumstances, you may wish to take time to consider before making your decision.
If the patient lacks mental capacity or is under the age of 16, someone else will have to consent to the procedure on their behalf. This will normally be a parent, legal guardian or legal spouse.
Are there times when consent is not needed?
It is worth noting that there are times when consent does not have to be provided by a patient. According to the NHS Choices website, these include:
- When the patient is unconscious but requires emergency life-saving treatment
- When the patient requires emergency life-saving treatment during the course of another procedure
- When the patient has a severe mental health condition
- When the patient requires treatment for a severe mental health condition
- When the patient is a risk to public health - e.g. there is a highly contagious infection such as tuberculosis
- When a patient is living in unhygienic conditions and is very ill, they can be taken to a place of care
Additionally, if a patient tells the doctor that they do not wish to know the risks involved in their operation, or the doctor considers that information would be detrimental to the patient’s health, the doctor does not have to tell them.
Does giving consent mean I cannot claim?
So if you give your consent to a procedure, does it mean that you lose your right to make a claim if anything goes wrong? The answer to this is no.
If you give your consent to a medical procedure and mistakes are made, you still have the legal right to pursue a claim against those at fault. This might be a GP, nurse, midwife, surgeon, hospital or physiotherapist.
There are two potential reasons why you might be able to make a claim: firstly, adequate consent was not gained, and secondly that you were subject to a substandard level of medical care. We will look at each of these in turn below.
You were not properly consented
It may be that you were not warned about the complication that you ultimately suffered. For example, bunion surgery carries the risk that the operation will fail. If you were not told about this, it might be that you would never have undergone the operation had you known.
Or it may be that you were told about the risk, but the information was insufficient. For instance, there was one case where a patient was told there could be a minor discrepancy in leg length after a hip replacement. However, after the operation the difference in leg length was significant. The patient successfully argued that he had not consented to the severity of the complication.
Finally, it may be that you consented to a particular procedure with a particular surgeon, but this was then changed without your consent. One circumstance might be that you gave your consent for a senior surgeon to perform an operation, yet it was in fact carried out by someone in a junior position.
A failure to inform adequately about risks associated with a procedure will only have relevance in a medical negligence claim if the specific risk occurs.
You were subject to substandard medical care
Alternatively, it might be that you were subject to substandard medical care. All medical practitioners have a duty to provide their patients with a reasonable standard of care. If you did not receive an acceptable standard of care and you were injured as a result, you will be entitled to make a claim - regardless of the fact you consented to the procedure.
Take a gallbladder removal, where there is a one in 500 chance that the patient will sustain a bile duct injury. If the surgeon maintains the utmost care and yet still the bile duct is damaged, there will not be a case of negligence (assuming of course that the patient consented to this risk). But if the injury occurred because the surgeon clamped the wrong structure, substandard medical care will be to blame.
Montgomery v Lanarkshire Health Board
It must also be highlighted that every patient is different, with some being more at risk of complications than others. The consent process therefore needs to be adapted according to the patient.
This was one of the issues in the Montgomery v Lanarkshire Health Board case that was heard in the Supreme Court in March 2015. The brief facts of the case are that Nadine Montgomery gave birth to her son in 1999. She has type 1 diabetes, something which is known to increase the size of an unborn baby. She is also of a petite stature. Both factors put her at increased risk of suffering shoulder dystocia during a vaginal delivery.
She went on to experience shoulder dystocia during childbirth. Her son got stuck behind her pubic bone for 12 minutes, during which time he was deprived of oxygen. He now has life-long brain damage.
Ms Montgomery argued that she had not known about the risks she faced, nor had anyone discussed the alterative option of a caesarean section with her. She said that had she known, she would definitely have opted for a C-section and her son would have been born free from injury. The Supreme Court found in her favour and compensation was awarded.
Therefore the Court was in effect saying that Ms Montgomery should have been told about the options available, as well as the benefits and risks of each option, especially given that she was at a greater risk of shoulder dystocia than is usual. The patient should then be allowed to make a decision on their own based upon the information provided.
The current approach
Following the Montgomery case, the issue of consent is now primarily focused on what a particular patient could reasonably wish or need to know in order to make an informed decision rather than what the surgeon or medical professional considers is important.
The emphasis is on the right of the patient, as an individual, to make an informed choice as to their treatment.
Speak to a solicitor
If you did not give your informed consent for a medical procedure which then went wrong, please get in touch with us to speak to a solicitor.
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