Informed consent – can I make a consent claim?
Before undergoing a medical procedure or treatment, valid informed consent must be obtained. You must be properly informed of what the treatment is, its potential risks and benefits and what would likely happen if you choose not to undergo the treatment. These are all key criteria of informed consent.
Failing to properly disclose information in the consent process can lead to a successful medical negligence claim. For example, you may feel that as a result of a treatment you suffered an injury and that would have been avoided if you had been properly consented. In other words, had you known about the risk you would not have gone ahead with the treatment and therefore not suffered the injury.
What constitutes informed consent?
Information disclosure cases are tricky and the law around informed consent has evolved substantially. Before, there was a reliance on what medical professionals’ thought should be disclosed to the patient. Then, the usual negligence test was applied when weighing up whether there had been a negligent failure to obtain valid consent. Things however, have moved on.
When it comes to informed consent, there is now much more focus on what a reasonable patient needs information wise in order to make an informed decision on whether to proceed with treatment. There was an important case called Montgomery v Lanarkshire Health Board. This case resulted in more of an onus being placed on what a reasonable patient would want to be informed about when undergoing a procedure, rather than what a reasonable doctor thinks is required.
Nowadays, a medical professional must disclose any material risks that a reasonable patient would want to be informed about before undergoing a medical procedure. A material risk is something that a reasonable patient in the patient’s position would likely attach significance to.
The Montgomery case also confirmed that doctors must tell patients alternatives to the proposed treatments and any risks involved in those alternatives. Alternatives to proposed treatment includes the treatment option ‘of doing nothing’ and the risks that this involves.
Exceptions to the informed consent rule
There are exceptions to the rules on the duty to disclose material risks/alternative treatment options and these are covered below.
1. Emergencies
Where there is a genuine emergency, for instance when you are unconscious, the doctor doesn’t have to obtain consent from you to treat you. This is on the grounds of emergency medical necessity.
2. Therapeutic Privilege
Withholding information from a patient is legally acceptable if the doctor reasonably believes that disclosure of the information would be seriously detrimental to the patient’s health. The therapeutic exception must not be abused by medical professionals and should only be used in exceptional circumstances.
If you feel you have not been consented properly for a medical procedure and this has resulted in injury, L&M MediLaw will guide you through the process and provide accessible, straightforward advice.