6th January 2020 ❘

Consent in clinical negligence claims – can I still claim if I consented to the risk?

We often have clients ask us whether they can still bring a clinical negligence claim if they have signed a consent form. The short answer is yes, you can!

What is consent to a medical procedure?

A patient is required to sign a consent form before undergoing any medical procedure. Without signing a consent form, the treatment could be considered assault or battery. It is not enough to just say “yes” to the procedure – it must be informed consent.

Were you given enough information to consent?

In order for the consent to be valid, there are certain criteria that must be met. It must be informed consent – in order for the consent to be valid you must accurately be told of all the risks of the procedure. If you were told the risk was 5% when in fact it was 25%, and the risk materialises, then you may have a claim. The consent must be voluntary
– the patient’s decision must not be influenced by the doctor, family or friends. Are there any alternatives – You must also be told about any alternative treatments that are available and what would happen if you did not receive treatment. The person giving consent must have capacity
– that means they must understand the information given, be able to remember it, use the information to make a decision and be able to communicate that decision.

Legal tests to be applied in clinical negligence consent cases

The main legal tests to be applied in clinical negligence cases come from the following cases:

The Bolam case in 1957 – would a responsible body of medical practitioners skilled in that particular area of medicine consider the treatment received to be acceptable?

The Bolitho case in 1998 – would the treatment stand up to logical analysis?

The Montgomery case in 2015 – What would this particular patient consider to be a significant risk? For example, a 1% chance of hearing loss in an ear may be acceptable to some people, but possibly not to someone who has already lost the hearing in the other ear. This was clarified in the recent case of Duce v Worcestershire Acute Hospitals NHS Trust[2018] where the Court of appeal decided that the scope of a doctor’s duty to warn of risks of treatment under Montgomery only applies to risks which, at the time of treatment, are clearly associated with the procedure.

Do you have a claim?

To succeed in a claim you must show that valid consent, as outlined above, was not given. You must also show that if the consent had been valid then you would have made a different decision, whether that be not undergoing the procedure, delaying the procedure or trying alternative treatments. Nevertheless, signing a valid consent form is not a get out of jail free card for the hospital. The risks you consent to on a consent form are those that may arise despite the treatment being carried out to an acceptable standard.

However, it is important to remember that you have not consented to negligent treatment – the procedure or operation must still be carried out to an acceptable standard (that is supported by a reasonable and logical body of medical practitioners as in Bolam and Bolitho above). A mistake that should not have been made if the surgeon had exercised reasonable skill and care means you may still be able to bring a claim.

How Burnetts can help

Burnetts have specialist medical negligence solicitors, who are accredited by the specialist AvMA and Law Society panels, who can investigate your claim and help secure compensation.

The compensation awarded will be to cover the additional pain and suffering as a result of any substandard care, any past losses such as loss of earnings and also to cover any ongoing additional ongoing needs as a result of the negligence such as future loss of earnings, care, accommodation, aids and equipment.

We have access to specialist medical experts and barristers who can advise in your case and will aim to obtain compensation for you as quickly as possible. Where someone has sadly died, Burnetts also have expertise in dealing with inquests and claims on behalf of the estate of the deceased. If the claim is on behalf of a protected party then our Court of Protection team will also be on hand to assist with the administration of compensation and navigating you through the whole process.

If you would like to speak to someone within our team to discuss whether you may have a clinical negligence claim then please contact our offices on 01228 552222.