Can I Make A Medical Negligence Claim If I Consented To The Risk?

Before undergoing a medical procedure it is standard practice to be required to sign a consent form as without doing so, a claim for battery or assault could be made.

If you suffered harm following a procedure for which you were not given the information on the risks associated with the procedure, or the alternative treatments available, then you may still be able to make a medical negligence claim.

Valid consent

The consent given, however, must comprise of the following:

1. Consent must be informed and a patient must base their decision on an assessment of the risks and these risks must be accurately conveyed.
2. The patient must have the capacity to make the decision about their treatment. They should be able to understand and process the information given to make a decision, remember the information and communicate their decision.
3. Consent must be given voluntarily and not be influenced by the healthcare professionals or family of a patient, for instance, to undergo a particular course of treatment compared to another.
4. Alternatives must be explained including what alternative treatment options there are, as well as the potential outcome if no procedure/treatment was followed.

Consent claims and the Courts

Up until fairly recently, the Courts have applied a paternalistic approach to informed consent claims. The Bolam case in 1957, meant that the legal test to be applied was whether a responsible body of medical practitioners skilled in the area of medicine in question, would consider the treatment received/administered acceptable. In other words, when the doctor advised the patient of the risks of the procedure, was their advice in accordance with the accepted practice of their peers? If so, there would be no breach of duty.

In 1998, the case of Bolitho added another element to the Courts approach. This considered whether the defence of the treatment would stand up to logical analysis. That is to say, it is not enough that the defendant practitioner acted in accordance with the practice accepted by their peers, but that practice must also withstand logical analysis and be reasonable.

The 2015 Montgomery v Lanarkshire Health Board case recognised a change in approach to patient consent which had been slowly seeping through; one that recognised patient autonomy.

Montgomery places a duty on medical practitioners to take reasonable care to ensure a patient is aware of material risks involved in a procedure. Risk will be material if a reasonable person in the patient’s position would have attached significance to the risk, or the medical practitioner should have been reasonably aware they would have done so.

For instance, a one per cent chance of hearing loss in one ear might be acceptable to some, but it is likely it would not be acceptable to someone who has impaired hearing or hearing loss in the other ear. The patient should also be made aware of any reasonable alternative treatments, such alternatives should be widely known and commonly accepted practice.

These are the main ways in which consent claims are approached in medical negligence cases. They are based on previous claims and practices that have evolved over the years and show that despite a patient giving their consent to a procedure or treatment, there is much more to consider than just a signature on a piece of paper.