The decision to have medical treatment can be a daunting, frightening and confusing process, with complex medical terms and so many different factors to take into consideration, especially when there are multiple treatments being offered to you.
The law on consent helps to ensure that you are fully involved in the decision making process and have the choice in regards to your medical treatment.
When must consent be obtained?
Before any type of medical treatment, test or examination is undertaken. In order for consent to be valid, it must be:
- Voluntary – the decision must not be influenced by pressure from medical staff, friends or family.
- The person must have capacity – this means the person is capable of giving consent and understands the information given to them and can use it to make an informed decision.
- Informed – A study by Queen Mary University of London has found that cases relating to consent have risen fourfold overall since March 2015.
Informed consent is the patient’s right and the clinician’s responsibility. It empowers you to make educated and informed decisions about your medical health and treatment. Informed consent means:
- The person must be given all of the information about what the treatment involves, including the benefits and risks;
- Whether there are reasonable alternative treatments;
- What will happen if treatment does not go ahead; and
- Needs to meet the standards of the test of materiality set out below.
A change to informed consent
In March 2015, a landmark Supreme Court judgment known as Montgomery changed the legal test for determining what is sufficient disclosure before consent is given to any treatment. The test established a duty of care to warn of material risks. The test of materiality is:
“Whether a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor should reasonably be aware that the particular patient would be likely to attach significance to it.”
This means that each patient should be informed of the risks that are likely to be significant to them. This might be because of their existing conditions, beliefs, concerns, etc.
Informed consent – examples of successful medical negligence claims
The case of Montgomery involved a woman with diabetes and of small stature. She delivered her son naturally and he experienced complications owing to shoulder dystocia, the consequences of which were that he had cerebral palsy. Her obstetrician had not disclosed the increased risk in vaginal delivery despite Montgomery asking if the baby’s size was a potential problem. Montgomery successfully argued that if she had known of the increased risk she would have requested a caesarean section.
Another example of a successful claim involved a patient who had a pulmonary emboli after a hernia operation. The patient did not seek medical attention immediately because he had not been advised of the risk of deep vein thrombosis or pulmonary embolism or symptoms that might indicate these. The Judge ruled that failure to inform the patient was a breach of the duty of care.
When is informed consent NOT needed?
There are a number of situations where consent is not needed, these include:
- Emergency lifesaving treatment and the person is incapacitated (for example, unconscious).
- If there immediately needs to be an additional emergency procedure during an operation. Here there must be a clear medical reason as to why it would be unsafe to wait and obtain consent.
- People with severe mental health conditions lack the capacity to consent to the treatment of their mental health. In these cases treatment for unrelated physical conditions still requires consent which the patient still may be able to provide despite their mental illness.
- If a person is severely ill and living in unhygienic conditions, they can be taken to a place of care without their consent.
Informed consent medical negligence claims
There has been a sharp rise in the number of claims against the NHS for failures to inform patients before consent is given.
As part of a study by Queen Mary University London they obtained information on the claims settled by the NHS between 2005 and 2019. Of 70,000 cases, just over 2,300 were linked to a failure to inform, with a total value of nearly £400 million.
If you have concerns over whether your consent to medical treatment was valid please get in touch.