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If a doctor or healthcare professional fails to discuss treatment options or warn a patient of risks associated with those options; and the patient agrees to undergo that procedure (which they otherwise would not have done if they had known about the specific risks) and suffers harm as a consequences of those risks, then this may give rise to a potential claim in clinical negligence based on a lack of informed consent.
Historically, whether or not a doctor had discharged his professional duty in this regard would be determined on the basis as to whether or not the doctor’s conduct would be supported by a responsible body of medical opinion (i.e. other doctors practising in that area). This was the so-called “Bolam test”. The situation has now changed.
Following a Supreme Court judgment in the case of Montgomery –v- Lanarkshire Health Board in March 2015, the law now requires a doctor or healthcare professional “to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or other treatments”. . To judge whether informed consent has been obtained the Court will ask itself whether or not a reasonable person in that patient’s particular position would be likely to attach significance to the risk associated with a procedure/treatment and/or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to that risk.
It is not necessary for the patient to have asked the doctor specific questions but if the patient expresses concerns, then the questions which would normally arise out of those concerns, must be addressed by the doctor as part of the process of obtaining that patient’s informed consent to treatment.
In order to obtain proper informed consent the doctors should focus on a patient’s individual situation and the risks to them and then tailor the discussion to that particular patients specific circumstances and tell that patient whether or not an investigation or treatment might result in a serious adverse outcome, even if the likelihood of that is very small.
It goes without saying that patients will be best able to understand information doctors give them about the risks and possible side effects of treatments if things are explained to them in non-technical language. Simply reciting a list of medical terms and explaining things in a jargon-laden way will not be enough for the doctor to show that they obtained informed consent from a patient if that patient clearly had no understanding of the meaning or significance of what was being said during the discussion.
As with all things, there will sometimes be exceptions to the rule, for example in situations where the disclosure of such risks, would, in the reasonable exercise of medical judgement be seriously detrimental to a patient’s health, or in an emergency situation. As we have said, this is the exception and not the rule.
How do I make a claim about informed consent
There is usually a three year time limit to making such a medical negligence claim. As with all medical negligence claims, cases involving a lack of informed consent can be complex, lengthy and demanding. If you believe that you were not advised properly about the pros and cons of treatment you have undergone; and you have suffered harm as a result of that, then we would suggest that you contact Shoosmiths which specialises in this work for an initial discussion of your potential claim.
If we believe that you have a potential claim, then we will need to evaluate your medical records and take witness statements from you (and anyone else who was with you during the relevant discussions with your doctor) to obtain evidence to prove whether or not your informed consent was obtained to undergo the treatment that has resulted in your harm. Any surgical procedure or other treatment may have been carried out perfectly competently but, if we can prove that you suffered harm as a result of a well-known side effect or other predictable risk associated with the procedure and had you been made fully aware of those risks and understood all the possible problems associated with a proposed treatment beforehand, you would not have chosen to undergo that procedure and would have decided to have different treatment then you would have a potential claim in clinical negligence based on a lack of informed consent.
How long will my claim about informed consent take
It is difficult to say how long these claims may take because each case is unique and will depend on its own specific facts. To a certain extent these claims will turn on determining potential differences of opinion or differences in the recollections of what may or may not have been said by the doctor and the patient during discussions before undergoing the treatment which has caused the harm. It may be that this issue ultimately has to be decided by a Judge at Trial.
The investigation of such a claim will, involve obtaining copies of your medical records (as these should provide some documentary evidence of the content of any informed consent discussions), witness statements from you (and anyone else who was present with you when these matters were discussed with the doctor) and expert evidence from independent medical experts (who will be able to give some guidance as to what information and guidance that particular patient should have been given by their doctor about risks and treatment options in that patients specific circumstances) to determine if there is a potential case to be answered by the other side. If your claim has reasonable prospects of success; and if you suffered harm as a consequence of the procedure performed, then we will need to obtain evidence to determine what treatment you might need now and in the future and what other losses (e.g. financial losses) you have suffered as a consequence of the alleged negligence.
As can be seen, all this takes time, but this information is vital to allow us to properly investigate your claim and recover the appropriate amount of damages to which you may be entitled as a result of the negligence. The stance of the other side can also affect the time a case of this type may take to settle. Sometimes, if the other side accepts our factual version of events, the independent medical evidence and our valuation of the case, then in these circumstances the claim may settle more quickly than in cases where liability is denied.
These types of claims can sometimes be settled through negotiation even if liability is denied by the other side, but some can, and do go to trial. We will always aim to settle your case as soon as possible, but our priority is ensuring that you receive our best advice and we ensure that we fully investigate your claim so as to achieve the best possible outcome for you based on the evidence.
'Shoosmiths got me the rehab I needed and really helped with my family. They were fantastic throughout.'
Shoosmiths specialist solicitors have the medical understanding and legal expertise to get the best possible result for anyone who feels they were injured but were unable to give their informed consent.Why Shoosmiths