Lack of Informed Consent Claims

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Peter Rigby, Director of Medical Neglience

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Lack of Informed Consent Claims

Since the 2015 landmark decision of Montgomery v Lanarkshire Health Board, a recent study by Queen Mary University of London has found that medical negligence cases relating to consent have risen fourfold. Consent has taken on a new level of importance, and the number of claims would suggest not all clinicians are following the recommendations set down by the courts.

As medical negligence lawyers, we recognise that there is a need for accurate and helpful guidance for those who feel they have been affected by a lack of informed consent. Here, we can assist you if you are thinking of making a lack of informed consent claim.

Below, we discuss the meaning of informed consent and how this impacts you as a patient. Furthermore, we will consider the evidence you will need to effectively bring a case forward.

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The meaning of informed consent

Any clinician providing treatment to another person must always obtain a valid consent before the treatment commences.

If you are able to do so, then as the patient, you must give fully informed consent before you undergo medical treatment, otherwise the consent may not be in accordance with good practice, and the treatment could potentially amount to an assault.

For the consent to be “informed” there has to have been an appropriate discussion of the relevant risks, alternatives and pros/cons of the procedure.

The law regarding informed consent was clarified by the case of Montgomery v Lanarkshire Health Board [2015]. In this case, it was said that the test for whether valid consent was obtained should be whether “a reasonable person in the patient’s position would be likely to attach significance to the risk [of the treatment], or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it” and therefore whether they were consented to said risks.

Medical treatment can be anything from:

  • A surgical procedure
  • A new prescription
  • A vaccination
  • Even a simple examination

Understanding informed consent

To provide valid consent, the individual consenting to treatment must have the capacity to make the decision themselves. It is assumed in law that you have capacity to make decisions, however, some people are not able to make decisions for themselves. This includes patients who are under the age of 16, where a person lacks capacity, or where the patient is unconscious.

It is also important to remember that any patient who has capacity not only has the right to consent to their treatment, but they also have an absolute right to refuse treatment. This is irrespective of whether the clinicians believe the decision to be unwise or ill-advised.

Informed consent therefore means you can both provide, or withhold, consent to medical treatment.

Consent and Capacity

The Mental Capacity Act 2005 sets out the test for when a person lacks capacity. In particular, section 3 states:

“A person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).”

Who then makes the decision for the person who lacks capacity depends on whether or not a Health and Welfare Lasting Power of Attorney (LPA) has been registered with the Office of the Public Guardian (not to be confused with a Property and Financial Affairs (LPA)). A Health and Welfare LPA will set out who the patient wanted to make decisions about their healthcare when they no longer had capacity.

If there is no Health and Welfare LPA in existence, then the doctors, usually in consultation with the family (though it is important to remember the family do not have the final say in the patient’s treatment) will make a decision as to what treatment is in the patient’s best interest.

Children’s consent and when medical consent is not needed

Where applicable, patient consent works best when it is given by the patient themselves.
There are of course exceptions. If a child is under the age of 16, a parent or guardian may need to give consent on their behalf.

There are also other exceptions where it is not necessary to obtain consent. These include:

  • Emergency treatment. If the patient is in a serious condition where life-saving treatment is required and they are unable to provide consent, for example, where they are unconscious
  • If during an ongoing medical procedure, such as surgery, the medical treatment takes an unwelcome turn for the worst and urgent and decisive action is needed to save a life or prevent serious harm to the patient.

Providing consent

Medical consent can be given verbally or in writing, depending on the circumstances. Verbal consent is reasonable for minor or less serious medical treatment such as prescriptions, taking a blood test or undergoing examinations; but should be in writing for more significant medical treatments such as surgery or consenting to chemotherapy.

In addition to this, with any substantial medical treatment, such as an operation, you are likely to be advised to provide consent well before any medical procedure takes place. It is considered best practice for you to have time to consider the risks and to be given the opportunity to ask further questions before the treatment commences.

Understanding whether you have a case

It is important to work with a specialist medical negligence solicitor to prove that the healthcare professional did not obtain your informed consent.

When assessing if you have a lack of consent claim, you should consider the following:

  • Did your doctor or medical professional fail to provide you with sufficient information?
  • Did your doctor or medical professional thoroughly run through any of the known risks with your recommended procedure?
  • Were there risks you were not willing to take or a particular benefit you wanted to achieve, and were you able to discuss these?
  • Did you feel able to make your own informed decision before providing either written or verbal consent?
  • Was alternative treatment discussed or made aware to you?

Gathering evidence – and the importance of legal help

With a trusted medical negligence lawyer on your side, we have the expertise to obtain the necessary evidence to support a claim for lack of informed consent. With the right evidence, your chances of receiving the compensation you deserve are much higher.

If you feel you have a lack of informed consent case, our specialist team will be able to advise you further. It costs nothing to find out if you have a case, and all our lack of informed consent claims are dealt with by specialist medical negligence solicitors, on a strictly no-win, no-fee basis.

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Why Choose Patient Claim Line for your Lack of informed consent claim?

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Patient Claim Line was established in 2014 and consists of a team of medical lawyers specialising in medical negligence and misdiagnosis claims.

At Patient Claim Line we have more than 100 solicitors with combined experience of over 400 years and they will work on your behalf to achieve the best result possible for you.

It's not enough to use a solicitor who sometimes covers medical negligence. You need someone who knows this area through and through. That is what the solicitors here at Patient Claim Line do. They deal exclusively in this area of law and are experts in the field.

Meet our medical negligence team

Peter Rigby

Peter Rigby
Director of Medical Negligence

Peter leads the Medical Negligence Serious Injury department, which now boasts some of our most knowledgeable, dedicated and hardworking team members.

Peter is dedicated to supporting victims of catastrophic medical negligence injuries and endeavours to provide a clear and coherent approach to claims. He recognises the effects serious injuries can have and therefore ensures his customers’ need for support is met. Peter also has a vast amount of experience working with customers who have been injured abroad and is able to act under international law to provide the best outcomes.

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Christian Beadell

Christian Beadell
Head of Group Action

Christian is Head of Medical Negligence at Patient Claim Line and has specialised in clinical negligence claims since qualifying in 1998; having dealt with a wide variety of claims throughout his career. He is also featured in the Legal 500 as a recommended claimant solicitor in the North West.

Christian qualified as a solicitor in 1998, specialising in clinical negligence. From 2010 onward he has had a particular interest in gynaecological and urogynaecological claims, having represented several hundred claimants in the George Rowland Litigation against the Liverpool Women’s and Aintree Hospitals. This investigated the treatment given to women in the Merseyside area over several decades, and in particular focused on the introduction and development of mesh into the UK in both the treatment of stress urinary incontinence and pelvic organ prolapse. The development of this area involved pursuing claims under a unique ADR protocol with the NHS and also looking to develop the current thinking on the valuation of compensation for complex urinary symptoms. He has successfully recovered hundreds of thousands of pounds in compensation on behalf of my clients.

Christian was also involved in setting up and chairing a Claimant Support Group for those involved in the Rowland litigation, which provided a discussion forum for the many women who were left isolated and damaged by negligent gynaecological treatment. He now co-ordinates the firm’s mesh claims and has delivered training and commented extensively on the medico-legal implications of urogynaecological / mesh complications. He is a member of APIL, Liverpool Law Society and Legal 500 recommended.

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Francesca Paul

Francesca Paul
Associate Solicitor

Francesca Paul is an Associate, Senior Solicitor and Team Leader within the Clinical Negligence Department.  She is one of the driving Solicitors in the Group Litigation Team dealing with this niche and specialist area of work that Fletchers undertakes.   

Francesca previously worked in Nottingham, dealing with Group Action work.  She now works at Fletchers, bringing with her those years of experience heading up a team of 10 people.  Francesca is involved in the early identification of potential new Group Litigation Work and analyses information from the collective pool of new enquiries into the business, of which there are hundreds per week looking for hot spots or recurrent issues which might suggest a potential pool of Claimants.   

One of the highlights for Francesca and her team is that they have successfully recovered over a million pounds in compensation for clients who have received treatment from a single orthopaedic surgeon who was operating in the Colchester area.  Her role requires a specific set of skills, patience and a forensic approach to detail whilst being able to see the wider picture.   

Francesca has previously acted for a claimant in a case that reached the Supreme Court in the case of NA v Nottinghamshire County Council. 

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Sion Wynne

Sion Wynne
Team Leader/Senior Solicitor

Sion is a team leader and senior solicitor with many years’ experience in dealing with a wide range of medical specialisms and different types of injuries. He is an experienced medical negligence solicitor and manages a team of lawyers within our department.

Sion joined Fletchers in 2018 as a Team Leader in the Medical Negligence Department. Throughout his 24 year legal career, he has specialised in conducting medical negligence claims on behalf of Claimants, previously working for other highly ranked leading firms in the field.

He has undertaken claims covering the full spectrum of medical specialisms, clinical settings, categories of defendant and types of negligent medical care and treatment.
These include high value and complex maximum severity cases, such as those involving limb amputations and permanent neurological injuries.

Sion is experienced at representing bereaved families at inquests and has a particular interest in fatal accident claims.

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Case Study

Sarah's Story

"Now we have peace of mind"

My husband, Nick, went back and forth to the doctors for a long time and tried everything the doctor recommended. But his illness got worse, to the point that he was in agony.

In the end we got so desperate that we asked for a referral. The doctor was reluctant, so we had to consult a private hospital. That’s when we found out there was a tumour. It took years from the onset of his illness to finally start cancer treatment.

He used to be a man with a lot to live for, but in the end he was in so much pain that he withdrew from the family. He became angry that nobody had helped him sooner, and the legal team were able to give him the validation that he was desperately seeking. The NHS confirmed if they had done more, Nick would still be alive today.

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