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.