What is consent in medical law?

Consent is a patient’s voluntary and informed agreement to a proposed test, treatment or investigation, and must be obtained prior to any medical treatment being undertaken. 

In order to provide valid consent, the patient must be informed of all the risks, benefits and alternatives that are relevant to their decision. This includes: 

1. Details of the proposed treatment/tests
2. Details of the material risks involved, including common, uncommon and rare risks that may be associated with the procedure. 
3. The benefits of the treatment. 
4. Any reasonable alternative treatments. 

Consent can be provided either in writing, verbal or implied – but this is most often dealt with by Forms of Consent, where a patient would be asked to read, consider and if in agreement, sign to confirm their agreement. 

Are there exceptions to providing consent?

There are exceptions, such as in a medical emergency where the patient is unconscious or otherwise incapable of consenting. If treatment is immediately necessary to save a life or prevent serious harm, then consent can be waived. However, it is important that in scenarios where informed consent can be obtained, that it is done properly. 

If a patient is too young or lacks mental capacity to provide consent, this can be done on their behalf by a suitable adult. 

When may a failure to provide informed consent give rise to a claim?

In law, it must be established that the medical professional “took reasonable care to ensure that a patient was aware of any material risks involved in any recommended treatment and or any reasonable alternative or other treatments”. To judge whether informed consent has been obtained, the Court will consider whether a reasonable person in that patient’s 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 attach significance to that risk. 

There could be serious consequences if a doctor fails to listen to a patient’s concerns or does not provide them with the information they need. If a medical professional fails to discuss the risks and alternative options with the patient, and the patient then agrees to undergo that procedure (which they otherwise would not have done if they had known about the specific risks) and then suffers avoidable harm as a consequence of those risks, then this may give rise to a potential clinical negligence claim.

How can we help?

If you believe that you have suffered due to a lack of informed consent, we can help you with your next steps. Contact our expert medical negligence solicitors by calling 0330 123 1229, completing our contact form, or sending us an email via info@smithpartnership.co.uk.