Claims for a Lack of Informed Consent

Patients must give their ‘informed consent’ to medical treatment – in basic terms, they should be given the information they need to understand a surgical procedure or treatment in order to decide whether they want it.
 

If informed consent is not obtained and a patient suffers an injury as a result of treatment that they would not have wanted had they had all of the relevant information in advance, then there may be a claim for medical negligence. These types of cases are on the rise although they can be difficult and the law in this area is complicated.

What is informed consent?

What constitutes informed consent can be contentious. A patient should be told, in a way that they can understand, the potential risks and benefits of treatment and what alternatives there are. However, this does not always mean that a doctor has to explain everything about a proposed treatment to a patient.

A landmark Supreme Court case in 2015 (Montgomery v Lanarkshire Health Board) set out that patients must be warned of all ‘material risks’ with a material risk being one that a reasonable person in the patient’s position would likely attach significance to or one that a doctor should be aware that the particular patient would attach significance to.

If a doctor does not obtain informed consent to treatment then this is considered to be a breach of their duty of care to their patient. Informed consent cannot be given by a person who lacks capacity.

What if I signed a consent form?

Patients are often asked to sign consent forms, particularly before surgery. The form usually details the procedure and the risks associated with it. However, just because a patient signs such a form does not necessarily mean that they have given informed consent if they did not in fact understand all of the material risks.

Consent does not have to be given in writing in every situation.

How do legal claims work?

A claim can only be made where a patient has been injured as a result of medical treatment.

In a case involving consent, the claimant has to prove that they were not informed of material risks or reasonable alternatives and that with that missing knowledge they would have made a different decision and would have avoided their injury. This is a tricky aspect of these types of cases as judges often consider that patients who are unwell or in pain are likely to accept small risks in order to have treatment which has good prospects of helping them.

If you are concerned that you or a family member has suffered an injury as a result of a failure to be properly consented for medical treatment, please contact us to discuss how we can help.

Your claim - why us?

Your case will be investigated by our specialist lawyers, led by a partner. We have a wealth of experience in bringing successful clinical negligence claims, including those related to consent, and in providing a sensitive and supportive service to our clients.  

Our lawyers are recognised by the Legal 500 and Chambers directories as specialists in clinical negligence cases. Our team includes lawyers with specialist clinical negligence accreditations from Action against Medical Accidents (AvMA) and the Law Society.

Frequently Asked Questions

How long do I have to bring a claim?

There are strict time limits for bringing a negligence claim for injury in England and Wales. This is called the limitation period. 

For adults, the usual rule is that a claim must be formally started at Court within three years of the date the negligence occurred, or of the date on which the injured person should reasonably have been aware that there might be grounds to bring a claim (if that date is later). 

If a child is injured by negligence, they usually have until their 21st birthday to formally start their claim at Court.

Where a claim relates to someone’s death, the claim should be started at Court within three years from the date of death or from the ‘date of knowledge’ (if that is later).

There are circumstances in which the rules differ; for example, where the claim is for someone who does not have mental capacity to bring a legal claim.

It takes time to investigate a claim, so you should contact us as soon as possible.

 

What is the process for bringing a claim?

We start by obtaining evidence such as medical records, witness statements, and expert evidence to prove that your condition was worsened by medical negligence. 

We also calculate the amount of compensation that can be claimed.  Typically this involves instructing experienced experts to advise on the additional needs which you now have because of the negligence, in order to maximise the level of compensation. We then try to reach a financial settlement with the Defendant (the individual or organisation legally responsible for the injury) or their insurer. 

In some cases settlement is agreed at an early stage.  In other circumstances, it may be necessary to begin Court proceedings.

For further information on this process, read Our Guide to Making a Claim.

 

Will the case be decided by the Court?

Probably not.  The vast majority of medical negligence claims are not decided by the Court.  Successful claims are usually resolved through agreement of a settlement either before or during Court proceedings. Occasionally, the Court will decide a case, if it cannot be resolved any other way.

Where the claim is for a child, or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement.  This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person.

 

How is the amount of compensation decided?

We will tailor the compensation claimed to meet  your needs. 

The first step is to consider how the deterioration in your medical condition has affected your life and whether that will change in the future.   We then calculate the amount of funds required to meet your additional needs and compensate you.  Depending upon your circumstances, this may include funds for:

• Private care
• Private therapies and medical care
• Specialist equipment and vehicles
• Adapted accommodation
• Support with education and work (if that is possible for you)
• Compensation for loss of earnings and pension
• Compensation for losses in self-employment

We regularly use leading experts and barristers to assist in identifying all aspects of an injured person’s needs.

Where someone has died, the compensation primarily relates to compensating the deceased’s dependents for the financial and/or practical support which they would otherwise have received from the deceased.

 

Will it take a long time before the case is concluded?

Medical negligence claims typically involve detailed investigation and expert evidence.  Therefore, they often take several years to resolve.  

Our approach is to seek an admission of liability (i.e. that negligence occurred and caused injury) as early as possible in the process.

When liability is established, the Defendant usually has to pay part of the compensation immediately.  This allows your needs to begin to be met while the work to quantify the full amount of compensation continues.

 

How do I access medical records?

Medical records are usually the starting point for our investigation of a claim.  With your permission; we request these records directly from the treatment provider(s).

Our clients sometimes wish to obtain copies of the records themselves before deciding whether to begin a claim.  Please see our Guide to Accessing Medical Records for further information on how to request records.

 

Can I make a 'no win, no fee' claim?

Conditional Fee Agreements (known as ‘no win, no fee’ agreements) are the most common way that the medical negligence claims we undertake are funded. This gives clients the reassurance that they will not (in almost all cases) have to pay any legal costs in the event that they are not successful with a claim. We will explain all possible funding options with prospective clients.

Please see our page on How are claims funded?

 

Other organisations and resources that may help

• AvMA (Action against Medical Accidents) 
• APIL (Association of Personal Injury Lawyers)