Consent in clinical negligence claims can be a thorny issue.  To begin with, what does the term “consent” mean? The starting point is that an adult of sound mind has the right to decide what medical treatment he or she undergoes.  Therefore, unless a patient consents, any medical treatment carried out or administered will constitute a trespass to the person (unless it is carried out in certain specific situations such as an emergency when the patient is unconscious and unable to give consent). 

In practical terms, this means that the medical staff involved in the treatment should outline to the patient the possible risks of the treatment and what impact they might have on the patient should they occur.  In respect of surgery, this will usually mean that the patient will have to complete what is known as the Consent Form.  This is an important document kept within the patient’s medical records which should demonstrate that the risks were explained to the patient and that the patient signed the  form to confirm that they understood those risks but still wanted to go ahead with the procedure.    

Unfortunately for the patient, it is not always that straightforward.  For example, a new client may come to see me and explain that they have undergone surgery which has had unexpected effects and that they wish to take action against the hospital or surgeon involved.  They may say that they feel that the risks of the surgery were not properly explained to them and that when they signed the Consent Form, they were not aware of those risks.  What happens in that situation?

In order to succeed in a claim against the hospital or other treatment provider involved the patient must show the following:

  1. That the treatment provider failed to warn them of the risks of the surgery (or other, usually invasive, treatment); and
  2. That had they been warned of those risks, they would not have gone ahead with the surgery or treatment.

The “consent form” is often the first port of call in considering the issue of whether the patient was properly consented. The description of the surgery to be carried out should be looked at carefully together with the risks of surgery outlined.  The form does not have to list every risk of surgery (as some may be very remote or not known), but should outline the usual known risks of that particular procedure or surgery generally. 

Whilst the Courts are very clear that any surgeon or doctor should be careful to outline the risks of treatment to the patient and do their best to ensure that the patient understands those risks, the second limb above can be difficult to show.  For example, the surgery may have been carried out to try to resolve a serious condition without which the patient would have continued to be in constant pain.  The surgery may result in a complication which the patient says they were not warned of but even if that is established, the Court may still find that the patient would have had the surgery in any event, even if they had been properly warned of the risks. 

What if the patient may have refused the surgery on that occasion but would have gone on to undergo the surgery at a later date?  In the case of Chester v Afshar [2004]the House of Lords held that it did not matter that the claimant may have gone on to have the surgery in the future, she still had a remedy against the surgeon for the failure to warn her of the risks on that particular occasion.

A recently decided case which turned on the issue of consent was that of Stephanie Holloway v DCM Optical (trading as Optical Express) [26/09/14]. The claimant underwent eye surgery under the care of the defendant but following the surgery, found that her vision was considerably worse.  The Judge found that the claimant was not given an information pack or consent form at the outset and that she was warned of the risks of a different procedure to that which was actually carried out.  In any event, the appointments she had were so short that it was highly unlikely that the surgeon would have been able to properly discuss the risks of surgery during that time.  The claimant was pressured to have the surgery and signed the consent form under some duress on the day.  The Judge therefore found for the claimant; he found that she was not properly warned of the risks of the surgery and that had she been, she would not have gone ahead.

What is clear in respect of consent is that it is essential that patients are not only aware of the benefits of surgery, but also of the risks and the likely outcomes should those risks come to pass.  Only with such knowledge can informed consent be given.