Consent is an important element of medical treatment for both patient and treating clinician. Participating in valid consent gives the patient access to the chosen medical treatment and gives the doctor the legal authority to proceed with the treatment.
Consent must be:
Whenever a patient undertakes medical treatment, the procedure will be discussed with the medical professional treating them. The medical professional is under a duty to provide the patient with information in a form that is easy to understand to allow the patient to come to a decision.
Further, the medical professional has a duty to provide the patient with information regarding the risks of any procedure and also any alternative treatment options which may be suitable or available to them to allow them to make an informed decision. If there is a failure to do so, valid consent has not been obtained and this ultimately results in a breach in the patient’s duty of care.
Consent to medical treatment does not always need to be written. For example, if a patient complains of a sore throat and opens their mouth to allow the Doctor to examine them, then consent is implied. By contrast, a patient who is proposed to undertake an invasive investigation or surgery, will be asked to sign a consent form. This consent form would detail the proposed treatment and the risks involved with that treatment.
Mrs. A suffered from a prolapsed womb and her treating Gynaecologist Mr. B suggested that surgery would be appropriate to repair this by using Trans Vaginal Tape (TVT). Mr. B explained the process of the surgery and how this would hopefully repair Mrs. A’s prolapse. Mrs. A signed a consent form which set out the procedure but did not list the risks involved. Unfortunately, Mrs.
A experienced a significant amount of pain and discomfort in the months following the surgery. After further investigations, Mrs. A was informed that the TVT had actually migrated into surrounding tissues and this was the cause of her significant pain. Mrs. A had not been warned of this significant risk of migration of the tape or the risk of pain and discomfort. Consequently, Mrs. A had to undertake further invasive surgery to remove the tape.
In this case study, Mrs. A should have been warned of the risks involved with the TVT procedure in order to make a voluntary and informed decision about whether to proceed with the surgery. Without information regarding the risks involved, Mrs. A experienced a breach in the duty of her care.
The Montgomery case (Montgomery v Lanarkshire Health Board  UKSC 11) firmly established a duty of care for treating medical professionals to warn patients of all ‘material risks.’ The test of what is a material risk is helpfully defined as whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” This means that any risk which is relevant or is likely to be relevant to the particular patient should be warned of.
To provide an example in practice and using the case of Montgomery, Nadine Montgomery had diabetes and her Son was born with serious disabilities after shoulder dystocia. Shoulder dystocia occurs when the baby’s head is born but one of the shoulders becomes stuck behind the Mother’s pubic bone, this delays the birth of the baby’s body during delivery and if the baby is trapped, can potentially starve the baby of oxygen and dislocate the baby’s shoulder severely damaging the nerves.
In the Montgomery case, the Doctor did not tell Ms. Montgomery of the risk of shoulder dystocia, despite her increased risk of having a larger baby as a diabetic. The Doctor said that they did not routinely discuss the risk of shoulder dystocia with women with diabetes for fear that, such women may then opt for a caesarean section.
As Mrs. Montgomery was not properly warned and advised of the risks of her giving birth naturally, a caesarean section was not considered by her and she was not able to provide valid or informed consent for the natural delivery. A breach of duty therefore occurred.
Patients must also have the necessary capacity to give valid consent. This means that the patient must understand the information given to them to able to make an informed decision.
In England and Wales, the Mental Capacity Act (2005) sets out a statutory test, which says that in order to be able make a decision, the patient must be able to do the following:
Whether a person has the capacity to consent to medical treatment is decided on a case by case basis, as sometimes the ability of a person to make a decision can come and go or the patient may be able to make decisions about some aspects of their treatment but not other aspects. It is, therefore, both time and decision specific. It should be noted that a person is always presumed to have the capacity to make a decision unless the above test is not satisfied.
In a medical setting, a patient’s capacity could be temporarily affected by fatigue, panic, shock, unconsciousness or even medication. A person may lack capacity if their mind is impaired or disturbed in some way meaning they are unable to make the decision as that time. This highlights the difficulty for medical professionals when treating patients, especially in an emergency situation.
The law relating to those under the age of eighteen is complex. It can be difficult to assess whether a person in this age category has the capacity to consent. The case of Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 provides guidance in relation to consent for those under the age of eighteen.
The Gillick ruling states that if a child is said to have reached the necessary level of understanding of the treatment proposed, then that child could be treated as an adult, by providing their own consent to treatment without interference from parents or those responsible for their care.
In practice, medical professionals have to delicately balance this with the welfare and best interests of that particular child.
In an emergency situation a patient may present in a state where they do not have the capacity and are therefore unable to give valid and informed consent. For example, if a patient arrives in Accident and Emergency unconscious and requiring emergency medical treatment, the patient has not had an opportunity to express their wishes.
Section 5 of the Mental Capacity Act 2005 provides medical professionals with an authority to act in the best interests of that patient and to do what may be necessary to preserve life or prevent deterioration in their health. Thereafter, medical professionals have a responsibility to consult a patient’s relatives or friends in order to continue to act in that patient’s best interests.
Ultimately, consent is an important aspect of medical treatment which provides autonomy and authority for both patient and Doctor.
For any advice about lack of consent cases or any other form of clinical or medical negligence, get in touch today for a free initial consultation in complete confidence. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9787 to find out how an attorney can help.
Meet the author
Lauren Heppell has worked at Oakwood Solicitors Ltd since January 2013, graduating from university with a 2.1 LLB Law Degree with Honours and her LPC qualification. She started as a Paralegal with Oak…
Find out more
We would love to hear your comments or feedback
Bone of Contention – Orthopaedic Claims
Here at Oakwood Solicitors, our Medical Negligence team has dealt with a number of orthopaedic claims. It is not surprising really, when you learn that on average every person will experi…View
Medical Negligence Team – Case Studies Showcase
Here is a collection of recent case studies from our Medical Negligence department, showcasing not only the variety of matters they help to resolve, but also the figure awarded to the client upon …View
Nerve Injury As A Result Of Dental Negligence
What is a nerve injury? Nerves are sensitive. It doesn’t take a lot of force to damage them. A nerve injury is an injury to the nervous tissue which usually occu…View
Here at Oakwood Solicitors, we’re not your average law firm – our team delivers a service which caters to you. From assessing your case through to completion, our staff have not only the knowledge and expertise, but also the compassion and understanding to put you at ease throughout the process.