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Informed consent for medical treatment: what should you be told?

04th October 2016

The issue of informed consent in the context of clinical negligence claims has attracted considerable attention over the past year after publicity surrounding a case in the highest law court in the land. Ruling on Montgomery .v. Lanarkshire Health Board in March 2015, the Supreme Court’s landmark decision is likely to define the law governing future cases for years to come — but what is ‘informed consent’, and why is it so important?

The judgment given in this case sets out clearly not only that an adult patient of sound mind has the right to decide which of the available treatments to undergo and that the patient’s consent to a particular course of treatment must be obtained before the treatment is commenced.

So far so good. However, the judgment went on to rule that doctors have a duty not only to inform their patients about alternative treatments that may be suitable for their condition but also to make sure their patients are aware of the ‘material risks’ involved in any recommended treatment, where a material risk is defined as a risk to which a reasonable person in the patient’s condition would be likely to attach significance.

Unfortunately, this procedure is not always followed and consequently we hear from clients who have not been told that a particular outcome may arise during or following a particular treatment. Patients undergoing hip surgery might experience a degree of leg lengthening, for example, or a laparoscopic procedure could evolve into open surgery that may, in turn, result in a higher risk of infection or scarring.

In such cases it could well be that a patient has a viable clinical negligence claim — indeed it seems that the doctor doesn’t always know best.

While you should of course defer to the advice of a trained medical professional on matters of medicine, you do have a right to ask questions about the treatment that is proposed, to be informed about any alternative to the recommended treatment, and be given reasonable a timeframe in which carefully to consider your options.

In other words, patients must be given enough information to make an informed choice, as well as enough time to weigh its pros and cons, before consenting to undergo any treatment. Doctors can (and often should) recommend a particular course, including the option of no treatment, but they cannot (and should not) make this decision for you, nor exert undue pressure to persuade you into accepting their decision.

If you feel any of the issues raised here may apply to you or a loved one, please contact our experienced clinical negligence team for a confidential conversation on: 01243 786 668

James Hawke. Solicitor and Head of Clinical Negligence

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