Medical Treatment - Have I Really Given Consent?

• Published date: 19 August 2022
• Subject Matter: Food, Drugs, Healthcare, Life Sciences
• Law Firm: Lanyon Bowdler
• Author: Ms Kate Ivey

It is common knowledge in the UK that patients have a right to accept or refuse medical treatment, placing an obligation upon healthcare professionals to obtain their patients' consent prior to undertaking any tests or procedures, but the validity of consent will be nullified if certain essential elements of the consent process are not present. This can have obvious implications for those who have suffered injuries as a result of treatment and may be considering pursuing a claim for clinical negligence.

How is informed consent obtained?

Consent need not be in writing, and for minor tests and procedures of a straightforward nature, verbal consent would typically be given following an explanation by a healthcare professional about the procedure and the reasons for it. Alternatively, you may imply your consent through your actions, e.g. attending your GP with some form of sickness implies that you wish to be treated for it.

For a more significant procedure, such as an operation in hospital, you would be asked to sign a consent form prior to the procedure being undertaken. A signed consent form will not constitute valid consent unless certain obligations have been met by the healthcare provider to ensure, that when consent is obtained, the patient has given their 'informed consent'.

To do this, the patient must be fully advised about the need for the procedure, what it involves and any potential risks, side effects and possible outcomes. There may be alternative treatments or approaches to treatment, which the patient may prefer or may be in the patients' interests to have instead, which must be discussed with the patient. Additionally, the implications of refusing treatment must also be discussed.

The aim is to ensure that when a patient does give their consent, they do so from a position of fully understanding all of their potential choices and consequences.

Notably, in Montgomery v Lanarkshire Health Board (2015) the patient was not fully informed regarding the risks and alternatives to a vaginal delivery for her child, who sadly suffered a severe and catastrophic hypoxic brain injury as a result.

A second essential element of informed consent is giving the patient sufficient time to fully reflect upon the information they have been given, so that when/if they do consent to treatment, they can be satisfied it is the right decision for...