Many of us will have signed a hospital consent form at some stage in our lives, prior to undergoing a medical procedure. The consent form often includes (or is accompanied by) useful information on potential risks and complications which can arise from given procedures, but it is also a form of legal protection for the hospital.
When a patient undergoes elective surgery, it does not always go to plan. Outcomes may not be as hoped, and the procedures can go wrong. In such circumstances, a patient may later discover no account was taken by clinicians of a pre-existing medical condition, and as a result, they are left with complications that should have been avoided through expected due diligence processes. Subsequently, when a complaint is made the clinicians and institution refer to the pre-surgery consent form as protection, authorising them to go ahead with the treatment.
The question therefore is whether you can still bring a claim for medical negligence, despite having signed a consent form.
What is the Duty of Care owed to patients?
A practitioner providing treatment to a patient owes a duty of care to exercise reasonable skill and care expected of a competent practitioner, traditionally set out in the case of Bolam v Friern Hospital Management Committee.
There is a further duty to provide appropriate information to a patient about the proposed treatment, including the risks, complications, benefits and alternatives to that procedure. The obligation is to enable a patient to make an informed decision about whether they want to proceed and the risks (as well as the benefits) of doing so, as set out in the case of Montgomery v Lanarkshire Health Board. This is known as ‘Informed Consent’.
What constitutes Informed Consent?
Placing a signature on a document which has been prepared solely for the purpose of evidencing a willingness to proceed with a procedure is not necessarily evidence of a patient’s Informed Consent.
Whilst there may be arguments that a patient should carefully consider the content of the Consent Form and make their own enquiries about the suitability of the procedure proposed before signing, there is equally an argument that an everyday person is not necessarily versed in medical practices or familiar with medical terminology. Therefore, this raises questions around if they can be expected to independently and fully appreciate the risks, complications and benefits stipulated in what can sometimes be a lengthy and complex document before surgery.
Consequently, for the practitioner, obtaining a patient’s ‘consent’ should mean more than just a signature on the form. A competent surgeon should spend time with their patient, talk through the risks and possible consequences in terms that the patient understands, and explain why things may not necessarily go to plan and whether the patient could tolerate a lesser outcome. It is also important doctors give a patient the opportunity to ask questions and enquire about what they do not understand.
What should be discussed before surgery?
Everyone views risk differently and practitioners should be fully aware of this. For some, a risk of failure is worth the gamble because of the potential benefits. For the more risk averse, the consequential chance of a process affecting livelihood, looks or lifestyle would be unacceptable. Judging the relevance and importance of these factors should be tailored to each patient’s wishes, needs and lifestyle.
By way of example, Patient A and Patient B are both due to undergo elective eye surgery. Patient A is retired and no longer drives. Patient B is a professional heavy goods vehicle driver and on the road six days each week. Both are told that the benefit of surgery is that it will restore long vision and dispense with glasses, but there is a small risk that eye surgery will give rise to occasional glare when driving at night. That risk will be inconsequential to Patient A and his lifestyle, but the risk is highly relevant to the continued employment and livelihood of Patient B. The practitioner should discuss adequately the risks, benefits, complications and alternatives of the procedure to both patients. However, they should be particularly aware that Patient B would place greater value on certain risks given his employment – which should be explored in greater depth, offering alternatives where available, including the option of having no surgery at all.
What happens if I have signed the form?
A signature on a consent form, even if the form detailed the risks, by itself, does not necessarily mean you gave your informed consent.
If the risks, complications, outcomes or alternatives of a treatment were not properly discussed with you, there may be questions about whether informed consent was properly obtained.
However, failure to obtain informed consent does not automatically mean there is a medical negligence claim since it will also be necessary to consider whether the failure caused the injury and loss complained of.
If you have undergone a procedure or treatment which did not go as you had hoped, perhaps because of a consequence or complication you were not warned about, or because a practitioner failed to make the correct enquiry about a pre-existing condition, you may have a cause for complaint, and – depending on the consequences for you and overall loss or amenity – a claim for redress.
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice. The content of this article contains general information and may not reflect current legal developments, verdicts or settlements.