Can a Patient Claim for Lack of Informed Consent?

Question from K, Can a Patient Claim for Lack of Informed Consent?

Answer from AI:

When a patient undergoes surgery, they have the right to be informed about the potential risks and alternatives associated with the procedure. This is known as informed consent. In the UK, the legal framework surrounding informed consent has been shaped by case law, including the landmark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Understanding Informed Consent

Informed consent means that a patient should be made aware of:

• The nature of the procedure
• The risks involved
• Any reasonable alternatives

The Montgomery case established that doctors must take care to ensure patients are aware of any material risks involved in a proposed treatment, and of any reasonable alternatives. A risk is considered material if:

• A reasonable person in the patient’s position would be likely to attach significance to it, or
• The doctor is or should reasonably be aware that the particular patient would likely attach significance to it.

Assessing the Claim

In the scenario described, the patient would need to establish that:

1. The risk of paralysis was a material risk that should have been disclosed.
2. They were not informed of this specific risk in a way that they could understand.
3. Had they been properly informed, they would not have consented to the surgery.
4. The lack of informed consent led to harm (the paralysis and reduced mobility).

The fact that the consent form mentioned “nerve numbness and weakness” but not explicitly “paralysis” could be significant. The patient might argue that paralysis is a distinct and more serious risk that should have been specifically discussed.

Next Steps and Legal Advice

For the patient considering a claim, the following steps are typically recommended:

1. Obtain a copy of all medical records and the consent form.
2. Consult with a solicitor specializing in medical negligence to assess the strength of the case.
3. The solicitor may advise obtaining an expert medical opinion to support the claim that the standard of care was breached.
4. If advised, initiate a claim against the hospital, which may involve negotiation, mediation, or court proceedings.

It is important to note that medical negligence claims can be complex and require detailed legal and medical expertise. Therefore, it is crucial to seek personalized legal advice from a qualified professional.

Time Limits for Claims

In the UK, there are strict time limits for bringing a medical negligence claim, typically within three years of the date of the incident or the date the patient became aware of the consequences of the incident. This is known as the limitation period.

Conclusion

While this information provides a general overview, each case is unique and the success of a claim will depend on the specific facts and evidence. Patients who believe they have not given informed consent for a medical procedure should consult with a solicitor as soon as possible to discuss their legal options.

For more information on informed consent and medical negligence, you can visit the NHS website on consent to treatment and the General Medical Council’s guidance on consent.