Medical professional and healthcare services usually act in the best interests of their patients, with this usually resulting in a high level of care; however this can sometimes result in unwanted or unnecessary examinations and procedures.
If a healthcare professional performs a physical investigation, or begins treatment or personal care provision, without obtaining valid consent then they could face legal action and a compensation claim could be made on the patient's behalf.
What Is 'Failure To Provide Consent'?
The Department of Health drafted a guide to consent for examination or treatment, which advises healthcare professionals that it is a general legal and ethical principle that valid consent must be obtained before a physical examination is conducted, treatment is administered, or care is provided to a patient.
Medical consent is not specifically detailed in any legislation, however common law has established that medical professionals cannot perform certain actions without informed consent, namely these actions are as follows:
- Medical examination: This mainly relates to touching, as a healthcare professional cannot touch a patient for a medical examination without valid consent – touching a patient without consent could result in a civil or criminal offence of battery
- Treatment: Patients should give informed consent to any treatment. Whether the treatment in question relates to a course of prescription drugs or to major surgery, patients should give informed consent as without consent any issues that arise from the treatment could contribute to a negligence claim
- Administering of care: Care provisions should be presented to patients before being administered, and patients should give their consent that they are happy for the provisions to go ahead, without consent any issues that arise from the care could result in a negligence claim
While these are the three main areas pertaining relevant to patient consent, there are a number of other medical processes that require implicit consent, so if you have had an experience in a medical facility that you did not consent to you may be eligible to claim compensation.
What Does The Law Say On Medical Consent?
Common law, also known as case law, has established a number of general principles that outline how healthcare professionals should approach consent from their patients.
The most important principles from the relevant cases that establish common law are as follows:
- Patients have a right to refuse treatment, even if that refusal may result in serious illness, injury, or death – if the patient has the mental capacity to refuse treatment then their wishes must be adhered to by health professionals
- In cases where a patient does not have the mental capacity to provide or refuse consent to a medical professional (as outlined in the Mental Capacity Act 2005), another individual cannot give consent for them, unless they have been authorised to give consent under a Lasting Power of Attorney, or they have been appointed deputy by a court
- Patients must be made aware of all of the risks involved in treatment or surgery, if they are not made aware they cannot have given full informed consent for the treatment. Sufficient information to provide consent is one of the most important aspects in this topic, as without sufficient evidence consent cannot be an informed decision made by the patient
As laid out in the Department of Health's guidelines, consent must be given voluntarily by an informed individual that understands all of the details surrounding their decision. Voluntary consent means it is made freely by an individual, without pressure or undue influence from a third party – this means even if you did provide consent you could make a claim against a health professional if you felt they unfairly influenced your decision.
The form of consent provided by a patient is not relevant to the nature of a case, consent can be verbal, written, or just implied.
An example of implied consent is an individual holding their arm out after being given all of the information relating to a blood pressure test, if the individual understood the details of the medical examination and held out their arm for the test to be administered then they are showing their consent.
It is also important to note how the legal precedents set out in cases of medical consent affect the duration of consent. If you have provided consent for a particular course of treatment, examination, or surgery then that consent is indefinite. The duration of the consent changes if you change your mind about giving consent, or if the nature of the procedure – and thus the risks involved – change.
When Is Consent Not Needed?
There are some mitigating circumstances that could result in medical professionals not requiring consent, these circumstances are as follows:
- Medical emergencies where the patient is incapacitated and thus unable to provide consent – in cases such as these all medical undertakings, and the reasons for them, need to be explained to the patient when they've recovered from their treatment
- Complications during surgery requires an additional procedure to aid a patient or save their life – there needs to be clear medical grounds for consent not to be sought (i.e. it would have been dangerous to wait and seek consent)
- Other members of the public could be at risk if treatment is not provided – this is normally prevalent in cases of infection, such as rabies, cholera, or tuberculosis, where a lack of treatment could risk public health
- An individual cannot care for themselves and is living in unhygienic conditions – under the National Assistance Act 1948, individuals that are severely ill and cannot care for themselves can be taken into care without consent if they are living in unsanitary conditions
- A patient with severe mental health condition is not providing consent for treatment relating to their condition – a situation such as this is governed by the Mental Health Act 1983, which outlines that treatment for severe mental health conditions can be provided without consent, if healthcare professionals suspect that a patient is refusing treatment because of their condition. In these circumstances treatment for unrelated conditions (such as physical injury) still requires consent where possible
Knowing If You Have A Claim
If you have had any medical treatment, examination, or surgery – from either the NHS or a private healthcare provider – that you did not implicitly consent to then you may have a claim. Claims are usually based around the physical or psychological harm caused by unconsented treatment and should be seen as a way of compensating any loss caused by the experience.
You may have a medical negligence claim against the healthcare provider if consent was not sought, all of relative information was not provided, or if the conditions of the treatment changed and you were not informed.
If you have been affected by a healthcare provider that did follow the strict Department of Health guidelines on seeking consent then you should explore whether you have a claim.
If you do have a claim, the first step is always to report the offending healthcare provider. If it's the NHS then we will complain to the NHS complaints service, while private providers can be reported to other professional bodies.
Once a complaint has been lodged with the relevant authority we will get to work to gather evidence for your case and will represent you at settlement negotiations, or in court, to ensure you receive a compensation payment that is sufficient to the merits of the case.
Understanding The Claims Process
If you have been involved in an incident with the NHS, or any other healthcare provider, then the steps for making a claim are as follows:
- Establish that a healthcare incident has occurred without your consent
- Make a complaint to the NHS Complaints Board – or to a relevant healthcare organisation if the incident happened in private care – within 6 months of the incident, or within 6 months of gaining knowledge of the incident, there is a 12 month time limit on lodging an official complaint
- Lodging a formal complaint could result in an apology for the incident and could help to improve standards. The NHS will not offer a monetary settlement at this time but may offer a token ex gratia sum (a monetary sum that they have no obligation or liability to pay)
- If this does not occur, or you are dissatisfied with the outcome of your complain, you should seek legal advice
- Your Solicitor will gather evidence of your case and start a civil claim against the healthcare provider
- If no acceptable settlement offer is made a Judge will decide on the outcome in a claims court
Remember, civil claims need to be made within 3 years of the incident taking place, or within 3 years of gaining knowledge of the incident. In cases of a minor then the time limit on a civil claim is 3 years after their 18th Birthday.
Getting Legal Advice
Due to the precarious nature of common law, medical negligence cases involving informed consent can be difficult to navigate. It is advisable that individuals who did not provide consent and have in turn suffered from medical negligence seek legal advice from a team of specialists, who will be able to lay out the claims process in jargon-free language.
At Simpson Millar, our team of medical negligence solicitors are experts in handling sensitive cases involving informed consent.
If you have suffered medical negligence and feel that you did not provide informed consent to a procedure, get in touch so that we can provide tailored advice specific to the merits of your case.
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