Surgical negligence compensation claims and informed consent.
When undergoing surgery, the informed consent of adult patients who have capacity must be obtained by the surgeon before any treatment takes place.
Obtaining informed consent is crucial as it provides the patient with an understanding of the proposed procedure, including the recognised risks and benefits. This enables you to make an informed decision as to whether to go ahead with the procedure or not.
Risks will often be associated with complications that are known to occur and the likelihood of success of the procedure. The risks involved with a procedure may also change depending on different treatment options.
If you are not provided with this information, the surgery will have been carried out without your ‘informed consent’ and this could give rise to a medical negligence claim.
For consent to be valid, it must be given by a patient voluntarily and they must be fully informed. The patient must also have capacity in making the decision to go ahead with the procedure.
Informed consent therefore has three separate elements:
- Voluntary: The decision to grant consent must be made by you on your own and must not be influenced by anyone else.
- Informed: You must be given all of the relevant information that relates to your surgery and what it involves, from the risks and benefits of the procedure, to alternative treatments. The surgeon and medical staff performing the surgery are under a professional duty to inform you of these.
- Capacity: You must be capable of giving consent, this means that you must have an understanding of the information given to you and use it to make an informed decision.
Your consent should be obtained ahead of the surgery to provide you with enough time to make an informed decision. Whether you decide to go ahead with the surgery or not, your decision must be respected.
Consent can be given in any of the following ways:
- Verbally
- In writing
- Non-verbal consent – for example, by holding out your arm for a vaccination.
You are entitled to withdraw your consent at any time before the procedure is completed.
It may not be necessary to obtain consent where :
- You are unconscious but need emergency treatment to save your life; this decision must be fully explained to you post-surgery.
- You are in need of an emergency procedure during an operation and there is a medical reason why consent was not obtained.
- You lack the capacity to consent under the Mental Health Act.