According to academic research, the number of negligence claims lodged against the NHS for failing to inform patients prior to medical/treatment procedures has increased dramatically over the last few years.
A patient is legally and ethically entitled to an explanation of the facts concerning the nature of a procedure and the potential risks, as well as any alternative treatment options. Failure to adequately and clearly inform a patient could have a serious impact on their decision to proceed with the medical procedure.
The purpose of this article is to highlight the worrying surge in medical negligence compensation claims for lack of informed consent in the NHS.
Study on Negligence Claims Against the NHS for Lack of Informed Consent
According to research conducted by Queen Mary University of London, NHS negligence claims relating to consent have increased four-fold since 2015—or ten-fold if failure to inform is considered a contributory claim.
The researchers collected data on claims settled by the NHS since 2005—following Freedom of Information requests. They found out that failure to inform claims had a substantial impact on medical negligence payouts which rose sharply to £62m per year between 2015 to 2019.
This increase in negligence claims relating to consent is attributed to a landmark legal case (known as Montgomery) in the Supreme Court. The judgement by the Court of Appeal changed the legal test for determining sufficient medical consent. Rather than basing informed consent on what a reasonable doctor deems sufficient, the 2015 case moved towards asking what a reasonable patient expects to know.
In the Montgomery-v-Lanarkshire case, a 5ft tall woman experienced complications during her vaginal delivery with the baby experiencing shoulder dystocia which resulted in cerebral palsy. Ms Montgomery argued that she would have requested a Cesarean section had she been made aware of the risks of this complication being associated with diabetes, small mothers and large babies. The UK Supreme Court ruled in her favour.
Section 116 of the judgement noted details from the National Institute for Health and Care Excellence (NICE):
“As NICE (2011) puts it, “Pregnant women should be offered evidence-based information and support to enable them to make informed decisions about their care and treatment” (para 18.104.22.168). Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.”
According to Professor David Wald, the Queen Mary study lead:
“Although the Supreme Court case in 2015 was reasonable in overturning the judgement in favour of the claimant, Nadine Montgomery, our research shows that the broader implications of the ruling have had serious, unintended consequences for the NHS. By blurring the requirements for what doctors should tell patients and changing how negligence is determined, it has made it harder for hospitals to defend allegations of failing to properly inform patients before consent. The Supreme court believed their ruling would reduce litigation but the opposite has happened.”
Professor Wald goes on to say
“Claims involving failure to inform are normally invisible in the overall numbers of negligence claims, but the rise we’ve identified is striking and shows no sign of stopping…The data support concerns that lawyers are adding consent-related claims to other allegations which on their own may not be successful in court. The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill.”
In an article published May 2017, The BMJ recognised the importance of patients as decision-makers:
“The full implications of the case are undoubtedly still unknown, but Montgomery has clear relevance for medical law and ethics. Legally, consent law has been clarified and aligns with current GMC guidance, and the Montgomery test has already been applied in several cases. Ethically, it clarifies the existing shift towards a more cooperative approach in the consultation room. The Montgomery ruling has not radically changed the process of consent; it has simply given appropriate recognition to patients as decision-makers”.
So, what exactly is informed consent and why is it necessary?
What is Informed Consent?
In a medical procedure, informed consent refers to the legal and ethical expression of a patient’s right to have their self-determination and autonomy respected. All healthcare professionals must provide/disclose reasonable information relating to a medical operation before the procedure. Below are some of the facts that help patients make an “informed” decision:
- Nature of the procedure and its benefits.
- Common risks with the procedure and those expected by a reasonable patient.
- Rare risks and the consequences of the procedure.
- Alternative therapies or treatment options—including the riks or benefits of foregoing the treatment altogether.
- Any concerns raised by the patient.
“Informed consent” is therefore giving consent in full knowledge of the facts.
Why do I Need Informed Consent?
Informed consent gives patients the autonomy to make decisions regarding medical procedures. You can agree or agree with some (or all) of the doctor’s recommended treatments. Patients have to sign a consent form to prove participation and agreement to the procedure. This theoretically gives patients more control over their health care and can help protect the treating physican avoid criminal liability.
Knowledge of what could potentially go wrong and the available options could influence a patient’s decision as to how or whether to proceed with the treatment.
When Might There be a Lack of Informed Consent?
Failure to inform—and obtain consent—could be reflected in the following situations:
- The probability of risk was significantly higher than specified by doctors.
- The procedure performed was different from the one consented to by the patient.
- The doctor did not specify the complication as a reasonable risk of the medical procedure eg, an operation or procedure.
- The patient was not adequately advised of alternative procedures—which could have altered their decision on the preferred treatment options.
- Failure to give the patient enough time to make an informed decision based on the risks, benefits, and alternative options.
- Failure to elaborate on what constitutes a successful procedure.
It is important to note that the 2015 Montgomery case may have created some abiguiity as to what constitutes informed consent. As David Wald noted:
“One of the problems for the NHS is the subjectivity of determining exactly what constitutes a material risk to a patient…This may differ considerably between patients undergoing the same procedure, based on lifestyles and hobbies which may not always be disclosed to doctors in the discussion before consent.”
Claiming Compensation for Lack of Consent to Surgery or Treatment
A patient who is not well-informed on the nature and risks of a medical procedure and the full range of treatment options, may bring a compensation claim for medical negligence.
For a lack of consent medical negligence claim to succeed, it must be proved that:
- The surgeon, consultant, GP or other healthcare professional did not explain the risks and benefits of the proposed surgery or treatment and alternatives to that surgery or treatment
- The patient would not have consented to the treatment had they been provided with the full information
- The treatment or procedure caused the patient’s injuries.
We have helped a client obtain £700,000 compensation for the failure to be informed of the treatment options available; she was wrongly advised to have knee replacement surgery.
If you would like to discuss making a claim for compensation as a result of a failure to properly inform you about your options or the risks associated with your procedure please call our No Win No Fee medical negligence solicitors.
Our medical negligence compensation claims service provides:
- A free no-obligation case evaluation
- Advice on the probability of success for a lack of informed consent claim and the amount of compensation you could potentially obtain
- Friendly, compassionate and experienced claims experts
- A No Win No Fee agreement i.e. you will not incur any costs if your claim is not successful*.
- Access to a network of medical experts and specialist barristers
Our experts work hard to secure victims of medical negligence the justice and compensation they deserve.