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Understanding consent in medical negligence claims

Consent is a fundamental legal and ethical principle. As a patient, you have the right to be involved in options about your treatment and care and to make informed decisions.

The process of going through medical treatment is naturally daunting. It can be tough to navigate yourself through such an experience. That is why it is up to the medical professionals to guide and support you as much as possible. Unfortunately, this is not always the case and sometimes medical professionals make errors when providing medical treatment, care, or procedures.

A very big part of medical treatment is consent.

Consent in medical treatments

Consent is a fundamental legal and ethical principle. As a patient, you have the right to be involved in options about your treatment and care and to make informed decisions.

The exchange of information between a doctor and a patient is essential for medical decision making. When a patient’s concerns are not listened to or if they are not given the information they need, it can cause serious problems. A patient needs time and support in order to understand what could potentially happen to them.

Informed consent is the act of agreeing to allow something to happen, or to do something, with a full understanding of all the relevant details, including risks, and available alternatives.

Practitioners must be satisfied that they have a patient’s full consent, or consent from other valid authority, before providing treatment or care. When a medical practitioner fails to obtain adequate informed consent, it could have serious consequences for both the patient and the practitioner. When a medical practitioner acts without consent, they open themselves to the possibility of a complaint to the Medical Council, a medical negligence claim, or even criminal charges and losing their medical licence.

The Health Service Executive (HSE)’s national consent policy defines consent as ‘the giving of permission or agreement for an intervention, receipt or use of a service, or participation in research following a process of communication about the proposed intervention’. Obtaining informed consent is a fundamental principle of medical law.

The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Professionals specifically references the need to obtain consent before any medical investigation, examination, or treatment. Treatment includes medicines. This Medical Council guidance is especially relevant when prescribing high-risk medication. Patients should be informed of all the risks and side effects of every medication. This consent process should be carefully documented in the medical record of the patient.

There are three components to consent:

Adequate information: The patient must be given enough information to make a choice. Without the correct information any consent given is not valid.

Capacity: The patient must have the capacity to understand and make the decision in question. If a patient does not have the capacity to understand and/or make the decision, then their legal guardian or next of kin must give their informed consent.

Voluntary: The patient must be able to give their consent freely and without coercion.


Proving consent negligence

The basis for medical negligence is whether the medical practitioner has acted in accordance with the law.

In a medical negligence case involving consent negligence, the burden of proof rests on the plaintiff and their legal representative. To prove negligence, it must be shown that the healthcare provider failed to obtain proper consent, or that the patient did not fully understand the risks, benefits, or alternatives to the treatment, and that this lack of informed consent resulted in harm.

Your solicitor will order an independent medical expert review. This third party will analyse your case, medical records, and actions of the practitioner to show if medical professional was in fact negligent. They will either confirm or deny that, in their medical opinion, injury or illness could have been avoided.

Consent form negligence

Here is a closer look at some potential problems related to consent form negligence.

– The consent form did not identify the complication that the patient ended up experiencing.

– The patient was pressured to sign, or if they signed at a time when their mental competence was compromised—due to an illness, intoxication, or the effects of medication.

– The complication that occurred was much more common than the consent form suggested.

– The practitioner’s explanations of the potential complications were different from what was on the consent form.

This can occur when the consent form downplays the chances of a certain complication— for example, the complication is known to occur 25 percent of the time during a given procedure, but the consent form states that it occurs only 1 percent of the time. As a result of this, the patient could argue that they would not have undergone the procedure had they known of the full risk involved.

If you believe that you have suffered because of medical negligence, either by way of an injury or the worsening or deterioration of a pre-existing condition, you may wish to discuss making a medical negligence claim.

To find out more, contact us and tell us about your case.