A Guide to Claiming Lack of Consent Negligence Compensation

If your life, or the life of a loved one, has been affected by medical negligence we can help.

The purpose of this guide is to help anyone who has suffered medical negligence and is considering a legal claim for compensation. If you are looking for medical advice, please see the NHS website.

Introduction

Patients who are scheduled to have a pre-planned operation will be asked to sign a form consenting to the procedure.

Consent is not simply a matter of saying 'yes' to the operation. In order to make a decision about whether to go ahead, the patient must be advised of the nature of the procedure together with the possible risks.

Giving consent in full knowledge of the facts is called "informed consent."

Anyone who has not been properly consented for a medical procedure may be able to bring a claim against their surgeon and the relevant health authority. The claim will be a type of clinical and medical negligence compensation claim.

Lawyer and claimants

Do I have a lack of consent negligence claim?

Medical negligence claims differ from personal injury claims as the following will need to be established:

  • there was a breach of duty ("negligence" or "fault"); and
  • the breach of duty was the cause of your injury, damage or loss ("causation" or "avoidable harm").

Breach of Duty

A breach of duty means that the standard of care you received was below the standard that could reasonably be expected of a competent healthcare professional.

Causation

To establish causation, it will need to be demonstrated that the injury you suffered resulted from the negligent care rather than the underlying condition.

Get an impartial opinion

To get impartial advice on whether you have a claim, speak to a lack of consent negligence claim expert on 0800 612 7456.

A brief phone consultation will tell you exactly where you stand. There is no obligation to start a claim.

You can also find out if you have a claim with our Online Claim Checker.

Is compensation always payable?

If an error occurred during treatment and the patient was harmed as a result, this may be referred to as an "undesirable outcome".

Not all treatment that results in an undesirable outcome will result in the payment of compensation.

Sometimes an undesirable outcome is due to a known risk associated with the treatment, or due to a mistake that a doctor could reasonably have made in the circumstances.

What if a child was injured?

The 3 year rule does not apply to minors.

A claim can be pursued for anyone under the age of 18 by a parent, guardian or litigation friend. The injured child has up to the age of 21 to start a lack of consent negligence claim on their own behalf.

Read more about claiming injury compensation on behalf of a child.

What if I was diagnosed months after the lack of consent negligence?

Depending on how your lack of consent negligence happened, the three-year time limit may only start from the date you are diagnosed and learn of the cause of your injury. In some cases, this can be months or years after the cause occurred.

What if there is no evidence?

Evidence can take the form of eyewitness accounts, CCTV footage, photographs etc. It will be difficult to win a lack of consent negligence claim with no evidence at all. You may feel that there is no evidence but a solictor may well be able to assist in collating evidence that you, as a claimant, were unaware of.

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How long do I have to start a claim?

If your injury is apparent immediately after medical treatment, you will have 3 years to start a claim.

It may be that the negligent procedure happened more than 3 years ago, but your injury was only diagnosed recently, within the last 3 years. If so, you may still be able to make a claim.

What if your injury was diagnosed months or years after treatment?

You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.

The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).

It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.

How much compensation can I claim for lack of consent negligence?

The amount of money you could claim for your lack of consent negligence will depend on:

  • the extent of your injury, and
  • any financial losses or costs you have incurred.

At the start of your claim, your solicitor will consider the many ways your lack of consent negligence has affected your life. Your solicitor will take all of these effects into account to calculate the correct compensation award for you.

This calculation will factor in 'general damages' and 'special damages'.

General damages

General damages are awarded for pain, suffering and loss of amenity (PSLA).

Awards for general damages are set by the Judicial College and published in their guidelines for personal injury awards.

Special damages

Special damages are for financial losses and expenses you have incurred as a result of the accident.

What can I claim for after a lack of consent negligence? (see list)

Examples of special damages (losses you can claim for) include:

  • Lost earnings (including future earnings)
  • Medical treatment costs
  • Physiotherapy
  • Travel costs
  • Costs of care
  • Costs of adapting your home or car

What is the average injury compensation for a lack of consent negligence claim?

The Judicial College injury tables give a approximate idea of the ranges awarded for different injuries.

However, the money you would receive following a lack of consent negligence will depend entirely on your specific circumstances.

Your lack of consent negligence compensation will be calculated based on the unique impact your injuries have had on your life, your ability to work, and the actual financial losses you have incurred as a result of your injuries.

See the injury table above for some examples.

Find out what your lack of consent negligence claim could be worth now

Assessing a claim's value at the outset can be complicated, particularly if you have multiple injuries.

If you would like a FREE claim estimate with no obligation to start a claim, call 0800 612 7456.

Alternatively, our compensation calculator will give you an instant estimate of what your claim is worth.

Can I claim for prescription costs?

Special damages?are awarded for costs or losses incurred as a result of the lack of consent negligence injury. Damages can include loss of earnings, treatment cost and any other 'out-of-pocket' expenses such as prescriptions.?

Calculate my claim

Caring and sensitive support

Your solicitor will handle your lack of consent negligence claim from the initial consultation through to the financial settlement. In addition, your solicitor will work with other specialists to help you with:

  • Financial support: interim payments while you are unable to work.
  • Advice: on personal injury trusts, tax and welfare benefits.
  • Coordination: with rehabilitation providers and therapists.
  • Access: to treatment and therapies not always available on the NHS.

What is consent to a medical procedure?

Informed consent occurs when a person agrees to receive an operation after receiving all the facts. This means that a doctor must tell the patient about:

  • The procedure
  • The frequent risks
  • Rarer risks, if they are serious when they do occur
  • Any risks the patient specifically asks about
  • Alternative treatment or therapy, including the option to do nothing.

To clarify, the doctor does not have to mention all the risks associated with a procedure. The patient is entitled to receive the information that a reasonable person in the patient's position would wish to know in order to make an informed decision. The doctor generally would not be liable if they failed to mention unusual or trivial risks.

Why do I have to give consent?

Carrying out an non-permitted surgery is recognised as a type of criminal injury. Signing a consent form protects the surgeon from criminal liability, as well as giving the patient more control over their medical care.

When might there be a lack of consent?

Lack of consent medical negligence claims typically arise when there is a complication during surgery and:

  • The patient has not consented to the surgery unless the treatment was given in an emergency to save the person's life
  • The consent form failed to specify the particular complication as a reasonably foreseeable risk of the surgery
  • There was a higher risk of that complication occurring than was specified on the consent form. For example, the doctor may have told the patient that there was only a 0.5 percent chance of bleeding after the surgery, when in fact the risk was 5 percent
  • The patient received a different procedure to the one they consented to. For example, the patient received invasive surgery when they consented only to keyhole surgery.

Proving a lack of consent medical negligence claim

Allowing a pre-planned operation to go ahead without a signed consent form would be a gross oversight on the part of the medical team. The patient almost always will have a lack of consent medical negligence claim if they did not consent at all to an operation and injury arose as a result.

Where the patient has given some form of consent, establishing liability can be complicated. To bring a successful claim, the injury lawyer must show that:

  • The surgeon did not explain the risks and benefits of the proposed treatment and of alternative treatments
  • With full information, the patient would not have consented to the treatment
  • The treatment caused the patient's injuries.

For major surgery, it is usual for the consent form to list the risks that have been discussed with the patient. However, this is not mandatory. Where liability is not admitted, the injury lawyer will gather evidence such as medical records and witness statements to show that the patient was not told about the complication that occurred.

No win, no fee, no risk

No win, no fee takes the risk out of making a lack of consent negligence claim. If you don't win any compensation, you won't have to pay your solicitor any legal fees.

No win, no fee guarantee

If you have been injured and it wasn't your fault, our no win, no fee guarantee takes the risk out of claiming compensation for your lack of consent negligence injury.

What do I pay if I win my lack of consent negligence claim?

Your injury solicitor will receive a success fee which is deducted from your compensation, after your compensation is awarded. The solicitor's success fee can be up to 25%. You and your solicitor can agree the success fee before you start your claim.

What do I pay if I do not win my lack of consent negligence claim?

If your lack of consent negligence claim is not successful then you will not have to pay any fees.

Read more about making a No win, no fee claim

Please note, under a No Win, No Fee Agreement (CFA), fees may apply if a claimant refuses to cooperate, or abandons their claim after the legal work has started, or if the claim is fraudulent.

How can Quittance help?

Our highly experienced panel of solicitors have an excellent track record of winning medical negligence claims. Your solicitor will fight for the best possible compensation settlement for you.

If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.

Call us FREE 0800 612 7456 or arrange a callback:

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Lack Of Consent Negligence FAQ's

Can I claim for someone else?

Yes. In certain circumstances, it is possible to claim compensation on behalf of another person in the capacity of a 'litigation friend'.

If an injured person is either too young or vulnerable, too injured or otherwise unable to claim on their own behalf, their litigation friend can handle the claim process on behalf of the injured person.

The litigation friend will be responsible for communicating with the solicitors, and for making decisions in respect of the claim.

Read more about claiming on behalf of another person.

How long will my claim take?

The length of time needed to secure compensation can vary considerably.

For example, straightforward car accident claims can settle in a matter of weeks, whereas complex medical negligence cases can take years.

Injury claims can also take longer if it is not clear who is responsible for your injury, or if liability is denied by the defendant.

Taken from average case times, this table sets out approximately how long personal injury claims take to settle:

Personal injury claim type

Estimated claim duration*

Road accident claims

4 to 9 months

Work accident claims

6 to 9 months

Medical negligence claims

12 to 36 months

Industrial disease claims

12 to 18 months

Public place or occupiers’ liability claims

6 to 9 months

MIB claims (uninsured drivers)

3 to 4 months**

CICA claims (criminal assault)

12 to 18 months**

*RTA and other claims processed through the Ministry of Justice portal can settle faster.
**Official Criminal Injuries Compensation Authority (CICA) Government agency and Motor Insurers’ Bureau (MIB) figures.

Read more about how long personal injury claims take.

Will I have to go to court?

Highly unlikely. The vast majority of claims that are settled by Quittance’s solicitor panel are settled out of court.

Only a very small percentage (approx. 5%) of personal injury claims go to court. Generally, only very complex cases, or those where liability cannot be resolved, end up in court.

Cases that do ultimately go to court are held in front of a judge, not a jury.

Read more: Will my injury claim go to court and what if it does?

Will I have to go to a solicitor's office?

No. You will not need visit a solicitor's office. As with most professional services, it is no longer necessary to meet face to face with your solicitor. Personal injury claims are dealt with via email, post and telephone.

Should you need to have a medical, this will be arranged at a medical centre near you or at your GP's surgery.

Read more: Will I have to visit a solicitor's office?

Can I get an early compensation payment?

If you suffer financial hardship as a result of an injury, you may be able to claim an interim compensation payment.

An interim payment is a partial settlement of your claim which is paid before your claim is concluded. The amount you receive in interim payments would then be deducted from your final compensation settlement or award.

Read more about interim compensation payments.

Howard Willis, Personal injury solicitor

About the author

Howard qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.

Read more about this Quittance Legal Expert