Lack of consent negligence claims

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Jenny Jones

Panel Senior Litigator

A guide to making a No Win No Fee lack of consent medical negligence claim

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

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.

Making a no win - no fee lack of consent claim

Typically a no win no fee arrangement (also called a CFA or Conditional Fee Agreement) is agreed between the claimant and a qualified solicitor.

A CFA is the terms and conditions under which the solicitor works for the claimant.

It documents what the lawyer will do and how the solicitor will be remunerated if your compensation claim is won.

If you choose Quittance Personal Injury for your lack of consent compensation claim there are absolutely no extra fees , nothing to pay up-front and the reassurance that you will never be out of pocket.

Next steps

More information

Quittance recognises that potential Claimants will most likely have questions before deciding on whether or not to begin a claim.

To discuss your circumstances with a solicitor, call Quittance on 0800 6127456.

For answers to questions about how personal injury compensation claims work please see our FAQ page.

Start your claim

You can contact Quittance's solicitors on 0800 612 7456 when you are ready to start your compensation claim and you can also start the claims process online now.

Alternatively, you can arrange a call back at a time that is convenient for you.