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.
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.
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.
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.
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.
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 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 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
- 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.
Will a clinical negligence claim affect my benefits?
It may. The receipt of a compensation award could affect the calculation of any means-tested benefits. One approach to protecting your benefits, would be to set up a "Personal Injury Trust" or "PI Trust". Read more: Should I set up a personal injury trust?
Lack of consent negligence compensation
Calculating how much compensation you can claim for a lack of consent negligence injury can be complicated.
Our injury compensation calculator tells you if you may have a claim, how much compensation you could claim, and what you can claim for.
Find out what your lack of consent negligence claim could be worth now:
How long does a medical negligence claim take?
The length of time needed to secure compensation for lack of consent medical negligence can vary significantly.
For instance, a straightforward liability accepted medical negligence claim could be settled in 12 to 24 months. However, if liability is denied it could take 2 to 5 years. Usually, a medical negligence claim should take 12 to 36 months. To read more about how long your claim could take, see:How long will my claim take?
Will I still be able to claim for a lack of consent negligence after the law changes in April 2020?
The law relating to personal injury claims is changing in April 2020.
You will no longer be able to claim no win, no fee compensation using a solicitor for lower value claims (under £5,000).
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
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. Your solicitor may take out insurance to ensure there will be nothing to pay.
Is there a penalty if I withdraw?
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?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning medical negligence claims.
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:
if you can claim
to start a claim
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.
Will I have to go to court?
Highly unlikely. The vast majority of claims that are settled by the 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.
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.
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.
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